Lords Sitting of 17 July 2003

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

Royal Assent
The Lord Chancellor (Lord Falconer of Thoroton): My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Act:
Communications Act.

Guantanamo Bay Detainees
11.5 a.m.
Lord Judd Lord Judd asked Her Majesty's Government:
How many representations they have made to the United States Government concerning Guantanamo Bay and its detained "unlawful combatants", as they are described by the United States Administration; and what was the outcome of their representations.
The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, from the outset, the Government have urged the United States Government to resolve the position of the detainees. The Government are currently making vigorous representations to the United States Government about the future of the UK detainees at Guantanamo Bay. These representations cover a range of issues, including the need for any trials of UK detainees to be fair and to accord with international law, as well as the possible return of the detainees to the United Kingdom. My right honourable friend the Prime Minister will raise this matter with the President of the United States in the course of his imminent visit to Washington.
Lord Judd: My Lords, does my noble friend agree that if the Prime Minister is resolute and unequivocal on this matter, he will certainly have the backing of the entire nation? Does she also agree that, important as the British subjects obviously are—still waiting, with their families, to learn the nature of the charges—the matter is much greater than those British subjects? It is the whole issue of human rights and the international rule of law. Does she agree that the whole purpose of the stand against global terrorism is to preserve human rights and the international rule of law? Does she further agree that that stand is certainly not so that the powerful can unilaterally rewrite international law and their interpretation of the applicability of human rights? Finally, does she agree that the danger in this
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situation is that it is proving to be a very effective recruiting agent, through disillusion, dismay and even anger, for the extremist terrorists?
Baroness Symons of Vernham Dean: My Lords, on the last occasion that we discussed this issue in your Lordships' House, when I repeated a Statement, very similar points were made about the wider implications of what is happening in relation to the detainees at Guantanamo Bay. I believe I said then that I felt that the issues did go wider, as did the one concerning the British nationals, and that it was in the United States Government's own interests to resolve them along the lines of the norms of international law. Were they not to do so, they would themselves find that there would be those who felt that the United States Government had not lived up to their own high standards.
However, I should say to my noble friend that our first issue must be that of our own nationals. The matter on which many people in the United Kingdom are focused concerns the two British individuals among the group of six originally designated by the United States. Of course my right honourable friend will be concentrating on those British nationals in the first instance. However, I take my noble friend's broader points, and I believe that they are widely recognised by Her Majesty's Government.
Lord Howell of Guildford: My Lords, does the Minister agree that it probably does not make much legal sense to think in terms of the repatriation of these two accused individuals, but that that makes it all the more important to insist, as has been emphasised by the noble Lord, Lord Judd, on due process, proper trial proceedings, proper representation and clear charges? Does she accept that while noble Lords on these Benches recognise all the legal problems of trying to bring the two individuals back to this country, we think that the principles of due process are absolutely essential and should be pressed with the utmost vigour?
Baroness Symons of Vernham Dean: My Lords, as I indicated in my original Answer, the issue of the possible return of the detainees to the United Kingdom is still a matter under discussion, although, as I am sure all noble Lords are aware, it is not possible for the United Kingdom Government to give any guarantees even about a trial taking place because of the separation of powers—rightly—between the Government in the form of Government Ministers and the Crown Prosecution Service as the body which would decide whether there is sufficient evidence to go to trial.
However, the noble Lord is quite right to remark that the issues adduced by him of due process and the right to a fair trial still arise. Further, there are widely recognised international norms covering the various elements that constitute a fair trial which my right honourable friend will be addressing with the President of the United States.
Lord Thomas of Gresford: My Lords, in the course of his discussions on this topic, will the Prime Minister impress upon Mr Bush the point that if he thinks that

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the procedures of the military commissions are fair, then the presence of international observers at the hearings, in particular in relation to the British nationals, may promote confidence in the fairness and integrity of those proceedings? If they are not fair, the constructive criticism that would result may at the very least help the authorities to modify those procedures or, it is hoped, cause them to abandon such procedures altogether.
Baroness Symons of Vernham Dean: My Lords, the question raised by the noble Lord may be premature at this stage; we are still discussing what those procedures should be. If the trials as originally formulated by the United States authorities do go ahead, I think that there would be grave difficulties as regards any observers feeling that those trials would be fair on the basis that we have already discussed. There is no secret about this issue. The United Kingdom Government have very strong reservations about what is being proposed at the moment. However, to take the point that were some of those issues to be resolved and the trials to go ahead, I can agree with the noble Lord that the presence of international observers would provide something of a confidence boost to the international community. As my noble friend Lord Judd pointed out, this is a question not just for the United Kingdom but also for the international community.
However, we must recognise that some of the issues which may be brought up at those trials may have to be dealt with in camera, for very obvious security reasons.
Lord Dubs: My Lords, does my noble friend agree that the conditions under which these individuals are being held in Guantanamo Bay would be unacceptable within the British prison system or, indeed, within the prison system in the United States? Given that those conditions have been oppressive, many of us seek assurances that, if the individuals are brought to trial, it should not happen in circumstances where they have been, so to speak, coerced and oppressed into possibly pleading guilty and are not able to speak up for themselves after the period that they have been held in detention. Enormous concerns will be raised about the way in which such trials will be conducted, given the circumstances surrounding the detention of these people.
Baroness Symons of Vernham Dean: My Lords, the noble Lord raises two issues. We have made representations to the United States Government in regard to the physical conditions under which the individuals are held—for example, the inadequate facilities for exercise and the inadequate facilities for contact with their families. Representatives of the International Red Cross have visited Guantanamo Bay and are giving their advice to the United States Government.
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The more difficult issue pinpointed by my noble friend concerns coercion. It might be argued that a system of plea-bargaining where the alternative to admitting to charges is to face the death penalty is a coercive and difficult line of pre-trial cross-examination.
Lord Campbell of Alloway: My Lords, on the issue of coercion, is it correct that these men are denied access to an advocate of their own choice? If it could be agreed with America that the men could choose their own advocates—and there are some very fine ones in America—that would perhaps go some way.
Baroness Symons of Vernham Dean: My Lords, as I understand it, the United States proposes that individuals should be given an advocate chosen from a panel of military lawyers. If an individual does not want to go along with such an arrangement, there may be an opportunity for him to go to an alternative lawyer, but that lawyer will still be drawn from a panel of lawyers who have been vetted by the United States for security purposes. I understand that those are the proposals currently under discussion.
These matters are still under discussion with the United States. As I indicated when we last debated this issue, my right honourable friend the Foreign Secretary is dealing with these matters with his opposite number, Colin Powell. He has raised the serious concerns that we have over the kind of issues raised by the noble Lord and they have agreed that discussions on them will continue.
Baroness Kennedy of The Shaws: My Lords, does the Minister agree—
The Lord President of the Council (Lord Williams of Mostyn): My Lords, I am sorry, we have already drifted well over time.

Olympic Games 2012
11.15 a.m.
Lord Moynihan Lord Moynihan asked Her Majesty's Government:
What progress is being made to secure a successful bid to host the 2012 Olympic Games in London.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey): My Lords, Barbara Cassani has been selected as the leader for the London bid and is actively recruiting a high quality team. Work is well advanced on the preparation of a development strategy for the Olympics zone in the Lower Lea Valley that will also meet local regeneration aspirations and be of lasting value to the community. Work is also under way on the development of a robust transport solution for the games. Government, the Mayor and

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the British Olympic Association are fully committed to supporting the London hid team in the preparation of a top-class winning bid.
Lord Moynihan: My Lords, we warmly welcome the Government's strong support for the London bid, which we share. I was pleased to note that the Prime Minister is on record as saying that he will,
"back the bid to the hilt",
which of course means that it is inconceivable that we will lose. So why are the Government, alone among all the competing bids, to preside over cuts in the world-class performance programmes to support our young elite sportsmen and women on whom our hopes of medal success depend? And why, when the Government are introducing a welcome Olympics lottery game, are they considering taxing the proceeds and not reinvesting the tax take into the Olympics bid?
Lord McIntosh of Haringey: My Lords, as to the noble Lord's first point, there are two aspects to encouraging sport. First, there is the aspect of elite sport, which concerns those who will be competing soon. We have allocated £58 million to elite sport in the past financial year. Secondly, and perhaps more importantly in the longer term, there is the money spent on sport in schools and clubs and on coaching and so on. On this aspect we have allocated £1.2 billion for the period 2002–06.
As to funding and lottery money, it is estimated by Ove Arup that the total cost of holding the games would be £3.6 billion, of which £2.5 billion would be met from revenue, with the remainder coming from a funding package from the Government and the Mayor including £1.5 billion. As the funding package amounts to £2.4 billion, it can be seen that there is ample provision for any revenue shortfall.
Lord Faulkner of Worcester: My Lords, does my noble friend agree that the case for the bid would be immeasurably strengthened if Crossrail could be completed by 2012? This would undoubtedly represent an important part of the robust transport solution to which he referred in his Answer. Why is it not possible for the hybrid legislation to be brought forward and introduced in April so that the necessary planning can be undertaken for the line to be up and running by the time the games start?
Lord McIntosh of Haringey: My Lords, the bid is being prepared on the basis that Crossrail will not be available by 2012. Indeed, Transport for London, the Mayor's organisation, has stated that it does not expect it to be available until 2013–14. That is why the bid has to be prepared without Crossrail. However, the Olympics zone in the Lower Lea Valley is served by no fewer than six rail lines, in addition to the motorway-standard part of the A12.
Lord Addington: My Lords, does the Minister agree that the development of grass roots sports will be of absolutely no use to the Olympics bid if those athletes are not prepared properly for international competition? We
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must make sure that the connection between the two is seamless. Can the Minister assure the House that the Paralympics are seen as a partner in the process and not simply as a tag-on? Even if they are a junior partner, they should be seen to be integrated from the very beginning.
Lord McIntosh of Haringey: My Lords, I entirely agree with the noble Lord as regards his first question. That is why, in my response to the noble Lord, Lord Moynihan, I referred to both elite sports and grass roots sports. As to the Paralympics, the International Olympic Committee sees the Olympics and the Paralympics together. No bid which devalues the Paralympics will have any hope of success, and we recognise that in the way in which we are preparing our bid.
Lord Elton: My Lords, in declaring an interest as a resident in Greater London, may I ask the Minister how much of the cost of staging the Olympics here will fall on the council tax payers of London and how long it will take to be discharged?
Lord McIntosh of Haringey: My Lords, sharing that interest, I understand that the Mayor proposes that there should be an addition to the council tax, which would start only if and when the bid is successful, roughly for a period of 10 years. It would be approximately £20 on band D of the council tax for each of those years.
Lord Burnham: My Lords, if the bid were to be unsuccessful, what would he the cost?
Lord McIntosh of Haringey: My Lords, £17 million.

Smoking in Government and Parliamentary Buildings
11.20 a.m.
Baroness Gale Baroness Gale asked Her Majesty's Government:
Whether they agree with the statement of the Chief Medical Officer in his Annual Report 2002 that the public sector, particularly central government departments and the health service, should take a lead and this year set dates by which their premises should become entirely smoke-free; and whether this should apply to the Parliamentary Estate.
The Parliamentary Under-Secretary of State, Department of Health (Lord Warner): My Lords, the Government are studying carefully all the recommendations made by the Chief Medical Officer. We shall consider how they can be taken forward with all government departments, including the health service. Smoking policies within the Parliamentary Estate are, of course, the responsibility of the parliamentary authorities.
Baroness Gale: My Lords, I thank my noble friend for his reply but, once again, I have to say how disappointed I am with his response. Does he agree that there is now overwhelming evidence to show that

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passive smoking causes ill health in adults, and especially in children, who suffer from asthma and other chest complaints? Does he further agree that the Chief Medical Officer's strong recommendation should not be ignored, and that every employee should have the right to work in a smoke-free environment, especially those who work on the Parliamentary Estate? May I say, in the nicest possible way, that I wish the Government would stop dragging their feet on this issue and implement these recommendations as soon as possible?
Lord Warner: My Lords, let me reassure my noble friend that the last thing we are going to do is ignore the Chief Medical Officer's advice. We agree that there is overwhelming evidence of the damage to health caused by second-hand smoke to both adults and children. We agree that smoke-free places are the ideal, and good progress has been made in this area. We will be following a strategy to encourage this improvement.
The recent publication by the Office for National Statistics shows that, for the first time, 50 per cent of workplaces do not allow smoking at all. That is up from 40 per cent in 1996. It confirms that most people want restrictions on smoking in restaurants and pubs. I draw your Lordships' attention to the fact that the Department of Health has set a good example by making all its buildings smoke-free since April.
Lord Clement-Jones: My Lords, I wonder whether the Minister does not detect some underlying frustration in the CMO's report at the failure of the Department of Health to come to an agreement with the DTI on the introduction of the code of practice on workplace smoking. Is it not high time that the Department of Health got the DTI to agree to the ACOP and introduced it?
Lord Warner: My Lords, the Chief Medical Officer recommends that very serious consideration should be given to introducing a ban on smoking in public places. This issue is still being considered within government and I have nothing to add since earlier discussions.
Lord Geddes: My Lords, as always, I declare an interest, as a member of the Pipe and Cigar Smokers' Club. While acknowledging the perseverance of the noble Baroness, Lady Gale, on this subject, is it not getting rather close to an abuse of Question Time in that she asked a virtually identical question in this House on 1st July? Does the Minister agree with the wise words of the noble Lord, Lord Wallace of Saltaire—who is not in his place—when he said on that occasion,
"do the Government accept that it should be a principle of liberal democracy that government should interfere with people's lives as little as possible, and that further bans should be very carefully justified before the detail of government regulations extend into every aspect of our private lives?"?—[Official Report, 1/7/03; col. 721.]
Lord Warner: My Lords, it is not for me to comment, other than to say that I am always pleased to answer Questions from my noble friend on this subject.
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As regards the quote that the noble Lord read out, I do not think that we can duck out of the fact that smoking, as the Government's Chief Medical Officer has said, is a great danger to health. That is an inescapable fact and it would be an irresponsible government who were not taking forward a range of programmes to make the public aware of these dangers and to deal with issues around tobacco advertising. I do not think that the Government feel in any way repentant about that particular issue. We are aware of some of the issues surrounding a ban, but we think that increasing public awareness of the dangers of secondhand smoke exposure is a significant way forward.
Viscount Simon: My Lords, is my noble friend aware that the chemicals to which people are exposed through second-hand smoke include arsenic, DDT, formaldehyde—which they say is used as a preservative for dead bodies—hydrogen cyanide—which is referred to as a gas chamber poison—Polonium 210, which is a radioactive compound, and toluene, which is an industrial solvent? If these facts were more widely known, would people not give up of their own accord?
Lord Warner: My Lords, I bow to my noble friend's knowledge in this area. He is of course right that cigarettes carry very dangerous compounds and we know that smoking kills over 120,000 people in the UK each year. The good news is that there has been a rise in the number of people quitting since 1999, and about 270,000 people have quit.
Baroness Noakes: My Lords, I take the Minister back to the reply he gave when the noble Lord. Lord Clement-Jones, asked when the Government were going to give their official position on the ACOP. I remind the Minister that the Health and Safety Executive finished consultation in 1999 and we have still not had the Government's official position on the implementation or acceptance of the ACOP. When will he tell us?
Lord Warner: My Lords, we are still carefully considering this report. As I have already said, work is in hand on a large number of other initiatives which are tackling the problems of smoking.
Baroness Finlay of Llandaff: Will the Minister inform us whether the contractors working in government departments and on the Parliamentary Estate are being advised that smoking is not acceptable, given the dangers to themselves, quite apart from the dangers of passive smoking to other people working in government areas?
Lord Warner: My Lords, as I recall, matters for the Parliamentary Estate are for the parliamentary authorities, not for the department. On the wider issue

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it is, of course, the responsibility of employers to make sure that their employees are not exposed to unnecessary dangers.
Baroness Trumpington: My Lords, is the Minister not surprised, following all the gloomy information which has been imparted to us, that there are so many old people still surviving in this Chamber?
Lord Warner: My Lords, it has been suggested that the formaldehyde might play a part in this.

NHS: Working Time Directive
11.28 a.m.
Lord Skelmersdale Lord Skelmersdale asked Her Majesty's Government:
What assessment they have made of the impact on the National Health Service of the coming into force of the European Working Time Directive in August 2004.
Lord Warner: My Lords, we move seamlessly from smoking to the Working Time Directive. The directive already applies to all NHS staff except doctors in training, to whom it will he extended from August 2004. The Department of Health is actively working with the NHS and the medical profession to implement this change in ways which will benefit both patients and staff. Solutions will vary from NHS trust to NHS trust, but will include using staff differently by, for example, creating night teams to staff hospitals out of hours.
Lord Skelmersdale: My Lords, I am grateful for that Answer. If I were of a suspicious frame of mind, I would wonder whether I had left my prepared supplementary lying around in the Library. The Minister's honourable friend, Mr Hutton, stated in a press release today:
"Further measures were announced today by the Department of Health to ensure that the NHS complies with its obligations".
The directive goes on to say much of what the Minister has already said. This, very sensibly, involves talking to the strategic health authorities. Is the Minister aware that the department has only seven months before the eagle eye of the Commission will be directed at this country on that particular matter? At the end of that time, he will have run out of time to use the derogation for extending the time limit beyond August next year for another two years.
Lord Warner: My Lords, I have not seen the noble Lord's prepared supplementary, but I reassure him that we have not been sitting idly by. He may not be aware that some time ago we set up a Working Time Directive expert group, which had on it people from the Royal Colleges, the JCCs, the NHS Confederation and other key stakeholders, who have been working together on the issue. There are 19 Working Time
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Directive pilots that have been going on for some time, which are working out new ways of working locally that will help to deal with the implementation. A great deal of action is taking place in that area, and we have been putting aside money for the pilot sites and to help trusts to implement the Working Time Directive when it comes into force.
Lord Clement-Jones: My Lords, the Minister talks about actions being taken, pilots, discussions and so on and so forth. Is it not the fact that the NHS is not yet ready for the introduction of the Working Time Directive in the particular area identified? Why does he not accept the suggestion of the Royal College of Physicians that the introduction of the Working Time Directive be delayed?
Lord Warner: My Lords, we are not convinced that the Working Time Directive does need to be delayed. I can certainly write to the noble Lord. I shall not bore noble Lords with all the details, but I can refer to the 19 pilot sites, where some very interesting work is going on about the way in which pressure can be taken off senior house officers, for example. We can reorganise the work so that out-of-hours services are producing benefits for patients as well as coping with the Working Time Directive.
Baroness Gardner of Parkes: My Lords, can the Minister tell us how he can reconcile his remarks that he is quite confident that everything will be all right in 2004 with the press reports which indicate that many accident and emergency wards might have to close because there will simply not be enough junior trainee doctors to handle the work?
Lord Warner: My Lords, I wish the noble Baroness a happy birthday. As part of her birthday gift, I assure her that we do not accept that services will close as a result of implementing the Working Time Directive. I draw the House's attention to the fact that we have implemented the Working Time Directive for other NHS staff—for a much larger group of people. That came into force in 1998.
Lord Elton: My Lords, will the Minister tell us what the cost of the introduction will be, and whether it is already included in the public expenditure forecasts in the Red Book?
Lord Warner: My Lords, what I can say is that we know that the Government have committed themselves to increasing NHS funding by on average 7.4 per cent in real terms in England over the next five years. That includes provision for the impact of the Working Time Directive. We have also set aside £46 million over the next three years to help trusts to implement the directive. More than £5 million has already been dispersed so far this year to the 19 Working Time Directive pilot sites that are trialing new and better ways in which to work.
Baroness Finlay of Llandaff: My Lords, will the Minister inform us what action the Government are taking to manage the tension between the local delivery of services and the need for a critical mass of specialists to manage very sick patients on a 24x7 basis?
Lord Warner: My Lords, the Government have already put in place a large increase of well over 1,000 extra specialist registrars. They will be concentrating the allocation of those posts in the trusts that might have the greatest difficulty in tackling the problems around the Working Time Directive.
Lord Berkeley: My Lords, my noble friend will be aware that the Working Time Directive also applies to railway workers. My noble friend Lord Sainsbury recently told the industry, through this House, that it had known about that since 1999 and should have been fully prepared. Presumably my noble friend the Minister has taken that advice himself, and will be fully prepared for the extra year that the medical workers have been given, beyond those on the railways, so that everything will be in order by next August.
Lord Warner: My Lords, you will be astonished to know that I am not briefed on the question of railway workers. That subject is a little wide of the Question.
Lord Chan: My Lords, in the matter of the long-term solution, surely we need to ensure that our medical students are being trained in sufficient numbers. Will the Minister give us information about that, and tell us whether in any way the changes will mean that we still have to recruit people from developing countries?
Lord Warner: I assure the noble Lord that we have made significant investments in training postgraduate doctors. By 2005–06, we will be spending £1.4 billion on postgraduate medical and dental training. That is a 22 per cent increase over three years.
Lord Colwyn: My Lords—
Lord Williams of Mostyn: My Lords, I am afraid that we have run out of time.

Business of the House: Standing Order 41
11.35 a.m.
Lord Williams of Mostyn: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That Standing Order 41 (Arrangement of the Order Paper) be dispensed with on Tuesday 9th September to allow the Motion in the name of the Baroness Symons of Vernham Dean to be taken before the Motion standing in the name of the Lord Grenfell.—(Lord Williams of Mostyn.)
On Question, Motion agreed to.

Local Government Bill
11.36 a.m.
The Minister of State, Office of the Deputy Prime Minister (Lord Rooker): My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Lord Rooker.)
On Question, Motion agreed to.
Clause 78 [Statutory revaluation cycle]:
Lord Hanningfield Lord Hanningfield moved Amendment No. 71:
Leave out Clause 78.
The noble Lord said: My Lords, the purpose of this amendment is to remove the requirement for a statutory revaluation cycle from the Bill. We have two objections to a statutory revaluation cycle. First, we question why revaluation is necessary at all. Secondly, we question why it should be undertaken on the basis of a statutory cycle rather than in accordance with perceived need.
We had a long debate about revaluation in the Grand Committee. We queried why the Government had opted for a 10-year cycle. There is, it turns out, no particular magic about a 10-year cycle—it is simply what appears to be a convenient administrative period.
Statutory revaluations will take council tax further towards being solely a property tax, which is not what it was intended to be. Council tax was originally devised as a tax which was part property based and part service based. As the Minister is aware, wholly property-based taxation has proved unpopular in the past. Moving back towards the rates is not the way to go. Given that council tax is part property tax and part service tax, logically we might argue that there should also be a statutory valuation cycle for the costs of providing public services in each local authority area. Inflation in the costs of providing services has also risen differentially over the past 10 years across the country and had a huge impact on local authorities, especially those around London.
If the Government suggest that that is taken into consideration through the operation of the financial formulas, then we could point to the way in which grant was distributed last year, which clearly demonstrates that the Government can load the council tax burden differentially on different parts of the country in accordance with their own policy dictates. That is, in fact, precisely the effect of revaluation. It is clear that house prices have risen much faster in London and other parts of the South of the country than they have elsewhere. Since 1991, house prices in some parts of London have gone up by 175 per cent, compared to an average rise across the country of 90 per cent. The effect of that will be that council tax payers in these parts of the country will see their council tax bills rise dramatically as their houses move up one or even two council tax bands.
Let us remember that there is very little correlation between the differential rise in property value and the rise in average incomes—a fact recognised by the Government in their White Paper. So ability to pay

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becomes a significant issue. Then there is of course the double whammy effect. Not only will council tax payers have to pay more because they have moved up a band or two but, precisely because of that movement, large amounts of grant will be shifted away from London, the South West, the South East and the East of the country to the Midlands and the North. That is likely to create further upward pressure on council tax bills.
The net effect of the measure is that people in the parts of the country that the Government do not favour will pay much more council tax than those elsewhere. For example, the New Policy Institute calculates that following a revaluation, 75 per cent of people living in London will pay more council tax than 90 per cent of people in the North of the country. It is simply not the case that 75 per cent of Londoners are better off than 90 per cent of people living in the North. That is unfair and the effects will lead to a great deal of dissatisfaction around the country.
Let me now turn to the question of a fixed revaluation cycle. As my noble friend Lord Caithness explained in Committee, the original decision to set property bands was an attempt to avoid the expense and time-consuming process of revaluation. Revaluation is undoubtedly an expensive and time-consuming operation. We certainly would not wish to see a revaluation carried out unnecessarily.
What, then, is the purpose of a fixed time period? No one says, "It has been a few years since we last had a valuation; let us have another one". The purpose of a revaluation is to correct grossly disproportionate movements in the housing market. It may be that over a 10-year period those movements are negligible, as they were for much of the 1950s and 1960s, and that going through the expense of a revaluation cycle is unnecessary. However, it may be that house prices are so volatile that it would make sense, so far as this Government are concerned, to have revaluations much more frequently than that. Why, then, do the Government not move away from the concept of a fixed time period for revaluations and instead consider fixing revaluation to the actual movement of house prices in the market?
If that is, indeed, what the Government are seeking to address, why do they not fix in statute that once the divergence in house prices across the regions has reached a certain level, a revaluation has to take place within the next two years? It seems to me that the Government's approach lacks imagination, is old-fashioned and is unfair, particularly to people in the East, the South East and London. I beg to move.
Baroness Hamwee: My Lords, the noble Lord identifies the problem but the solution is entirely wrong. Let us scrap council tax. That is all I need to say.
11.45 a.m.
Lord Bassam of Brighton: My Lords, I wish it were that simple. In essence property taxes ought to be simple to administer and collect. They certainly were
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when we had rates. We are trying to reach the happy position of transparency and clarity in the way in which the tax works.
Clause 78 inserts a new Section 22B into the Local Government Finance Act 1992 creating a statutory cycle for council tax revaluation in England and Wales. We think that is a wise course of action. We think that it is necessary and that is why we have the clauses in the Bill and why we intend to press ahead and seek parliamentary approval for the clauses.
We have not done this without giving the matter thought. Neither have we done it without talking to people. We have consulted extensively on the issue of revaluation. We have had a Green Paper, a White Paper and finally last summer a draft Bill and then a Bill brought before your Lordships' House after going through another place. Perhaps it would make sense if I quoted some of the reactions to the draft Bill to help focus minds.
The Society of County Treasurers said that it,
"generally welcomes the proposed changes to council tax, including the revaluation of property values every 10 years".
The Local Government Association, in which the noble Lord, Lord Hanningfield, is a major participant,
"welcomed the proposed changes to the council tax"
and went on to say that,
"we support the intention to hold a revaluation in 2005 … and regular revaluations at least every ten years thereafter".
The LGA has repeated its support for revaluation in its briefing on the Bill dated 4th July.
There were also responses from both the Conservative and Liberal Democrat Groups at the LGA. The Liberal Democrats, to their credit, said,
"fixed cycles for revaluation arc helpful",
while the Conservative Group leader, Councillor Gordon Keymer, wrote in June 2002 that:
"We support the intention to hold a new revaluation in 2005 and regular revaluations thereafter".
I wonder which Conservative Party I am talking to. Is it the one of which the noble Lord, Lord Hanningfield, is a member, or is it that of Councillor Gordon Keymer, a leading Conservative LGA spokesman so far as I can recall?
The Government have a clear position on statutory revaluation. Judging from the kind of reactions we have had from experts in local government, I find it rather surprising that noble Lords opposite want to remove the clause creating a statutory revaluation cycle. There will be some difficulties with it and no doubt there will have to be some very careful thought given to the way in which it works but it is clear and transparent and people understand the process. Property values shift over time and as we are in the business of having a property tax, there are swings and roundabouts in that process. However, we believe that this is the right course of action and that it is right to make it plain within the Bill. Having said all of that, I hope that the noble Lord will withdraw his amendment.
Baroness Hanham: My Lords, before the Minister sits down, and with the leave of the House, I wish to draw his attention again to the survey that my noble friend Lord Hanningfield mentioned, which has been carried out for the Association of London Government. I declare an interest as a member of a London authority.
It is abundantly clear from the survey that what is important is how a revaluation is conducted—the amendment we are discussing ensures that we debate this matter—and what its effect is. The survey's findings are absolute dynamite with regard to London. Property values will inevitably go up substantially but the shift of resources in terms of the revenue support grant between London and the South East—
Lord Evans of Temple Guiting: My Lords, perhaps I may ask the noble Baroness whether this is an intervention or a speech and remind her that this is Report stage?
Baroness Hanham: My Lords, I am making a short intervention which I shall now finish. Does the Minister appreciate that there would be a vast shift of resources between the South East and the North West if the revaluation was carried out?
Lord Bassam of Brighton: My Lords, I am grateful to the noble Baroness for that brief intervention which sounded more like a speech to me. Perhaps it was a brief intervention.
I believe that only this week we received the ALG survey. We recognise it simply as a useful contribution to the debate. Knowing the veracity with which the ALG approaches these matters, and knowing its chief official very well, as does the noble Baroness, I am sure that this is its opening shot in a campaign. One respects it for that. We shall obviously study the survey closely and reflect upon it. As I say, it is a useful contribution to the debate but it does not undermine the case for having revaluation and revaluation cycles.
Lord Hanningfield: My Lords, I thank the Minister for those comments. Before I was a member of this House—I am wearing my LGA hat—I remember meeting the then Minister of State for local government, Hilary Armstrong, and talking about revaluation. I agree that the LGA as a body has talked about revaluation. Hilary Armstrong said that no way would the Labour Government make the same mistake as the Conservative government and have a revaluation as that led to the community charge/poll tax as a result of the tremendous variation and changes after revaluation.
I also remember the noble Lord, Lord Rooker, saying in Grand Committee that he did not want to make the same mistakes as the Conservative government. Here the government are falling into the biggest trap of all with revaluation. Having begun to assess what a revaluation means, having seen Sir Robin Wales, the leader of the ALG, this week, and having done more work ourselves on the effects of revaluation on great chunks of the country, we feel
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that much more thought needs to go into this before we agree to a blanket revaluation. Therefore, we feel that we should test the opinion of the House.
11.50 a.m.
On Question, Whether the said amendment (No. 71) shall be agreed to?
Their Lordships divided: Contents, 68; Not-Contents, 126.

Division No. 1

CONTENTS

Aberdare, L.

James of Holland Park, B.

Alton of Liverpool, L.

Kimball, L.

Anelay of St Johns, B.

King of Bridgwater, L.

Astor of Hever, L.

Kingsland, L.

Attlee, E.

Luke, L.

Biffen, L.

McColl of Dulwich, L.

Blatch, B.

Macfarlane of Bearsden, L

Bowness, L.

Marlesford, L.

Brougham and Vaux, L.

Marsh, L.

Burnham, L.

Mayhew of Twysden, L.

Byford, B.

Miller of Hendon, B.

Carlisle of Bucklow, L.

Montrose, D.

Coe, L.

Moore of Wolvercote, L.

Colwyn, L.

Moynihan, L.

Cope of Berkeley, L. [Teller]

Noakes, B.

Craigavon, V.

Northesk, E.

Crathorne, L.

O'Cathain, B.

Crickhowell, L.

Palmer, L.

Dixon-Smith, L.

Perry of Southwark, B.

Elton, L.

Rees, L.

Fookes, B.

Renton, L.

Forsyth of Drumlean, L.

Roberts of Conwy, L.

Fowler, L.

Saltoun of Abernethy, Ly.

Freeman, L.

Seccombe, B. [Teller]

Gardner of Parkes, B.

Selsdon, L.

Geddes, L.

Sharpies, B.

Glentoran, L.

Shaw of Northstead, L.

Greenway, L.

Shrewsbury, E.

Hanham, B.

Skelmersdale, L.

Hanningfield, L.

Swinfen, L.

Hayhoe, L.

Trumpington, B.

Henley, L.

Vivian, L.

Higgins, L.

Waddington, L.

Howe of Aberavon, L.

Wilcox, B.

NOT-CONTENTS

Acton, L.

Chester, Bp.

Addington, L.

Clarke of Hampstead, L.

Ahmed, L.

Clement-Jones, L.

Alderdice, L.

Clinton-Davis, L.

Allenby of Megiddo, V.

Cohen of Pimlico, B.

Amos, B.

Colville of Culross, V.

Andrews, B.

Corbett of Castle Vale, L.

Ashton of Upholland, B.

Craig of Radley, L.

Bach, L.

Crawley, B.

Barnett, L.

David, B.

Bassam of Brighton, L.

Davies of Oldham, L. [Teller]

Berkeley, L.

Dean of Thornton-le-Fylde, B

Bernstein of Craigweil, L.

Dholakia, L.

Blackstone, B.

Dixon, L.

Blood, B.

Dubs, L.

Borrie, L.

Elder, L.

Brett, L.

Evans of Parkside, L.

Brookman, L.

Evans of Temple Guiting, L.

Burlison, L.

Ezra, L.

Campbell-Savours, L.

Falkland, V.

Carter, L.

Farrington of Ribbleton, B.

981

Faulkner of Worcester, L.

Merlyn-Rees, L

Filkin, L.

Morgan, L.

Finlay of Llandaff, B.

Morris of Manchester, L.

Fyfe of Fairfield, L.

Murray of Epping Forest, L.

Gale, B.

Nicol, B.

Gavron, L.

Orme, L.

Golding, B.

Paul, L.

Goldsmith, L.

Pitkeathley, B.

Gordon of Strathblane, L.

Ponsonby of Shulbrede, L.

Goudie, B.

Ramsay of Cartvale, B.

Gould of Potternewton, B.

Randall of St. Budeaux, L.

Graham of Edmonton, L.

Rennard, L.

Greengross, B.

Richard, L.

Grocott, L. [Teller]

Rodgers of Quarry Bank, L.

Hamwee, B.

Rooker, L.

Hardy of Wath, L.

Roper, L.

Harris of Richmond, B.

Sandberg, L.

Harrison, L.

Sawyer, L.

Haskel, L.

Scotland of Asthal, B.

Hilton of Eggardon, B.

Sewel, L.

Hogg of Cumbernauld, L.

Sheldon, L.

Simon, V.

Hollis of Heigham, B

Smith of Clifton, L.

Hooson, L.

Strabolgi, L.

Howells of St. Davids, B.

Hoyle, L.

Symons of Vernham Dean, B

Hughes of Woodside, L

Taverne, L.

Thomas of Gresford, L.

Hunt of Kings Heath, L.

Thomas of Walliswood, B.

Irvine of Lairg, L.

Thomson of Monifieth, L.

Jones, L.

