Lords Sitting of 13 November 2003

Preamble
The House met at eleven of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Derby.

Royal Assent
The Chairman of Committees (Lord Brabazon of Tara): 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 Acts:

Waste and Emissions Trading Act 2003,

Arms Control and Disarmament (Inspections) Act 2003,

European Union (Accessions) Act 2003,

Fire Services Act 2003.

Regulation of Investigatory Powers (Intrusive Surveillance) Order 2003
11.6 a.m.
The Attorney-General (Lord Goldsmith)The Attorney-General (Lord Goldsmith) rose to move, That the draft order laid before the House on 11th September be approved [28th Report from the Joint Committee ]
The noble and learned Lord said: My Lords, I rise to move the orders on behalf of my noble friend. It may be for the convenience of the House if I first explain the procedure which, following discussion, we propose to adopt. Subject to the leave of the House, we shall have one debate covering all five orders. Formally, it will take place on the first order on the Order Paper—the Regulation of Investigatory Powers (Intrusive Surveillance) Order. I shall therefore move to approve the order and will speak to all five.
The noble Baroness, Lady Blatch, will then move her amendment and debate will take place on all five orders and all the amendments. I shall then close the debate, followed by the noble Baroness. The first Question to be put will be on the noble Baroness's amendment to decline to approve the intrusive surveillance order—unless, of course, she does not press it. I make it clear that although the debate will take place on all five orders and I am presently inclined to move all five orders when we reach them, I shall obviously want to consider the position in the light of any Divisions that may take place.
The order in which I now propose to speak to the orders—again, I hope that this will be for the convenience of the House—is, first to the intrusive surveillance order, then to the directed surveillance order, then to the communications data order and then, finally, to the two orders under the Anti-terrorism, Crime and Security Act 2001.
I therefore turn first to the Regulation of Investigatory Powers (Intrusive Surveillance) Order 2003. The order before the House is made under Sections 41(3) and (4) of the Regulation of Investigatory Powers Act 2000 and relates to the Northern Ireland Office. It designates the Northern Ireland Office as a public authority that may apply to carry out intrusive surveillance under Part 2 of the 2000 Act, so that the Northern Ireland Prison Service has statutory cover for intrusive surveillance operations. The order also specifies that within the Northern Ireland Office only staff in the Northern Ireland Prison Service may apply to use the power.
I should say a little more about what this covers. Under Part 2 of the 2000 Act, intrusive surveillance is defined in Section 26(3) as any covert surveillance carried out in relation to residential premises or private vehicles. The definition of residential premises includes prison cells. There may be occasions when such surveillance by the Northern Ireland Prison Service is considered necessary—for example, in prison hostage situations. So the order is necessary.
On intrusive surveillance, Part 2 of the Act provides that the authorisations that will permit the Northern Ireland Prison Service to carry out such intrusive surveillance will be given personally by the Secretary of State, who will have to be satisfied that the action is necessary on one of the grounds listed in Section 32(3), and that it is proportionate to what is sought to be achieved by carrying out the surveillance. As with the rest of the Regulation of Investigatory Powers Act-authorised activity, those are important tests: the tests of necessity for one of the permitted reasons and proportionality.
In considering the circumstances of the individual case, the Secretary of State must also consider whether the information thought necessary to be obtained could reasonably be obtained by any other less intrusive measures. The oversight of the use of intrusive surveillance will fall to the Chief Surveillance Commissioner by virtue of Section 62(1)(a) of RIPA. Under Section 65(5)(d), the independent Investigatory Powers Tribunal is the appropriate forum to consider complaints about intrusive surveillance activity by the Northern Ireland Prison Service. It can award compensation for unlawful use of powers against an individual.
So I have identified the requirements—necessity and proportionality—authorisation by the Secretary of State; oversight by the chief surveillance commissioner; and complaints procedure with the independent Investigatory Powers Tribunal.
The Government's view is that the order represents an important move to ensure that public authorities carry out their activities in a strictly regulated manner, in a way consistent with the European Convention on Human Rights and Human Rights Act 1998. That is the purpose of the order. Throughout the debate noble Lords will hear me say on the orders that an important part, and the reason that the Government brought them forward, is to provide a strictly regulated manner for the exercise of the different powers that we will discuss. In the Government's view the order is