Thornton, B.

Judd, L.

Tordoff, L.

Kennedy of The Shaws, B.

Turnberg, L

King of West Bromwich, L.

Walmsley, B.

Lea of Crondall, L.

Warner, L.

Lipsey, L.

Watson of Invergowrie, L.

Livsey of Talgarth. L.

Whitaker, B.

Lofthouse of Pontefract, L.

Whitty, L.

Macdonald of Tradeston, L.

Wigoder, L.

MacKenzie of Culkein, L.

Williams of Elvel. L.

Mackenzie of Framwellgate, L.

Williams of Mostyn, L. (Lord President of the Council)

McNally, L.

Mar and Kellie, E.

Williamson of Horton, L.

Massey of Darwen, B.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
Noon
Clause 79 [Power to change number of valuation bands]:
Lord Hanningfield Lord Hanningfield moved Amendment No. 72:
Page 42, line 27, at end insert ", provided that such change does not alter the ratio between the top and bottom band.
() The power under subsection (4A) shall not be used to alter the ratio between the top and bottom bands set out in subsection (1).""
The noble Lord said: My Lords, in moving Amendment No. 72, I shall speak also to Amendments Nos. 73 and 74. The amendment would ensure a measure of protection to homeowners from steep increases in council tax, along the lines discussed in the previous amendment. For the first time, council tax levels have now breached an average of £1,000. We have reached a situation in which steep, year-on-year rises in council tax are becoming unacceptable.
I sincerely believe that, on top of the sleep rises we have seen this year, there is a danger that the whole system could be brought into disrepute by changing the structure of the council tax substantially. I appreciate that the amendments would move beyond
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the original 1992 legislation by imposing a limit on the band-ratio differentiation. I shall explain why we are proposing the safeguard.
As I pointed out in our discussion on the previous amendment, when it was established, council tax was part property tax, part tax on services. There was a great deal of debate about that in Committee, but council tax was introduced on that basis, and the structure of discounts built into the system indicates the tax's double aspect.
It would therefore not be right, or in conformity with the principles under which council tax was established, simply to replicate in the council tax ratios the difference in banded house prices. The fact that the council tax pays, in part, for services must act as a drag on the growth of bands or on the increase in ratios between them. That is only logical and I think we can all sign up to it.
We all know that council tax is regressive. Its impact on people on a low income is greater than its impact on people on a high income. I accept that as a fact. What I dispute, and it is an extremely dangerous assumption, is the supposition that those people living in more expensive properties are necessarily those with the highest levels of disposable income.
In many parts of my own county, and I am sure in other places across the country, it is the elderly. who have worked hard all their lives to buy a nice house, who occupy some of the largest properties. However, they are also the group with the lowest levels of disposable income in the county.
We have to be careful, therefore, about assuming that the unfair, regressive nature of the tax can be remedied by increasing the amount paid by people living in large properties. It was also suggested in Grand Committee that people in the South East were benefiting unfairly from the current council tax structure. Let us not forget that although we have a common structure of council tax bands, the amount that people pay in each band varies across the country.
Across the South East last year, there were huge council tax rises—17 per cent in Essex; 18 per cent in Surrey; 18.3 per cent in Suffolk; 19 per cent in Hertfordshire and over 20 per cent in East Sussex. As we know, even higher rises were seen in parts of London. The Government have already made clear their intention to shift the tax burden on to homeowners in the South East through their adjustments to the grant distribution mechanism. Our amendment would achieve some measure of protection to prevent the further penalisation of those homeowners.
We should also bear in mind that we live in an age when mortgage companies seem to be prepared to lend more and more money against smaller incomes. It may be that people living in large houses are actually carrying relatively high levels of debt. The value of property seems, from a number of angles, to be an unsafe proxy for the ability to pay and we should therefore be cautious about changing the structure of the tax system.
As I have said on previous occasions, I am not fully wedded to the existing ratio. However, it would be helpful if the Government were to introduce a ceiling ratio mechanism. At the same time, when there is already so much unrest about the levels of council tax, it would be helpful if the Minister could reassure people that there will be no move to increase the existing band ratios. I beg to move.
Baroness Hanham: My Lords, I shall return briefly to the survey. I know that the Minister has not seen it, but it is extremely important. One issue that it addresses is the impact of the introduction of more bands. It has been suggested in the debate that if there were higher bands that would be more helpful to those in lower bands. However, it has now been pointed out that that would not be helpful at all and would not soften the blow for anybody. In London the average council tax bill would go up and the potential loss of grant would be very substantial indeed. It is estimated that London could lose more than £400 million to the North and the North West and that the impact of the increase in council tax could be very serious. There needs to be a careful review of the number of bands and the ratio between them. One of the points that we have made is that the ratio should remain at the same level as it is now.
Lord Rooker: My Lords, it is like an all-us-southerners-stick-together day. It is an unfair way to introduce the Government's response to the amendment, but, first, I am not here to speak for London and, secondly, I know nothing about the survey. I have not seen any of its results. I am here to speak for fairness for council tax payers. The present system is not completely fair, as we all know. I agree with very much of what the noble Lord, Lord Hanningfield, said.
It would seem simple merely to change the ratio, but if that is predicated on the assumption that people who live in big houses have big incomes, that is wrong and it would blow up in one's face. The noble Lord is absolutely right. There is no correlation between disposable income and the size and value of one's property, for the very reason that he gave; namely, that elderly people have invested their life savings and income in property, knowing that they would live on a lower income. Making the changes can appear seductive, but one makes them at one's peril if one ignores those kind of circumstances.
However, the amendment would remove the powers to change the three-to-one ratio. Most council tax payers do not have a clue what we are on about. They may know what band they are in; they may see six or seven bands on their council tax bill and they may know they are in the lower band. However, by and large, they do not see anyone else's council tax bill and, in general, most of their neighbours will be paying the same kind of figure. Houses do vary in a street, but, by and large, the same kind of figure is being paid. It will never cross their minds that the person who is living in a property that is worth £300,000 will not ever pay more than three times the council tax that the person in the lowest property band—up to £40,000—is paying.
984
They will say, "Hang on a minute. There is a big difference between £300,000 and £40,000. It's rather more than three to one, for a start". The ratio is artificial.
It reminds me of the metaphorical ghost of the noble Lord, Lord Heseltine. He was quite unabashed when he introduced the council tax. It was the great fix, at the end of the poll tax under the noble Baroness, Lady Thatcher. He was charged with coming up with a solution to the poll tax. He came in waving his papers like "peace in our time". He was quite unabashed about the reason for the three-to-one ratio, and that was that he did not want the rich to pay too much. I paraphrase what he said, but he was quite open about the reason for the capping. It is not a capping to help poor people; it is a capping to help, by and large, those in bigger houses, notwithstanding the point that there is no direct correlation with disposable income.
We discussed the matter in Committee and I do not want to go into further details. However, there would he a problem if we were to accept the amendment. We would not be able to change the ratio to reflect more closely the relative values of bands and we will not know what they will be until a revaluation takes place.
We have not yet decided whether we will change the ratio, but it does not make sense to limit our powers in this area, especially as we know that the existing ratio does not reflect the relative spread of values. Obviously, when a revaluation takes place, the differential changes that have occurred in the country will result in different figures.
Amendments Nos. 72 and 74 would mean that the Government could not make significant reforms to the banding scheme. They would limit the way in which we could operate the bands to prevent the creation of new bands at the top end. I understand that noble Lords are concerned about the exercise of these powers, but constraining them in this way is not a sensible way to proceed.
Any change to the banding schemes, whether this be in revaluing the bands, adding new bands or changing the ratio to the bands, must be made by an order that is subject to the affirmative resolution in the House of Commons. That will provide the proper parliamentary scrutiny for a change in the local taxation system.
Amendment No. 73 seeks to give the Secretary of State the power to introduce sub-national differences in council tax bands. As we have said on a number of occasions in this House and in another place, we already have sufficient powers in the existing Local Government Finance Act 1992 to introduce regional banding if we choose. The powers to change council tax bands, or the proportions between them, are exercised by an order under Section 5 of that Act.
Section 113(1) of that Act makes it clear that powers to make orders under the provisions of that Act, including Section 5, may be so exercised as to make different provision for different cases, or different descriptions of case, including different provisions to different areas or for different authorities. Therefore, potentially massive change could take place under the

985
legislation and I presume that the provisions in the 1992 Act were originally made in that Act and have not arrived as a result of later amendments.
The facility to make changes was therefore built into that Act, but the changes were not made because it was early days. I fully accept that the council tax was new. It was a quick-fix solution for disposing of the poll tax without returning to the rating system. There would be considerable difficulties and restrictions if we were to accept the amendments, but we have no plans to change the ratio of 3:1 and any such changes would be contemplated only after examining the relative changes following revaluation and the necessary research. In that I include social research, economic research and, I suspect, political research.
Lord Hanningfield: My Lords, I thank the Minister for that reply. His final comment about political research was a wise one. I remember as a young councillor going to a meeting addressed by Margaret Thatcher and attended by about 1,000 people. People were virtually screaming against the rates because they had become such an unpopular tax. We talk now about the unpopularity of the poll tax/community charge, but we forget that the rates were extremely unpopular with a great bulk of the population. That is why the Government came up with that idea.
I believe that we are coming to the end of the council tax. There is a growing group of retired people—it is called "Support the Retired"—which is spreading like wildfire across the South and the East. I have been summoned to a large meeting in eastern England in two or three weeks' time to defend the outrageous levels of council tax. Perhaps the noble Lord, Lord Rooker, might like to come with me.
We are moving this series of amendments because careful thought must be given to an alternative to the council tax. Nick Raynsford, the Minister for local government, has instituted work on the different systems of revenue for councils, but that is not for today. We shall return to the subject on Third Reading, but I beg leave to withdraw the amendment today.
Amendment, by leave, withdrawn.
[Amendments Nos. 73 to 75 not moved.]
12.15 p.m.
Baroness Hanhammoved Amendment No. 76:
After Clause 80, insert the following new clause—
"COUNCIL TAX APPEALS

(1) Schedule 11 of the Local Government Finance Act 1988 (c. 41) (tribunals) is amended as follows.

(2) After paragraph 11(1)(a) there is inserted—

"(aa) an appeal which includes an issue of valuation arising out of a decision or order which is given or made by a tribunal on an appeal under section 23 above, shall be referred to the Lands Tribunal:"."
The noble Baroness said: My Lords, in Committee, my noble friend Lord Caithness tabled a probing amendment which sought to correct an unfair
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anomaly that exists to frustrate any council tax payer from appealing against council tax assessment on anything other than a point of law.
Currently, once an appeal has been made to the valuation tribunal, a council tax payer is prevented by Schedule 11 to the Local Government Finance Act 1988 from appealing against a decision of the tribunal on anything other than a point of law to the High Court. Valuation tribunals are not "expert" tribunals. They are composed mainly of lay members and do not have valuation experts. Although the lay members perform the same role as do magistrates in that they are experts on their own, it means that a council tax payer cannot put his case to someone who is a professional in council tax.
It is proposed that instead the council tax payer should have the opportunity to appeal to the Lands Tribunal on valuation grounds. I beg to move.
Lord Bassam of Brighton: My Lords, Amendment No. 76 seeks to provide an appeal route for decisions that have been made by a valuation tribunal in respect of council tax. This matter was expertly raised by the noble Earl, Lord Caithness. He kindly wrote to my noble friend Lord Rooker about it and we give notice that following today's considerations we will be replying in full to that correspondence.
There is a difference between council tax and non-domestic rates when it comes to appeals on decision by valuation tribunals. I appreciate that this lacks symmetry, but that was a conscious decision on the part of the previous administration at the time the council tax was introduced. We consider that the distinction is still valid.
It might aid our debate if I quote what the noble Lord, Lord Strathclyde, said on the matter on 27th January 1992, when the Bill, which became the Local Government Finance Act 1992 was then in Committee. While discussing the equivalent provisions for Scotland, he said that,
"valuation appeals under the council tax will essentially be very simple, relating as they will only to questions of capital value. That is a very different matter from some of the arcane and complex rating issues which are the special responsibility of the Lands Valuation Appeal Court. We do not, in other words, envisage that the specialist knowledge and experience of the Lands Valuation Appeal Court will be required in order to determine council tax valuation appeals".—[Official Report, 27/1/92; col. 1154.]
That was how the previous administration saw the position.
While Amendment No. 76 does not seek to provide for an appeal to the Lands Valuation Appeal Court, which is a Scottish court, similar principles apply. The Lands Tribunal in England, like the Land Valuation Appeal Court in Scotland, has specialist expertise in matters of land valuation.
The key point here is that council tax does not require the detailed specialist valuation expertise of the Lands Tribunal. Council tax valuations are to bands of valuations and are capital values, not rental values. There is a big difference. We agree that there needs to be a mechanism for appeals on points of law, hut this is properly to the High Court, and we have that

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mechanism. We are not convinced that there need to be any other grounds for appeal of a valuation tribunal decision to another body.
Perhaps in taking on board those comments, the noble Baroness will feel happy to withdraw her amendment.
Baroness Hanham: My Lords, I thank the Minister for his reply. It dealt with the kernel of the problem but still leaves a question. The kernel of the problem is that the only appeal that a council tax payer who has a problem with the valuation tribunal decision can make is to the High Court on a matter of law. That seems to be eminently inequitable. A person will probably find it enormously difficult to find a position of law in relation to capital value. Therefore, I do not agree with the Minister that there is no need to find a better appeals system. However, for today's purposes, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hanhammoved Amendment No. 76A:
After Clause 84, insert the following new clause—
"AMENDMENT OF SCHEDULE 6 OF THE GREATER LONDON AUTHORITY ACT 1999

(1) Schedule 6 of the Greater London Authority Act 1999 (c. 29) (procedure for determining the authority's consolidated budget requirement) is amended as follows.

(2) In paragraph 8(4) (approval of mayor's final draft budget by the assembly), for the words "at least two-thirds" there is substituted "a majority

The noble Baroness said: My Lords, this is different. We did not deal with this matter in Committee and I am sure that your Lordships will feel far more cheerful about considering some completely new material.
The purpose of the amendment is to correct a curious imbalance in the powers of the Mayor of London and the Greater London Assembly on the crucially important matter of the final approval of the budget for London. It is true that the mayor is elected, but so are the members of the Greater London Assembly. Their role as the elected representatives of the various parts of London is to scrutinise the work of the mayor and to hold him to account—not least on behalf of some of the many areas of London that the mayor rarely visits.
The assembly is a democratic body with a democratic mandate and a democratic responsibility. Yet Schedule 6 to the Greater London Authority Act allows the mayor, in effect, to bypass the Greater London Assembly and impose an unamended budget with the support of only one-third of the members of the GLA. Although the assembly can propose amendments at an earlier stage, Schedule 6 requires a two-thirds majority to amend the final budget.
I cannot conceive that the House of Commons would agree to a situation where a budget could be secured with the support of only 220 out of 659 Members of Parliament. Both the House and the
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country would regard that as ridiculous, yet, as I understand it, that is what happens with regard to the mayor's powers in the Greater London Assembly. With the support of a minority of assembly members—nine out of the 25—in only one party out of four represented, the mayor can impose a budget. That is an odd sort of democracy, especially in a system that is supposed to be partly proportional.
The problem associated with that is that the mayor has not used that freedom terribly wisely. He has taken many opportunities to increase spending, and the precept has become a major part of Londoners' lives. Spending has increased enormously since the Greater London Assembly was set up, and 17.6 per cent of each council tax bill in London now goes to the mayor. There is nothing that Londoners or the people they have elected to represent them, either in local boroughs or, more relevant to this amendment, in the GLA, can do about that so long as the mayor has the support of just nine assembly members.
I believe there is a strong case for removing this anomaly and for giving the assembly greater power to control the mayor and to force him to carry support from at least half the elected members. I beg to move.
Baroness Hamwee: My Lords, again, I declare my interests as a member of the Greater London Assembly and also as the current chair of the budget committee, which today is having to meet without me, although I am sure that it is scrutinising thoroughly what the mayor has been doing.
I am aware that the Conservative Party's candidate for the mayoral election next year announced that he would end the proportional voting system for members of the assembly. However, it seems to me that having that system in place provides a very good check and balance and a good mix, as it were, for the job that members of the assembly must do.
However—I may surprise the noble Baroness here—I agree that with regard to the budget it would be better to have the proportion that she proposes rather than the two-thirds/one-third mix, which is in place at present. The mayor's budget is the only matter on which the assembly has, in effect, a veto, and I believe that it would be preferable for the mayor to have to persuade rather more than one-third of the members of the assembly of the rightness of his proposals for each budget. Therefore, I support the noble Baroness on that issue.
However, I do not support the manner in which the noble Baroness presented the personalisation of the issue. Perhaps that is not really part of the argument; I do not know. She talked about the current mayor as though he will always be mayor. I ask the noble Baroness, Lady Hanham, not to encourage him—he will not be mayor for ever! However, as I said in debate on an earlier amendment, the solutions of the Conservatives, the Liberal Democrats and, indeed, the Labour Party are not the same. But on the issue of a 51 per cent vote, I support the amendment.
Lord Bassam of Brighton: My Lords, perhaps I should first say a few words about the Greater London Assembly's budget-setting process so that we can better understand the amendment and put it in context.
Section 87 of, and Schedule 6, to the Greater London Authority Act establish the roles of the mayor and assembly in deciding budget requirements for the GLA and all its functional bodies. The GLA's budget must be finalised by the end of February each year. The first stage is for the mayor, having consulted the assembly and the functional bodies about their relevant component budgets, to draw up a draft consolidated budget. The mayor then consults the assembly about the draft budget before presenting it to the assembly at a public meeting on or before 1st February. The assembly may approve the draft, or amend it, by simple majority vote before returning it to the mayor.
The mayor then prepares a final draft budget and presents it to the assembly at a public meeting before the end of February. If the final draft does not include amendments that the assembly made to the first draft, the mayor must give reasons. The assembly will then either approve the final draft by simple majority, or amend it by a two-thirds majority. The budget, as amended, will then be the authority's budget for the coming year.
The separation of powers between mayor and assembly is central to the GLA's budget-setting process. The budget-setting procedures are intended to be sufficiently flexible to accommodate the assembly's need to play a part in the formulation of policy and the determination of the mayor's priorities. They also allow the assembly to influence the levels of expenditure on the different functions and, hence, to influence the level of the council tax precept. But, because the budget is the principal tool for delivering the mayor's strategies, it is important that the procedures do not provide the assembly with unreasonable powers to amend the progress of the budget.
It is clear that the amendment would fundamentally alter the balance of power between mayor and assembly envisaged in the GLA Act, making it much easier for the assembly to override the mayor's budget. In practice, the existing arrangements have allowed the assembly to exert effective influence by causing the mayor to reduce his initial budget proposals. In any case, the Government's view is that, only three years into the GLA's existence and before the first mayoral term is complete, it is much too early to consider making fundamental changes to the new governance arrangements in London. Moreover, I believe that it could be argued that it would be wrong to make piecemeal changes to the statutory arrangements without considering the bigger picture.
The balance of power between mayor and assembly was proposed after much careful research into the working of mayoral systems in other countries. In particular, because the mayor is elected as the executive by the people of London, it is right that he or she should be in the driving seat. However, the mayor should not have the ultimate power to determine the budget against a two-thirds majority. That is the balance under the Act, and we believe that it remains a sensible one.
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I appreciate that we are probably moving into a period of campaigning on these issues. I can see the value, particularly for noble Lords opposite, in bringing this amendment as part of their campaign for a change next year. However, we need to look longer term and think about the structures and how they work. My simple appeal today is to give this longer. Let us see how it works over time and learn from the experience of it. We should also benefit and reflect on the experience that this structure has brought, having learned from other mayoral systems in other countries.
We are happy with the current position. We appreciate that this causes difficulties for some. The balance of power has to be right—and it is right at the moment—to enable the mayor to drive through his strategies. It may change in future years. But, in electing the mayor, these strategies have been by and large endorsed by the people of London.
12.30 p.m.
Baroness Hanham: My Lords, I thank the Minister for his reply. I do not think that the Local Government Bill was brought forward at this stage as part of a campaign. But it is the only measure where one can raise the question of the tensions against the mayor's overweening control. It was certainly not as part of a campaign that this amendment was tabled. It was an opportune moment to re-examine what is in the Greater London Act and the powers associated with the mayor.
One of the difficulties has always been—I believe that the noble Baroness, Lady Hamwee, has to some extent agreed—that the Assembly's scrutiny position over the mayor is not as strong as perhaps other people would wish it was. One thing that has become apparent over the years since this new system was introduced is that there probably is not enough tension against the mayor by those who are providing a scrutiny role. It is very difficult for the London boroughs to affect what the mayor does. The mayor's budget is imposed on London boroughs. Therefore, it would seem to be far more sensible to have more tension against the mayor's budget proposals which are, after all, probably the only proposals over which anyone can hold him to account.
I want to reiterate my point that this was not a campaigning point. It has nothing to do with that; the Bill was a vehicle to move the amendment. If the Local Government Bill had not been here, there would be no question of this amendment or this matter being raised. But it has been for the purposes today. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 86 [Vacant dwellings: use of information obtained for council tax purposes]:
[Amendments Nos. 77 and 78 not moved.]
Clause 88 [Housing strategies and statements]:
Baroness Hamwee Baroness Hamwee moved Amendment No. 79:
Page 46, line 38, at end insert—
"() In carrying out their functions under this Part, the appropriate person and the local housing authority must have particular regard to the provisions of sections 1 to 3 of the Homelessness Act 2002 (c. 7)."
The noble Baroness said: My Lords, Amendment No. 79 amends Clause 88, which deals with housing and homelessness strategies. It is a probing amendment. I hope that the Government will be able to use it as a basis for giving assurances about the priority that should be given to homelessness by local authorities, and particularly the development of effective homelessness strategies.
I am grateful to Shelter for its assistance with the amendment and, indeed, for bringing the matter to our attention. Sections 1 to 3 of the Homelessness Act 2002 require local housing authorities to carry out a review of homelessness in their area and to develop a strategy for tackling it. They must publish the strategies by July of this year.
The statutory requirements place a strong emphasis on partnership and multi-agency working, with specific duties on social services departments to assist local housing authorities in developing the strategy.
Clause 88 puts local housing strategies on a statutory basis. In practice, these requirements are similar to those that local housing authorities are already carrying out on a non-statutory basis. The Explanatory Notes to the Bill make it clear that the local housing strategy document will in future form the overarching framework within which the authority should consider other policies on more specific housing issues.
There are obviously benefits in rationalising the number of strategies and allowing them to be merged in a single statement. What concerns Shelter—I ask the Minister to respond to this—is that the provisions in the Bill should not be seen as a signal that homelessness, and in particular the development of effective homelessness strategies, should be given less priority.
I hope the Minister can give us a number of assurances. First, perhaps he will make it clear that the Government continue to believe that a strategic response to homelessness remains a key priority for local authorities and that the proposals in the Bill will not detract from their statutory responsibility under the Homelessness Act.
Secondly, there is the emphasis on prevention and support. Traditionally, there has been a focus on bricks and mortar issues. But prevention and support must not be lost. I hope that the Minister will provide assurances that that is certainly where one of the focuses of homelessness strategies will be.
Thirdly, the strategy process also stresses the importance of joint working between local authority departments and in particular with social services. I understand from Shelter that local authorities have responded well to the 2002 Act and are engaging positively in the strategy process. However, there is some concern about the extent to which housing authorities and social services are working effectively together. Shelter has carried out a survey of local housing authorities. More than three-quarters said that improvements were needed in the way that they work with social services.
The Minister may feel that it is appropriate to take up the matter with colleagues in the Department of Health. I hope, as I say, that this morning provides a basis for assurances along the lines which I seek. I beg to move.
Lord Rooker: My Lords, I shall make a brief response to an important issue. I make it absolutely clear that we have some sympathy with Amendment No. 79. However, we believe that we have already taken account of what it seeks to achieve.
The amendment, as the noble Baroness said, would impose an additional duty on the Secretary of State and the National Assembly for Wales, when exercising their powers under Clause 88, to require local authorities to have housing strategies. The amendment would require us and authorities to have particular regard to authorities' strategic homelessness functions.
It is of vital importance that housing and homelessness strategies support and reinforce one another. The existing guidance stresses the need for robust links between housing and homelessness strategies. We believe that the importance of this approach can be emphasised through further guidance. Therefore, there is no need to include this level of detail in statutory legislation on the face of the Bill.
I hope the noble Baroness will welcome our proposals set out in the Explanatory Notes to the Bill to give local authorities the option of rationalising their housing strategy, homelessness strategy and home energy conservation reports into one document. We envisage that this would improve the necessary links between the documents by reducing the overlap. It would also reduce the burden on local authorities.
However, we continue to believe that a strategic response to homelessness remains a key priority for local authorities. Clause 88 does not change the provisions in the Homelessness Act 2002. Therefore, if an authority chooses to incorporate the homelessness strategy in the broader housing strategy, the duties under the Homelessness Act still apply.
The noble Baroness is quite right: it is new legislation. It is being embraced by local authorities. We are doing everything we can within the homelessness directorates of the department to assist local authorities. We have targets for local authorities on some aspects, about which it is important that people understand—particularly in terms of those in bed and breakfasts and rough sleepers. We have an active involvement in those areas through the government offices of the regions.
Even in recent times—not in any way that is negative or chastising—I have met local authorities either at my office or when I have gone on visits and my ministerial colleague, Yvette Cooper, has done the same with about a dozen authorities where we needed to be reassured that action is in hand with a hands-on approach now to ensure that targets that are important to us, especially that for families with children in bed-and-breakfasts, are achieved next March. We are not waiting until February to find out

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whether we are on course for that. So we are taking the matter extremely seriously—we know that local authorities are as well; there is no division between us on that.
As I said, if we need extra provision, we can provide it through guidance; we are absolutely confident of that. I am grateful to the noble Baroness for tabling the amendment. I would say through her to Shelter that although everything in the garden is not rosy, we are on the case and do not see the need to write the provision into the Bill. I hope that, with those reassurances, the noble Baroness will withdraw the amendment.
Baroness Hamwee: Of course, my Lords. I hope that the Minister will take further opportunities to stress the joint working that is needed between different parts of local authorities. That is never that easy—that is in no way inconsistent with what I have been saying about centralisation in debates on earlier parts of the Bill—hut further ministerial comment about the value of that would be helpful. I am grateful for the Minister's remarks and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 122 [Orders and regulations]:
Baroness Hamwee Baroness Hamwee moved Amendment No. 80:
Page 74, line 39, at end insert—
"() Such power to make transitional provision shall be applied to ensure that any arrangements previously lawfully made pursuant to the provisions listed in section 101(2) shall not he made unlawful."
The noble Baroness said: My Lords, the amendment returns us to the issue of retrospection, which I raised in Grand Committee. I then said that what the Minister had said deserved rereading quietly. I have done that. Among other things, the Minister said that he agreed with the thrust of my concern, but felt that the issue could be dealt with through secondary legislation. I was having difficulty working out what secondary legislation would enable the Secretary of State to deal with my concerns. The Minister said:
"Leave it with me. I shall take further advice and, if need be, I shall write to the noble Baroness".—[Official Report, 17/6/03: GC 271.]
The Minister may have felt that to be unnecessary, but the need was mine rather than his.
I hope that in response to the amendment, he will explain how the matter can be dealt with through secondary legislation. If he would rather leave that for a letter during the recess, that would be fine, but I should like to understand. I beg to move.
12.45 p.m.
Lord Rooker: My Lords, I certainly do not intend to send a letter. I have here a statement on which is printed in bold at the top of the page, "Read in full". So there will be no deviation. I apologise to the House for taking the few minutes necessary to put this on the record. It is a small amendment but a rather large statement so, as I have been warned by my advisers, I shall stick to the text.
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Amendment No. 80 is in our view unnecessary. Clause 122, to which the amendment refers, sets out a number of general provisions in relation to orders and regulations made under the Bill. Subsection (1) provides that any power to make orders or regulations under the Act includes power, first, to make different provision for different cases or areas, and, secondly, to make incidental, supplementary, consequential or transitional provision or savings, including amending or repealing any enactment or instrument made under any enactment.
Amendment No. 80 seeks to add to that a requirement that such power to make transitional provision shall he applied to ensure that any arrangements previously lawfully made under the provisions in Clause 101(2), which is entitled.
"Exercise of powers by reference to authorities' performance categories",
shall not be made unlawful. Clause 101 covers the exercise of various powers that allow the Secretary of State to remove regulatory controls on authorities or to grant additional powers to them. The powers mentioned include the power to modify legislation that prevents or obstructs compliance with best value or the promotion of well-being and the power to remove requirements to produce plans or strategies. They also include powers to specify: performance indicators and standards; frequency and content of best value reviews and performance plans; and non-commercial considerations for local authorities entering into contracts.
The amendment relates to Clause 122. That means that it would cover only those transitional provisions where the power to make them is in the Bill rather than another Act. The provision would affect only orders made under Clauses 96 to 98, affecting trading, and Clause 119, affecting the use of penalties front dog fouling. It would not attach to orders made under Section 70 of the Local Government and Housing Act 1989, the Local Government Act 1999, the Local Government Act 2000 or the Regulatory Reform Act 2001, as the powers allowing transitional provisions in such orders are in the Acts, not in the Bill. Transitional powers may be attached to these provisions—for example, Section 16(3)(c) of the Local Government Act 1999 already makes provision for any order under the section to include,
"consequential, incidental and transitional provision".
During Grand Committee, the noble Baroness asked questions about the trading provisions in the Bill. My understanding was that the particular issue with which she was concerned related to transitional arrangements following reassessment under the comprehensive performance assessment—in particular, that arrangements entered into lawfully should not be made unlawful. The concern was about an authority slipping down a category and thereby losing a freedom—particularly one that involved an agreement with a third party—and the effect that the re-categorisation would have on that authority in relation to that freedom.

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The amendment addresses the question of what happens to existing freedoms and flexibilities—for example, trading powers—if an English local authority undergoes re-categorisation and is no longer able to exercise the power to trade by virtue of falling into a lower performance category. As I said in the debate, we agree with the thrust of the concern but that issue can be dealt with through secondary legislation.
It may be helpful if I take a few more minutes to explain how we believe that that issue can be adequately covered by the transitional provisions in the Bill and those already in the enabling powers that will be used to grant freedoms and flexibilities. I have already written to the noble Baroness about that, but this will allow me to place our view on the record.
Clause 101 covers the exercise of various powers that allow the Secretary of State to remove regulatory controls on authorities or to grant additional powers to them. In particular, subsection (1) makes it clear that the powers mentioned in subsection (2) may be exercised for the purpose of making provision that relates to authorities that are for the time being in a particular performance category under Clause 100. Where provision of that kind is made and an authority undergoes re-categorisation, the result will be that the provision relating to the authority's old category will no longer apply to it and, instead, the authority will be subject to the provision that applies to its new category. The powers mentioned in subsection (2) include the powers to make orders under Clauses 96 to 98—those affect the power to trade and the power to modify enactments in connection with charging or trading.
Clause 122(1)(b) in particular makes provision for transitional arrangements to form part of any orders made under the Bill. An order made under the trading powers in Clause 96 will be framed by reference to descriptions of authority which by virtue of an order under Clause 100(4) are of a particular category. I can confirm that Clause 122 enables provision to be made in any Clause 96 order for transitional arrangements, where an authority undergoes performance re-categorisation and is no longer able to exercise the power to trade by virtue of falling into a lower performance category—that is, under a comprehensive performance assessment of being weak or poor. It is intended that the transitional provisions would be drafted so as to ensure that trading arrangements already entered into by an authority while it was exercising those powers could continue subject to certain time limitations, which we are to consider further.
Existing powers therefore enable us to make provision for transitional arrangements following re-categorisation. The amendment is in effect attempting to limit the Secretary of State's discretion. The Secretary of State could decide that, in exercising the power to make transitional provisions, an authority should—for good reason—lose the trading power. He will exercise the power reasonably and is able to preserve a freedom, but we do not want him to have to preserve a freedom once it is granted. It will be for the authorities to ensure that their arrangements are consistent with that. The transitional provisions are likely to ensure continuity but there may be
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circumstances where that is inappropriate and, therefore, the Secretary of State's discretion should not be limited in the way suggested.
In view of those reassurances, I hope that the noble Baroness will withdraw her amendment. God bless us all.
Baroness Hamwee: And all who sail in her, my Lords. I apologise for suggesting that the noble Lord has not written the promised letter. I am not aware that I have received it. I certainly would not have suggested that he had not written the letter had I received it. Clearly, that is another answer that will repay re-reading. I would not fancy trying to explain to colleagues why I was calling a Division if I did so—it would take more than eight minutes.
Although I understand the Minister's point about the Secretary of State's discretion, I note that the department is still considering how long it should last and for how long decisions and actions taken under it should be valid if an authority drops a category. In practical terms, that is a very important issue. I am grateful to the Minister for that detail and to his officials for spelling it out so carefully. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 6 [Minor and consequential amendments]:
Baroness O'Cathain Baroness O'Cathain moved Amendment No. 81:
Page 102, line 34, at end insert—
"Local Government (Miscellaneous Provisions) Act 1982 (c. 30)

(1) In Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982 (control of sex establishments), in paragraph 2 after "sex cinema" there is inserted ", adult cabaret club".

(2) In Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982, "adult cabaret club" means any premises, vehicle or stall used to a significant degree for—

(a) any exhibition, performance or dance of any type where such exhibition, performance, or dance involves a person who is unclothed or in such costume, attire, or clothing as to expose any portion of the female breast below the top of the areola or any portion of the pubic region, anus, buttocks, vulva or genitals, or wearing any device or covering exposed to view which simulates the appearance of any portion of the female breast below the top of the areola or any portion of the pubic region, anus, buttocks, vulva or genitals, or human male genitals in a discernibly turgid state, even if completely and opaquely covered; or

(b) any exhibition, performance or dance of any type where such exhibition, performance or dance is distinguished or characterized by a predominant emphasis on the depiction, description or simulation of—

(i) human genitals in a state of sexual stimulation or arousal;

(ii) acts of human masturbation, sexual intercourse or sodomy;

(iii) fondling or other erotic touching of human genitals, pubic region, buttocks or female breast; or

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(c) any exhibition, performance or dance which is intended to sexually stimulate any member of the public and which is conducted on a regular basis or as a substantial part of the adult cabaret club's activity and includes, but is not limited to, any such exhibition, performance or dance performed for, arranged with or engaged in with fewer than all members of the public on the premises at that time, with separate consideration paid, either directly or indirectly, for such performance, exhibition or dance and which is commonly referred to as table dancing, couch dancing, taxi dancing, lap dancing, private dancing or straddle dancing."

The noble Baroness said: My Lords. this amendment would amend the meaning of "sex establishment" as contained in paragraph 2 of Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982. In Grand Committee, my noble friend Lady Blatch moved a similar amendment to this on my behalf. It was one of those occasions where I had amendments on the Floor of the House on one Bill and in Grand Committee on the other. It was not an easy task to juggle, but it kept one fit running between the two places. On that occasion, the amendment had very different wording; it referred to "lap-dancing clubs" rather than "adult cabaret clubs". The amendment was rejected by the Government on the basis that the definition was not clear.
Whatever else is said about this successor amendment that charge cannot be levelled at it now. I must admit that I got huge help in drafting the amendment in pursuit of the aim of total clarity. At present, a sex establishment, within the 1982 Act, includes a sex cinema or a sex shop. The amendment would add adult cabaret clubs to that definition and therefore bring the licensing of such establishments within the provisions of Schedule 3 to that Act.
The reasoning behind the amendment is straightforward. At present, the licensing of adult cabaret clubs, popularly known as lap-dancing clubs, is dealt with by way of application for an entertainment licence under the provisions of the 1982 Act. Part I of and Schedule 1 to that Act relate to the licensing of public entertainment, and Part II and Schedule 3 relate to sex establishments.
The introduction of the amendment has been prompted by the recent rapid growth in so-called lap-dancing clubs, which are now presented as executive entertainment, but are in fact no more than high-class strip joints. I must confess that I have never been in a lap-dancing club, and, when I first heard of the term, I thought that it related in some way to lap-tops. However, my innocence was soon shattered when I discussed the Bill with friends, particularly as it is related to the licensing of sex shops—art amendment that I moved in Grand Committee, when the Government kindly indicated that they had sympathy with the amendment and would look further at it.
These clubs are a menace, at best, and, at worst, an encouragement of depravity. That is not hyperbole, but rather the sentiments of an acquaintance involved in entertaining corporate clients. In his experience, one
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visit to such an establishment was not only demeaning, leaving him feeling pretty well besmirched, but also lightened his wallet to the tune of £600 within one hour.
The entertainment at these clubs is provided by women who dance on stage or individually for a particular client and progressively remove their clothing. Some licensing authorities have applied special conditions to entertainment licences to the effect that only partial nudity is allowed, but that provision is becoming increasingly rare. I understand that there are also conditions that are sometimes applied relating to the distance to be kept between dancers and clients, and to restrict the touching of any of the dancers by the clients.
I am convinced that, when the 1982 Act was passed, Members of this House did not envisage that entertainment licences would be granted for such explicitly sexual entertainment. In addition, there have been recent media reports to the effect that the local vice squad had investigated a particular lap-dancing club on Tottenham Court Road as there was a suspicion that it was being used as a front for prostitution activity.
In addition, I understand that, when members of the public wish to object to the granting of a licence for a lap-dancing club, they find themselves restricted by the usual "planning criteria" that are applied to other applications. They relate to whether or not there will be a noise disturbance to residents from the premises, parking difficulties or an increased risk of liter or public order offences. Clearly, the issues that lead local residents to object to a lap-dancing club very seldom relate to these specific grounds. They are much more likely to centre around the considerations that can be given by a local authority when an application is made for a sex shop licence; that is to say, the character of the relevant locality and the use to which other premises in the vicinity are put.
Just last week, on Friday 11th July, an item in The Times read:
"Southwark Cathedral, a relative shrine of sexual liberalism compared with bishoprics, is embroiled in a row with its neighbour, the aptly named Club Wicked. The cathedral … is mortified at the prospect of live sex shows taking place next door. Cathedral officials have complained to the local council that the club is 'into bondage and sado-masochism' that 'cause outrage to clergy and cathedral by reason of our Christian faith'. A council spokesman said: 'We are treading on unusual ground for a local authority. There have been many complaints about this application for live sex shows—.
It would therefore seem eminently sensible to bring the licensing of adult cabaret clubs within the remit of Part II of Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982. This simple amendment would achieve that legitimate aim. I beg to move.
Baroness Blatch: My Lords, I support my noble friend. I was very pleased to substitute—rather inadequately—for my noble friend in Committee. I was disappointed by the answer given by the noble Lord, Lord Bassam, but I promised to reflect on it. As my noble friend pointed out, there was a query about

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definition, but it was more a case of government opposition to the substance of what my noble friend was projecting. My noble friend has worked very hard and sought help to address the points about which the Government were concerned. I believe that this time she has got it right.
The measure is already enjoyed by a local authority. It seems entirely harmless to give all other local authorities the opportunity to have some control over a form of entertainment that now appears to be getting out of control in some areas. It would protect the community. The particular example given by my noble friend Lady O'Cathain was Southwark. The amendment would give the local authorities the opportunity to respond to concerns in their own communities and to do something to about cleaning up the neighbourhood if what is going on in these places is offensive. It is widely known that the parameters of what is going on in these clubs are becoming wider and wider, and there appears to be no effective control in law. This is a modest, enabling amendment, which, for the sake of decency in our communities, should be supported.
The Lord Bishop of Chester: My Lords, we on these Benches support the comments made by the noble Baronesses, Lady O'Cathain and Lady Blatch. I give my full support to this amendment.
Lord Bassam of Brighton: My Lords, I congratulate the noble Baroness, Lady O'Cathain, on bringing back what she described as a simple amendment. I do not think that it is simple—I was impressed by the complexity and the coverage that the amendment attempts to secure. There is little doubt that it addresses a matter of very considerable concern to people in many areas where lap dancing clubs and other similar clubs have opened in recent years.
My first experience of this matter as a politician was when, as leader of a council, I was appalled by the proposition of having a lap dancing club in Hove, which seemed an altogether inappropriate place. Many people in that part of the city were deeply offended by the suggestion that such a club should be located there.
The noble Baroness, Lady O'Cathain, put her finger on the point, as it were, when she said that the planning criteria that were available to consider the application were not fit for the purpose, which made it difficult for decency to prevail.
We accept that the matter is important—all our political experience tells us that local authorities should have adequate powers to regulate such establishments. However, as I said earlier, the amendment demonstrates the complexity of drafting to cover the types of dancing and performance that may take place in such clubs. I have heard of many of the types of dancing described in the amendment, but I have not come across taxi dancing before. I am looking forward to somebody telling me exactly what that is.
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I can see that much thought has gone into the drafting of this amendment. The problem with it. however, is that it would catch a far broader range of clubs than those at which it is aimed—by reason of including dancing in clothing that reveals a portion of the buttocks, for example. That is not only a matter of drafting; it raises very significant questions about the extent to which entertainment should be controlled.
I am concerned that this is a matter on which there is a need for wider consultation than is possible within the time scale of the Bill. I appreciate that that is similar to the response given in Committee, and I anticipate the disappointment of the noble Baroness in hearing those words. However, the proposal has implications for local government and they and other interested parties would need to be consulted extensively. It is a regulatory matter on which there would need to be a regulatory impact assessment. There are enforcement issues that would need to be taken very carefully into account. There is a need for more generalised consultation within local government and other interested groups and I am sure that the police, who would get involved in some aspects of enforcement, would also need to be consulted.
The Government are more than happy to pursue the issue and undertake consultation. However, given the time frame of this legislation—the new financial regime must be ready to kick in by a certain time next year—we cannot proceed on the basis of this amendment, crafted cannily and extensively as it undoubtedly is. We cannot support this amendment for this Bill. For those reasons, I hope that the noble Baroness will take up our offer of further discussions so that we can try to perfect something for a later time and another government Bill that covers local government matters. As my noble friend Lord Rooker said yesterday, "There's always another one coming along shortly afterwards".
Baroness Blatch: My Lords, before my noble friend Lady O'Cathain decides what to do about her amendment, the Minister talked about complexity, but all legalese is complex: that is a given. We know that lay readers find such matters difficult to work their way through. However, the Minister has enormous back-up from parliamentary counsel and officials in the department. Is he really saying that he admits that there is a problem and that local authorities have inadequate measures to deal with it and that some of these clubs are offensive to the communities, but is not taking a heaven-sent opportunity to do something about the problem? He has not explained why my noble friend's amendment is unacceptable.
The amendment would be widely welcomed. If, over time, it is seen not to be suitable for the purpose, it is within the Government's powers, with our support, to perfect it at a later date. I see nothing wrong with my noble friend's amendment and nothing that the Minister has said tells us why the amendment is defective.
Baroness O'Cathain: My Lords, I need not tell you how very disappointed I am about this. It is quite unfair because we will not now protect the people who live around the areas and those who are seduced into going into these clubs. There is a chipping away at the moral fabric of this country that is going on relentlessly. We have an ideal opportunity—and I thank my noble friend Lady Blatch most sincerely for her support.
Somebody in this country has to stand up to stop these clubs. It is not good enough to say—and I use the Minister's words back at him—that it is "a matter of very considerable concern". If that is the case, why can we not do something about it? There is no earthly reason why not. The Minister said that we need a full regulatory impact assessment and that the police must be consulted. Those are fine words, but that is all that they are. The Minister has not said when the consultation would take place, what sort of time scale would be involved, or how long these adult entertainment or lap dancing clubs will be permitted to rampage throughout the country. That is what they are doing.
There are people who are caught by such clubs on the basis of corporate entertainment, as I explained. One place is even next door to a Christian cathedral. It is not good enough. On the basis of the Minister's reply, I am not satisfied and I wish to test the opinion of the House.
1.8 p.m.
On Question, Whether the said amendment (No. 81) shall be agreed to?
Their Lordships divided: Contents, 59; Not-Contents, 101.

Division No. 2

CONTENTS

Anelay of St Johns, B.

Lyell, L.

Astor of Hever, L.

Macfarlane of Bearsden, L.

Blatch, B.

Marlesford, L.

Bridgeman, V.

Mayhew of Twysden, L.

Brightman, L.

Molyneaux of Killead, L.

Brougham and Vaux, L.

Montrose, D.

Byford, B.

Noakes, B.

Carlisle of Bucklow, L.

Northbrook, L.

Carnegy of Lour, B.

O'Cathain, B. [Teller]

Chalker of Wallasey, B.

Palmer, L.

Chan, L.

Perry of Southwark, B.

Chester, Bp.

Plummer of St. Marylebone, L

Colwyn, L.

Cope of Berkeley, L

Rees, L.

Crickhowell, L.

Rees-Mogg, L.

Dixon-Smith, L. [Teller]

Renton, L.

Elton, L.

Roberts of Conwy, L.

Finlay of Llandaff, B.

St. John of Bletso, L.

Fookes, B.

Seccombe, B.

Fowler, L.

Selsdon, L.

Hanham, B.

Sharpies, B.

Howarth of Breckland, B.

Shaw of Northstead, L.

Hunt of Wirral, L.

Skelmersdale, L.

James of Holland Park, B.

Slim, V.

Jellicoe, E.

Soulsby of Swaffham Prior, L.

Jopling, L.

Strange, B.

King of Bridgwater, L.

Swinfen, L.

Kingsland, L.

Tebbit, L.

1002

Vivian, L.

Wilcox, B.

Weatherill, L.

Williamson of Horton, L

NOT-CONTENTS

Acton, L.

Hogg of Cumbemauld, L.

Ahmed, L.

Hollis of Heigham, B.

Alli, L.

Howells of St. Davids, B.

Andrews, B.

Hoyle, L.

Ashton of Upholland, B.

Hughes of Woodside, L.

Bassam of Brighton, L.

Hunt of Chesterton, L

Berkeley, L.

Hunt of Kings Heath, L

Bernstein of Craigweil, L.

Jones, L.

Blackstone, B.

Kennedy of The Shaws, B.

Brett, L.

King of West Bromwich, L.

Brooke of Alverthorpe, L.

Kirkhill, L.

Brookman, L.

Lea of Crondall, L.

Burlison, L.

Lipsey, L.

Campbell-Savours, L.

Lofthouse of Pontefract, L.

Carter, L.

Macdonald of Tradeston, L.

Clarke of Hampstead, L.

McIntosh of Haringey. L.

Clinton-Davis, L.

McIntosh of Hudnall, B.

Cohen of Pimlico, B.

MacKenzie of Culkein, L.

Corbett of Castle Vale, L.

Mackenzie of Framwellgate, L

Crawley, B.

Massey of Darwen, B.

David B

Morgan, L.

Davies of Oldham, L. [Teller]

Morris of Manchester, L.

Dean of Thornton-le-Fylde, B.

Murray of Epping Forest, L.

Desai, L

Nicol, B.

Dixon, L

Orme, L.

Elder, L

Plant of Highfield, L.

Elder, L.

Ponsonby of Shulbrede, L.

Evans of Parkside L

Prys-Davies, L.

Radice, L.

Evans of Temple Guiung, L.

Ramsay of Cartvale, B.

Falconer of Thoroton, L. (Lord Chancellor)

Rea, L.

Richard, L.

Farrington of Ribbleton, B.

Rooker L.

Faulkner of Worcester, L.

Scotland of Asthal, B

Filkin, L.

Sewel, L.

Fyfe of Fairfield, L.

Sheldon, L.

Gale, B.

Simon, V.

Gavron, L.

Stone of Blackheath, L.

Gilbert, L.

Strabolgi, L.

Golding, B.

Symons of Vernham Dean, B.

Goldsmith, L.

Temple-Morris, L.

Gordon of Strathblane, L.

Thornton, B.

Goudie, B.

Turnberg, L.

Gould of Potternewton, B.

Turner of Camden, B.

Graham of Edmonton, L.

Warner, L.

Greengross, B.

Watson of Invergowrie, L.

Grocott, L. [Teller]

Whitaker, B.

Harris of Haringey, L.

Whitty, L.

Harrison, L.

Williams of Elvel, L.

Haskel, L.

Williams of Mostyn, L. (Lord President of the Council)

Hayman, B.

Hilton of Eggardon, B.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
1.19 p.m.
Lord Rooker Lord Rooker moved Amendments Nos. 82 to 84:
Page 108, line 16, at end insert—
"41A In section 13(3) (reduced amounts), after "section 1 I" there is inserted ", 11A"."
Page 109, line 13, at end insert ", and
(b) for "12(1)" there is substituted "12"."
Page 109, line 15, at end insert ", and
(b) for "12(1)" there is substituted "12"."
On Question, amendments agreed to.
Schedule 7 [Repeals and revocations]:
Lord Rooker Lord Rooker moved Amendment No. 84A:
Page 115, line 10, column 2, at beginning insert—
"In section 53(4A), paragraph (b) and the word "and" at the end of paragraph (a)."
The noble Lord said: My Lords, this part of Schedule 7 cross references to paragraph 3 of Schedule 6 of the Local Government Finance Act 1988. This paragraph ceases to have effect as a consequence of Clause 70 of this Bill, which is the removal of the power to prescribe rateable values. This is a technical amendment and has no effect apart from tidying up the Bill. While I have the opportunity, briefly, I would like to make clear our approach to Clause 70 to which the technical amendment relates.
It is the Government's intention to end the practice of prescribing the rateable values of certain industries from 1st April 2005, following the next non-domestic rates revaluation. Clause 70 removes the Secretary of State's power to prescribe rateable values. That is a major change in valuation policy and there are inevitably risks. Indeed, a number of questions were raised in Committee on the Bill in another place. Although there was agreement to the principle of ending prescribed valuations, there was some concern that ordinary ratepayers would have to foot the bill if there were a significant number of appeals. There was also concern that the Valuation Office Agency and the rating system in general might be under some pressure.
It was suggested that a reserve power might be needed in case the valuation system could not cope with the ending of prescribed rating. We have considered those points in forming our position on the matter. We must be sure that all valuations are robust and defensible otherwise there is a risk of successful challenge of those values. The consequences of such action would likely be costly and burdensome for both ratepayers and the Valuation Office Agency. Were there to be a significant loss to rates yield following such a challenge, the Secretary of State would have to decide whether to pass on the loss by increasing the multiplier for everyone. He would have to consider the instability that that may cause to the rating system.
The Valuation Office Agency is keen to try to agree beforehand the assessments of properties occupied by those industries wherever possible as that will create certainty for ratepayers and reduce the prospect of extensive litigation. But, at this stage, it is not possible to determine whether such an agreement will be achieved. We intend therefore to proceed cautiously. We will take advice from the Valuation Office Agency on whether proposed valuations for individual industries are robust and defensible. We hope that that will be the case for all industries. But the Valuation Office Agency may not be confident of the valuations in some cases because, for example, there is insufficient information available on which to base their valuations. If we judge this to be the case, the Government may decide not to end prescription in certain cases at that time.
In such cases, the Government may choose not to commence Clause 70 in a wholesale manner. Instead we may decide to take a phased approach and commence Clause 70 at different times for different industries. We hope that that will not be necessary, but we think it would be rash to rule out at this stage a phased introduction. This will not require a change to the Bill, but none the less we thought it right to explain to the House, while the Bill was still being considered, how the power might be operated. I hope that noble Lords agree that this is a sensible and cautious approach, while still remaining committed to ending prescribed rating. I beg to move.
On Question, amendment agreed to.
Lord Rooker Lord Rooker moved Amendment No. 85:
Page 115, line 43, column 2, at beginning insert—
"In section 11(3), the words "and section 12 below"."
On Question, amendment agreed to.
Clause 127 [Commencement]:
Baroness Hanham Baroness Hanham moved Amendment No. 86:
Page 76, line 22, leave out "120,"
The noble Baroness said: My Lords, in speaking to Amendment No. 86, I shall speak also to Amendment No. 90, which is the main force of the discussion. It brings us back to a debate in Committee on the Fire Services Bill. I raised what seemed to he a potential conflict in the terms of the Fire Services Bill which, as noble Lords will know, gives the Deputy Prime Minister or the Secretary of State powers to intervene—under what is a short-term Bill—to make decisions that affect not only firemen's pay but also conditions of service.
Conditions of service include matters such as the closure of fire stations and the rearrangement of fire services within a local authority area. Those powers fall to local authorities under Clause 120 in this Bill. We also now have the White Paper which will be effective, presumably, in the not too distant future when the proposed fire services Bill is brought forward. In Committee on the Fire Services Bill, the Minister said that if he could think of anything to say on the subject on Report that was better than anything he said in Committee, he would; and that it would be put on the record.
In the interim, we have had the compendium of responses on that matter and others, which were raised in Committee on the Local Government Bill. It briefly refers to that particular issue. But I would prefer the Minister to justify today why these two clauses are necessary and why they will not overlap and conflict with each other. I suspect that they will.
Amendment No. 90 proposes that the provisions in the Local Government Bill are not invoked until the "Fire Services Act" has effectively passed out of existence, because it has a sunset clause of two years. At the end of the two years, the clauses in the Local Government Bill would be introduced straightforwardly. Otherwise, potentially, there would be a conflict if the

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Fire Services Bill had to be used, although I accept that the legislation is intended for an emergency situation. I look forward to the Minister's response. I beg to move.
Baroness Hamwee: My Lords, I referred back to see what the Minister said in Grand Committee on the Fire Services Bill on this issue. I shall quote one sentence only.
"One is almost in parallel worlds".—[Official Report, 7/7/03; col. GC 49.]
Indeed, it is that sense of being in a parallel universe which has prompted the noble Baroness.
However, we do not think that it would be right to support these amendments. The provisions in this Bill are very desirable. Those are the ones that we want to see in effect. It is the Fire Services Bill which is, to us, so offensive. That is the one we want to see the back of, not the ending of the Secretary of State's powers as provided by Clause 120. The noble Baroness is right to try to obtain clarity on the issue, but I hope that she will not pursue the matter to its logical conclusion—which to us would be illogical.
1.30 p.m.
Lord Rooker: My Lords, I remember using the term "parallel worlds" in response to a particular amendment, but I think that the 11 hours in Grand Committee on the Fire Services Bill was actually a parallel world. It was certainly another world to that which I have been used to since I have been in this House. I think that I can satisfy the noble Baroness about the apparent conflict. I have been giving the matter more thought anyway.
Clause 120 removes the requirement for fire authorities to seek the Secretary of State's approval before making a reduction, no matter how minor, in the number of fire-fighting posts or before the closure of a fire station or, indeed, the withdrawal of a fire appliance. The Bain review recommended that Section 19 of the Fire Services Act 1947 be amended or repealed as soon as possible to remove obstacles to introduce new and more flexible fire cover arrangements. The Government fully support this view and I believe there is a degree of political consensus that, in a modern fire service, operational decisions of this kind should be taken locally.
Noble Lords have expressed concern at a perceived conflict between the greater operational flexibility that the repeal of Section 19 will give fire brigades and the powers of direction on the use or disposal of property contained in the Fire Services Bill. We do not believe that there will be any such conflict. As I said during our debate in Grand Committee on the Fire Services Bill, the Government consider it prudent to take these powers to deal with particular circumstances if they arise, but we hope that they will never need to be used. It is our avowed desire that the Fire Services Bill is never operated during the two years that it will lie on the statute book.
The powers in the Fire Services Bill are concerned only with the recent dispute and its immediate aftermath. They would allow the Secretary of State to
1006
ensure that fire authority assets—paid for by the public—are available to those providing emergency fire cover in the event of further strikes. The powers would also allow the Secretary of State to ensure that some limited modernisation of the service could take place if it was being blocked, but I repeat that it is our strong preference for us not to have to use these powers. Noble Lords will of course be aware that the powers will lapse after two years after enactment of the Fire Services Bill; the sunset clause is quite unambiguous. By contrast, the introduction of integrated risk management planning, the repeal of Section 19 of the 1947 Act and the proposals set out in the White Paper are all measures for the longer term.
The move to integrated risk management in the UK fire service is a very positive step forward. It puts the emphasis firmly on outputs and outcomes in terms of lives saved and injuries prevented, accelerates the move from intervention to prevention and is more responsive to locally identified risks and needs. By delaying the repeal of Section 19, a repeal which enjoyed cross-party support in the other place, this amendment would deny fire authorities the flexibility they need to introduce a risk-based approach to the provision of fire cover. I cannot see the reason for that. The potential consequences of doing so and thus continuing with the existing inflexible and overly centralised fire cover arrangements are, I believe, self-evident. It is ludicrous beyond belief that at present the moving of appliances between fire stations has to be agreed by the Secretary of State. The current operating system is incredibly detailed and anachronistic.
The guidance on the introduction of integrated risk management planning, which I hope noble Lords have had an opportunity to consider since Committee, makes clear our continuing expectation that it is essential for local communities to be consulted about significant changes in fire cover. Fire authorities also have a general duty under best value legislation to consult about the way in which they exercise their functions.
There are a number of safeguards in place to ensure consistency of approach without inhibiting local flexibility and decision making. Integrated risk management plans will be drawn up within a framework of national guidance and fire authorities will be expected to maintain current fire cover arrangements until they have produced an integrated risk management plan and consulted local communities on any changes proposed. The performance of fire brigades in providing effective and efficient fire cover will continue to be monitored.
I hope that those explanations set the context. However, we have three elements to consider here. We have, first, the Fire Services Bill, a measure directly related to the dispute which has just ended but which has not been finally and completely settled because of all the dates that have to be met under the agreement. To that extent we now enjoy peace and tranquillity, but there is still work to be done as a direct result of the signed agreement. So the Fire Services Bill has been designed to cover that.
Secondly, we have a clause in the Bill before the House which seeks to abolish Section 19, as recommended by the Bain review and which we want

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to implement straightaway. Thirdly, in the meantime, the Government have produced their long-term considered response to Bain in the form of the White Paper, which obviously indicates that in the future there will be a major piece of legislation. All three elements can be taken together or separately.
In September we shall consider on Report the Fire Services Bill. I understand that tickets are being offered at a hot rate based on the performance of the parallel universe in the Grand Committee proceedings. However, noble Lords need to bear in mind the crucial point that the Government hope that the Bill will never be operated. It is our hope that it will lie on the statute book and never actually be used. Given that, it is easy to contemplate the abolition of Section 19, the introduction of integrated risk management plans and, it is hoped, a better life for fire service personnel and better performance for the public.
With those explanations, I hope that the noble Baroness will be content to withdraw her amendment. Bearing in mind that this is the last occasion on which I shall speak at this stage of the Bill, I want to put on the record a different but related matter. If I did not do so, I would be rightly chastised.
Before we conclude our proceedings on Report, it is right to tell noble Lords that the Statement on education funding to be made in the next hour or two will include a proposal relevant to this Bill, involving a minor amendment to education legislation. Obviously I cannot pre-empt the Statement being made now in the other place, but it is only right to alert noble Lords to the amendment. I shall write to noble Lords on both Front Benches shortly—or, it is hoped, immediately—to explain the proposals in detail. A government amendment to this Bill will be brought forward at Third Reading in September. However, it is only right that I mention this now because reference will be made to this Bill in the forthcoming education Statement to be made shortly.
Baroness Hanham: My Lords, I thank the Minister on three counts. First, for giving us the information that we should hang around during the afternoon to make sure that we hear the education Statement; secondly, that we should hang around during the late evening of Wednesday, 10th September, to ensure that we can take up our hot tickets for the front seats in the show for the Fire Services Bill, which I note will begin only after the conclusion of all other business on that day, so we may be in for a long night; and, thirdly, for his explanation in response to my amendment. However, I am bound to say that I still have some difficulty with it.
The Minister knows that the only reason I tabled the amendment was to seek some clarity about the overlap between the Bills. I was not particularly interested in the integrated risk management planning process. We are all agreed on that and it forms a part of this Bill. However, if the Fire Services Bill ever had to be deployed—I understand all the "ifs" and "buts"—then some of the provisions in that Bill would relate to the reorganisation of fire services within local authority areas. I do not refer to the moving of equipment and so forth, rather to the reorganisational aspects.
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If that were to happen then one Bill is going to have to be superior to the other. I understand that, in those circumstances, the Secretary of State or the Deputy Prime Minister would be able to impose a solution. but under the terms of the Local Government Bill he would already have passed that responsibility over to the local authorities. I do not think that the Minister has yet resolved the conflict about which of the two Bills would be paramount.
Lord Rooker: My Lords, there is no doubt about that. The Bill which would be paramount would be the Fire Services Act, as it will become. If the forthcoming Fire Services Act had to be operated, that would take place only under the circumstances of an emergency and the failure of the parties—the employers, the Fire Brigades Union and everyone else—to agree. We would have a disaster on our hands. The two-clause Fire Services Act would give the Deputy Prime Minister the power to impose solutions, settlements, changes to contracts of employment and the moving or using of equipment. A dispute which the parties had failed to resolve themselves through their own procedures and their own arbitration, so that it was then necessary to operate the Fire Services Act, would amount to an emergency and the Fire Services Act would take precedence. That would be necessary in those circumstances in order to protect the public.
I do not need to take advice; in my mind I am absolutely clear on the point. The Fire Services Act would be paramount at such a time, but obviously for the shortest period possible because the circumstances would be those of a breakdown in negotiations and the need to impose a settlement so as to draw a line under the dispute. We have learnt the lessons of the past 12 months and that is why the Fire Services Bill has been brought before your Lordships' House.
Baroness Hanham: My Lords, I shall not rehearse the problems that we have with the Fire Services Bill, one of which is whether the Deputy Prime Minister will be able to do anything that he wants to under the Bill because there are no parameters in it. But that is not a matter for today. I thank the Minister for his robust reply and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Rooker Lord Rooker moved Amendment No. 87:
Page 76, line 38, leave out "section" and insert "sections 76(2) to (5) and"
On Question, amendment agreed to.
[Amendment No. 88 not moved.]
Lord Rooker Lord Rooker moved Amendment No. 89:
Page 76, line 40, leave out "to 49" and insert ", 41A to 47, 48(a), 49(a)"
On Question, amendment agreed to.
[Amendments Nos. 90 and 91 not moved.]
Lord Rooker Lord Rooker moved Amendment Nos. 92 and 93:
Page 77, line 31, after "(9)" insert ", 76(2) to (5)"
Page 77, line 38, after "(3)," insert "48(b), 49(b),"
On Question, amendments agreed to.

Criminal Justice Bill
1.41 p.m.
The Attorney-General (Lord Goldsmith): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Goldsmith.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Elton) in the Chair.]
Clause 57 [Prosecution right of appeal against certain rulings]:
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 132J:
Page 39, line 31, leave out subsection (8).
The noble Lord said: We move now to Part 9 of the Bill dealing with prosecution appeals. I should say at the outset that we do not have any objection in principle to prosecution appeals for preliminary rulings. However, a little caution needs to be exercised because a great deal of judicial time can be wasted. During the last experience I had of appealing a preliminary hearing from the defence point of view, we spent some time in the Court of Appeal, where eventually the defendant lost on the preliminary hearing but was acquitted. Although it was very interesting, it did not have a great deal of effect.
I am very hopeful that the amendment will be accepted by the Government because Clause 57(8) refers to a trial conducted without a jury in the Crown Court, and trials conducted without a jury will not exist after Part 7 disappeared from the Bill the other day. I am sure that the noble and learned Lord would not want an inconsistent Bill sent to the House of Commons. I beg to move.
Lord Goldsmith: Perhaps I may deal first with the amendment and then take the opportunity to deal more generally with this part of the Bill. As the noble Lord, Lord Thomas of Gresford, said, it is the first time that we have touched on it.
The purpose of Amendment No. 132J is to delete subsection (8) consequential upon the deletion of Part 7 of the Bill. The noble Lord used the word "disappearance" in relation to that part of the Bill; the Government's view is that that disappearance is temporary. We oppose the removal of Part 7 and will restore it in another place. Having said that, as matters stand at the moment it would not be reasonable for me to resist the amendment. That could possibly delay the Committee's consideration of other important parts of
1010
the Bill. The fact that I do so obviously does not imply any acceptance of the removal of Part 7, to which we remain firmly opposed.
If Part 7 is restored to the Bill, it will be necessary to bring forward consequential amendments. I give notice of that now because it will necessarily add to any amendments that may come back from another place.
There are a number of other consequential provisions in the Bill which may not be as straightforward as this one and which may require different handling. We will give further consideration to those but, on this occasion, I can accept the noble Lord's amendment.
Let me take a moment to say something further about this part of the Bill in order to avoid saying it at a later stage in Committee. This part of the Bill creates a new right of appeal for the prosecutor against any ruling made by a Crown Court judge, either at a pre-trial hearing or during a trial, that terminates the trial early before the jury has been asked to consider the evidence.
At present, the defence has a right of appeal against conviction and sentence at the end of a trial but the prosecution has no equivalent right to challenge judges' rulings that bring cases to an end prematurely before the jury has been asked to consider the evidence. The purpose of these appeal provisions is to remedy that imbalance. This will assist in improving the consistency of judicial decision-taking. Where the Court of Appeal disagrees with a judge's ruling it will enable cases that otherwise would have been lost to be determined by the jury.
The provisions will enable the prosecution to appeal two kinds of rulings. The first category concerns rulings that are terminating in themselves, such as a stay of proceedings or a ruling of no case to answer. The second category concerns rulings that are so damaging to the prosecution case that at present the prosecutor is forced to offer no evidence, or no further evidence, such as a ruling to exclude a key piece of prosecution evidence or an order to disclose sensitive material to the defence.
In a letter I have sent to the noble Lord, Lord Kingsland, and copied to other noble Lords—including the noble Lord, Lord Thomas of Gresford—I have attached examples of the kinds of cases to which this can apply. I have also placed a copy in the Library. Should any Members of the Committee wish to refer to the letter but do not have it with them, I have copies available in the Chamber. I see that the noble Lord, Lord Thomas, is asking for a copy and one will he provided to him.
As the letter indicates, the Government hope to bring forward a series of amendments at Report stage. There will be two kinds of significant changes to the structure of the existing clauses. The first change will refine and clarify the existing provisions. This will include provision for essentially two matters. First, it will extend the time during which a prosecution appeal may be made to include the whole trial up to the start of the summing up. This is because a judge may withdraw a case from the jury at any time during the

1011
trial and, although there are likely to be very few such rulings after the close of the prosecution case, it is more rational to provide for a right of appeal against any terminating ruling regardless of when it is made. Secondly, there will be an amalgamation of the terminating and other rulings to clarify the provisions in Clauses 58 and 59. So those are the first kind of amendments that we intend to bring forward.
The second kind of amendment will introduce a right of appeal against certain non-terminating evidential rulings. The purpose of this will be to deal with evidential rulings or a series of rulings that significantly weaken the prosecution case but fall short of being fatal to it and therefore qualifying as terminating rulings. The difference between this right of appeal and the right of appeal against other rulings in the Bill in Clause 59 is that the trial will continue regardless of the outcome of the appeal. The Court of Appeal will not be required to acquit if the appeal is unsuccessful and the prosecution will not be required to accept that if leave to appeal is not obtained or the appeal is abandoned the defendant should be acquitted.
In Committee in another place, my right honourable friend the Solicitor-General, in response to a point raised by Mr Humfrey Malins, indicated that the Government were considering extending the right of appeal to such rulings, which she described as rulings that were very damaging but could not be predicted to be fatal. I mention that now simply to give added notice that that is there; plainly it is not for debate in this Committee, but I was anxious that noble Lords and others who read these debates would know what we intend. That is an extremely long response, given that I am accepting the amendment.
On Question, amendment agreed to.
Clause 57, as amended, agreed to.
Clause 58 [Appeals against terminating rulings]:
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 132K:
Page 40, line 4, after "adjournment" insert "for no more than seven days"
The noble Lord said: I am most grateful to the noble and learned Lord for his exposition of what he has set out in a letter which, I regret to say, has not come to my attention. Whether that is my fault or somebody else's, I do not know. It being the case that the Government propose to amend these provisions radically, as it seems from what the noble and learned Lord said, I shall be brief going through these amendments.
I am concerned to tighten, not to extend, the sort of appeals that can be brought by the prosecution. The noble and learned Lord referred to the distinction between terminating rulings and other rulings. Terminating rulings mean, without any question, an acquittal. If a person is acquitted on a particular charge, he is entitled to be discharged and that is the end of it. If the prosecution is to challenge that terminating ruling, when, in effect, a person has been acquitted, it should be within very strict parameters.
The purpose of Amendments Nos. 132K, 132L and 133A—the latter refers to the other sort of rulings—is to limit the right of an adjournment to consider an appeal to seven days and also to make it quite clear, so that there should be no question about it, that there will be no application to extend that time by the prosecution. It is "make your mind up time" as far as they are concerned, and if they do not make their mind up within the seven days, the acquittal of the defendant should stand, as would any ordinary acquittal. This is the introduction of a new principle into the criminal justice system. At the very least, that sort of limitation should be introduced.
I shall be saying more about tightening up these clauses when we come to later amendments. I beg to move.
Lord Kingsland: We have amendments in groups 3 and 4 which would have the same effect as those of the noble Lord, Lord Thomas. For reasons of economy of time, I would like, respectfully, to adopt the arguments that the noble Lord has deployed in support of his own amendments in support of ours.
I was most grateful to the Attorney-General for his opening remarks, putting Part 9 in the context of the whole Bill. Will he indulge me by allowing me, in turn, to ask him some general questions about the philosophy that lies behind Part 9? I assure him that I shall be extremely brief in my observations and questions.
My first question is, what is the mischief that the Government are aiming at in Part 9? Is there a suspicion in their mind that judges on the criminal circuit are, in some way or other, pro-defendant? Or is there some other reason for wanting to introduce these proposals? I ask that question not only on its own merits but because the proposals in Part 9 have significant implications for the resources of the Court of Criminal Appeal. If there is no real mischief, what on earth is the point of making it even more difficult to get a case in front of the Court of Criminal Appeal than it is already? I understand that the delays in court for normal appeals run to about 15 to 18 months.
It is also quite clear that these new provisions will not only involve delay in themselves but will imply delay in the hearing of other totally unrelated criminal appeals. My supplementary question, in essence, is: if the Government really think there is a mischief, is solving it worth the cost that the criminal appeal system will have to bear?
My next question arises out of the remarks the noble and learned Lord made to your Lordships' House a little earlier about prosecution appeals against non-terminating decisions by judges. I am most grateful to the noble and learned Lord for writing to me in the way that he did; it was enormously useful in helping me to prepare for today's proceedings. But one issue that continues to lie fallow, following his letter, is whether or not there should be reciprocal rights for the defendant. If the prosecution can appeal against a non-terminating decision by a criminal judge, why cannot the defendant have the same rights of appeal?

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That, surely, is the principle that lies behind the notion of equality of arms, about which so much is spoken these days by human rights lawyers.
It also seems to me to be an issue of fundamental fairness in the conduct of criminal trials. If the prosecution can appeal, why cannot the defendant? I know the noble and learned Lord is still considering these matters, as he prepares his amendments for Report. He may already have this issue well in mind. But I thought it only fair that I should draw his attention to the point at this juncture so that he can reflect on the matter, if he feels it is worth while, over the summer adjournment.
Lord Lloyd of Berwick: I, too, am very interested in what the noble and learned Lord had to say in respect of his proposed amendments to Part 9, which seem to raise all sorts of rather different questions from those that I thought would be raised. I hoped that I might be, as it were, cut in on anything going on these amendments, along with all those who took part in the Second Reading debate—even those who would have taken part if they had not happened to lose their voice on the occasion in question.
Lord Goldsmith: I paused before rising simply because I see the noble and learned Lord, Lord .Ackner, in his place. Amendment No. 133, which is in this grouping, is in his name, and I did not know whether the noble and learned Lord planned to speak to it. If he did, this might be an appropriate moment for him to do so, before I respond.
Lord Ackner: As your Lordships see, the amendment, on the face of it, would merely change "must" to "may". That sounds an innocent amendment and, indeed, coming from me, it is, as your Lordships would expect, an innocent amendment. But for once, I do not have to ask your Lordships to rely on what I say because this is what is to be found in the memorandum deposited by the Lord Chief Justice which has the imprimatur of not only the Lord Chief Justice but all the other senior Lords Justices who deal with crime. Their point is: why should the judiciary not have discretion? All this vaunted underlining of the independence of the judiciary looks a little odd when you suddenly find "must" where, clearly, there should be judicial discretion. That is the limited and simple nature of my amendment, and I hope it will commend itself to the Attorney-General.
2 p.m.
Lord Goldsmith: I plan to respond briefly first to the general questions asked by the noble Lord, Lord Kingsland. That may assist in understanding the nature of the provision we are discussing. The noble Lord asked what was the mischief at which the Government aim. Is there a suspicion that Crown Court judges are pro defendant? I unhesitatingly answer that latter question by saying, "Certainly not". But that does not mean that on occasion they may not make an error in the judgments that they reach, particularly errors of law in certain circumstances.
1014
I sent a letter to the noble Lord, and I believe that a copy has now been received in the Chamber at least by the noble Lord, Lord Thomas. I hope that the other copy will be discovered in his Chambers or at some other address. A copy is in any event in the Library but I shall also ensure that copies are sent individually to all Members of the Committee who participate in today's debate. That identifies by way of examples the kind of case where the measure we are discussing may apply. I wish to take a few moments to identify one or two of them without going through the detail just to give an idea of the circumstances in which the matter can arise.
There will be cases where a judge will make a ruling that there must be an acquittal and so directs the jury, or he grants a stay of the proceedings which is in effect final, or where the ruling is so damaging to the prosecution's case that they cannot continue. That case will come to an end at that stage without the matter ever going, as it were, on its merits to the jury to decide. If he makes an error in his ruling against the defendant, the defendant will have the opportunity to appeal, should the jury convict him, after the trial. But the prosecution has no such right. There is no way of testing whether or not that ruling was correct.
I give an example, referring to Case 2 in the list. Several defendants were acquitted on charges of conspiracy to defraud on a large scale. There was then a further prosecution of a further conspiracy to defraud. That had been severed from the original conspiracy quite deliberately by the court because it thought that dealing with all of the cases together would be too much for the jury. As I say, the further prosecution was deliberately severed so that it could be tried later. When it came to be tried, the trial judge ruled that it should not be allowed to go ahead on the grounds that it was an abuse of the process. Therefore, the defendant was acquitted on those counts. There was no possibility for the prosecution to test that ruling by the learned judge in another court.
I give another example, Case 9, where a man charged with attempted murder of an hotelier was found with the victim's blood on his boots and trousers. He admitted being at the scene. But at the close of the prosecution case the trial judge invited the defence to make a submission of no case to answer and then upheld it.
Some of these cases are cases where there has been what is known as an Attorney-General's reference; that is, a reference by the Attorney-General on a point of law to the Court of Appeal where the Court of Appeal has actually said that the judge below was wrong. But as it stands at the moment, such a ruling has no effect upon the acquittal that has taken place. One such case—Case 11—was a detailed case of a man charged with attempted rape. The evidence was that householders were disturbed by noises. The complainant was found with her underwear round her ankles and, indeed, the defendant was found with his trousers round his ankles. He was kneeling near her. When asked what he was doing. he replied, "What do you think?" He was asked whether the girl had agreed to have sex with him. He replied, "I do not know; I did not ask her". There was bruising on his and her genitals. The trial judge stopped the case and

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acquitted the defendant on the basis that the prosecution had to prove that the defendant had physically attempted penetration, and it had not done so. The Court of Appeal said on a reference that the trial judge was wrong and there was plainly evidence from which the jury could infer what had taken place. But notwithstanding that ruling, there was no possibility of the case being restored.
I refer to another example which concerns the other category of case; that is, the ruling where the prosecution has to stop the case. Case 13 is also an Attorney-General's reference case. The Committee will recall the circumstances. A DNA match was made in relation to DNA taken from a rape victim with a DNA sample that had been taken from someone previously acquitted of burglary. The police had not destroyed that DNA sample. The Committee will know of the circumstances because we have considered the consequences of the ruling that subsequently emerged from the House of Lords that notwithstanding that the sample should not have been retained, it was admissible in evidence. The trial judge had ruled that it was not admissible in evidence. The result was that there was not evidence upon which the prosecution could proceed. The man was acquitted although the House of Lords subsequently said as a matter of law, on the law as it stood, the evidence was admissible and the prosecution could have gone ahead.
I hope that those examples indicate that this has absolutely nothing at all to do with any suggestion or belief that trial judges are anything other than objective and even-handed as between prosecution and defence, but occasionally they may make errors. One circuit judge, when told that the Court of Appeal had reversed his judgment, said, "That is what they are for". It is what the Court of Appeal is for and occasionally it reaches a different view. We seek to give the prosecution the ability in a limited number of cases to test the correctness of such an important ruling before the Court of Appeal.
Secondly, the noble Lord asked me whether the measure would have enormous resource implications. The proposals have been developed in consultation with the senior judiciary. The Explanatory Notes at paragraph 785 give details of the resource implications which we believe will arise on the basis of best estimates. For the Crown Prosecution Service training and expenditure costs are estimated at £1.5 million over two financial years and about £1.3 million annually thereafter. Costs to the Department for Constitutional Affairs relating to the provision of additional Appeal Court capacity are estimated at about £0.8 million per year. Of course, there are resource implications but they are relatively modest and certainly justified in the Government's view by the importance of being able to test such rulings.
Thirdly, the noble Lord asked me—
Lord Ackner: I hope that I may intervene on that point. Are the resource implications extended to assisting the Court of Appeal, or are they purely in relation to training the prosecution and other such matters?
Lord Goldsmith: They cover the costs of what is described as,
"the provision of additional Appeal Court capacity".
That is the estimate of the Department for Constitutional Affairs. There is also an estimate for legal aid costs of about £0.1 million annually from the financial year 2005–06. Of course I recognise that those are estimates based upon what has to be an estimate of the number of cases that may arise, but I hope that they are of help.
Thirdly, the noble Lord asked about provisions which do not at the moment appear in the Bill. I am grateful to him for giving me the opportunity to consider the matter. Of course, the question of whether there should be reciprocal rights for the defence has been considered. When we come to Report, I shall want to deal with that in more detail. However, I shall indicate in the broadest terms what the response will be. The defence has the ability to appeal. If a ruling is made by a trial judge in the course of the trial to the effect that certain evidence is admissible, and if the defendant is convicted, at the end of the day the defendant can include in his appeal a complaint that the conviction was wrong because it admitted evidence that was not admissible.
Lord Kingsland: Will the noble and learned Lord give way?
Lord Goldsmith: If I may, I shall continue for a moment. On this occasion, when we are talking about a provision not in the Bill—we have amendments in relation to the part on provisions that are, and to another part to which I know that Members of the Committee are anxious that we should get—I would really rather not develop it further. Of course. if Members of the Committee want to intervene I could not and would not prevent them.
Lord Kingsland: I am most grateful to the noble and learned Lord for giving way. I have been away from the House so long that I had quite forgotten the tranquillising effect that his words had on it. That makes me almost reluctant to intervene—it seems a kind of impertinence. Nevertheless, perhaps I might be permitted to reflect on what I think was the last substantive observation that he made.
The noble and learned Lord seems to suggest that the right of the accused to appeal against conviction after the jury's decision is in some way equivalent to any right that he might have to appeal against a non-terminating decision by a criminal judge made against him in the course of the trial. In my submission that view, if not naive, is certainly inaccurate.
As the noble and learned Lord well knows, the test for the Court of Criminal Appeal is whether a conviction is unsafe or not. It is perfectly possible for the Court of Criminal Appeal to decide that the judge's finding in relation to the accused's submissions on a point, say, of inadmissibility was incorrect, but at the same time to uphold his conviction. If I may respectfully submit it, the idea that the defendant has

1017
the same rights as a result of an appeal against conviction as he would have on an appeal against a non-terminating decision by a judge against him is a chimera.
2.15 p.m.
Lord Goldsmith: The noble Lord's absence from the Chamber certainly has not in any way dimmed the clarity or pointedness of his contributions. I am really not going to be tempted to debate a provision that is presently not in the Bill. The noble Lord's point is one that has, of course. been considered. It will be necessary on a future occasion to talk a little more about the current practice of the Court of Appeal in relation to appeals, but I do not want to go further into that. I offered the noble Lord a meeting with me—indeed, we had arranged it, and I do not for a moment complain that he was not able to make it—to discuss the provisions and the intended provisions, an offer that I am very happy to make available to any other noble Lord who would also like to discuss them. We could certainly discuss the topic on that occasion and come back to it on Report.
I shall turn specifically to Amendment No. 132K, which would insert,
"for no more than seven days",
into the provision relating to the adjournment that the prosecution may seek if it wishes to consider whether to appeal against a particular ruling. Part 9 sets out a broad statutory framework for prosecution appeals, but the intention is that the detail of the procedures to be followed will be set out elsewhere, especially in rules of court and practice directions. We are anxious that those should be prepared after discussion and consultation with all interested parties, principally the judiciary. However, the provisions have been subject to consultation with the judiciary and, in the light of its concerns, we want to get the rules right and ensure that it is content with them. Of course we want to minimise delays to trials, while ensuring that trial judges have flexibility to deal with the variety of situations that may arise during a trial and which cannot be anticipated.
Clauses 58 and 59 set out the procedure to be followed where the prosecutor may wish to lodge an appeal against a judge's ruling. They allow the prosecutor to indicate an intention of appealing immediately, or to request an adjournment in order to consider whether to do so. The judge is required to grant the adjournment. The requirement is the subject of the amendment tabled by the noble and learned Lord, Lord Ackner, to which I shall come in a moment. As said by the noble Lord, Lord Kingsland, other amendments that we shall discuss separately suggested other time limits—for example, no more than 48 hours. In another place, the suggestion was no more than one day. We agree with the thinking that underlies the amendments—that the decisions need to be taken quickly so that there is not delay—but we do not agree that it is desirable to put such time limits in statute.
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The current expectation that we have in mind is that the likely time limit will be in most cases even shorter than that proposed by the noble Lord, Lord Thomas of Gresford. In another place, 24 hours was referred to. In many cases, that will be absolutely adequate, but there may be cases in which it is not. There is something to consider that is important and cuts the other way: the power should be used sparingly and judiciously. Therefore, it is intended, as I said in the letter to the noble Lord, Lord Kingsland, that the Director of Public Prosecutions will give guidance to prosecutors as to when they should use the power.
In certain cases, the power may require consultation with a more senior prosecutor. In those circumstances, I can certainly envisage that there may be cases in which, with the best will in the world, it is not possible to get that approval within, for example, 24 hours. Therefore, it may be sensible for the period to be a little longer in the interests, while keeping the delay down, of getting a sound decision that does not lead to too many appeals.
Fundamentally, we believe it better to go to rules for setting down time limits. Rules will be able to allow for exceptional circumstances—no doubt within the judge's discretion—better than placing something in statute. What is more, experience may tell that a time limit on which we originally fix is not the right time limit. In those circumstances, if it is in rules it is easy to take account of experience. If it is in statute it is much more difficult to do. Although agreeing with the underlying intention of the provisions, that is why we think it better to leave the matter to rules and practice directions rather than putting it in statute.
I shall move on to Amendment No. 133, tabled by the noble and learned Lord, Lord Ackner. Of course I recognise that it echoes concerns expressed by the noble and learned Lord, Lord Woolf, in the paper deposited after Second Reading. Mandatory procedural requirements are nothing new, and there is good reason in the Government's view for including this one in this instance. It is vital that the prosecutor is given sufficient time to consider lodging an appeal and, in appropriate cases, to take advice and consult senior colleagues. Indeed, he may have to get consent from a senior colleague.
The Government believe it better to provide a necessary protection for both prosecutors and defendants, to provide that there really has to be an adjournment for that consultation to take place if the prosecutor is not in a position to say there and then that an appeal should be brought. If not, there is a risk that an overly hasty decision will be taken. If a judge declines even the sort of short adjournment that I have in mind for the prosecutor to consider the position, there is every risk that the prosecutor will then say, "I must go ahead and appeal it", which would not be in anyone's interests if there had not been real consideration.
I can assure the noble and learned Lord, Lord Ackner, that I am a strong supporter both of the independence of judges and of having confidence in their abilities. I would want always to uphold them. However, it is a modest

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requirement in the interests of both prosecutors and defendants that a short adjournment takes place if the prosecutor feels that an appeal is required.
Lord Clinton-Davis: If the judge forms a view that there is absolutely no merit in what the prosecutor argues, why should he not have that discretion? It is very sensible.
Lord Goldsmith: Those of us who have sat as judges have had the experience of believing that there was absolutely no merit in what someone was saying, only to find that, on appeal, not only was there merit, but also that he was right and we were wrong. If the judge believes that it was wholly inappropriate even to have thought about the appeal, I have no doubt that he will make very clear his views when the prosecutor comes back and says, "No, after all, we are not going to appeal". And it frequently does happen in criminal courts, as in other courts, that, for all kinds of reasons, both prosecutors and defence ask for short adjournments to consider matters. While I am the last person to want to see delay in the courts, the kind of period that we are talking about—one designed to allow for a sensible decision to be made—is entirely justified.
Lord Lloyd of Berwick: Those of us who have sat as trial judges have always been brought up to believe that the question of whether or not to grant an adjournment is essentially a question for the trial judge, who has the feeling of the whole case. Those of us who have had the advantage of sitting in the Court of Appeal have always taken the view that to interfere with the judge's discretion in such cases is something that we will not do.
Lord Renton: I speak as one who did a lot of work as a recorder and, who, for two years, was an occasional relief judge at the Old Bailey. Circumstances can vary so much that it seems to be wrong to deprive the judge of the opportunity to refuse to grant the adjournment.
Lord Goldsmith: It is not a question of requiring the judge to allow the appeal to take place. That will be a matter for leave. It is our intention that important safeguards and guidance will be given to prosecutors so the adjournment is used judiciously.
It is important that an opportunity is provided to a prosecutor to consider properly whether that new procedure should be implemented in a given case. It is much better that there is an adjournment to allow that to take place than that people, as a result of a refusal of an adjournment, are simply driven into saying, "Well, then, I do wish to appeal". That will set in train the need to consult the Court of Appeal about whether an expedited hearing is possible.
Someone may reach the point of asking, for example, "I think that I may well want to seek leave to appeal. May I have a short adjournment until tomorrow
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morning in order to consider that and to consult?" If the trial judge says, "No, I do not think there is any merit in that", I respectfully suggest that in nine cases out of 10 the prosecutor will say, "Well, in those circumstances, I must now stand by my initial reaction, which is to seek leave to appeal and that is what I will do". That does not seem to be sensible at all. As far as the short adjournment is concerned, without in any way undermining our belief in the importance of judicial independence and the confidence in judges, we believe that it is appropriate to leave the word "must" rather than insert "may" in the provision.
Lord Thomas of Gresford: I am grateful to the noble and learned Lord the Attorney-General for his reply. The noble Lord, Lord Kingsland, beat me to the gun on the question of equating the prosecution's right of appeal in an interlocutory matter with the defendant's right of appeal at the end of a case. As he said, it is frequently the case that one succeeds in the Court of Appeal and establishes that a ruling made by the judge during the trial to allow evidence was wrong. The court then says, "But we think that the conviction was entirely safe". That has to be pure guess work. Let us take, for example, an "introducing evidence" point. On the one hand, the prosecution will perhaps have the right to introduce evidence before the jury following an appeal, but, on the other hand, the Court of Appeal may say to a defendant, "Well, that evidence was included and you were right to object to it, but you would have been convicted anyway". That is just a guess. One cannot equate one with the other.
I am impressed by the assurance of the noble and learned Lord that rules will be promulgated to deal with matters such as time limits. I inserted "seven days" in the amendment because it is essential that the prosecutor takes advice. I hope that any guidance from the DPP will make it clear that in the heat of the moment—and matters do become heated—it is not the prosecutor who will quickly take that decision to appeal. There should be time for reflection and consultation; that should be a matter of procedure. I see that the noble and learned Lord agrees with me on that point. I would be grateful if he would say so.
Lord Goldsmith: I was nodding in assent to the general point that the noble Lord was making. It is important that decisions are not made just in the heat of the moment. It is likely that, in those circumstances, advice will need to be sought. I rise because I would not want to give the impression of having agreed with every aspect of what the noble Lord said about what the guidance should be. The invitation that I made to the noble Lord, Lord Kingsland, to discuss these matters, including the issues touched on by subsequent amendments—which I will not be drawn into today—is of course extended to the noble Lord, Lord Thomas. I am sure that we would benefit if he were able to take up that offer.
Lord Thomas of Gresford: I have a feeling that the noble and learned Lord has already made that offer to me in the course of earlier proceedings. For the reasons that I have given, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 132L to 132N not moved.]
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 132P:
Page 40, line 20, at end insert—
"(8) Where the prosecution informs the court in accordance with subsection (3) that it intends to appeal against a ruling, the judge must—

(a) order the expedition of the appeal;

(b) discharge the jury (if one has been sworn);

(c) grant bail to a defendant in respect of the charge or charges which are subject to the appeal."

The noble Lord said: I am concerned about what happens when a notice of appeal is given by the prosecution. As I indicated in the debate on the previous amendment, where there is a terminating ruling the person will be acquitted. Consequently, if he is in prison on remand, he will be released. If it is the view of the trial judge that he should be acquitted by reason of the terminating ruling that he has made, my proposed subsection (8) should come into play. Pace the noble and learned Lord, Lord Ackner, the judge must,
"order the expedition of the appeal",
so that the matter is addressed quickly. He must also,
"discharge the jury (if one has been sworn)".
Where there has been a terminating ruling, it seems quite wrong that the jury should hang around until the Court of Appeal has pronounced on the matter and then come back, maybe months later, to continue the trial.
Finally, the judge must grant bail to a defendant in respect of the charges which are the subject of the appeal. If he is on remand for other charges, or if the trial proceeds on other charges, so be it, he will not be released. But he will have the advantage of the ruling which has been made in his favour until the Court of Appeal states that it is wrong. Amendment No. 132P splits Clause 60, which deals with expedited and non-expedited appeals into two kinds—those which are concerned with a terminating ruling and those which are concerned with other rulings.
Coupled with that are Amendments Nos. 133E, F, H and J in my name. The proposal in Amendment No. 133F is that where the ruling is not a terminating ruling but an interlocutory matter, the judge must discharge the jury. Again, in my view it is wrong that the jury should hang around waiting for the Court of Appeal to decide on a particular matter. For the same reasons I have given in relation to Amendment No. 132P, the judge must grant bail in respect of the charge or charges which are the subject of the appeal.
Amendments Nos. 133H and J are consequential to that principle. If the prosecution is going to exercise this new right of appeal, it has to be subject to stringent conditions as to time and as to what happens to the defendant and to the trial while that appeal is awaiting hearing. The noble Lord, Lord Kingsland, referred to 15 or 18 months currently for an appeal to be heard. I know of an appeal which is coming up in October resulting from a conviction three years ago. The pressure upon the Court of Appeal is enormous. We cannot have a system which stuffs the Court of Appeal with prosecution after prosecution appeal, expedited or non-expedited, and causes people who are awaiting appeals against conviction in the ordinary way to have to wait their turn. I beg to move.
2.30 p.m.
Lord Kingsland: I support the speech of the noble Lord, Lord Thomas of Gresford. In doing so, I want to ask the noble and learned Lord the Attorney-General what I hope he will not think a naive question.
Am I right in thinking that the effect of Clause 58(6) is that, if there is an application for leave to appeal against a terminating ruling by the judge, the judge must continue with the trial? Is that the effect of that provision? Or is there an obligation once leave is granted, to adjourn and either expedite or not expedite the appeal?
Lord Goldsmith: Before I deal with this series of amendments, I want to comment on the difference between expedited and non-expedited appeals. As yet, it has not been mentioned. When the prosecution informs the court of its wish to appeal, it is necessary under Clause 60 for the judge to decide whether it should be an expedited appeal or a non-expedited appeal. It is easy to see in what circumstances the judge might think it right for there to be an expedited appeal and in what circumstances it would not be necessary.
The main purpose of the clause is to allow prosecutors' appeals against rulings made in the course of the trial to be heard quickly, particularly if a jury has already been empanelled. It is less important that an appeal be expedited if the ruling is made before the trial has begun or if no jury is yet in place. In this respect, the prosecutor's appeal against a ruling tinder Part 9 at a pre-trial hearing will be like an appeal against a ruling made at a statutory preparatory hearing where there is a right to appeal.
Inevitably, there will be some cases in which an appeal is lodged during the trial. It will immediately be apparent that it cannot be expedited. The intention is that inquiries will be made of the Court of Appeal as to whether, for example, it is able to accommodate such an appeal. It may be that the arguments are complex. Where it appears that the appeal cannot he determined quickly, the Bill would allow the non-expedited route to be taken in that case also.
What then will happen? If the judge decides that the appeal should be expedited, he may order an adjournment and the length of that will depend on a consideration of how long it may be for the Court of

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Appeal to deal with the issue. In the case of an expedited case, that may happen on the Tuesday when it is indicated that the Court of Appeal will be able to deal with the matter on the Thursday, so the trial might be adjourned until the Friday. That will be for the trial judge to determine, with the ability for both the trial judge and the Court of Appeal to reverse that decision once it has been made, if it turns out to be unsatisfactory.
If the judge decides not to expedite the case, a different process will be followed. If it is being expedited, he would not discharge the jury because the jury would then be ready to deal with the case when it returned. Let us suppose that the Court of Appeal said that the ruling was wrong and that the case should proceed. Let us further suppose that, typically, the jury has heard all the evidence during three or four weeks, a submission has been made on behalf of the defence and the judge has ruled that the prosecution case has to stop. In such a case, it makes sense to get that ruling tested quickly in the Court of Appeal if it can accommodate it. If it upholds the judge's ruling, the case will come to an end. If it does not, the case will continue with the same jury in place. This provision has been built up in consultation with the senior judiciary who have been consulted about it.
That is the background. I turn now specifically to the amendment. Amendment No. 132P would require the court to expedite all prosecution appeals under Clause 58 against terminating rulings as defined by the Bill. Then the court would have to discharge the jury and bail the defendant. The amendment is highly inappropriate for several reasons. Imagine that we are dealing with a trial for murder. The accused is thought likely to abscond and has not received bail at any time since his arrest. The judge makes a terminating ruling which the prosecutor is firmly convinced is wrong and the prosecutor decides to appeal.
First, there is no reason why a terminating ruling should always follow the expedited route. Most pre-trial appeals will not be expedited, but those lodged after the jury has been empanelled generally will be. It will be for the trial judge to determine that, having regard to all the circumstances. However, if it is clear that an appeal is not capable of being expedited, the court ought to be able to determine which route is followed and the Bill to allow flexibility to decide that. If the court decides that a non-expedited appeal is necessary, a non-expedited appeal should be the outcome.
The second effect of the amendment would also be highly undesirable. Assuming that an appeal is expedited, what possible reason could there be for always requiring the jury to be discharged? The whole point of providing for an interlocutory appeal is so that the trial can continue if the Court of Appeal considers that the trial judge was wrong. Therefore, on the recommendation of the senior judiciary, we have provided for an expedited appeal so as to enable the same jury to remain in place, with less interruption to the trial.
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The third effect of the amendment would, frankly, be disastrous. The amendment would require the accused—I speculated that it might be someone charged with murder who was likely to abscond or perhaps someone who was thought capable of interfering with the witnesses—to be freed on bail in all cases, even where those risks existed. That cannot possibly be right.
No doubt the trial judge and the Court of Appeal will have in mind all those considerations—how long the defendant will remain in custody, how quickly the appeal can be dealt with, and the effect on the jurors of keeping them away from the trial for a period of time—when deciding whether it is a proper case to expedite. Therefore, we cannot accept the amendment.
The effect of the related amendments—Amendments Nos. 133E, 133F, 133H and 133J to Clause 60—would be similar. Curiously, their first effect would be to leave untouched the power of the court either to expedite or not to expedite a prosecution appeal under Clause 59 against a ruling which is not a terminating ruling as defined in Clause 56 but which is a ruling that the prosecutor regards as terminating. However, there is no reason why an appeal under Clause 58 against a formally terminating ruling should always be expedited but an appeal against a ruling which is, de facto, terminating should not. Both types of ruling lead inevitably to the conclusion of the proceedings for the offence in question.
At all events, the next effect of Amendments Nos. 133E, 133F, 133H and 133J would be to require the court to discharge the jury and bail the defendant where the appeal was not expedited. The court may well want to discharge the jury in a non-expedited case hut, for the reasons I have given, an obligation to grant bail would be highly undesirable.
The effect of Amendment No. 133EA would be to require the court, where an appeal was expedited, to grant an adjournment in all cases. The effect of Amendment No. 133G would be to require the court, where an appeal was not expedited, either to grant an adjournment or to discharge the jury.
When similar amendments were debated in another place, I believe it became clear that the judge should not be obliged to grant an adjournment in the first situation or to discharge the jury or grant an adjournment in the second, but that he should have a discretion to do so. The reason for that is that the Bill allows proceedings for offences to which the appeal does not relate to continue at the court's discretion. The appeal is against the judge's ruling; it is not against an acquittal because no acquittal is ordered at that stage. The appeal is interlocutory and thus the acquittal is suspended.
At this point, I shall answer the question put by the noble Lord, Lord Kingsland. Clause 58(6) simply provides for the appeal ruling to be suspended while the appeal is in progress. It does not mean that the trial must continue. It is possible that in certain cases the

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trial judge will say that certain aspects of the case can continue, even while awaiting the ruling from the Court of Appeal. Then the trial would be able to continue in relation to those defendants or in relation to that matter, but that is to be determined at the discretion of the trial judge.
Therefore, the Bill provides the judge with a necessary flexibility. I am sure that at least on that point the noble and learned Lord, Lord Ackner, will agree that, if these procedures are to be in place at all, it is desirable that that should happen. For those reasons, I invite the noble Lord to withdraw his amendment, and I shall oppose the others if they are moved.
Lord Thomas of Gresford: The noble and learned Lord makes a very persuasive case, which I shall read with great interest. My concern is that, where there is a terminating ruling, the defendant should be acquitted. As the noble and learned Lord was addressing your Lordships, I was considering whether it was envisaged that, although the judge has made a terminating ruling, he will not discharge the defendant—that is, whether there will be some kind of limbo position until the prosecution have made up their mind whether to appeal that ruling. In the ordinary case, if the judge were to find no case to answer, he would direct the jury to order an acquittal. But is there to be a period of days while the jury are left to wonder what will happen? What is the position then?
Lord Goldsmith: With respect, I should have thought that that was clear from the preceding debate and from what I said. The whole purpose of providing the appeal is that, in certain circumstances, there can be an interlocutory appeal against a ruling which would otherwise be terminating. It would be disingenuous and misleading for the defendant to pretend that, while that was taking place, he had been acquitted. That is why Clause 58(6)—the provision to which the noble Lord, Lord Kingsland, drew attention—states that, while consideration is being given to whether there should be an appeal, perhaps overnight or a little longer, the ruling would have no effect in relation to the offence. If that were not right, we would need to add an additional category of cases where there could be a second trial to those already envisaged in Part 10, which we shall reach later today.
Lord Thomas of Gresford: As, in any event, these clauses will not remain as they are and as there is to be a rehash before Report by the Government, for the moment I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 58 agreed to.
Lord Bassam of Brighton: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Schools Funding
2.46 p.m.
The Parliamentary Under-Secretary of State, Department for Education and Skills (Baroness Ashton of Upholland): 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 Education and Skills. The Statement is as follows:
"Mr Speaker, with permission, I would like to make a Statement about the funding of schools in the years 2004–05 and 2005–06. It is important to begin with an assessment of the changes which have taken place in the last six years. Our country now has the best results at ages 11, 14, 16 and 18. We have tackled the shameful neglect of our school buildings and, by 2005–06, we will be investing over £5 billion in repairs and new buildings.
"We have delivered major increases in school spending. Schools funding is up by more than 25 per cent, in real terms, per pupil. There is no secret where the money has gone. We now have 25,000 more teachers and 80,000 more support staff than in 1997."Moreover, teachers' pay has improved significantly; for example, in 1997, a teacher with six years' experience would have been receiving £20,040, while his counterpart today will, from September, receive £26,460. This is a real terms increase of 13 per cent. And we have started down the road to a fundamental improvement in teachers' workload and working arrangements. Those are all achievements of which teachers, heads, governors, and local and central government can be proud.
"However, there is no doubt that these changes have led, for very many schools, to real difficulties with this year's budget allocations. As I set out in my oral evidence to the Education Select Committee earlier this week, a wide range of factors contributed to this situation. I will not repeat them here. but I wish to put on record my appreciation of the hard work of head teachers and local education authorities across the country to manage through these difficulties and to continue to improve the quality of education provided by their schools.
"In my Statement on 15th May, I said that I would keep the House informed of my thinking and give head teachers and LEAs early indications of our approach to help them to begin planning for next year. My purpose today is to outline the first steps we are taking to respond to the practical concerns raised by schools about the present system. Following continuing consultation with representatives of local authorities, chief education officers and head teachers, I will make a further report to the House in the autumn.
"My guiding principles for the changes needed to the schools funding system for the next two years in order to deliver that are: that every school should receive at least a guaranteed per pupil increase in its funding for each year; that central and local government should achieve earlier announcements of

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the financial allocations to schools so that heads have greater certainty and time to plan; that we should provide greater stability through a two-year settlement on teachers' pay, ring-fenced grants and the guaranteed per pupil increase in schools funding; that there should be greater transparency in the overall system of funding for schools; and that the reforms agreed with the key workforce partners, as reflected in the national agreement on raising standards and tackling workload, should be sustained.
"The Government have been working intensively to identity a package of measures that will deliver these aims. This year my department provided a guaranteed minimum increase in education formula allocations for each local education authority. In 2004–05 and 2005–06, I intend to go a stage further. My central proposal for each of these two years is to provide a guarantee at the level of the individual school. So every school will receive at least a minimum increase in its funding per pupil. Of course, many schools will receive more than this minimum. We intend to implement this through fair funding regulations, placing each local education authority under a direct obligation to provide for such a minimum guarantee. I will confirm the minimum percentage increases for 2004–05 and, provisionally, for 2005–06, by the time of the provisional local government finance settlement in November, when we have completed our analysis of costs in the system, in particular, on teachers' pay. We will share that analysis, and the rationale for the level of the minimum percentage increase, with our education partners.
"This guarantee will provide for a minimum funding increase in every school. That minimum will be based upon the average cost pressures for 2004–05 and 2005–06. Obviously, it cannot match the precise composition of each school's current spending profile. For example, it cannot insulate schools from the effects of changes in their pupil numbers, nor reflect their wide range of different staffing arrangements. Heads and governors will continue to need to plan ahead, with their local education authorities, to take account of those features which are specific to every school. But I believe that our average per pupil guarantee will give schools a far more stable foundation.
"We are already discussing with our education partners how the guarantee will work in detail, and we will consult further. We will seek to agree guidelines to underpin the operation of these new arrangements, in order, for instance, to take proper account of the extra protection that local education authorities already provide to very small schools. Within this framework, local education authorities, heads and governors will work together through their schools forums to agree the funding baseline to which the guaranteed per pupil increase will be applied.
"For sixth forms, the Learning and Skills Council will, in both the 2004–05 and 2005–06 school years, provide each school with guaranteed minimum
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increases in funding equivalent to the per pupil guarantee for schools. The LSC will consult all heads of maintained schools with sixth forms in the autumn on its plans for improving the operation of sixth-form funding for 2004–05.
"Some schools have found it necessary this year to spend from their reserves or devolved formula capital allocations. Others have set deficit budgets by agreement with their local education authorities. Of course, schools and LEAs have the primary responsibility to manage the ongoing consequences of such decisions, including maintaining sound financial management and balancing budgets. The changes I am introducing for 2004–05 and 2005–06 will help them to do so. However, I recognise that there may be some cases where doing so could be beyond the capacity of individual schools and local education authorities. In those few cases, I will be prepared to consider limited, transitional support to avoid damage to children's education, where that is part of a locally agreed recovery plan between the local education authority, the school and the department. I shall discuss with head teachers and local authority representatives how best to provide such support.
"Of course, the minimum guarantee which I am offering today to schools can only be fulfilled by ensuring that each local education authority has the necessary resources within its schools budget. There are two key elements. First, in both 2004–05 and 2005–06, I will set the minimum increase for schools formula spending share (SFSS) in each authority at a level which will cover the school level guarantee and provide the headroom necessary to enable the local fair funding formula to work; and to help provide transitional support to individual schools, where necessary. Secondly, we will ensure that the local authority receives sufficient central Government grant to 'passport' in full the increase in SFSS into its schools budget.
"The Government will also provide additional resources for other local services, including children's social services, which are now my responsibility, over and above those announced for them in the last spending review. This will help to ensure that the arrangements I am announcing today do not create difficulties for other local services. The details will be announced in the autumn. Having provided these resources, the Government are determined that each and every school should benefit in the way intended. My right honourable friend the Deputy Prime Minister and I will be writing to every local education authority setting out the Government's clear expectation that, barring wholly exceptional circumstances, each and every local education authority should 'passport' the full increase in its SFSS into a matching increase in the schools budget. This is essential if heads, governors, teachers and parents are to have full confidence that the resources intended for schools will get through to schools. I have statutory powers

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to require local education authorities to set a minimum schools budget and I will be prepared to use those powers where it is necessary to do so.
"This year most local education authorities' spending on centrally funded pupil services, such as special educational needs and excluded pupils, has increased significantly faster than their spending on budgets delegated to individual schools. It is essential that in future the individual schools budget receives its fair share of any increase. So my intention is that in 2004–05 and 2005–06 spending on such central items should rise no faster than spending on the individual schools budget. I will consult on how fair funding regulations can ensure that this is delivered. In doing so, I will take account of the need for local flexibility on items such as the expansion of nursery provision to meet the Government's commitments.
"It is clear that a significant source of problems for some schools this year has been the change in the Standards Fund. I will help provide stability and security by maintaining, and inflation proofing, the support the Standards Fund provides to schools at its 2003–04 levels. This means that I am reversing the reductions previously announced for Standards Fund support to schools in 2004–05 and 2005–06. This will provide more than £400 million in each of the next two years, over and above existing plans. I will also be making earlier announcements on Standards Fund distribution, before the announcement of the provisional local government finance settlement.
"I am able to make this additional funding available from my end year flexibility, and other redirection of existing resources. I have previously set out for the House in my department's annual report the planned and prudent use of accumulated end year flexibility over the next three years to supplement resources secured through the spending review. This additional commitment means that my accumulated end year flexibility is now fully committed to support children, young people and adults achieve their full potential.
"Head teachers should know their budgets in good time for the beginning of the financial year. I am taking a number of steps to provide earlier notification of their funding. As well as earlier notification on the Standards Fund, the Government will bring forward the date of the provisional local government settlement to the middle of November. We also intend to bring forward the date by which local authorities are obliged to notify me of their `passporting' intentions by one month to the end of December, and the Government will propose an appropriate amendment to the Local Government Bill at Third Reading in another place.
"It is vital that the reforms we agreed with key workforce partners, as reflected in our national agreement on raising standards and tackling workload, are sustainable. That remains a key priority for my department. By maintaining the Standards Fund at its current level, we will help to ensure that schools receive the core funding they need to make progress on implementing the workforce agreement.
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"On 11th July, I submitted my evidence to the School Teachers' Review Body. The evidence makes the case for a two-and-a-half-year settlement on the basis of current targets for inflation. I have set out a clear strategy to enable sensible progression along the upper pay scale while controlling costs and I have asked the STRB to report on all the major issues in early November, so that local education authorities and schools will have much earlier certainty about the level of pay cost pressures for the next two years.
"This year's problems have underlined the need to provide more and better support for schools and education authorities in planning and managing resources, and for schools forums, which have a key role to play in helping to secure local consensus on distribution. We will be discussing with education partners, the National College for School Leadership and others how best we can make rapid progress.
"Finally, I want to make clear that this package is designed to secure stability, and to restore confidence in our funding arrangements for schools. We need to ensure that the schools funding system commands broad support; works to promote our overall objectives for raising standards in education; and ensures that resources are used in the most effective way to secure higher quality and better levels of achievement in schools. I will of course be monitoring the impact of the changes that I am announcing today, with a view to considering whether further changes are needed for 2005–06. It is critical to ensure that funding arrangements for schools are sustainable in the long term.
"I recognise that this has been a difficult year. However, I believe that the steps that I have outlined today provide a realistic framework of stability and certainty for the next two years. We will now work with education authorities and schools within the framework that I have set out today to deliver the further improvements that our children deserve"
My Lords, that concludes the Statement.
3.1 p.m.
Baroness Blatch: My Lords, I am grateful to the noble Baroness for repeating the Statement. There will be a bemused sigh of resignation throughout the ranks of head teachers, teachers and governors about it. We have the familiar format: fine words and laudable sentiments; but where is the key information that will deliver the declared aims of the Statement?
Nothing was said in the Statement about the department's own spending or possible economies. Unless schools know with some assurance the quantum of funding to be made available during the next two years, what is to be taken into account and the system of distribution, simply claiming that the settlement will represent an increase in real terms is not good enough. That is what happened this year, and witness the chaos that followed. The crisis that has precipitated the Statement is of Ministers own making. To date, there has been no apology.

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What is baffling is the way in which the policy paper, Fair Funding, was hailed as the answer to the problems of funding in our schools. It promised transparency and simplicity; neither aim was delivered—so much so that Mr Charles Clarke and Mr Miliband appeared not even to understand what has happened to their so-called generous settlement.
This year's settlement was made in triumphant mode. Within days, it was clear that it had been ill-thought through, was misleading and, frankly, in presentational terms had been completely bungled. Local government, officials in the department and even heads and governors have been made scapegoats throughout this ·ébâcle. They have been made to answer for the sheer ineptness of Ministers in the department. No, the buck stops on the desk of the Secretary of State.
At the same time as all the confusion surrounding this year's settlement, when schools were making teachers redundant, spending precious capital on revenue, running deficit budgets, and when enormous sacrifices were being made by other teaching staff to avoid their colleagues being made redundant, the department underspent by almost £1 billion.
Reading the Statement today, it would appear that the Government are behaving true to form. They have resorted to departmental control of the whole funding system. On the face of it, the Statement is well intentioned but incomplete. The promise of two-year stability and a real terms increase in funding per school and on a school-by-school basis is of course welcome. Schools will welcome that. But a real terms increase was promised to schools this year on a school-by-school basis. Witness the chaos that followed.
The Statement reads:
"my department provided a guaranteed minimum increase in education formula allocations for each local education authority"—
and,
"I intend to go … further".
The central proposal is for each and every school to receive at least the minimum increase in its funding per pupil. Will that be through the FSS? As the noble Baroness will know, that is no guarantee of actual funding. The FSS is not necessarily backed up by real funding; that depends on what happens via the LEA. If that is at the expense of funding on other services, such as social services, special educational needs or youth services, is it a matter of, "So be it"?
What about LEAs that are already spending well above what the Government deem appropriate for their schools? Will schools that are already on a high level of expenditure and allocation of grants from their LEAs receive the same increase as those that are not? Is it to be allocated on the basis of the funding in each school at the time, or will a more sophisticated judgment be taken of what has been the allocation?
In the Statement, the Government refer to average cost pressures. As the noble Baroness will know, if there is to be a uniform increase school by school, average cost pressures fall differently on different schools. How will
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that be taken into account? Let us remember that the promise in the Statement is that we shall receive the detail in September, October or November—if it is genuinely to be earlier than we normally expect information to be available to local authorities.
What about those schools that have gone into deficit this year? What about those schools that are spending precious capital on revenue spending? What about those schools that have deferred spending? Will they receive some compensation to get them up to the level at which they can properly enjoy the increase?
The Statement says that schools forums will agree the funding baseline. That goes well beyond what the Act of Parliament states. If schools forums have the power to agree, are we now to understand that they will determine the funding baseline for schools? What percentage increase on what they provided last year, or on what schools are spending on sixth forms, will learning and skills councils provide? Again, with her experience, the noble Baroness will know that schools do not separately fund their sixth forms. Schools are funded on the basis of the whole school. Once they receive the money, they regard that as for the whole school. So what assessment will be made of sixth form funding?
The Government say that they will,
"ensure that the local authority receives sufficient central Government grant to 'passport' in full the increase".
I want the noble Baroness to give us an absolute assurance that all the caveats that I have listed will be taken into account. That is essential.
The statements to be made to schools this year were made before this year's settlement. Schools believe the Government. The Government should be warned that they are raising huge expectations in our schools. If they do not deliver, surely judgment will follow.
Extraordinarily, the Statement continues:
"This year … local education authorities' spending on centrally funded pupil services, such as special educational needs … has increased significantly faster than their spending on budgets delegated to individual schools".
Is it the Secretary of State's judgment that they are spending too much on SEN—that that spending is excessive or unnecessary? The Statement then says that the Government will ensure that that increase in spending on special educational needs does not run ahead of normal expenditure. We all know that the Special Educational Needs and Disability Act 2001 required spending on special educational needs over and above the normal allocations, but from reading the Statement, it appears that schools and LEAs that will be mightily handicapped in delivering that.
On the Standards Fund, the Government used fine words in the Statement but, frankly, they are admitting to an error that has caused enormous pain in our schools this year. Further to the reference to the STRB, can we have an assurance that if it reports in early November, as we hope it will, the Government's response will be made known to LEAs and schools before November is out?
The Government are promising greater predictability, which is welcome, and greater accurate and transparent information which, if it is true, is also welcome. Local

1033
authorities' priorities must not be subject to second-guessing, if that means other pressing and sometimes obligatory duties to address the requirements of special educational needs children or social services for children, especially following the Climbié report.
Central control is now the order of the day, so now we know clearly who to hold responsible should anything go wrong in next year's settlement. The Government are in no doubt—it is now on notice—that they are raising expectations with fine words. They have not been forgiven for this year's debacle and they will be judged very harshly if they create a repeat of this year's chaos next year.
3.11 p.m.
Baroness Sharp of Guildford: My Lords, I, too, welcome the Statement and thank the Minister for repeating it in this House. However, I echo the words of the noble Baroness, Lady Blatch: what is there to crow about in the Statement? As with this year's Statement about school funding, which was made with great triumph and came unstitched in very little time, this one is full of promises, but we have yet to see whether they can actually be delivered upon. The previous Statement was made with great aplomb. When it began to become unstitched, Ministers blamed, first, the local education authorities for sticking around £500 million down the back of the sofa at the town hall, and, secondly, headteachers for being incompetent by taking on too many staff. Teachers were now being paid too much.
Now we are being told that too much is going into the SEN budget—again, we have heard that before. When the Special Educational Needs and Disability Act was going through this House we told the Minister, time and again, that the requirements for funding of the Act would be considerably greater than was suggested in the Explanatory Notes. Very considerable obligations have been placed upon local education authorities here. It is very right and proper that their spending should increase. It is about time that Ministers stopped trying to blame someone else for those problems.
Does the Minister agree with the statement made by Mr Barnaby Shaw, the DfES school improvement and excellence manager, who, on 4th July at a Local Government Association conference, said:
"When you try to analyse what went wrong [in this current year] the fault lies with the DfES"?
Later, the Deputy Prime Minister, speaking at the same conference, admitted that the situation had been exacerbated by certain ill-thought-out statements.
We welcome some aspects of the Statement. It is splendid that schools are to have greater certainty about their funding and promises of stability for two years in school budgets. There is also a promise of greater transparency in the passing through of the school Standards Fund. However, greater stability, in particular a longer-term settlement, the prospect of a two-year pay deal and guaranteed per pupil increases, are precisely what was promised last year. How can we believe that the promises will come through this year when they were made last year?
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Can the Minister tell me what assurances as to additional resources the department has obtained from the Chancellor of the Exchequer to support the new two-year pay settlement? If he has not given any such assurances, who will be the losers in the guarantee that the Minister has announced today? What plans has the department to model the new proposals to ensure that they do not come unstuck in the same way as this year's proposals did? Will the Minister agree with the need to bring forward the School Teachers' Review Body process so that pay settlements can be calculated into LEA budgets alongside the revenue support grant settlement for local authorities to set their budgets?
Again, we welcome the announcement that there is to be greater transparency. But does the Minister agree that it is not the transfer of the Standards Fund to the core budget that was this year's problem but the £400 million that was siphoned off on the way by the Secretary of State? To aid transparency, will the Minister publish in November the inflationary pressure that she expects schools and local education authorities to absorb within the two-year budget settlement so that we can judge the real levels of increased resources?
Can the Minister confirm that not a single teacher or classroom assistant made redundant this term—it is significant that the Statement is being made on or around the last day of term for many schools—will be re-employed as a result of the Statement? Will she confirm that no additional resources will be given to schools with deficit budgets or those which have been using their balances or devolved capital, and that a recovery plan is, in effect, a loan to be paid back? Will the Minister confirm the Secretary of State's statement to the Select Committee on Monday that, in effect, schools with deficit budgets might need to take a little longer to implement the workload reforms?
Can the Minister explain further precisely what amendments are proposed to come forward with the Local Government Bill? I understand that the opposition Benches have been asked not to table amendments to the Local Government Bill at Third Reading. If I may say so, it is a little rich that the Government, having asked opposition Benches to cooperate in that way, should propose to table very substantial amendments to the same Bill.
I thank the Minister for making the Statement. But there are many unanswered questions to which we would like answers.
3.17 p.m.
Baroness Ashton of Upholland: My Lords, I am grateful to the noble Baronesses, Lady Blatch and Lady Sharp, for the welcome that they have given to the thrust of the Statement. In response to the noble Baroness, Lady Sharp, I do not think that either my right honourable friend or I were crowing about anything. Rather, we were trying to bring forward, as schools break up for the summer—my schools do not break up until next week—the information that we felt would be helpful. That is our intention. I am pleased

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that that has been well received. We have said that we will bring forward the details of the discussions in the autumn—I look forward to doing so in your Lordships' House. I shall try to answer as many of the individual points raised by the noble Baronesses as possible.
I should say immediately that this is not about creating scapegoats. On many occasions, my right honourable friend and I have talked about the shared responsibility that we feel with our partners in the education authorities and in schools to ensure that we have the best possible education system. That remains the case. The noble Baroness, Lady Blatch, talked about the departmental underspend, as she referred to it. She will know from her own time in government that there is a cut-off point that allows moneys to look like underspend when they have been committed. But, on the statements that I have made about the changes on the Standards Fund, a great deal of the £400 million per year for two years has come from funds that we have been able to reallocate either from within those areas of finance or from reprioritising.
The noble Baroness, Lady Blatch, asked how we ensure that schools have that guarantee. I say to both noble Baronesses that the guarantee last year was centred on the education authority, it was not at individual school level. That is a change for the following year because of the difficulties that arose. The noble Baronesses would be right to say that it can be fulfilled only by ensuring that there are enough resources within the school budget. That is why I said in my Statement that there would be a minimum increase for schools formula spending share in each authority at a level to cover the school level guarantee and to provide the headroom necessary to enable the local funding formula to work. I hope that that will deal with those issues.
I recognise what the noble Baroness, Lady Blatch, said about differing cost pressures. We will be looking at an average cost pressure, and, within that, ensuring that the schools forums can discuss how it would apply to individual schools. For example, I mentioned the issue of small schools and the fact that education authorities often have formulae that enable them to thrive. We would be very clear—
Baroness Blatch: My Lords, those are very different words to those in the Statement. The Statement says that the schools forums will agree, not that they will discuss it. As far as I remember, when the Bill went through, we had an amendment which the Government accepted that the schools forums would not have power to determine those matters.
Baroness Ashton of Upholland: My Lords, I was about to read out what I said in the Statement. I said that schools forums would have a key role to play in helping to secure local consensus and distribution. Those are the words of the Statement and that is what I read out. That is what I agree, and it is in keeping with what was said in the Education Bill.
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The noble Baroness asked about the Learning and Skills Council. The guarantee will apply to both the real terms guarantee and the formula amount for each school, which brings it completely into line with what will be happening at school level. The noble Baroness makes the point that school budgets must be thought of in the round. That is why we have worked with our partners in the Learning and Skills Council to ensure that that will happen.
Noble Baronesses have raised concerns about special educational needs. I clearly said that there is a need to think about local flexibility, and that would apply also to special educational needs. It is important to ensure that we support our children with special educational needs effectively. When we look across the pattern of the returns on Section 52 that the local authorities have put forward, there is a wide variation in the way in which money is held centrally for special educational needs. It is important that we ensure that as much money goes into schools as is necessary to support children effectively at school level. We believe that by talking about the rate of increase, we are able to support that and ensure that schools actually get the rate of increase that they need.
In terms of the STRB timing, the noble Baroness, Lady Blatch, asked a specific question. as did the noble Baroness, Lady Sharp. The STRB will report on 3rd November. The Secretary of State will publish the findings a week later and there will be a four-week consultation. That addresses the issue of ensuring that there is time for the information to be out in the system.
Overall, it is important that we recognise that this is a concrete move forward to enable our schools to plan for the future. With regard to the Local Government Bill, my noble friend Lord Rooker will make a statement on that at another time.
Baroness Blatch: My Lords, before the noble Baroness sits down, the Local Government Bill has completed its passage through the House of Commons and is almost completely through this House. Is the Minister saying that we will amend it at the very last stage without full knowledge of what that change will be well in advance of it being discussed?
Baroness Ashton of Upholland: My Lords, I am quite sure that my noble friend Lord Rooker intends to contact both Front Benches to discuss the matter in detail. It would be inappropriate, as the noble Baroness says, to introduce something without discussion. I understand what will happen very shortly. I will leave that in my noble friend's hands.
3.25 p.m.
Baroness Thomas of Walliswood: My Lords, as no other noble Lord is getting to his feet, I shall do so. As someone whose experience in local government is in a traditionally low-spending authority, I know that we can pretty well bet that Dorset and Surrey will compete to be the lowest spending authorities—which therefore get least support from government. I am concerned about the idea of average cost pressures, minimum

1037
funding and how that will impact on counties' education authorities which traditionally are not given as much money as other authorities because of their place in the traditional spending tables. How will that be worked out?
There has been only one mention of real expenditure—in the second paragraph in which the Statement mentions the past. Are the minimum increases for schools to be real increases? If so, will they take on board something else that the Statement does not mention—the impact of increased national insurance expenditure by schools, as by other employers?
Baroness Ashton of Upholland: My Lords, as I said earlier, we can only ensure that there is a minimum guarantee for each school if we ensure that we give education authorities the necessary resources. I hope that I have made clear that we intend to do that by providing a level within the school funding formula spending share that will cover the school level guarantee, when that figure is worked out. That figure will be worked out by looking across the cost pressures—of which, as the noble Baroness, Lady Thomas, will know, teachers' pay is the biggest part. That is why the STRB is reporting early and we are doing this work. That will address the concerns most effectively in order to ensure that we deal with them in the most appropriate way.
Forgive me, but I have forgotten the last point raised by the noble Baroness.
Baroness Thomas of Walliswood: My Lords, it was whether the minimum increases will be real and take on board things such as the increases in national insurance expenditure.
Baroness Ashton of Upholland: My Lords, I am grateful to the noble Baroness. The proposal is to look across the cost pressures and to be very clear. As I said, teachers' pay and associated costs are the most critical part of that. We must establish the average cost and translate that into a minimum guarantee for each school, work with our partners in education and ensure that the schools forum, in its consultative way, makes and supports those decisions effectively. Schools must be very clear about what they are getting.
Baroness Howe of Idlicote: My Lords, I wish to follow up on two points. First, I hear what has been said on the issue of teachers' pay, and that there are funds. However, compared with many other salaries, teachers' pay is extremely low. Can we be sure that, within the sums allocated, there will be enough to be at least commensurate with raises in other parts of the economy?
Secondly, nursery education was included as one of the targets, but it would be helpful if we could have some idea of how much expansion within the sums allocated we could expect.
Baroness Ashton of Upholland: My Lords, the specific reason why we asked the STRB to think about a two and a half year settlement is to ensure that we can
1038
look at the issue of pay as the critical factor in the cost pressures facing schools. However, the Government have done a huge amount to increase the salary levels of teachers. I am very proud of that. As I described in the Statement, since 1997, we have had teachers with six years' experience for whom the real terms increase has been 13 per cent, which I believe is an important figure. So we will await the STRB recommendations. Of course, I am sure that your Lordships will be keen to be informed of all those details.
On nursery education, the Government have a commitment that, by April next year—the commitment has been brought forward by six months—every parent who wishes to have nursery education for their three year-old will have it available to them. We are on track to do that and it will be met.
The Lord Bishop of Chester: My Lords, the Secretary of State's Statement concluded with the acknowledgement that it had been a difficult year. Others in the House might feel that a more honest assessment of the mess of recent months would have been more welcome. However, we acknowledge the considerable increases in expenditure that have taken place as well as the increases in staffing, which will need to continue in the future. The upward pressures on public expenditure across the board—the Armed Forces, public order, the NHS—are greater and greater.
The Minister did not mention the backlog of building repairs in schools. The inflationary cost in the building industry is well ahead of the average level of inflation. In order to do the same amount of work on our vicarages in Chester, we currently need to budget for 6 per cent to 8 per cent more per year, not 2 per cent to 3 per cent. Will the Minister comment on the impact on the funding of repairs on school buildings as well as on salaries and other things?
Baroness Ashton of Upholland: My Lords, I do not know what I can say other than that it has been a difficult year. Perhaps I might be able to say more, but that sums up what schools have experienced.
I forgot to mention the point that the noble Baroness, Lady Sharp of Guildford, made about modelling, which is relevant in the context of what the right reverend Prelate said. The noble Baroness asked me where we would be modelling: we will be modelling down to school level with some education authorities. The noble Baroness will agree that that will be an important factor.
In the Statement, I said that, by 2005–06, we would be investing £5 billion in new buildings and repairs. I could not agree more with the right reverend Prelate about the value and importance of that. If schools have used devolved capital funding this year, we will look to support them, in the context that I described in the Statement. It is important that we have a school stock fit for purpose and that our children should enjoy the highest quality buildings. That is our objective.

Criminal Justice Bill
3.30 p.m.
House again in Committee.
Clause 59 [Appeals against certain other rulings]:
Lord Ackner Lord Ackner moved Amendment No. 133:
Page 40, line 32, leave out "must" and insert "may"
The noble and learned Lord said: Before moving the amendment, I must say that it is a great pleasure to see the noble Lord, Lord Kingsland, back with us again. His effortless advocacy always reminds me, somewhat nostalgically, of a well run tutorial.
I listened with great care to what the noble and learned Lord the Attorney-General said. Despite that, I wish to move the amendment. The reason is simply that the noble and learned Lord, with almost bromidal efforts, has emphasised the degree of co-operation that has been provided by the judiciary, as well he might. The paragraph of the report produced by the noble and learned Lord, Lord Woolf, that reflects his views and those of all the senior Court of Appeal judges who are involved with crime says in terms that the judiciary has no objection to a right of appeal in relation to a terminating ruling or a non-terminating ruling, as proposed, as long as the Court of Appeal is given the necessary resources.
The important point is that appeals must be brought with the leave of the trial judge or the Court of Appeal, as set out in Clause 57(6). The concern is the obligation that is placed on the judge to grant an adjournment. It would have been preferable if the judge had had broad discretion as to whether to grant an adjournment. In his most recent observations, the noble and learned Lord the Attorney-General drew attention to Clause 60, under which the judge has full discretion. He says that that allows for flexibility. Indeed it does; it is the same flexibility that I seek now.
The noble and learned Lord's resistance shows the lack of confidence that the executive has, from time to time, in the judiciary. I believe that that will be emphasised later. It will be highlighted when we come to sentencing. The Home Secretary's revenge on the Court of Human Rights is reflected in Schedule 17, which places on the judiciary an obligation to impose sentences about 50 per cent above the agreed—when I say "agreed", I mean agreed with the Home Secretary—guidelines that were brought in the previous year. It is also reflected in the constitution of the new sentencing council and in the minimum terms for burglary.
That is why the amendment is important, and that is why I move it. I beg to move.
Lord Renton: I support the amendment. The noble and learned Lord the Attorney-General gave strong reasons against the use of the word "must" in Amendment No. 132P. It has been a necessary part of our system of justice, in order that justice may be achieved, to give the judiciary the widest discretion possible in the circumstances, which vary so much. I would have thought that it was even more important that, under Clause 59, the judge should have the widest
1040
discretion possible and that he should not be tied down to a particular exercise of that discretion. The noble and learned Lord, Lord Ackner, has made an important point that the Government should acknowledge.
Baroness Warnock: As a non-lawyer, I support the amendment strongly. As the noble and learned Lord, Lord Ackner, said, this is the first of many clauses and schedules that we will discuss—Schedule 17, in particular—but, as it is the first, it is important that a marker should be put down here.
It is extraordinary that the Government, who have properly insisted, in another context, on the separation of powers and the protection of the judiciary from any interference—or suspicion of interference—by government, should insist on these clauses and the clauses that we will discuss later. In those clauses, political interference in the powers of the judiciary becomes more and more manifest, but this clause is the first that presents those of us who feel strongly about that with the possibility of pointing that out.
In the view of non-lawyers such as myself, there is a danger that the political element can often be over-influenced by elements of the press that are extremely insistent on the horrors of crime and the way that crime must be dealt with. That will come up again strongly with regard to sentencing. I deplore the thought that the national press should have any influence on sentencing in the courts. But this is the first instance in the Bill where the danger shows itself. It is for that reason that I strongly support my noble and learned friend.
Lord Thomas of Gresford: As the noble Lord, Lord Renton, pointed out, the Attorney-General's argument against my "mandatory procedural requirements", as he puts it, in Amendment No. 132P was so overwhelming that I feel obliged to support this and restore discretion to the court.
Lord Goldsmith: This is an odd situation because the noble and learned Lord, Lord Ackner, had already spoken to this amendment in the second grouping. Indeed, I invited him to say whether he wanted to speak to his amendment at that stage, which he did. So I already have responded to his amendment. I see that the noble Lord, Lord Renton, wishes to intervene.
Lord Renton: Perhaps I may ease the conscience of the noble and learned Lord. It is a custom in this House, which has prevailed for a long time, that the grouping of amendments is merely to help discussion when the amendments to some extent overlap. But it always has been part of the freedom of noble Lords to deal separately with any amendment in any group if the need to do so arises. That is why the noble and learned Lord, Lord Ackner, with the very strong point that he had, has done so.
Lord Goldsmith: I did not intervene to prevent either the noble and learned Lord, Lord Ackner, saying anything, or the noble Lord, Lord Renton. As the

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noble Lord, Lord Renton, raised it, my understanding is that it certainly is open to any noble Lord to ungroup an amendment from the grouping. The noble and learned Lord, Lord Ackner, did not seek to do that. Be that as it may, this is by way of explanation, for example, to the noble Baroness, Lady Warnock, who I did not notice in the Chamber before lunch. I may be wrong and if I am wrong, I apologise. I gave the answer to the amendment proposed by the noble and Lord, Lord Ackner, earlier. Perhaps I may point out that this is not the first opportunity for this point to be made. The debate before the Statement will reveal what I had to say about the independence of the judges and my confidence in them. I shall summarise the response that I gave.
A short adjournment—we spent quite some time talking about a short adjournment—should take place so as to enable a prosecutor not in the heat of the moment, as the noble Lord, Lord Thomas of Gresford, said, to be forced into a decision, but to consider out of the heat of the moment whether it is appropriate. It is so as to avoid that situation that it is right that there should be an adjournment. That is what the Bill seeks to do. I continue to resist the amendment.
Lord Ackner: I still lack a proper answer to the points which I have made. I am sorry that the noble Baroness, Lady Kennedy of The Shaws, has just left the Chamber because I thought that she made a most impressive speech when we were dealing with juries this week. I complained that behind such amendments was the Treasury hand seeking justice which satisfied its views of justice being returned in a manner which it thought the most economic.
The noble Baroness, Lady Kennedy, provided an additional and stronger reason. Behind this amendment, and the others when we come to sentencing, will be found the desire of the executive to exercise control over elements of the criminal justice system. However, this is neither the right time of day nor the right stage in the term to force Divisions. I accordingly ask leave to withdraw the amendment, but promise that it is really part of a strategy for mieux sauter when we reach the Report stage.
Amendment, by leave, withdrawn.
[Amendments Nos. 133A to 133C not moved.]
3.45 p.m.
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 133D:
Page 41, line 2, at end insert—
"(7) Where the prosecution has agreed that the defendant shall be acquitted in the circumstances mentioned in subsection (5) and either of the conditions mentioned in subsection (6) are fulfilled, the judge shall order the acquittal of the defendant accordingly."
The noble Lord said: All I require from the noble and learned Lord is for him to say that the judge will obviously order the acquittal of the defendant in the circumstances envisaged in this amendment. His reassurance is all that I seek. In my respectful view, it would not be open to the judge to do anything other
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than order an acquittal when the prosecution have agreed that the defendant shall be acquitted. I beg to move.
Lord Goldsmith: The scheme of the Bill is to enable the prosecution to appeal against any ruling terminating from the prosecutor's point of view. The provisions require that the prosecution accept an acquittal under the Bill as drafted. Clause 62(2) provides for the Court of Appeal to order an acquittal where the prosecution loses the appeal. I accept that it is silent as to what happens after the prosecution abandons an appeal or fails to obtain leave to appeal in the first place. I understand therefore why the amendment has been put forward. I undertake to take away the amendment and to consider it with a view to making our views known further on Report. I hope that that will be sufficient for the noble Lord's purposes.
Lord Thomas of Gresford: I am very grateful for that reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 59 agreed to.
Clause 60 [Expedited and non-expedited appeals]:
[Amendments Nos. 133 E to 133J not moved.]
Clause 60 agreed to.
Clause 61 agreed to.
Clause 62 [Determination of appeal by Court of Appeal]:
Lord Kingsland Lord Kingsland moved Amendment No. 133K:
Page 41, line 21, leave out from "may" to end of line 22 and insert—
"reverse or vary the ruling appealed against where the ruling—

(a) was wrong in law;

(b) involved an error of law; or

(c) was one which no reasonable judge could have reached;

and in all other cases the Court must confirm the ruling "
The noble Lord said: Amendment No. 133K is an addition to Clause 62(1). It would add, at the end of the present wording,
"where the ruling—

(a) was wrong in law;

(b) involved an error of law; or

(c) was one which no reasonable judge could have reached; and in all other cases the Court must confirm the ruling".

There is a general and a particular motive behind the amendment. The general motive is that if the jurisdiction of the court is not constrained in this, or a similar, way it is likely to be swamped with appeals from the prosecution. It will be particularly easy for the prosecution to seek to appeal decisions by the criminal judge which are purely fact based and, very quickly, the predictions that the noble and learned Lord made about the likely burden on the Court of Appeal will have been proved wrong.
There is also a particular reason for the amendment, especially subsection (c), which concerns appeals against a decision by a judge of no case to answer.
A decision by a judge of no case to answer at the end of a prosecution case is essentially a fact-based decision. It is either the view of the judge that there is no prosecution evidence at all against the defendant or a view that, although there is evidence, it is so slender that it carries no weight.
In my submission the situation is simply this: if a judge's decision that there was no case to answer is so unreasonable that no reasonable judge could have reached that decision, then I accept that that is fair enough. Earlier in the proceedings the noble and learned Lord the Attorney-General gave a good example to the Committee in relation to a rape case. But if a judge could reasonably have reached the decision, surely in those circumstances there is no case for the Court of Appeal to intervene. I beg to move.
Lord Thomas of Gresford: Noble Lords on these Benches strongly support this important amendment because it will limit the prosecutor in considering whether to appeal, in particular, a terminating ruling. The noble Lord, Lord Kingsland, referred to rulings of no case to answer. If the Court of Appeal were to be invited to rule on no case to answer decisions, it really would be swamped. It would be necessary for transcripts of all the evidence to be placed before it and the appeal judges would need to second-guess the trial judge, who would have had the opportunity to hear the witnesses, to assess their veracity and so forth. It would be an impossible task. For those reasons, we support this amendment.
Lord Goldsmith: When I spoke earlier about the purpose behind this part of the Bill, I referred to the existing right of appeal for the defendant. At the end of the trial, the defendant has the right of appeal against both the conviction and the sentence. The prosecution has no right of appeal against decisions made by the trial judge which end the trial. I stress that we are talking about decisions made by the judge, not by the jury.
The Bill seeks to create a right of appeal which is equivalent to that for the defendant, but with very different requirements in relation to the circumstances in which it is brought. The appeal can be brought only with the leave of the trial judge or of the Court of Appeal. That is a very important provision because it is through that provision, together with the guidance which the Director of Public Prosecutions will give to Crown prosecutors—I envisage that other prosecuting agencies will be given similar guidance—that the number of appeals made will be limited.
In moving the amendment, the noble Lord, Lord Kingsland, made two points. The first was his concern about the number of appeals that may be brought, which is an important consideration. We have already touched on it in the course of our Committee proceedings today. It is a matter which, for example, concerns the resources to be provided for the Court of Appeal. I estimated the level of costs to ensure that the Court of Appeal would have the necessary capacity to deal with such cases. But that will
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be controlled by the leave requirement and by the guidance which will be given, as well as by the general principle, to which I have also referred, that this right of appeal is one to be exercised judiciously and sparingly.
However, I do not agree with the noble Lord's second point, to the effect that there should be some necessary limitation on the basis upon which the Court of Appeal could allow the appeal. I readily accept as a matter of fact that if the Court of Appeal is asked to review an exercise of discretion by a trial judge, then the court, in deciding whether to allow an appeal against that discretion, is unlikely to or perhaps even never would do so if it thought that the discretion was one which could reasonably have been exercised by the trial judge in the way that he did.
Equally, I readily accept that in this case, as it is in all others, the Court of Appeal is likely to recognise the specially privileged and favoured position that the trial judge will be in if it comes to a question of assessment of evidence because the trial judge will have seen and heard the witnesses. These are reasons why, in a case which turned on a question of discretion or on a question of fact, it is very likely that the leave requirement will be operated in such a way that the court will simply not grant leave in cases which would require that kind of exercise. Moreover, once the jurisdiction is up and running, the kind of cases that the Court of Appeal would or would not be prepared to entertain would become apparent from its decisions.
However, there will be cases in which, in the Government's view, it would be appropriate for the Court of Appeal to say, "Yes, it is true that this turns on a question of fact, but on looking at it we are in a position to judge—and it is so important that we can judge—that on this occasion it is legitimate for us to say that this particular ruling from the judge, although it turned on a question of fact, was wrong". I strongly suspect that those will be exceptional cases. If we are to provide a right of appeal which will enable the prosecution to test important rulings of the trial judge, it should not be restricted in the way proposed in the amendment. In short, therefore, the control will be through the discretion of the court.
I am loath to give further ammunition to those who complained about an earlier amendment, Amendment No. 133, but that is where the judgment and discretion will lie. So I resist the amendment.
4 p.m.
Lord Mayhew of Twysden: I was in my place before the Statement. Perhaps the noble and learned Lord can help me on a matter to which he alluded before the adjournment and to which he has returned in this debate. Guidance is to be given to prosecuting authorities as to how this new jurisdiction to appeal shall be exercised. Before the adjournment, the noble and learned Lord referred only to the director; he has now referred to other prosecuting authorities receiving no doubt similar guidance. Where is the guidance for these authorities to come from? Will the guidance

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come essentially from the Attorney-General—who superintends, by statute, the Director of Public Prosecutions—through the director?
What kind of guidance will it be? This new jurisdiction cannot be exercised except with the leave of the court; that is to say, either from the trial judge or the Court of Appeal. I can visualise a trial judge who has made a controversial decision being very reluctant to refuse leave, particularly when Parliament has so recently gone to the trouble of making this appeal available. How will the guidance assist either the judge or the prosecutor?
Words which have a familiar ring have been used; for example, "sparingly"—what does that mean? It is a good fudge word, but what does it mean? What are you sparing? Sparing its use, perhaps, but surely not to the extent of not making use of this new facility in a proper case. What is a "proper case?" That is another good fudge expression that lawyers are used to. Then we have the word "judiciously". We hope that everything done by a prosecuting authority is done judiciously.
How will is this guidance be shaped? How will it help? If it is to come from the Attorney-General, it is difficult to see how, for example, the Commissioner for Customs and Excise can be so guided by the Attorney-General. Is there not a wee embarrassment in the fact that the Attorney-General, although not a member of the Cabinet, is a member of the Government at a time when they are looking so closely at anything which might give rise to an adverse perception?
Lord Goldsmith: The debate has ranged quite widely. I hope that all Members of the Committee will recognise that making the leave of either the trial judge or the Court of Appeal a requirement of this new right we are already putting within the hands of the judiciary and the Court of Appeal a strong power to regulate the number and type of cases they hear. I have no doubt that once the jurisdiction starts the Court of Appeal will make clear the kind of cases it expects to see. That may not be by way of a single judgment at the outset, but it will become apparent as the jurisdiction develops and the Court of Appeal will indicate what kinds of cases are appropriate.
In addition, as I indicated in the letter I sent to the noble Lord, Lord Kingsland—a copy of which is in the Library and which includes the statement to which I referred earlier—the Director of Public Prosecutions intends to develop internal guidance for CPS prosecutors. I have no doubt that the director will show me the guidance that he has in mind to issue. I expect that guidance to include not only matters such as the kinds of cases concerned but who should be consulted, whether or not a matter should be looked at by a chief Crown prosecutor, and so on. I do not seek at this stage to say what the guidance will be.
I hope that the Committee will find that statement helpful because it indicates that people will look at this issue in a way which, subject to the overall control of the court, will lead to cases being brought only where it is appropriate to do so.
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The noble and learned Lord criticised me for saying that the power will be used "sparingly". With all respect to him, I find the expression perfectly intelligible. As to whether the power will be used "judiciously", 1 am glad that the noble and learned Lord said that all things that prosecutors do are judicious. In that context, I was saying that thought will be given as to how it should be exercised. I protest that the powers and controls are strong and adequate.
The noble and learned Lord asked me about the position of other prosecutors. He cited the example of HM Customs and Excise. I should tell him that, since the days when the noble and learned Lord held the position that I am privileged to hold at the moment, responsibility for Customs and Excise prosecutors has been taken by the Attorney-General. A report published earlier this week emphasised the desirability of that and of taking it further. In relation to those prosecutors, the guidance that the Director of Public Prosecutions intends to give will be extremely influential in the drawing up of the guidance which will apply to them. The letter states:
"I expect the other prosecuting authorities to do the same, possibly drawing on the CPS's approach".
However, I hope that I do not need to engage today in a debate about whether or not the Attorney-General who, although a government Minister, exercises an independent position, particularly when it comes to prosecuting—as the noble and learned Lord knows all too well—is the appropriate person to control the way that that prosecuting authority operates.
Lord Mayhew of Twysden: Like the Lord Chancellor.
Lord Goldsmith: The noble and learned Lord says from a sedentary position, "Like the Lord Chancellor". Tempted though I am, I shall not respond today.
Lord Kingsland: The noble and learned Lord could not possibly comment.
I, like many noble and noble and learned Lords, am concerned that so much in Chapter 9 is not to appear on the face of the Bill but to be part of either discretionary decisions of the Court of Appeal or guidance given by the Director of Public Prosecutions. I continue to be particularly concerned about the noble and learned Lord's approach to paragraph (c) of my amendment which would allow the Court of Appeal to strike down decisions by trial judges which no reasonable judge could have reached. Surely that ought to give the noble and learned Lord all the powers that the Court of Appeal needs to fulfil all the tasks he wishes it to fulfil.
If a decision by a judge is one that a reasonable judge could have reached, why on earth should the Court of Appeal have any role? Surely it is a well-established principle that a court in those circumstances should not be entitled to substitute its discretionary view for the discretionary view of a lower court. By rejecting my amendment, in effect, that is the principle which the noble and learned Lord seeks to deny.
Lord Goldsmith: The noble Lord saw me shaking my head, so I rise. The law is lull of cases where the Court

1047
of Appeal—this being its function—says, "It was reasonable for this judge below to have reached this decision but we still adjudge, in the interests of justice, that it is wrong". Let us leave it to the Court of Appeal to determine which cases are appropriate for it to look into and in which cases it should overturn the decisions of trial judges as it does in other areas. Trust it. I know those words will be quoted against me in other contexts, but they are appropriate here.
Lord Kingsland: I am not going to seek to extend this debate any further, but I think the noble and learned Lord has heard enough to know that this issue will be returned to on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 133L:
Page 41, line 29, leave out first "the" and insert "that"
The noble Lord said: This amendment is grouped with Amendments Nos. 133M and 133N. Again, I simply seek an assurance from the noble and learned Lord that the Court of Appeal will not have the power to order proceedings for another offence to be resumed in the Crown Court.
One envisages a situation in which a judge finds no case to answer and says to the prosecution, "You have brought the wrong charge; if you had brought a different charge, there would have been a case to answer. I will give you leave to appeal to the Court of Appeal". The Court of Appeal then agrees with the trial judge and orders that a substituted offence be tried. Substituting "that" for "the" will prevent what 1 would consider to be an abuse which goes far beyond the policy that lies behind these proposals. I beg to move.
Lord Goldsmith: It will obviously be possible for a prosecution appeal to be directed against the effect of a ruling on several offences. On the face of it, the proposed wording might suggest that the Bill is not sufficiently clear on this point. I am therefore happy to take these amendments away to consider them further and come back to this issue on Report, making our views known then.
Lord Thomas of Gresford: I am grateful to the noble and learned Lord. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 133M and 133N not moved.]
Clause 62 agreed to.
Clauses 63 to 68 agreed to.
Clause 69 [Cases that may be retried]:
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 133P:
Page 46, line 7, at end insert "or Scotland"
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The noble Baroness said: In moving Amendment No. 133P, I will, with the leave of the Committee, also speak to Amendments Nos. 133Q, 133R and 133S.
We now come to Part 10 of the Bill, in which the Government seek to relax the ancient double jeopardy rule, which prevents someone who has been acquitted from being tried a second time for the offence. In a nutshell, Part 10 allows the person who has been acquitted of one of the 30 or so offences currently listed by the Government in Schedule 4 to be retried for the same offence if what is called new and compelling evidence comes to light.
This is indeed a controversial part of the Bill. I therefore think it right that I should put on the record now the general view of Her Majesty's Opposition on this matter. I could refer to it only telegraphically at Second Reading because I confined myself to just a quarter of an hour in debating a 300-odd clause Bill. If I outline our view in this group of amendments, it will save some considerable time later in our debates on other groups.
Our approach to this controversial matter is essentially pragmatic. We accept that many people regard it as offensive in the case of the most serious crimes, where a matter of public importance is at stake, that a person who is acquitted because there is at that time insufficient evidence cannot later be retried when compelling evidence has become available.
The Government recently held a meeting in this House at which noble Lords were invited to hear the views of families whose lives had been blighted by the failure to secure convictions in serious cases of murder and rape. Yesterday, the Leader of the Opposition in this House—my noble friend Lord Strathclyde—and I met the uncle of one young girl who was murdered in Brighton some 17 years ago. Indeed, two young girls were assaulted and murdered at that time—it was commonly known as the "Babes in the wood" case. The families believe, as do others in similar cases, that if the double jeopardy rule were to be relaxed, a conviction could be obtained in relation to the person who had previously been acquitted.
In tackling our debates in this part of the Bill, I feel sure that all noble Lords will have the utmost consideration for families such as those, while also being determined to ensure that the Government's proposals, if they are to be implemented, should work effectively but fairly. If we fail to do that, cases brought against acquitted individuals under these clauses will either not proceed at all or be abandoned midstream. Nobody would benefit from that, and the hopes raised by the Government would be dashed. In saying that, I make no criticism of the Government, either direct or implied. I simply recognise how difficult it will be to make the powers work in the right way in practice and that, above all else, the existence of a power for retrial will not necessarily mean that guilty people will be convicted.
I turn to what appear to be technical amendments in this group. They are probing and relate to the territorial extent of the provision. It will be clear that Clause 69(1) refers only to England and Wales.
Clause 89 contains the modifications necessary for Part 10 to apply to Northern Ireland. Clause 69 allows a person to be retried in England and Wales if they have been acquitted in England and Wales or in any other part of the world outside the United Kingdom. However, there is no reference whatever to Scotland in Part 10.
The Bill places us in the frankly bizarre position that someone acquitted of an offence in France, Germany, Italy, Spain or any country could be retried for that offence in England and Wales, but someone who is acquitted of an offence in Scotland, which is a part of our own United Kingdom, could not be retried for that offence in England and Wales.
The then Under-Secretary of State Mr Hilary Benn confirmed that in the Standing Committee in another place on 20th January. He said:
"An acquittal that occurred in Scotland would not be covered … The Scottish Executive have decided that they do not want that to happen. That is a product of devolution … The situation that I have described reflects the nature of our relationship with the Scottish Executive and the Scottish Parliament".—[Official Report, Commons, Standing Committee B, 16/1/03; col. 5.]
I should like to press the noble and learned Lord the Minister a little further on this point. Why cannot and should not this Parliament, acting as a legislative body for the criminal law of England and Wales, and of Northern Ireland, include a provision in the Bill to place Scotland on the same footing as every other European Union country and, indeed, every other country? As I read the Bill, Scotland will be the only place on Earth where it will be possible to be acquitted of a crime and then not retried in England and Wales, or in Northern Ireland, for the same crime if new and compelling evidence comes to light. Would the Minister confirm that my analysis is correct?
I now turn to my amendments which would insert "Northern Ireland" into Clause 69(1). As a result of Clause 89, which was inserted at Report stage in another place, the provisions of Part 10 will also apply in Northern Ireland. My question is about the interrelation of the provisions for England and Wales and Northern Ireland. Clauses 69(1) and 69(4) make it clear that, so far as concerns England and Wales, a person can only be retried in England and Wales if they have previously been acquitted in England and Wales or
"elsewhere than in the United Kingdom".
I have already referred to the position of Scotland, and is Northern Ireland not in a similar, although not entirely analogous, position as a result of the Government's drafting?
Is the effect of the Bill, therefore, that although Part 10 will apply in Northern Ireland, a person acquitted of an offence in Northern Ireland can be retried in Northern Ireland but not, as I read the Bill, in England and Wales, because Clause 69, which deals with retrials in England and Wales, allows a person to be retried only if they have been convicted in England and Wales or outside the UK? Is not the position mirrored in respect of England and Wales when the provisions of the Bill are applied to Northern Ireland? I would be grateful for clarification from the
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Government. The matter seems very convoluted, and it seems that there may be problems in the way in which the Bill's drafting affects the availability of retrial. I beg to move.
4.15 p.m.
Lord Lloyd of Berwick: In moving the amendment, the noble Baroness took the opportunity to state the position of her party on Part 10. I hope that I may be forgiven for doing so briefly myself, before coming to the amendment tabled in my name.
The rule that a person cannot be tried twice for the same offence is so well established in our law that we should be very cautious indeed before we accept Part 10 as it stands. The rule could have been challenged when they discovered fingerprints in the 19th century. DNA could be regarded as the 20th century equivalent of the 19th century discovery of fingerprints. But the rule survived, and it survived because it is based on a very sound principle, which applies equally to civil proceedings and criminal proceedings—that there must be an end to litigation. I could put that principle in Latin but I am sure that the Committee already knows the Latin and, therefore, I need not repeat it.
That is the principle but I accept that the discovery of DNA has made a difference since, as I understand it, we can now be absolutely sure of guilt the second time round. If so, it seems to me that a limited exception to the rule is now justified. The only question is, where is that limit to be placed? No one, I think, suggests that the prosecution should be entitled to a third bite at the cherry. No one, I think, suggests that the exception to the rule should be extended across the whole range of criminal offences. It should in my view be confined, at any rate to start with, to the most serious crime of all; that is, the crime of murder, and not the 31 offences which are now included in Schedule 4.
As happens so often, the Home Office simply cannot resist the temptation to overegg the pudding. When we reach Amendment No. 135ZA, I shall support the amendment of the noble Lord, Lord Thomas, which I prefer to the amendment in the name of the noble Baroness, which I believe is Amendment No 135. I beg leave to address the Committee later on my amendment but in the mean time I await the Attorney-General's response to these amendments.
Lord Goldsmith: I am grateful to both the noble Baroness, Lady Anelay, and to the noble and learned Lord, Lord Lloyd of Berwick, for their general observations. I am particularly grateful to the noble and learned Lord, Lord Lloyd of Berwick, for saying that the issue is really not about the principle but how the principle should be applied. We shall consider that in later amendments. Therefore, I shall not say anything further about the reason for this part until we reach the more detailed provisions. I hope that the Committee will understand that. At that stage. I want to come back to the point rightly and powerfully made by the noble Baroness about the effect on families of certain of the cases we are discussing.

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I hope that I may confine myself at this stage to the important, although technical, issues raised by Amendments Nos. 133P, 133Q, 133R and 133S.
Lord Neill of Bladen: Before the noble and learned Lord proceeds any further, will he indicate what he considers would be the appropriate point for any Member of the Committee, such as myself, who wishes to raise the general principle that has just been touched on by two speakers to do so? Is there any particular slot where that would be appropriate? Otherwise, I should like to speak now before the noble and learned Lord finishes his comments on the technicalities. I gathered he had it in mind that there would be such an opportunity.
Lord Goldsmith: I am the last person to advise the noble Lord when he should speak. Specific amendments relate to whether the provision should be retrospective, for example, the amendment spoken to by the noble and learned Lord, Lord Lloyd of Berwick, about the offences which should be covered. Those are probably the two most appropriate points at which more general observations might fit in, but I do not stop anyone speaking at any point if he or she considers it helpful to do so.
Lord Thomas of Gresford: I hold my fire for the moment but I shall want to discuss the general principles at a later point.
Baroness Kennedy of The Shaws: I, too, should like to speak to the general principles at some point. It would be helpful if the Attorney-General indicated when would be the best time to do so. We are happy to take guidance from those who are leading the debate.
Lord Goldsmith: I hope that I can help the Committee. I understand and appreciate the way the matter has been expressed by my noble friend and by the noble Lord, Lord Neill of Bladen. I believe that Amendment No. 134 in the name of the noble and learned Lord, Lord Lloyd of Berwick, which we shall reach shortly, and which raises the question of retrospectivity, would be a good point at which to comment more generally on the clause.
Viscount Colville of Culross: Is there not also the possibility that the discussion could take place on a Clause 69 stand part debate?
Lord Goldsmith: Yes, but no notice has been given.
Baroness Anelay of St Johns: Although it is most courteous for noble Lords to give advance notice of clause stand part debates, that is not required, so Members of the Committee could speak on that if they wished to do so.
Lord Goldsmith: I entirely accept that. I was simply giving the reason why I had not suggested it as a place to debate the matter, because no one had given notice
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that they wanted to resist clause stand part. 1 have done as much as I can to help Members of the Committee identify when they would like to speak.
Lord Neill of Bladen: The Minister has done it very well. I shall wait until Amendment No. 134.
Lord Goldsmith: I have not dealt with Amendment No. 133P at all yet. I shall describe the position in relation to Scotland. The noble Baroness is absolutely right to say that the effect of the way in which the Bill is presented to the House is that, if there is an acquittal in Scotland, it would not be open to the Court of Appeal in England to grant leave for a further trial in that case. At least at the moment, the Scottish Executive and the Scottish Parliament have not decided that they wish to introduce to Scots law the changes brought about by Part 10.
The Government strongly take the view that it would be inappropriate to seek to include acquittals by Scottish courts in the scope of cases which may be retried under Part 10. Criminal law in Scotland is a matter for the Scottish Executive and Scottish Parliament. That is the result of the arrangements for devolution, which were approved by this House. Because under those arrangements criminal law is a matter for the Scots, it would not be appropriate in the Government's view to attempt to overcome that issue by applying the measures to Scottish acquittals. That is how the matter would be perceived—put shortly, that this Parliament would, as it were, allow a right of appeal in an English court to overturn a Scottish acquittal. That is why Scotland is in that position.
As the noble Baroness rightly said, Clause 89 applies the relevant provisions to Northern Ireland. Therefore there would be no difficulty should, for example, further evidence come to light of a new and compelling nature sufficient to justify an application under this part of the then Act in Northern Ireland when there has been an acquittal in Northern Ireland. It seems to me that there is no reason why, if that evidence has come to light in England or Wales, that evidence could not properly and indeed most appropriately be passed to the prosecuting authority in Northern Ireland, for that authority to consider whether to proceed. I see no difficulty about that.
I shall take away for further consideration the issue of whether there still remains a gap. It is not obvious to me that there is, in practical terms, but I shall certainly give further thought to it.
Baroness Anelay of St Johns: I am grateful to the noble and learned Lord for his general guidance with regard to how Members of the Committee may address the general issues. I only laid out the barest guidance on that in referring to the approach that we on these Benches were taking. We will have opportunities as we go through other amendments to look at each and every objection in detail, and how they might or might not be overcome.

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I am particularly grateful to the Minister for addressing the detail of the technicality of the amendments, and for his offer to look again in case there is some lacuna with regard to Northern Ireland. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 133Q to 133S not moved.]
4.30 p.m.
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 133T:
Page 46. line 25, leave out subsection (4).
The noble Baroness said: In moving the amendment, I shall speak also to Amendment No. 133U, which is supported by the noble Lord, Lord Thomas of Gresford. They are also probing amendments and relate to subsections (4) and (5) of Clause 69.
On subsection (4), will the Minister confirm my understanding of the drafting, which is that courts in England and Wales would have the jurisdiction to retry a qualifying offence no matter where in the world it occurred? Will the Minister reveal what discussions there have been with authorities in other jurisdictions? Could he confirm my understanding that, although there have been discussions, no conclusions have been reached so far? It is important to know how those measures will be implemented. Does the Minister yet have any idea of which jurisdictions would agree or refuse an extradition request for a suspect in such circumstances, because of their own rules against double jeopardy?
In Standing Committee in another place on I 6th January, the Under-Secretary of State, Mr Hilary Benn, said that he was not aware of any discussions at that stage with foreign authorities about the effects of that part of the Bill. I understood that the Government intended to take part in such discussions. Will the Minister update us on those?
We referred to some of those matters when we debated that part of the Crime (International Co-operation) Bill on which the noble and learned Lord responded on behalf of the Government. Although it is a little while ago now, they were such exciting exchanges that I am sure they are still fresh in his mind.
I turn to subsection (5). The Bill states that conduct which is punishable under the law of another country is to be treated as being,
"an offence under that law for the purposes of subsection (4), however it is described in that law".
Will the noble and learned Lord explain the purpose of those words? The Explanatory Notes state at paragraph 281:
"Subsection (5) recognises that offences may not be described in exactly the same way in the legislation of other jurisdictions".
We have certainly come across that in many instances when dealing with the provisions of the Extradition Bill and the loss of dual criminality in Part 1 of that Bill.
In what circumstances are any of the offences listed in Schedule 4 of the Bill described in other countries as not being criminal offences? Noble Lords who took
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part in our debates in Grand Committee on the Crime (International Co-operation) Bill will recall our discussions about administrative proceedings. I note that my noble friend Lord Renton is in his place. He took a significant part in those discussions, as did my noble friend Lord Carlisle of Bucklow. Is that what the Government have in mind? Are there any specific instances to which the Minister can point of the offences listed in Schedule 4 not being described as criminal offences under the law of other countries, or is it a kind of belt-and-braces, just-in-case provision?
Alternatively, do the words relate not to how an offence is classified—whether it is administrative or criminal, for example—but to the names given to particular offences? In another place, that seemed to be what the then Minister, Mr Hilary Benn, was hinting at, when he said in Standing Committee on 16th January at col. 392:
"We are talking here about the equivalence—
his word, not mine—
"of what will constitute a qualifying offence. Because offences are described and framed differently in other jurisdictions. it will be necessary to undertake an equivalence exercise".
Will the Minister comment further on what the "equivalence exercise" would comprise? Who will undertake it? Will the Court of Appeal and the court in which the person is retried, as well as the DPP. have to be satisfied that the offences are equivalent'? I would welcome clarification from the noble and learned Lord on those matters. I beg to move.
Lord Thomas of Gresford: I have an objection in two parts. The first part relates to the practicalities of these provisions. That an acquittal anywhere in the world can be "appealed", to use the noble and learned Lorcl's expression, in this country is extraordinary. He has told us that the reason Scotland is not included in these provisions is that it has no intention of abolishing the rule on double jeopardy. I have not heard that any of the common law countries have decided to abolish that rule, and it seems to me impractical to put the acquittals in other countries under the spotlight.
Secondly, if there is no reciprocity—if no one else throughout the world is going to follow this line and say that an acquittal in the United Kingdom is not good enough and that they will investigate an offence all over again—why should we start down that road? I entirely support the amendment.
Lord Goldsmith: The noble Baroness asked me a number of questions and I must indicate straightaway that I shall have to write to her in relation to a number of them. I am afraid that I do not have the answers at my fingertips. She is right in saying that I took part in the proceedings in this House on the Crime (International Co-operation) Bill, and exciting though it was I cannot immediately recall all the details which she thinks I should be able to recall.
The noble Baroness asked what is the state of the discussions that have taken place with other countries in relation to the potential operation of this clause. Those discussion are continuing, but I would like to

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write to her in order to tell her as much as I can on that. That may also deal to some extent with the point made by the noble Lord, Lord Thomas of Gresford.
Secondly, the noble Baroness is right to say that the application of extradition rules will be important in practical terms, because if the person in relation to whom a retrial is sought is not present in this country, extradition must be used in order to bring that person within the jurisdiction of the court. Again, I will have to write to her on the operation of those rules, with copies to other noble Lords who have taken part in the debate.
As regards the purpose and meaning of subsection (5), its broad purpose is apparent. Subsection (4) operates in circumstances,
"where a person has been acquitted, in proceedings elsewhere than in the United Kingdom, of an offence under the law of the place where the proceedings were held, if the commission of the offence as alleged would have amounted to or included a commission (in the United Kingdom or elsewhere) of a qualifying offence".
Clause 69(5) is not intended to cover actions which do not constitute offences abroad. It is intended to refer to an offence which may be described differently abroad, but which amounts to a qualifying offence over which this country has jurisdiction. I am afraid that I cannot indicate specifically, by reference to a particular country, how an offence which appears at present in the relevant part of Schedule 4 is described in that country which would give rise to that issue. If I am able to give more information about that, I will include it in the letter that I have in mind.
The noble Lord, Lord Thomas, raised an objection of principle. Remember this, I would say: at present, the courts of this country are justified and entitled to try a serious criminal matter where there is evidence for that to be done. It is accepted that in certain cases the fact that a person has been acquitted in another country of the same offence may constitute a bar. In cases where it does not constitute a bar, at present such a charge could be brought in the courts of this country.
While special devolution provisions relate to Scotland and while practical issues may arise, such as extradition rules, the Government have taken the view that if there is evidence of such a serious offence of a new and compelling kind—we shall discuss in due course where the line should be drawn as to what is a serious offence for these purposes—then justice would suggest that the case should be tried. It should not matter that the acquittal took place in another country rather than in a court in this country.
However, so far as concerns Amendments Nos. 133T and 133U, I hope that the explanations that I have given, together with my promise of further explanations, will satisfy the noble Baroness sufficiently and that she will not press the amendment today.
Lord Carlisle of Bucklow: Subsection (4) appears to be most extraordinary. As I understand it, it gives a power totally dissimilar to anything that we have previously had in criminal law in this country. Do I understand correctly from what the Minister said that
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someone could be acquitted—let us say, in the Caribbean or in France—of one of the 81 offences listed in the schedule to the Bill? And do I understand that it is the intention of the Government that there should be a power then to apply to the prosecutor—whoever that may be; presumably the defendant has been prosecuted by another body in the country in which his case took place—or to apply to the Court of Appeal in this country to order a retrial? Is that correct or not on the basis of new evidence?
Lord Goldsmith: The noble Lord adds at the end "on the basis of new evidence". The whole of Part 10 is directed at permitting in particular cases—we shall come to what those are and what the safeguards are—the authorisation of a further investigation. With the consent of the Director of Public Prosecutions an application is to be made to the Court of Appeal to determine whether or not, because there is new and compelling evidence and because the interests of justice so require—as I said, we shall come to all those safeguards—the case should be tried again.
This clause states that if that can be done—if the conditions are satisfied and if, in the view of the Court of Appeal, the interests of justice require that to be done—where the acquittal took place in Maidstone, so also should it be capable of happening if the acquittal had taken place in Lyons or in some other place in another country in the world. In my respectful view, there is nothing astonishing about that. The same principle is being applied whether the acquittal took place in this country or somewhere else. But the strong safeguards will still apply.
I emphasise that Clause 69(4) applies only in circumstances where the offence is one for which the courts here have jurisdiction; for example, in the case of murder alleged to have been committed by a British citizen abroad. That could have been tried here. In the example given, it has not been tried here; it has been tried in France or wherever. Had it been tried here, the provisions of Part 10 would apply so that a retrial could be ordered if the conditions were made out. The fact that it could have been tried here but has not been—it has been tried somewhere else—should not prevent it from being the subject of an application under this part. The final words of Clause 69(4) are,
"in proceedings elsewhere than in the United Kingdom, of an offence under the law of the place where the proceedings were held. if the commission of the offence as alleged would have amounted to or included the commission (in the United Kingdom or elsewhere) of a qualifying offence".
4.45 p.m.
Lord Thomas of Gresford: The noble and learned Lord referred to a very interesting point. The crimes of universal jurisdiction in which a British citizen is the defendant are piracy, genocide and murder. That is one reason why subsequent amendments will seek to confine this power to a limited degree. Does it mean, for example, that a person who has been acquitted of murder while serving in the Armed Forces in Germany

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can face a new trial in this country, simply because evidence that was available in this country was not available in Germany?
Lord Goldsmith: The noble Lord is now getting into the question of what are the conditions. We shall come to those. The requirement under Clause 72 is for new and compelling evidence. We shall come to what that means. We shall also turn to the fact that the interests of justice test to be applied takes into account certain matters. In Clause 73(2)(c), the question of interests of justice is to be determined having regard in particular to whether certain evidence,
"would have been adduced in the earlier proceedings…but for a failure by an officer or by a prosecutor to act with due diligence or expedition".
I am very happy to consider the specific example the noble Lord gives and to come back on that. I just take issue with the proposition that there would be anything other than the full rigour of the conditions set out in Part 10, which would apply wherever the acquittal had taken place.
Lord Renton: Perhaps the noble Lord can make it clear under what law any such retrial would take place.
Lord Goldsmith: In criminal law it would have to take place under English law. We do not try cases in our criminal courts under any other law.
Lord Carlisle of Bucklow: If a person was convicted of murder in France and acquitted under French law, and there was new evidence, does that mean that there would then be a power to apply to retry him in this country under English law? On what basis—I know we shall turn to these conditions later—would that court know whether the evidence was genuinely new evidence available in another country at the time of the original trial?
Perhaps I may make my position clear to the Attorney-General. I actually support the principle behind Part 10 and said so at Second Reading. However, 1 think that one must consider whether it is appropriate to use it in cases where the original trial has not taken place in this country.
Lord Lloyd of Berwick: I must say that I do not often come to the rescue of the Attorney-General, but it seems to me that he is plainly right on this case. If we are going to accept this principle at all—if there is new evidence which satisfies Part 10 and if we have jurisdiction to try a man a second time in this country—it does not matter a row of beans whether he has been acquitted here or elsewhere.
Baroness Anelay of St Johns: I am grateful to the noble and learned Lord for his explanation. He has sparked a realisation of how important it is that we get right the safeguards and the list of offences in Schedule 4. The noble and learned Lord was saying that we will get to the details later. We are dealing here with the extent of the application of the jurisdiction on how we will operate the relaxation of double jeopardy. In fact,
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it has disappeared in many cases. If we are going to accept that the principle is right, we must make sure that the fact is right.
I agree entirely with the noble and learned Lord, Lord Lloyd of Berwick, that if the principle of double jeopardy goes in certain limited cases, the guilty should not escape—if that is what we are trying to say. But in so doing, we must ensure that we are content with how we define that loss of double jeopardy. We will have that opportunity in later amendments.
I am very grateful to the noble and learned Lord for saying that he will write to me on the specific questions I raised. He will know when we were dealing with the Extradition Bill, hidden away in Grand Committee upstairs, that I also expressed concerns about the compatibility of the provisions of this Bill with the Extradition Bill and that the Government later this summer—or indeed autumn or winter, whenever we are going to finish these Bills—will achieve some synchronicity whereby these particular clauses are compatible.
I may not agree entirely with the noble Lord, Lord Thomas of Gresford, about the principle of the matter—I may go further than he in agreeing with some things that the Government propose—but I am certainly concerned about how the matter is put into effect in practice. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 1330 not moved.]
Lord Lloyd of Berwick Lord Lloyd of Berwick moved Amendment No. 134:
Page 46, line 33, leave out subsection (6).
The noble and learned Lord said: Perhaps I may start by saying that this is in no way a paving amendment. The one thing that stands out a mile from Clause 69 is subsection (6). Indeed, I was surprised that no one picked up subsection (6) on Second Reading. I should have done so myself if I had been able to take part.
We in this House are surely right to have a strong antipathy to retrospective legislation—an antipathy that is not confined to the retrospective creation of new offences. It goes much wider than that. All retrospective legislation is undesirable, but especially when it is liable to deprive a man of his liberty, whether or not by creating a new offence as in this provision.
Let me give an example of what I have in mind. A man commits one of the less serious offences under Schedule 4. He is tried and acquitted. All of that happened five or 10 years ago. He consults his solicitor at the time and is told, perfectly correctly, that he cannot be tried again for that offence. He then marries and, perhaps to clear his conscience, he tells his wife that he was indeed guilty of that offence. The marriage then breaks up, perhaps in acrimonious circumstances.
Is that man then to live for the rest of his life in fear that his wife will tell the police that he confessed to the crime, or perhaps sell the story to the newspapers? I would regard that as the grossest injustice. He had a right in accordance with our law not to be tried again—a right

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that accrued five or 10 years ago when he was acquitted. If the rule of law means anything, he surely ought not to be deprived of that right by subsequent legislation. It is no good saying, "Well, he was guilty anyway so he cannot complain". That would hold good only if the guilty are to be regarded as having no rights—hardly the mark of a civilised society.
I should be very surprised if the Attorney-General were to take that line. No doubt he will say instead that the Court of Appeal would never exercise its discretion to order a retrial in such a case. Maybe not. But the Government seem to be taking that line throughout the Bill as we go through it clause by clause. It is surely wrong to enact illiberal and repressive legislation and then say, "Oh, but it will not be enforced, or only in the most exceptional circumstances". The criminal law should be certain in its impact. As we lawyers would say, it should not depend on the length of the Lord Chancellor's foot, if, indeed, there will shortly be any foot to be measured.
It may then be said that unless we make Clause 69 retrospective, it will be some years before it can be applied; to which I should reply, "So what?". We have lived with the rule against double jeopardy for hundreds of years; surely we can live with it a little longer—unless, of course, the police have specific cases in mind that they would like to bring back before the courts to secure a conviction. I caught a hint of that in the speech of the noble Lord, Lord Mackenzie, at Second Reading on 16th June at the foot of column 600 of Hansard. I hope that I was wrong, because I can imagine nothing more abhorrent than to pass retrospective legislation designed to catch particular individuals.
For the reasons I stated earlier, I am in favour of the limited exception to the double jeopardy rule; but I am wholly against making that change retrospective. I beg to move.
Lord Neill of Bladen: The noble and learned Lord the Attorney-General was good enough to indicate that I might make a few observations about the general principles involved here. I am surprised at the meekness with which the Committee is accepting the situation, where a centuries' old rule against double jeopardy is being jettisoned. I find it astonishing that, at present, no amendment on the matter has been tabled. Perhaps something can be done on Report.
A very grave and serious principle is involved. I do not agree with the reference by the noble and learned Lord, Lord Lloyd of Berwick, to a Latin tag to the effect that it is in the interests of the state that litigation should come to an end. It is my understanding that that applies to civil litigation. The principle on double jeopardy is that it is a very grave thing for a man or a woman to be prosecuted for a criminal offence. If acquitted, the acquittal should stand for all time; it should not be a provisional acquittal. Something very serious is at stake.
I hear people talk about DNA cases, where the new compelling DNA evidence is brought to light, but that is not what we are talking about in the Bill. We are
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talking about so-called "new and compelling evidence" and where it is "in the interests of justice" that there should be a second trial. When I read the definition of "new" I could hardly believe it. New means old. Clause 72(2) states:
"Evidence is new if it was not adduced in the proceedings in which the person was acquitted".
All that it says is needed for evidence to qualify as "new" is that it must not have been brought forward. To make matters worse, when the Court of Appeal considers whether it is in the interests of justice to make an order under Section 71, under Clause 73(2)(c), one of the factors to which regard must be had is,
"whether it is likely that the new evidence would have been adduced in the earlier proceedings against the acquitted person but for a failure by an officer or by a prosecutor to act with due diligence or expedition".
You would be dealing with old evidence that was available but with which there has been some mess-up in the earlier proceedings. The width of the abolition of the double jeopardy rule is extremely extensive. No attempt has been made to chisel it so that it fits DNA-type conclusive evidence cases.
Secondly, what will be the consequence of abolition of the double jeopardy rule? My prediction is that there will be hounding in the media of people who are acquitted in sensational, high-profile cases. The acquittal will not be final, and it will be up to anybody, including the press, to see what additional evidence they can rootle out so that there can be a second prosecution of the person who has been acquitted.
I have some experience in those matters, having been chairman of the Press Council for some five years. The press is industrious in pursuing such matters. Perhaps that is a healthy thing.
Thirdly, what a time to introduce the abolition of the rule against double jeopardy. We are about to be asked to sign the convention coming out of the Giscard d'Estaing praesidium in France, which the European Council of Ministers in Thessaloniki announced the other day would be signed in June next year. Part of that is a charter of rights.
I remind noble Lords about Article 50—I say that ironically, because I do not think anyone knows what is in the charter of rights. It says that:
"No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law".
That is the basic provision in Article 50 of the charter. To make matters simple, an explanatory memorandum accompanies the charter which quotes Protocol 7, Article 4 from the convention on human rights, which states that the basic rule is that there is no double jeopardy. However, in subsection (2), it says that a member state may introduce a qualification and may have double jeopardy. We have had the right under the convention for years and not exercised it. We are about to exercise it when another rule comes into place via the charter.

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I have serious and grave concerns about the abolition of the rule against double jeopardy. It will lead to very undesirable results and has been drafted in a way that is in no sense confined to a necessary and tightly drawn category of case.
Baroness Kennedy of The Shaws: I assure the noble Lord, Lord Neill of Bladen, that this House has not become meek. That is certainly not a word that has ever applied to me. I have always felt that the attitude with which I have most difficulty is "blessed are the meek", because they are the ones that end up getting the hardest deal of all.
I wanted to reassure the noble Lord. I contacted the Public Bill Office but did not have the draft Bill with me. I said that I wanted the provision for double jeopardy not to stand part of the Bill. I was informed that the provision was in Clause 77, but should have been in Clause 7. Noble Lords will see my name asking for Clause 77 not to stand part, but I was asking for the right to retry not to stand part of the Bill. I shall certainly table an amendment on Report.
I should like to speak to the principle involved and express my concerns. We are talking about a rule of constitutional importance which is recognised throughout the common law world and even beyond. It is applied in virtually all developed legal systems. I note that when the issue was discussed, in seeking to find support for this move away from principle, the Prime Minister himself said that such a system was used in Finland, Sweden and Germany. He was not able to name anywhere else, because there is no other place.
When I inquired into the actuality of that, I discovered that it meant that in places such as Finland and Sweden, there is an opportunity to re-try when there has been a corruption of the process. If the judge—there are no juries such as we know them in those systems—has been somehow corrupted and an acquittal has been entered wrongly because of that corruption, it is possible to re-try.
We have a similar provision. In the 1990s, legislation was carried through this House and the other place that allows for the retrial of a defendant who is acquitted when there has been interference with the process and the jury might have been nobbled. It has never had to be used. So, we have the equivalent of what exists in the countries to which the Prime Minister referred. We are running in the face of a principle that is accepted around the world.
The reason for the principle is clear. The noble Lord, Lord Neill of Bladen, expressed it better than I could. It is a serious and grave thing to put someone on trial. In denying the principle, we are creating something new. In murder trials and in other serious trials, we are creating the conditional acquittal. I want the Committee to think seriously about that. A person who stands trial will not be able to leave the court building sighing with relief. Many of us have had the experience of a client almost collapsing at the end of a trial, and we have been able to say to him or her, "It is over. You can rebuild your life". We will not be able
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to say that any more. It is a terrible punishment to visit on many people that they should live with uncertainty without finality. We know that, in a number of cases, terrible wrongs have taken place or guilty people have walked free.
Here again, an incredible problem presents itself to us. I, too, have been moved by the accounts of people who say, "The man who killed my daughter is walking around". We know that such cases exist. Happily, there are few about which we can say that with any certainty, but what we will visit on the many is the fear of the hand on the shoulder. That is a terrible thing to bring into our system.
It looks like an easy change to make. DNA has arrived on our doorstep, and we can be confident that someone has committed an offence. However, the Government really want to do exactly the thing about which the noble and learned Lord, Lord Lloyd of Berwick, expressed concern and deal with the sort of cases that come up in the press from time to time, in which people pained by an injustice want that injustice cured. I am afraid that retrospectivity is at the heart of it. It will bring credit on the Government, if they are seen to solve the grievances in a handful of cases.
We must think seriously about it. We are pouring a poison into the system. As the noble Lord, Lord Neill of Bladen, said, one of the problems is that, in the contemporary world, it is not just the policeman who can put his hand on one's shoulder; the press can do it, too. When a man or woman steps out of a courtroom acquitted in a particular kind of case, a campaign will immediately be mounted to have that person brought back before the court. That is a terrible thing to visit on our system.
There is a risk that disappointed investigators, particularly in high profile cases, will wish to recommence investigations immediately after an acquittal, especially if there is pressure from the media, from victims and their families, who will have a higher expectation, and from politicians who want to jump on the bandwagon. Those with previous convictions known to the investigating officer would also be a target. Officers with a personal animus against an accused may wish to pursue him, despite an acquittal. That is a worrying thing to introduce into our system.
There is a serious risk that any new trial would be unfair. If the process goes through—I know that there is an attempt to limit press coverage—it will mean that a new jury in a second trial will know that there must have been evidence that the Court of Appeal considered very compelling. We are introducing the presumption of guilt and attacking the fundaments of our legal system. After a first trial, the prosecution will have precise knowledge of a defendant's case and will be able to review and strengthen its own case and plug holes in it in the light of that knowledge. People may say, "So what?". The answer is that we are turning on their head all those things about the burden of proof.
The Government propose that fresh evidence should be taken account of only if it could not reasonably have been available for the first trial, but it is our view that such situations are likely to be

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commonplace because of inadequate investigation in the first place. Almost every case in which there is an unhappiness for the family or the victim—whether it be the Stephen Lawrence case, or the recent case of Damilola Taylor, or, indeed, the case of Julie Hogg where a mother found her daughter months after the event—invariably the reason why the case failed the first time was poor investigation. Instead of improving policing and investigation, it has been plugged again by trying to interfere with principles within the system.
The abolition of the rule against double jeopardy is liable to encourage unreasonable expectations in the victim. It is likely to create media campaigns and to rob the process of finality. That could have very real and serious consequences. I wish to support the noble Lord, Lord Neill, who rises up astounded that there is not alarm and despondency much wider than there has been about what it really will mean; about what the implications will be; about the kind of campaigning there will be on the steps of courts; and about how hideous it will become for the lives of many. So the cost to our system will be great.
Turning now to DNA, I say particularly to the noble and learned Lord, Lord Lloyd, that, if it is the situation that we do not have this as retrospective legislation—I hope, indeed as he does, that it is not, but I have my real suspicions as to what its purpose is—what is the need? What we should be urging for is proper investigation. I urge Members of the Committee to recognise that of course we hear these cases and we feel and empathise with the pain of those who feel a wrong has been done, but we must also measure it against the much greater wrong of interference within our system as a whole.
That role has existed since Roman law times; it is shared around the world for very good reasons. Interfering with it is a shocking step away from the principles on which our system is based. What do we say to people who say, "My daughter's murderer is walking free"? In the particular case of Julie Hogg, a man confessed that he had committed the murder of this young woman. He was brought back before the court and was convicted of perjury. The maximum penalty for perjury is 10 years' imprisonment. The judge, who I think made a mistake, gave that man six years. He probably should have faced the full range of that sentence—10 years probably would have been appropriate. Maybe we should be looking at lengthening the sentences on perjury; maybe we should be looking at other ways. But to leave it that a person walks out of a court room thinking that all he has got is a conditional acquittal for one of the most serious cases for which one will stand charged in court, is a terrible way to take our system. That is a terrible route for us to be going down. I go back to the principle and will not be meek on this subject.
Lord Mayhew of Twysden: In our debate on jury trials and whether they were to be curtailed, I thought that there was general agreement that we were all concerned to promote public confidence in the criminal justice system. I have genuine sympathy, to this extent: there is a difficulty in terms of public
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confidence in an extreme case of the character that has been recited. One can understand with deep compassion the disgust and anger of the relatives of someone who has been murdered in circumstances where DNA establishes beyond a doubt that the person acquitted was in truth guilty.
But one needs to look more deeply, as I trust the Government will, at where the interests of public confidence truly lie. The superficial answer is clear in the scenario that we are imagining. But a little further down the line, I wonder whether public confidence would be sustained if this change were made when it was seen how people having been acquitted were hounded and badgered and their lives made a misery month in, month out.
I turn to a point not as yet made in the debate: how would witnesses who had given evidence for the defence be treated? How would their lives be affected? What pressures would be brought to bear upon them by certain tabloid newspapers—I cite those as an example, but by no means exclusively—to change their evidence? How would their lives be examined and placed under the microscope? What efforts would be made to demonstrate in public that their evidence had been thoroughly unreliable because of all kinds of things that may subsequently have been brought to light? When that is seen to be the pattern, I venture to suggest that public confidence will not be quite so firmly behind the change now being proposed.
So much has been said in the debate that I need say no more. I endorse all the remarks just made by the noble Baroness, Lady Kennedy of The Shaws, and those of the noble Lord, Lord Neill of Bladen. I also support strongly the remarks on the question of retrospectivity made by the noble and learned Lord, Lord Lloyd of Berwick. For myself, I find this matter extremely difficult and I am deeply uneasy about the compromise arrived at by the two Opposition Front Benches because those who have been charged with and acquitted of murder, soliciting for murder or genocide—possibly this may even be extended to manslaughter; I can see the logic of it—are the very people against whom the decibels are going to be the loudest in the public press and on whom the pressures are going to be the greatest.
Not very helpfully. I confess to unease and to an unconcluded mind, but in any event I am absolutely certain that Schedule 4 is grotesquely overdrawn.
5.15 p.m.
Lord Clinton-Davis: I strongly support the argument which has just been adduced by the noble and learned Lord, Lord Mayhew. I think that it should be possible for my noble and learned friend on the Front Bench to take this away and think again about the whole issue. Why was the rule of double jeopardy developed'? In my view, nothing that has been said in this debate obviates the necessity of keeping that rule.
However, I never have and do not now want to score points against the Government, which I invariably support, but the burden of proof here rests very heavily on my noble and learned friend the Attorney-General.

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Moreover, the point made by the noble Lord, Lord Neill of Bladen, and subsequently reinforced by the noble and learned Lord, Lord Mayhew, about hounding by the media after an acquittal, is highly justified.
My noble and learned friend ought now to explain to the Committee how those consequences, which in any light are unacceptable, can be mitigated or, better still, how they can be avoided altogether. I hope that he will see that noble Lords who made these points have not done so lightly. They have been made as the result of a great deal of experience.
So far as I am concerned, therefore, I shall listen with great interest to what my noble and learned friend has to say. but I beg him to come forward with some form of reasonable response to the genuine points that have been advanced in this debate. I hope that he can do so.
Lord Thomas of Gresford: While I accept the lash of the noble and learned Lord, Lord Mayhew, for the compromise to which he referred, I hope he will notice that my name is attached to this amendment, which deals with retrospectivity. As the noble and learned Lord, Lord Lloyd of Berwick, pointed out, towards the end of the 19th century fingerprints were discovered to be unique, but that made no difference to the double jeopardy rule.
We now have DNA, but that is not unique. The Committee will remember a case in Cardiff last week. Three men had been wrongly convicted and were acquitted by the Court of Appeal after serving some three years. The offender was finally traced through DNA—but not his own DNA. It was the DNA of a nephew, who was not born at the time of the original offence. It was so close to the DNA of the offender that those who investigated the offence were able to apprehend the right man after some 15 years. It was a case of some notoriety in Wales.
I have been involved in a case where, although it was a 10 million to one chance that the DNA found on the victim did not come from the defendant or someone closely related to him, it did not follow that there were not people within his own family who may have had similar DNA. The odds fell from 10 million to one to about two to one. It will not surprise the Committee to learn that the defence was that someone else in the family had committed the offence. DNA is not the wonderful complete answer to everything in investigations. In many cases there is still a question mark about it.
The noble Baroness, Lady Kennedy of The Shaws, said that in future people will live in uncertainty when they are acquitted. The amendment is concerned with people who, in the past, have lived in certainty that there was finality. If the amendment is not passed, they will all of a sudden find that the acquittal they received many years ago, maybe in another country, will no longer protect them from further investigation and the kind of pressure to which noble Lords have referred.
Furthermore, victims and their families who still carry the hurt with them will be disappointed. There have been many famous cases: indeed, the noble
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Baroness, Lady Kennedy, referred to some of them. However, in such cases where acquittals have taken place, I have not heard that there has been some new discovery of DNA that suddenly made those acquittals wrong. Those who have in the past finally come to a closure and conclusion about the trial that took place will suddenly find that it has all opened-up again.
The whole purpose of the rule against double jeopardy is to have closure and finality. As human beings our lives are short and we have to come to terms with decisions that are made. As noble Lords have pointed out, this is a rule that applies throughout the common law systems and in most jurisdictions where the rule of law prevails. We move from it at our peril.
Lord Cooke of Thorndon: I had not intended to speak on Part 10 because I am sympathetic to what one might call the "DNA aspect" of the proposed changes. But the remarks of a constellation of distinguished speakers today have led me to think that the clauses may not be tightly enough drafted.
I suggest to the noble and learned Lord the Attorney-General that if the possibility of retrial was limited to new and compelling scientific evidence that was not and could not reasonably have been available at the time of the earlier trial, that might go far towards making the proposed changes more acceptable.
Perhaps, also, bearing in mind what has been said by the noble and learned Lord, Lord Lloyd of Berwick, the question of retrospectivity requires further consideration. For myself, I regard that as a difficult question on which, possibly like others, I will retain an open mind.
Viscount Colville of Culross: This debate has turned into a general discussion about Part 10. I have great sympathy with the noble Baroness, Lady Kennedy, in seeking a method whereby she could discuss it. I have only one short point for my noble and learned friend Lord Lloyd. Even if his amendment were to be passed, it would do nothing to cure the situation in the future. The situations mentioned by the noble Baroness and the noble and learned Lord, Lord Mayhew, will occur when convictions take place after this legislation is in force, even if it is not retrospective, because the same situations will occur some years hence and there will be exactly the same anticipation and disquiet among those who think that they have been acquitted. Therefore, the issues raised go to the entire point of double jeopardy rather than against retrospectivity.
Lord Lucas: It seems to me that subsection (6) is essential to the Bill. It is only when you look at those few cases of manifest injustice which have occurred over the past 25 years that it is possible for any sane man to think that this is a fair provision. It is only when you focus on that individual pain and allow the rest of your common sense to be excluded that it is possible to think that the injustices which will be done by this provision in any way come close to, let alone are outweighed by, the benefits which this provision will bring.

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The situation is exactly as the noble Baroness, Lady Kennedy of The Shaws, has said. We will regret passing this provision from the moment we pass it. It will, as the noble Lord, Lord Thomas of Gresford, said, open up a whole Pandora's box of years of past misery by people whose friends or relations or children have been murdered and who believe that they know who did it or that the person who has been acquited really did it and there is something that was not properly considered at the time. It will open up endless bitterness; it will be food and drink to the media, who will be able to run all sorts of operations to make people who have been acquitted and anyone associated with the trial miserable.
The costs of doing this are enormous in terms of human misery. The benefits are certainly tangible and important, but they do not outweigh the costs. The present rule is prevalent in so many systems, long-lasting and well respected. That is for a reason. It is because whenever people have allowed themselves the space and the rationality, they have concluded that that is the right balance. When so many societies with different outlooks and points of view have reached that conclusion, it is one that we ought to respect. I hope that my Front Bench will respect it too. Sometimes I think they share instincts of the present Home Secretary—they certainly did when we were last in power. I very much hope they have changed their mind.
Lord Brittan of Spennithorne: The remarks that have just been made have brought me to my feet. It is worth remembering that these ancient protections have not existed accidentally and have not survived for so long as to be ancient protections for no good reason. They have survived for so long precisely because they have stood the test of time and been a hallmark of a civilised society which is not moved by populist concerns to do what seems cheap and easy and popular because of particular cases which have come to notoriety. The ability to resist pressures arising from such cases is one of the hallmarks of a civilised society.
My noble friend referred to the previous administration and the proclivities of the present Government. In considering a proposal of this kind, one is minded to ask whether it is appropriate to give this Government the benefit of the doubt on the basis that, if a credible case can be made, they should be supported in the interests of justice. However, the number of provisions in the Bill that offend previous principles that have lasted for centuries, such as the one that we are discussing, are so numerous that the Government have lost the right to the benefit of doubt.
As a former Home Secretary, I have to say that if I had dared to introduce a quarter of the provisions in this Bill, which go against the traditions of fairness and criminal justice, I would have been torn limb from limb by those on the opposite Benches—and they would have been right to do it. I regard the Bill as containing a number of provisions that are an affront to justice and to civilisation, and this is one of them.
5.30 p.m.
Lord Brennan: In a debate of such importance, metaphorical self-evisceration is not helpful. The debate must surely be conducted on a serious basis. This part of the Bill seeks in a limited form to reflect the sense of justice of the community.
Let me put a contrast to the Committee. If we consider it just that someone who has been in prison for 15 or 20 years should be released because DNA evidence shows that person to be innocent and another person to be guilty, that accords with the sense of justice of our community. The innocent have been set free. We had an example of that only the other day, with the three people from Cardiff who were released and acquitted and the real murderer subsequently convicted because of DNA. That represents a sense of justice We might compare with that the case of a person who has been acquitted of murder 15 or 20 years ago, when DNA evidence shows that person in fact to have committed the murder. I do not believe that the community would say that it was just to let that person avoid a retrial and possible conviction under these provisions. Indeed, the sense of justice will be stretched in the extreme if we legislate to release the innocent but legislate to protect the guilty.
That practical state of affairs is what the ordinary person in the street will have in mind. The value of double jeopardy as a protection between the citizen and an overbearing state or prosecutor is absolutely fundamental and well established. The proposals in principle will not denigrate or destroy that protection, subject to two considerations.
The noble and learned Lord, Lord Bingham, the present senior Law Lord, closed one of his excellent lectures on justice by quoting from a decision of the Court of Appeal in Mattan. That was the case of a man who had been hanged 50 years ago whose conviction was posthumously overturned. I shall paraphrase the end of the judgment, quoted by the noble and learned Lord. It said that the instance indicated the absolute need for integrity by all those involved in the prosecuting process.
When we look to how the change in double jeopardy should he properly controlled, the first control must be absolute integrity by all those concerned in the prosecution at the time, as well as at the second attempt.
The second control must surely be the Court of Appeal Criminal Division. The wording that we shall have to consider, properly interpreted, gives that court very strong powers indeed to avoid sending back for trial unmeritorious attempts to reopen cases. The tenor of the statutory language that we are considering is that the measure is for wholly exceptional cases.
I apologise to the Committee for not being present earlier but I know from conversation with him the opinion that the noble Lord, Lord Neill of Bladen, expressed about the dangers. I mentioned that the two precautions of integrity and strong appellate control are essential.

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In expressing my general support for the principle I want to close by inviting my fellow lawyers in this Chamber, in so far as it is intellectually possible—this is difficult for us because of our training and our upbringing—to look at the matter as if we were citizens in the context which I first described in opening these remarks. I do not think that anyone could condemn what I imagine to be the majority of ordinary reasonable citizens who would say that this limited change to double jeopardy, especially when scientifically justified, reflects our sense of justice.
The Lord Bishop of Chester: I have been most impressed by the speeches during the past hour. They have shown this Chamber at its very best. I hope that I may from an entirely lay perspective offer a word of support to the noble Lord, Lord Brennan. I was brought up with the principle that justice must be done and must be seen to be done. What must be seen to be done is, in a sense, culturally relative and changes over time.
Provided the restrictions are drawn tightly—probably more tightly than in Clause 72—to make it clear that the evidence should be scientifically compelling, and not just compelling in a more general sense, the exception that proves the rule could uphold the principle of double jeopardy while allowing for exceptional circumstances. If that is not the case, the danger is that one brings the whole process of the administration of law into a certain disrepute because of the media attention which is given to the exception. So, provided Clause 72, and other relevant clauses, could be drawn more tightly, I personally would be willing to accept the measure, but with a heavy heart for all the reasons which Members of the Committee have given so impressively over the past hour or so.
Baroness Anelay of St Johns: The debate of the past 50 minutes has shown that the Bill is not a seamless whole as a Criminal Justice Bill but a portfolio Bill of a significant number of stand-alone changes to our criminal justice system, some of which receive wholehearted support. However, others, such as the one we are discussing, spark very deep concerns, and sometimes for different reasons among different groups within this Chamber and elsewhere.
I and my colleagues in another place have considered all these matters, as we have other parts of the Bill, very deeply. Indeed, I believe that our feelings echo very closely those that have just been expressed by the right reverend Prelate the Bishop of Chester.
I turn to the difficulties we face when we consider whether we should accept the relaxation of double jeopardy as a principle—a principle that my noble friend Lord Brittan said is ages old. If we accept that relaxation, which we on these Benches have, we then immediately pose ourselves the very difficult next step of what to do about retrospectivity. As soon as one relaxes the principle of double jeopardy, one builds in the effect of retrospectivity in the future. As the noble Baroness, Lady Kennedy of The Shaws, said so poignantly and so graphically, every person has to face the tap on the shoulder.
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In accepting the fact that there should he a relaxation of double jeopardy as a principle, I do riot underestimate the pain and the fear that will be felt by some. As the right reverend Prelate hinted, what is important is that pain and fear should be felt only by those who are guilty. That is why I think it is our duty to ensure that the rules within Part 10 are so closely and carefully drawn that we do not throw to the wolves of the tabloid press people who should not face retrial.
I, too, have reflected on the more general nature of the debate. The noble and learned Lord very properly directed us to whether subsection (6) should be deleted. I have a confession to make to him. I did not overlook the matter; an amendment was tabled in another place by my honourable friend Dominic Grieve, with the purpose of trying to probe what we as a Parliament were letting ourselves in for if we were to go down that route. We went through the painful and difficult decisions referred to by the right reverend Prelate and decided that we would accept double jeopardy, but with close restrictions.
Therefore, on this very rare occasion I do not agree with the noble and learned Lord, and I hope that it remains a rare occasion. However, I shall certainly try to ensure that Part 10 does not proceed in its current and unamended form, because the safeguards are not there at the moment to allow subsection (6) loose on the country.
Lord Goldsmith: My noble friend Lord Clinton-Davis invited me to consider that the points made today were not lightly made. I entirely accept that, and would never have thought otherwise. I entirely agree with those who have said that there are difficult choices to be made. The Government have considered those. I am sorry that my noble friend Lady Kennedy of The Shaws attributes this part of the Bill to the Government's desire to achieve quick credit. That is not how I see it at all. I see it as a provision to provide justice in exceptional cases where justice has not been done, and to protect others.
We have not focused on protecting others today. If, for example, we know that there is a man walking the streets who has been guilty of serious crimes. and whose DNA we did not have then but have now, and if we could prosecute him now although he was acquitted before, we could get him off the streets and protect other people's daughters and children. That is a step that we have to think long and hard about before we say that we will not take it.
Baroness Kennedy of The Shaws: I share that sense of outrage at the possibility of someone walking free when new science provides us with a remedy. Why, therefore, have the Government not confined themselves in this part of the Bill to DNA and scientific breakthrough?
Lord Goldsmith: I will come to that, but I shall deal with the principle in my own order.
The Government have been persuaded that it is necessary to make a limited exception to what the noble Lord, Lord Neill of Bladen, describes as an age-old principle and a rule that is centuries old. I am glad

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to have support not only from those on the Opposition Front Bench and—as I understand it, although I may not have understood it correctly—on the Liberal Democrat Front Bench, but from the noble Lord, Lord Brennan, in a powerful and important speech, and the right reverend Prelate the Bishop of Chester. I am grateful to the noble and learned Lord, Lord Cooke of Thorndon, for indicating that he also has been sympathetic to the principle, although he wants to consider the precise details, which I understand. I am also grateful to the noble and learned Lord, Lord Lloyd of Berwick, for his agreement that there should be a limited exception.
Those are not the only people who have taken the view that this is the right thing to do. The Law Commission supported the change. Lord Justice Auld in his report, Lord Macpherson in his report on the Lawrence case, and the Home Affairs Select Committee have all agreed with the principle of change. I am glad that the amendment has allowed us to air some of the issues of principle. I will deal with certain of the points that have been made, but I will not shrink from saying that, difficult though the issues are, it is right to make the change.
The noble Lord, Lord Neill of Bladen, said that it is a centuries-old rule. Yes, it is. Not for the first time this week, a Minister at the Dispatch Box is saying that that does not necessarily mean that it is right for all time. The evidence is there and the case has been made for this limited exception.
I do not agree with the assertion of my noble friend Lady Kennedy of The Shaws that no other country has a different rule. The annexe to the Law Commission report indicates—I have it in front of me—that that is the case, for example, in Denmark. Protocol 7, Article 4 of the European Convention, from which the noble Lord, Lord Neill of Bladen, read, indicates that it is accepted in the Council of Europe that there may be exceptions to the principle of double jeopardy, no doubt because there are countries that adhere to it.
Equally. I recognise—and it is always the case where there is a balance to be struck—that, to use the words of the noble Lord. Lord Lucas, there are implications of pain for some. I accept that there are certain risks attached. The noble Lord, Lord Neill of Bladen. referred to the risk of being hounded by the press, but went on, from his experience as Chairman of the Press Complaints Commission, to answer that point by recognising, as we all know, that that happens already, even without any such rule. The press is inquisitive and roots out injustice in all sorts of ways. I recognise that the provision carries a price, but it is a price worth paying, because of the justice that it will bring about.
I will deal briefly with the point that he made—
Earl Russell: If the noble and learned Lord is relying on DNA for his justification, as he did at the beginning of his speech, that is a temporary problem because it is a new technique. Why not, then, make the Bill what
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our ancestors used to call "a probationer" and insert its own sunset clause in the provision? If the need is temporary, so should be the change in the rule.
Lord Goldsmith: I thank the noble Earl for his intervention. I do not restrict my case to DNA and I will come to a striking example that does not depend one little bit on DNA, but where I will challenge noble Lords to say that they do not see the cry for justice contained therein. I will come to that in a few moments.
DNA is a new technique. As other noble Lords have said, fingerprinting was a new technique once upon a time and, no doubt, we will see further new techniques in the future. Therefore, if we are to have the provision at all, as we believe we should, let it cover all of those cases.
I shall deal briefly with the point raised by the noble Lord, Lord Neill of Bladen, on a European matter. I hesitate today to go into any substantive issue relating to the draft Convention on the Future of Europe, which has been produced by President Giscard d'Estaing and to the intergovernmental conference, which is about to take place. However, I do know something about the European Charter of Fundamental Rights to which he referred as I was one of its negotiators. I know that it contains provisions that make it clear that where there are clauses—such as the one to which the noble Lord referred—which relate to the European Convention on Human Rights they have the same meanings, and include the same exceptions. I also know that that charter is not directed at what countries do within their own national competencies. It is directed, as its clauses make clear, to what is done by the Union's institutions or by member states when they are acting as agents. I do not regard that as a reason against these provisions.
My noble friend Lord Brennan put the matter very well when he referred to the sense of justice that the citizen and community would have. He said that we must not be seen to be legislating to protect the guilty. With the safeguards that are built into the Bill—and we will come to consider their detail—that is what we would be doing if we declined to carry through this provision and its retrospectivity.
We have moved a little towards a Second Reading or clause stand part debate. I make no complaint about that—indeed, I encouraged it. But it is worth remembering the safeguards that have been built in. They include retrials only for the most serious criminal offences. We will have to come back to exactly where the right judgment is to be drawn in relation to that and I shall not be drawn into that issue now. I know that it is an important issue and I look forward to listening carefully to what is said about the current list. There may be only one retrial. Any reinvestigation must be authorised personally by the Director of Public Prosecutions.
I thank my noble friend Lord Brennan for referring to the need for integrity of all those involved. That is something which as Minister responsible for the director and for the Crown Prosecution Service I hold

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very dear. It must be subject to the decision of the Court of Appeal—my noble friend's second condition. I agree entirely with him that the clause provides strong powers to send back unmeritorious cases. I refer to one of those and we will come later to the detail. I draw particular attention to the requirement that the evidence, to be compelling, must appear "highly probative" of the case against the acquitted person. There are other conditions, too: not just a bit of evidence or something which might have changed, but something which is highly probative of the case against the acquitted person.
Then, too, the interests of justice must be considered. Those will be an important safeguard. Reporting restrictions are also included so as to avoid the risk, so far as one can, that someone will be tried ultimately by the press rather than by a court seized properly of the matter.
Let me turn to retrospectivity. If one accepts that the principle of change is right—it is right to have a limited exception, subject to safeguards—I see no argument for saying that it should apply to cases only after the legislation comes into force. I will develop the reasons, but I respectfully note that those noble Lords, including the noble Viscount, Lord Colville of Culross, who said that the points that have been made arc not assisted by making the provision not retrospective are right. None of the concerns expressed by the noble Lord, Lord Neill of Bladen and my noble friend Lady Kennedy of The Shaws, is dealt with by making it not retrospective.
Being not retrospective deals with one point and one point only. It is the example that the noble and learned Lord, Lord Lloyd of Berwick, gave; the example of someone acquitted of one of the less serious offences. But the principle must be the same. Let us assume that it is someone who has been acquitted of murder and who later confesses to someone of that murder—whether to a wife or someone else—who then goes to give that evidence. I respectfully beg to differ from him. If someone has been guilty of a murder, has confessed to that murder and has chosen to do that, I am not sure that 1 can agree with the noble and learned Lord that that person should be allowed to sleep easy in his bed.
I now turn to the specific example that I wanted to mention. It has been mentioned already but it is important to have regard to it because it also answers the point raised by the noble Earl, Lord Russell, and the noble and learned Lord, Lord Cooke of Thorndon, as to whether we should restrict this matter to DNA evidence. I refer to the case of Mrs Ann Ming, whom I and other noble Lords met the other day. She is the mother of Julie Hogg.
For those who do not know the story, we listened to Mrs Ming explain how, after the police had spent weeks looking for her daughter and told her that she must have gone off to start a new life, she went to the flat where her daughter had been living and discovered her decomposing body behind the bath panel. She then saw a man tried twice for the murder of her daughter. On each occasion, the jury was unable to reach a
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verdict and so he was acquitted. Within weeks, he was boasting in public houses that he had got away with the perfect murder. Some years later, he confessed to the murder and, when on trial for perjury, he confessed in court. I want to read From Mrs Ming's words. She said:
"His defence barrister says in court Dunlop"—
that is his name—
"has made 'British legal history', being the first person to have been acquitted of murder then later to confess 'in court'. If this is the case, there are no guidelines, no test case, so please set a precedent with this case. Change the 'double jeopardy' law. Make it retrospective and, instead of criminals like Dunlop making a complete mockery of the British justice system, let Dunlop and others be brought to justice for the crime he has confessed to, not just for lying in court for this horrendous crime".
She says:
"I will challenge any civil liberties group about 'human rights'. Our daughter had a right to life. Dunlop took this from her. We have a right for justice for Julie and the only way for us and other families to obtain justice is to change the 'double jeopardy' law retrospectively".
I respectfully say to the noble and learned Lord, Lord Lloyd of Berwick, that if, as I believe is right, we make a limited exception to double jeopardy, I could not look Mrs Ming in the face and say, "This will not apply to a case like this". I could not look her 'n the face and say, "This applies only where there is scientific evidence, but not where someone has confessed several times and in court". I would have to say to her, "Of course, he committed the offence before. It was against the law then. We are not changing the law retrospectively. What he did was a crime then. He should be punished for the crime now". I could not say that the provision would apply only in the future. I resist the amendment.
Earl Russell: Before the noble and learned Lord sits down, does he see risks in making law for a single case?
Lord Goldsmith: I am not proposing the making of law for a single case. I have identified a striking case, which some noble Lords, as did I, had the opportunity of hearing about directly. It is a matter to which the noble Lord, Lord Brennan, refers, and which society considers to be justice. Only a few cases will be affected because they will be exceptional. I believe that the Director of Public Prosecutions said to the Home Affairs Select Committee that he would be surprised if there were more than a few cases. They are exceptional cases which cry out for justice, just as, fortunately. we have only a few cases which cry out for justice the other way.
Lord Lucas: I was very disturbed by what the noble and learned Lord said by way of illustration. He asked us to imagine that someone is tried and acquitted of murder and that several years later we obtain his DNA. We then know that he is guilty, and this guilty man is wandering the streets. I believe that t hat is a complete misunderstanding of DNA evidence but not one that I would expect a tabloid newspaper to avoid. I would expect exactly that kind of misstatement to be

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trumpeted in the tabloids—that is, that someone is wandering around with his DNA "found at the scene" or found on an object and therefore he is guilty.
DNA can provide absolute proof of innocence but it cannot provide proof of guilt. That is the case, first, because matching is not exact. A piece of DNA is cut into chunks with enzymes and we see how it comes out on a gel. We are not dealing with a complete sequence. So we are dealing with probabilities which are only in the millions and not in the thousands of millions. If we take the world as whole, it seems likely that quite a few people will have identical DNA.
DNA is also contained in many parts that we leave behind us in our passage through life, so it is easy—unlike a fingerprint—for it to turn up in places which might be inconvenient when it comes to an explanation. It may be very compelling evidence—and I understand that it is compelling evidence—but we cannot know that a man is guilty just on the basis that his DNA has been found at the scene until we have tried him. I was very disturbed that the noble and learned Lord, who understands a great deal, did not understand that.
6 p.m.
Lord Goldsmith: I take that as a question directed to me. The noble Lord will understand that precisely what the Government are proposing is that someone should be tried on all the evidence there is. The illustration I gave concerned identifying a piece of evidence that may make all the difference to a case. I am not suggesting that it is the only evidence available. Should we allow the situation in which we now know that there is compelling evidence that this person may be a great danger, but we can to do nothing about it until he strikes again?
Lord Lloyd of Berwick: The debate has gone far wider than my amendment. That is as it should be. The amendment has at least served that purpose. As noble Lords know, I do not go so far as my noble friend Lord Neill, the noble Baroness and other noble Lords in their feelings against Part 10 as a whole. For my part. I am in favour of a limited exception to the double jeopardy rule. We shall be exploring those limited exceptions, I hope, when we come to other amendments which have already been tabled and those which will no doubt be tabled in the future.
I come back to the purpose of the amendment. It was not meant to deal—to answer the point of the noble Viscount—with the kind of difficulties that have been raised in relation to Part 10 as a whole. It was intended to deal with a specific problem, about which I feel quite strongly. Any exception we make should apply only to those acquitted in the future, in respect of whom it may well serve a useful purpose in the interests of justice, and not to those who have been acquitted in the past and who have since lived in the belief that they could never be tried again. That is the point of the amendment.
I must say that 1 do not feel wholly satisfied by the way in which the noble and learned Lord the Attorney-General dealt with the point. He dealt with it only by
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giving an example from the opposite extreme to the one I gave. Somehow it is much better to exclude those cases altogether by saying that, "This shall not be retrospective"—that is what I mean by retrospection—and then to go ahead from there. I shall want to return to the matter at a later stage. Meanwhile. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 69 agreed to.
Schedule 4 [Qualifying offences for purposes of Part 10]:
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 135:
Leave out Schedule 4 and insert the following new Schedule—

Criminal Justice Bill

  SCHEDULE 4 QUALIFYING OFFENCES FOR PURPOSES OF PART 10 PART 1 LIST OF OFFENCES FOR ENGLAND AND WALES
  Murder
  1. Murder.
  Rape
  2. An offence under section I, 3, 6 or 7 of the Sexual Offences Act 2003.
  Genocide, crimes against humanity and war crimes
  3. An offence under section 51 or 52 of the International Criminal Court Act 2001 (c. 17).

  PART 2 LIST FOR NORTHERN IRELAND
  Murder
  4. Murder.
  Rape
  5. Rape.
  Genocide crimes against humanity and war crimes
  6. An offence under section 51 or 52 of the International Criminal Court Act 2001 (c. 17).

  PART 3 SUPPLEMENTARY
  7. A reference in this Schedule to an enactment includes a reference to the enactment as enacted and as amended from time to time.
  The noble Baroness said: Amendment No. 135 takes us to the subject of the limited exceptions, to which the noble and learned Lord, Lord Lloyd of Berwick, has just referred. It is grouped with Amendment No. 135ZA, tabled by the noble Lord, Lord Thomas of Gresford, which takes an even more limited approach than mine.
  We turn to the difficult issue of which offences should be covered by the retrial provisions. The Government lists the offences in Schedule 4. As I have mentioned already, we feel that the range is far too large. It means that double jeopardy will not apply to a limited series of cases but to a range which is far too wide.
  Why did the Government decide on that list? Why did they expand it during proceedings in another place? After all, the Law Commission recommended that only murder should be subject to the relaxation of double jeopardy. The argument for including murder is clearly that we should accept that someone who has a propensity to kill other people is a serious public menace. No doubt one reason that weighed heavily on

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  the mind of the Law Commission was that there is an enormous public interest in ensuring that such people may never strike again.
  We have tried to take a pragmatic approach to the matter. In Committee and on Report in another place, my honourable friends fully debated which offences should fall within the new rule relaxing double jeopardy. We have considered the matter further since those debates. I had the opportunity briefly to pass that information to the Attorney-General, which is reflected in the nature of our amendment.
  We remain convinced that retrial should be permissible only in serious cases, but, as is evident from our amendment, we go further than the Law Commission. We say that Schedule 4 should be confined to murder, rape and genocide. We are trying to take into account the public interest question and address the most serious of offences. Also, from a purely practical point of view, it is essential that the police and prosecution are given the opportunity first to demonstrate that the new proposals work fairly and effectively before we even consider rolling out the abandonment of double jeopardy more generally.
  As I said at the beginning of the Committee's proceedings today and in speaking to Amendment No. 133P, bringing a second prosecution will not be evidentially straightforward. Before we raise and then dash the hopes of victims and remaining relatives, we should ensure that the new proposals deliver both fairness and public benefit in the most heinous of offences only.
  I have drafted the list of offences in the amendment to take the debate further than was possible in another place. In discussing the matter with my colleagues there, it became apparent that we would need to consider whether manslaughter should be added as a final item on the list. We are still considering that. I shall he interested to hear what the Attorney-General has to say in response to that—and, of course, the views of all other noble Lords.
  Our underlying view is that the Government have not yet got the balance in Schedule 4—their shopping list—right. It is a recipe for failure and disappointment. That would simply be wrong—wrong for the public interest and wrong for all those who appear before the courts in future. I beg to move.
  Lord Thomas of Gresford: I shall speak to Amendment No. 135ZA, which is grouped with the amendment moved by the noble Baroness. If there is to be any invasion of the principle of double jeopardy, it should go no further than that recommended by the Law Commission. Its report was published in March 2001 after two rounds of consultation. Why, if the Law Commission—which is supposed to advise the Government on criminal law matters—limited the proposal as it did, have the Government gone so much wider, with a list of 31 offences?
  The Law Commission said:
  "The approach we have decided to adopt is to see whether we can identify specific offences within the larger category of offences potentially attracting a life sentence which we believe are inherently serious enough to justify the application of a new evidence exception. We have come to the conclusion that under
  1078
  the present law the only such offence is murder. The main reason for this conclusion is the widespread perception, which we share, that murder is not just more serious than other offences but qualitatively different. The effect of this difference is that murder satisfies the test we have proposed for the scope of any new exception, namely whether a manifestly illegitimate acquittal sufficiently damages the reputation of the criminal justice system so as to justify overriding the rule against double jeopardy".
  Those are the Law Commission's views. We do not think that the Government should go beyond them, if the rule is to be breached at all. Consequently, our amendments are limited to murder, soliciting murder—conspiring in soliciting murder—and genocide; that is, murder on a large scale.
  Lord Lloyd of Berwick: For reasons that I mentioned earlier, I support the amendment tabled by the noble Lord, Lord Thomas, in preference to that of the noble Baroness, Lady Anelay.
  Earl Russell: I am very glad that my noble friend Lord Thomas has tabled Amendment No. 135ZA. 'The great danger with any provision of this sort—any relaxation of the rule—is that one creates an opportunity for vendetta. The use of the law as a vendetta in many societies in this century and others has not been unknown. It can be a very formidable form of vendetta. For that reason, I am surprised that the Government have decided to include an offence such as rape on their list of offences that may be tried a second time.
  My noble friend's amendment at least has the advantage of introducing certainty and excluding, with the exception of murder, those elements that are most liable to give rise to vendettas. That is a very sensible precaution.
  Lord Hylton: As a mere layman in these matters, I support the principle of restricting the list as much as possible. On those grounds, I prefer the amendment tabled by the noble Lord, Lord Thomas, to that moved by the Conservative Front Bench. However, if we had to vote on the matter, I would support either.
  Lord Goldsmith: I indicated earlier that I wanted to listen carefully to what was said in this part of the debate, so I am grateful to those who have spoken—albeit briefly, but I know from the previous longer discussion what lies behind many of the points made.
  It is necessary to bear in mind—if I may respectfully say so, the observations of the noble Lord, Lord Thomas, do not—that the Government received advice not just from the Law Commission but from Lord Justice Auld, who has also dealt with the issue. He recommended that the provision go beyond that suggested by the Law Commission to cover all offences that carry a maximum penalty of life imprisonment. That is helpful advice, but, with respect to Lord Justice Auld, there is a difficulty with it in that all common law offences carry a maximum sentence of life imprisonment. It seemed to the Government that more certainty was necessary. We have therefore sought to identify offences considered to have a particularly serious impact on the victim, their family or on society more widely, which, for the most part, carry a maximum penalty of life imprisonment.

  1079
  I respectfully differ from the noble Earl, Lord Russell, in considering the importance of including rape, for example. One can imagine cases—sadly, we have had some—where individuals have carried out campaigns of rape against women in one part of the country or throughout it. I would not regard such cases as a vendetta. I agree entirely that the law should not be used as a means of a vendetta. If we are to extend the principle of being able to come back on cases, as we believe we should, those cases should be included also.
  Other offences fall within the list. However, as my honourable friend Hilary Benn said in another place, where you draw the line is a matter of judgment. The noble Baroness, Lady Anelay, specifically asked my view in relation to manslaughter. The Government's view is that manslaughter should appear on the list. Indeed, there may even be difficulties in not having it appear. For example, there could be sufficient evidence and a compelling case to retry a person for murder who had previously said that he was not at the scene at all. When that case comes before the court, although it seems clear that the defendant was the person who killed, for the first time, the question might arise whether that person should be convicted of manslaughter on the grounds of diminished responsibility. I am not sure that I am right about that, but it needs further consideration. Manslaughter can be a very serious crime if the circumstances have been demonstrated to make it out in the way proposed.
  I recognise that a matter of judgment is involved. Although the Government's schedule has been drawn up in the belief that it covers the right offences, recognising that an offence is on the list does not mean that all the cases that fall into that category will be sent to the Court of Appeal—far from it. I would like to consider what has been said today and return to the matter on a future occasion.
  Baroness Anelay of St Johns: My response will be brief after that generous offer from the noble and learned Lord. This is a key issue with regard to the safeguards that should hedge around double jeopardy, so I am grateful to him for his offer to consider the matter again. We will. I am sure, meet the noble Lord, Lord Thomas of Gresford, between now and Report to consider the position further.
  In the view of responses earlier from the Minister and amendments tabled by the noble Lord, Lord Thomas of Gresford, it is not appropriate for me to move Amendment No. 135A. That will disappear. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 135ZA not moved.]
  Schedule 4 agreed to.
  Clause 70 [Application to Court of Appeal]:
  [Amendments Nos. 135ZB to 135 AB not moved.]
  Clause 70 agreed to.
  Clause 71 agreed to.
  Clause 72 [New and compelling evidence]:
  Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 135B:
  Page 47, line 34, after "not" insert ", and could not reasonably have been,"
  The noble Baroness said: The amendment poses a question with regard to the new and compelling evidence that, as defined in the Bill, would enable the relaxation of the rule of double jeopardy to take place and for a retrial to occur. It would appear from the drafting of the clause that the new and compelling evidence is evidence that was available at the time of the original trial, but was simply not adduced at that trial. It may have been in the hands of the prosecution or, potentially, in the hands of the police but not the prosecution. It may have been in existence, but due to an inadequate investigation—not only through someone's fault—it was not available at the time of that first trial.
  The question that goes to the heart of the matter is what would happen if the prosecution had the evidence and, for whatever reason, chose not to use it? Should it then be used to trigger a retrial? The prosecution may not have realised the significance of the evidence, or they may have decided that, although it should be significant, it would not, at that time, come up to proof; and, therefore, did not use it.
  At this stage of the Bill's progress and given the time of day and the impending Recess, I move the amendment as a probing amendment to ask the Government to develop further their argument for why they have come up with this definition, instead of the original definition. which was intended to be a matter of new scientific evidence. The case has been made by many bodies that there should be a reasonableness test and that evidence should be brought forward only if it was not reasonably available at the time of the first trial. Other noble Lords have already said today that they might prefer it if it were the case that evidence should be adduced only if it had come to light subsequently and was not in anybody's hands at the time of the original trial.
  This is an attempt to probe the Government on why they are going down that route. What evidence have they to show that that is the proper way forward? I beg to move.
  Lord Thomas of Gresford: If it does not cause difficulty to the noble and learned Lord the Attorney-General, I shall speak to Amendment No. 135BA, which is on the same topic, although it is not grouped with the noble Baroness's amendment.
  In Clause 73(2)(c), the question,
  "whether it is likely that the new evidence would have been adduced in the earlier proceedings against the acquitted person but for a failure by an officer or by a prosecutor to act with due diligence or expedition"
  is set out as merely something that goes to the discretion of the Court of Appeal, when it is considering whether it is in the interests of justice. It should not be one factor among others. The Court of Appeal should not be able to say, "There are other matters that allow us to ignore that aspect of the case. Although it was discoverable on an earlier occasion, in our discretion, we will order a fresh trial".

  1081
  It is more important that the evidence that was discoverable by "reasonable and diligent inquiry", in the terms of my amendment, should not be the "new and compelling evidence" referred to in Clause 72. My amendment would make it an absolute condition that the Court of Appeal could not order a new trial on the basis of evidence in respect of which the police investigation had been a failure or had been inadequate. I shall move that amendment in due course.
  Lord Carlisle of Bucklow: In the case of new evidence as regards the defence and their subsequent application for a retrial, I have always understood that such evidence was not available to the defence to be adduced at the time of the trial. This definition of "new" goes far wider than that. I had assumed that, by "new evidence", the Government meant evidence that had since become available but was not available to the prosecution at that time. I hope that the noble and learned Lord the Attorney-General will reconsider the definition of "new evidence". It appears to cover anything that the prosecution do not choose to use at the time.
  Earl Russell: I support my noble friend's amendment. I mentioned just now the danger that the provision would be used for vendetta. One of the cases that I have in mind concerned a young man who was a member of my seminar. He had been accused of murder, tried and acquitted. I may add that the young man came from West Belfast. The murder was the murder of a policeman. The police clearly were firmly of the opinion that the person was guilty. At every possible opportunity, for years afterwards, they used to arrest him for anything that they could possibly throw at him.
  Policemen who believe firmly in someone's guilt of murdering another policeman very naturally tend to feel rather strongly about it. If those police had had the opportunity—believing, as I understand they did, firmly in the young man's guilt—simply to go through their files, dig up anything they found and persuade someone that this was reasonable and compelling—many of the safeguards are ones that cannot really adequately be established before cross-examination—I am convinced that that would have happened. I am not convinced that this sort of repeated return to something is in the interests of justice. I am not persuaded that this repeated trawling of police files is in the interests of justice. I think the requirement that it should be new evidence is a sensible requirement and would help to keep the scope of these provisions within boundaries. I hope that the noble and learned Lord will look on this with some favour.
  Lord Neill of Bladen: I hope that the noble and learned Lord the Attorney-General will have deduced from what I said when I spoke before that I think this definition of new evidence is inadequate. It is a lower test than is used habitually in civil cases. In a civil case, one would have to show that the new evidence was not reasonably available on the previous occasion. There is no such requirement
  1082
  here. I do not have a very strong view as to which of the two propositions should be accepted—namely, that of the noble Baroness, Lady Anelay, or that of the noble Lord, Lord Thomas. But it is something that needs to be looked at. If there is to be new evidence, the definition must be tightened up.
  Lord Goldsmith: Clause 72 requires that,
  "there is new and compelling evidence against the acquitted person in relation to the qualifying offence".
  It defines evidence which is to be regarded as "new and compelling" for the purposes of this part of the Bill. The definition of new evidence, as it stands in the Bill, is straightforward, factual and objective. Clause 72(2) states that,
  "Evidence is new if it was not adduced",
  at the original trial. I emphasise that that is a threshold test. The Bill provides further safeguards by requiring the court to consider whether the evidence is compelling, as set out in Clause 72, and whether it would be in the interests of justice for a retrial to be ordered, in Clause 73.
  It is important to note that Clause 73 provides the significant safeguard at which, fundamentally, both amendments are aimed. It is for the Court of Appeal to decide whether the interests of justice are such that the order for a retrial should be made. In reaching that view as to the interests of justice, the Court of Appeal is required to take into account whether there was any lack of due diligence or expedition on the part of the police or prosecution, either in their original proceedings or in the new proceedings. I draw attention in particular to Clause 73(2)(c) and (d), which will specifically guard against the criticism that a poor police investigation can simply lead to a "second bite of the cherry". It is in no one's interest that that should happen. It is clearly in everyone's interest that the police investigation and the prosecution should be put on the best basis possible at the time of the first trial. Given that this part of the Bill provides only a limited exception, there is no incentive for the police or the prosecution not to do that.
  The Government believe that the best way of achieving the protection is as has been set out in Clause 73 rather than in the way set out in the amendments proposed by the noble Baroness, Lady Anelay, and the noble Lord, Lord Thomas of Gresford.
  6.30 p.m.
  Lord Neill of Bladen: Would the noble and learned Lord be good enough to consider this question? Turning first to Clause 73(2)(c), all it requires is that the court should have regard to such new evidence. It does not say that it would be a knock-out blow either way. It simply provides that having regard to it should be one of the factors in answering the question in subsection (1):
  "if in all the circumstances it is in the interests of justice … to make the order".
  The noble and learned Lord appears to be arguing that if it is a case where there has been negligence in the past resulting in the evidence not being adduced, that by

  1083
  itself would lead to a new prosecution. Is that the case? I am not sure. It is simply one matter to which the court must have regard.
  Lord Goldsmith: Indeed it is a matter to which the court is required to have regard. Reverting to our previous discussions, I do not doubt that the court would look very hard indeed at that particular matter.
  Earl Russell: Does the noble and learned Lord agree with the view once expressed in this Chamber by the noble and learned Lord, Lord Simon of Glaisdale, that the words "have regard to" mean almost exactly nothing?
  Lord Goldsmith: I am not aware of the occasion on which the noble and learned Lord, Lord Simon of Glaisdale, made that remark. I have enormous respect for him, not least because he is also a former Law Officer; indeed, the oldest surviving former Law Officer since the sad demise of Lord Shawcross. I do not know the context in which he said it and I certainly would assert that it is significant, important and of the greatest moment that Clause 73(2) requires the court to have regard, in considering the interests of justice, to a number of specific matters.
  I have no doubt that the Court of Appeal—in which I have great confidence, as do all noble Lords—will consider this properly and take it into account. I do not accept that it would need always and in every case to be a knock-out blow, but that would be for the Court of Appeal to determine. Ultimately the Court of Appeal will be concerned with what is required in the interests of justice. Those interests of justice certainly will require a consideration of the position of the defendant and whether on the first occasion the trial ought to have been dealt with in a different way, but that may not be the only consideration to which the Court of Appeal will have regard. However, that is for the court to decide.
  The noble Lord, Lord Carlisle of Bucklow, suggested that at this stage I should deal with the point that this is a more generous test than that applied to the defence. With respect, I do not believe that that is right. The defence will be able to appeal. For example, the Criminal Complaints Review Commission may bring before the Court of Appeal new evidence which could have been adduced before, but which had not been. Indeed, that is a circumstance in which matters are brought back to the Court of Appeal and it would be surprising if it were not. It would be very surprising if the law stated that where a miscarriage of justice had taken place because of the incompetence of the lawyers acting for the defendant, there was no means by which that could he corrected by the Court of Appeal.
  I think that the noble Lord might have had in mind the principle which applies in civil cases, but which is an entirely different circumstance. So this is not more generous to the prosecution; quite the reverse, it remains a much narrower test.
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  However, I sought to suggest that there are three objections to the proposed amendment. First, it would give rise inevitably to extensive legal debate about whether any particular piece of evidence could or should have been produced by the police at an earlier stage. Secondly, it would replace an objective threshold test with a more subjective one, which might result in the exclusion of evidence which had not previously been put before the court, but which might otherwise be regarded as compelling.
  Thirdly, it is right that the Court of Appeal should consider the nature of any evidence which has not previously been adduced, but which might be compelling in terms of the case against the acquitted person, and reach a decision about whether it is in the interests of justice and the interests of the whole community, for a retrial to proceed, taking all the relevant factors into account.
  The right way of providing an appropriate safeguard against those who are looking for a second bite of the cherry is to include this important requirement in Clause 73. That is the answer both to the amendment of the noble Baroness and to the amendment of the noble Lord, Lord Thomas.
  Viscount Colville of Culross: I am not troubled that there is a very strict test about what is compelling or that there is a very strict burden on the Court of Appeal under Clause 73. However, if we are trying to tighten up the matter, I wonder whether this really is new. If it is not new, we have a very loose and slack test.
  The difficulty with the Bill as it stands is that there is nothing to suggest that this really is new—it has just not been adduced before. Although the failure to adduce it may not be due to incompetence, the fact is that it has not been adduced. I would be much happier about the whole of Part 10 if "new" meant new.
  Lord Thomas of Gresford: I am grateful to the noble Viscount, Lord Colville, for his support of the principle behind my amendment. If one stands in the Court of Appeal on behalf of an appellant who has been convicted and produces evidence which was available to the defence at the time of trial, one will get absolutely nowhere. I do not see why the prosecution should be in a better position.
  I heard what the Attorney-General said about bringing back a case years later, but that is a very different proposition and it is not easy to get over the threshold involved. The appeals of right following a conviction do not permit one to introduce evidence which is not new. It seems to me that the Government must accept something along the lines of these proposed amendments.
  Baroness Anelay of St Johns: I am grateful to all noble Lords who have taken part in this debate on what is a core issue as regards the safeguards that one hopes will operate to ensure that. where the double jeopardy rule is relaxed, it is done in a proper manner.
  We are seeking to ensure that a reasonableness test is hedged around the production of new evidence. I take the point of the noble Viscount, Lord Bledisloe,

  1085
  with regard to—I have said it again. I apologise to the noble Viscount, Lord Colville of Culross. I called him by the same wrong name on a previous Bill. One day I shall get it right.
  I take the point of the noble Viscount. Lord Colville of Culross, about how new is "new". I recall that when I had insurance on a computer it was on the basis that if anything went wrong and it was not capable of being repaired one could have a new part. When the monitor failed and could not be repaired, it turned out that the insurance company defined "new" as something that was new to me—in other words, renovated and not new. The noble Viscount hit the nail very firmly on the head: what indeed is to be "compelling new evidence".
  I am grateful for the way in which the noble and learned Lord has put the Government's case. They consider that the reasonableness test for new and compelling evidence comes within the wider remit of the Court of Appeal decision on the interests of justice in Clause 73(2)(c).
  I shall certainly consider that matter further. It may be that the noble and learned Lord has satisfied me about it. I should like to discuss it further with him during the summer. I may not need to come back to it on Report. but I shall have to consider the matter carefully. My objective is exactly the same as the Government's in this respect. I want to ensure that there can be no excuse for sloppy investigations by either the police or, subsequently, by the prosecutor which would mean that there could be a greater opportunity for retrial than is strictly necessary. As our objectives are clearly the same, this is one of the provisions on which we should be able to come to an agreement rather than having difficulty with it on Report. In that spirit, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 135BA not moved.]
  Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 135BB:
  Page 48, line 4, leave out subsection (5).
  The noble Lord said: This amendment is simply designed to obtain an explanation from the Government as to what this provision means. I do not understand the purpose of it, and I really cannot have any attitude to whether I want to see it in the Bill until I understand it. I beg to move.
  Lord Goldsmith: This provision states, in effect, that previous admissibility is not relevant to the new evidence. In answer to the question of the noble Lord, Lord Thomas of Gresford, it is to ensure that any new evidence is assessed in accordance with current rules and standards of evidence and that in any potential retrial, those standards and rules of evidence would apply. Evidence which is otherwise new and compelling would not be excluded from consideration of the court solely because it would not have been admissible at some previous date. That does not of course mean that the overriding interests of justice test
  1086
  disappears—that is still for the Court of Appeal to determine. That is the answer to the question as the noble Lord asked for it.
  Earl Russell: Does not this answer the question of the noble Viscount, Lord Colville of Culross, with devastating clarity; namely, does "new" mean new?
  Viscount Colville of Culross: It is relevant to this because a later part of the Bill changes all the rules about admissibility. So I assume that the Government's intention is to allow a second trial to take place in which evidence that would previously have been ruled out is now made admissible under this legislation. That is a fairly incestuous situation. It may be part of the design of the Bill, but it seems that it takes two bites of the cherry—what was available before is not new in the sense that I have described in that it was there but it was not admissible under the then rules. It now becomes new, it would appear, because the rules have been changed.
  Lord Thomas of Gresford: I now understand what that clause is about—not, I regret to say, as a result of anything the noble and learned Lord the Attorney-General said but because of what the noble Viscount, Lord Colville, said a moment ago.
  There seems to be a "not" missing from the provision—it is probably a misprint. The provision might make sense if it said, "For the purposes of this section, it is irrelevant whether any evidence would not have been admissible in earlier proceedings against the acquitted person and is now admissible because of the provisions of this Bill". I ask the noble and learned Lord the Attorney-General to consider whether there is an omission in the provision.
  Lord Goldsmith: I do not think there is. To say it is irrelevant whether any evidence would have been admissible is exactly the same as to say it is irrelevant whether any evidence would not have been admissible.
  Lord Thomas of Gresford: We can enter into a discussion about this at a later stage. For the moment, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 72 agreed to.
  Clause 73 [Interests of justice]:
  The Deputy Chairman of Committees (Lord Grenfell): I must advise the Committee that if Amendment No. 135BC is agreed to, I cannot call Amendments Nos. 135C or 135D.
  [Amendment No. 135BC not moved.]
  6.45 p.m.
  Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 135C:
  Page 48, line 10, leave out "existing circumstances" and insert "the circumstances existing at the time the court is considering the application"
  The noble Baroness said: In moving Amendment No. 135C, I will, with the leave of the Committee, speak also to Amendment No. 135D. These are

  1087
  probing amendments which relate to the requirement under Clause 73 that the Court of Appeal must decide that,
  "it is in the interests of justice"
  to have a second trial.
  As we have already debated in part previously, Clause 73(2) lists a number of criteria to which the court must have regard when considering this issue. The first is whether existing circumstances make a fair trial likely. The amendments are alternatives to the Government's drafting, and would change that phrase. Amendment No. 135C would change it to whether,
  "the circumstances existing at the time the court is considering the application",
  make a fair trial likely. Amendment No. 135D would change it to whether the existing circumstances,
  "and the circumstances that appear to the court to be likely to exist at the time of the retrial",
  make a fair trial likely.
  Veterans of the Courts Bill will recall the debate earlier this year when one noble Lord expressed dissatisfaction with the use of the word "current" in a series of amendments that I tabled. I am delighted to see that the noble Lord who objected—in the most courteous way, as he always does—is here in his place today. That is the noble Lord, Lord Clinton-Davis. He rightly pulled me up on the use of the word "current" because, as he said, "Current, when?"
  The same arguments could be advanced about the use of the word "existing", without further explanation. I have therefore tabled the amendments to clarify that what the Government intend is what is stated in Amendment No. 135C—that in deciding whether or not there can be a fair retrial, the Court of Appeal should consider only the circumstances existing at the time the application for a retrial is made, and not the circumstances that may, or may not, actually come to exist by the time the retrial takes place. No doubt, if that is what the Government intend, the Minister will say that it would be wrong for the Court of Appeal to engage in speculation on what such circumstances might or might not be. There may well be force in that argument. However, that brings me to my next question.
  Will the Minister clarify whether the trial judge at the retrial will retain his or her powers to halt the retrial on the grounds that there could not be a fair trial—perhaps because of something that had happened in the intervening period between the Court of Appeal considering the application for a retrial and the retrial taking place? According to Clause 77(2), that period could be as much as two months after the application is made, or even longer if leave is given in exceptional circumstances. I see problems in that.
  If the trial judge has the power to halt the retrial on the grounds that a fair trial could not be held, will the judge be able to take a different view from that of the Court of Appeal, even if no new issues have arisen between the Court of Appeal hearing and the retrial? On the other hand, will the trial judge be bound to
  1088
  some extent by the Court of Appeal's consideration of whether a fair trial could be held? I suspect, as there is nothing in the Bill to fetter what would ordinarily be a matter for the trial judge's discretion, that the judge will not be so bound, but I would welcome clarification of the point, which is especially important in the context of any potentially prejudicial publicity between the Court of Appeal hearing and the retrial itself. I beg to move.
  Lord Goldsmith: The noble Baroness finished her speech by referring to the risk of prejudicial material being published between the decision of the Court of Appeal and the time of the trial. She is right to raise the issue, which the Government have already considered. It is an important point, which is why later clauses. particularly Clause 76, provide for important reporting restrictions that the Court of Appeal can impose.
  Amendment No. 135C would turn the words "existing circumstances" into,
  "the circumstances existing at the time the court is considering the application".
  I am not entirely sure whether it is intended to read the two amendments together. Perhaps because I was not party to the debates over the meaning of the word "current", I do not see the difference between saying, as the clause does, that the court must have regard to,
  "whether existing circumstances make a fair trial unlikely",
  and saying whether,
  "the circumstances existing at the time the court is considering the application",
  make a fair trial unlikely. I am not sure that I see the difference at the moment. It may be that what the noble Baroness has in mind is that one should consider the two matters together so as to indicate that the court must also have regard to the future. She was right to anticipate that we would be concerned about imposing too great an obligation on the Court of Appeal to speculate as to what the position may be. But, having said that, in deciding whether existing circumstances make a fair trial unlikely, I would expect that the Court of Appeal would have regard to what the previous publicity, and the publicity at that date, had been by way of example.
  In deciding at this time whether a fair trial would be unlikely, there is a degree of speculation inevitably involved in what the Court of Appeal is doing in the sense that it is saying today, "Do we think a fair trial tomorrow would be unlikely?" But we would be against imposing this duty of speculation in the way that the noble Baroness proposes.
  Earl Russell: Does it make the distinction the noble Baroness is trying to make if a large body of material is in the hands of a newspaper and one has good reason to believe that the newspaper intends to publish that material as soon as the case comes to court, but not if it does not? Is that in fact a clear distinction between the two amendments?
  Lord Goldsmith: The noble Earl may be right. That may be what the noble Baroness has in mind. Obviously she must speak for herself on that; I cannot.

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  I must respond to the specific questions that the noble Baroness asked me. She asked me whether the trial court would retain the ability to consider whether a fair trial was possible, having regard to events which had occurred between the hearing in the Court of Appeal and the trial. Save to the extent that those had already been taken into account by the Court of Appeal. there is nothing in the Bill, as the noble Baroness says, to say that the retrial court does not retain its usual discretion to decide that a fair trial is not possible. Therefore, subsequent events would be, it seems to me, open to the subsequent court to consider.
  The noble Baroness asked whether the second court could reach a different view on the same material from the view that the Court of Appeal had reached. I believe that the answer to that is no because once the Court of Appeal had reached a considered view that a fair trial was likely, notwithstanding things that had happened before, it would not be appropriate for the second court to reach a different view. Whether that is a matter of judicial self-restraint or whether it is implicit in the Act, I would need to consider, but I have done my best to answer the question.
  Baroness Anelay of St Johns: I apologise for my momentary inattentiveness when the noble and learned Lord was trying to give me what was, indeed, a very helpful answer. However, I was being sounded out whether this was the appropriate time for proceedings to finish. As the noble and learned Lord might expect, I was rather relieved to find that the Government agreed that it was.
  Lord Goldsmith: We believe that we have another five minutes. Perhaps we can deal with the next amendment, which does not look very long.
  Baroness Anelay of St Johns: In that case, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 135 D not moved.]
  Clause 73 agreed to.
  Clause 74 [Procedure and evidence]:
  Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 135E:
  Page 48, line 29, after "served" insert "in person"
  The noble Baroness said: This is another probing amendment. It relates to the service by the prosecution on the acquitted person of the notice of application to the Court of Appeal for a retrial. Clause 74(2) provides that the service must be effected within two days of the
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  application being made. My amendment would simply require the service to be in person. 1 would welcome the Minister's comments on the circumstances in which service would normally be effected. I do not need to go into details of the problems about service, because the noble and learned Lord and I have had discussions on the matter on the Crime ( International Co-operation) Bill. I would be grateful if he could explain what the implications would be here.
  The service of such an application will inevitably be a testing experience for the recipient who, in these circumstances, should not be expecting it. Having been acquitted, they are hardly now likely to find the tap on the shoulder. Will the notice contain details about how the person can obtain legal advice? Will such a person be entitled to free legal assistance for the purposes of the application itself? Do the Government intend to specify a standard form of notice, or will its contents be left to the discretion of the prosecutor? I beg to move.
  Lord Goldsmith: The amendment appears to require the prosecutor to serve in person on the suspect the notice of an application of the Court of Appeal to quash a suspect's acquittal. We do not see the need for that at all. We do not see the reasoning behind having a crown prosecutor in person serving a notice of application on the suspect. Of course, proper arrangements will be made by the courts for the service of such notices, but there is no need in our view to insert this provision into the Bill.
  Baroness Anelay of St Johns: As the noble and learned Lord implied, it is not my intention that prosecutors should have in addition to their ordinarily busy lives the job of making the service. The amendment was to probe what the process will be for service. I will consider it further before Report. However, we are going into new realms, where service may occur many years after the original acquittal. so there could be some problems with regard to process in this case. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 74 agreed to.
  Clause 75 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 two minutes before seven o'clock.