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compatible with the rights set out in the European Convention on Human Rights. On behalf of my noble friend, I commend the order to the House.
I shall now speak to the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2003. It is made under Section 30(l),(3),(5) and (6) and Section 78(5) of the RIPA Act 2000. It designates bodies as "relevant public authorities" that may grant authorisation to carry out directed surveillance and/or use covert human intelligence sources under Part II of the 2000 Act.
Directed surveillance, also defined in Section 26(2) of the Act, is covert surveillance that is not intrusive. On the first order I talked about intrusive surveillance relating to residential or private premises, but this is covert surveillance that is not intrusive but undertaken for a specific investigation or operation likely to result in obtaining private information. An example might be the use of a CCTV camera in a public place to survey an activity or people.
A covert human intelligence source, also known as a CHIS in the world of law enforcement, is defined in Section 28(8). It includes those previously known as agents, informants or undercover officers. A person becomes a covert human intelligence source if he establishes or maintains a personal or other relationship with someone for the covert purpose of obtaining information or to disclose information covertly obtained by the use of such relationships.
Part II of the 2000 Act provides for the first time a statutory framework compliant with the European Convention on Human Rights for the use of covert surveillance and covert human intelligence sources. Neither are new activities for law enforcement agents, but the Act provides a statutory framework compliant with the European Convention and strict requirements for the exercise of the powers. If the order is approved, as I hope it will be, it will ensure that the public authorities listed have their surveillance activities tightly regulated in such a framework. Let me be clear: the order is not about giving those public authorities any powers either to intercept the content of communications or to carry out intrusive surveillance. The only intrusive surveillance about which the debate is concerned is that of the first order on the Northern Ireland Prison Service.
The order will also repeal the previous order, Statutory Instrument 2000 No. 2417, the Regulation of Investigatory Powers (Prescription of Offices, Ranks and Positions) Order, which designated authorising officers for the public authorities listed in Schedule 1 to the Act. That will allow us to provide for the House and the public clarity in a single order about which authorising officers in what public authorities can authorise that activity under Part II. It restricts the power to authorise only to those people. That is why the order includes existing public authorities already listed in Schedule 1 to the Act as well as additional public authorities.
Not only does the order restrict who can authorise; for the first time, it also restricts the grounds on which authorising officers can grant authorisation. That ensures consistency with the Retention of Communications Data Order before the House today, to which I shall speak shortly. I wish to make it absolutely clear that we are not multiplying the number of agencies and public authorities included within the framework of the Act. We are adding only 12 public authorities to Schedule 1 to the Act and removing health authorities from the list of bodies that can authorise directed surveillance.
I recognise how complicated the order may appear, but perhaps I might explain how it works in practice. Article 2 adds to the list of public authorities contained in Part I of Schedule 1 to the Act, which are authorised, subject to the requirements, to carry out directed surveillance and to use covert human intelligence sources. It includes the United Kingdom Atomic Energy Authority Constabulary, the Northern Ireland Office, fire authorities, the Charity Commission, the Gaming Board for Great Britain, the Office of Fair Trading, the Office of the Police Ombudsman for Northern Ireland and the Postal Services Commission.
Article 2 of the order also adds four public authorities, but only for the purpose of carrying out directed surveillance, not covert human intelligence. They are: local health boards in Wales, Her Majesty's Chief Inspector of Schools in England, the Information Commissioner and the Royal Parks Constabulary. Those are the authorities.
Column 2 of the schedule identifies the level of officer who may authorise the relevant public authorities. It covers both the normal situation and urgent cases, where there is a need to make special provision. In urgent cases the person listed may authorise where necessary. However, noble Lords will see that column 4 limits the grounds on which particular authorising officers can authorise surveillance, by reference to the list in Sections 28(3) and 29(3) of the 2000 Act. I remind Noble Lords that these powers—directed surveillance and covert human intelligence sources—are covered in Sections 28(3) and 29(3), but the lists are exactly the same in other provisions. Paragraphs (a) to (g) of subsection (3) list the permitted grounds for an authorisation, provided that it is necessary and proportionate and,

"(a) in the interests of national security;

(b) for the purpose of preventing or detecting crime or of preventing disorder;

(c) in the interests of the economic well-being of the United Kingdom;

(d) in the interests of public safety;

(e) for the purpose of protecting public health;

(f) for the purpose of assessing or collecting",

any taxes. Finally, paragraph (g) permits the adding of another purpose, but no addition is being made.
That list of permitted grounds appears in the 2000 Act. They entirely reflect the permitted grounds under the European Convention on Human Rights. Privacy is not an absolute right under the European convention, as noble Lords well know, and the permitted exceptions are in the list. An authorisation would have to be necessary on one of those grounds.
Column 4 identifies which grounds are relevant to the particular agency. Noble Lords will also see that in relation to other orders. The Government want to ensure that the authorisation for particular bodies is appropriate and necessary for that body. We have therefore required the bodies to demonstrate what they need, and have included that in the provision. For example, the Charity Commission is listed in column 1 by virtue of its addition to Schedule 1 by Article 2 of this order. The rank of senior investigations manager has been designated as the appropriate rank of authorising officer to authorise either directed surveillance or covert human intelligence authorisations. If there is an urgent case, an investigations manager in the Charity Commission is prescribed to authorise either. However, in both routine and urgent cases, only the designated authorising officers can grant authorisations and they can do so only if such authorisations an; both necessary and proportionate for the purpose in paragraph (b):
"for the purpose of preventing or detecting crime or of preventing disorder".
It may also help if I give examples of the type of activity carried out by some of the public authorities that we seek to add to the list by order. I will take the example of the Charity Commission, because noble Lords may wonder why it has been included. It is the statutory authority for the regulation of charities in England and Wales. It is a non-governmental ministerial department, which is accountable to the Home Office for its efficiency and to the courts for its decisions. However, within its general function of promoting the effective use of charitable resources, it has particular responsibility to investigate criminal offences under the Charities Act 1993.
Under Section 8 of that Act, the Charities Commission can institute a formal inquiry if it suspects that abuse has occurred. The Act therefore gives the commission a range of information-gathering and remedial powers, so such a body is already within a transparent framework. The commission may wish to use techniques such as directed surveillance and it may need to use people to provide intelligence or work under cover—to use that shorthand—to prevent or detect crime. I am afraid to say that crime such as fraudulent charity fundraising or the misappropriation of charity funds does happen, as noble Lords know. Having the additional powers in this regulated way would enhance the commission's regulatory role in a way that is strictly compliant with the ECHR and strictly regulated.
The United Kingdom Atomic Energy Authority Constabulary is responsible for the policing and protection of special materials on designated civil nuclear sites in England and Scotland and when nuclear materials are being transported. The constabulary requires these powers as part of a package of measures to protect the civil nuclear industry from threats of terrorism, sabotage, proliferation and other criminal acts. I am sure that noble Lords would not hesitate to agree that to protect us all against such threats is an important objective.
Another example may raise questions in noble Lords' minds—that of Her Majesty's Inspectorate of Schools. Ofsted is the non-ministerial department
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headed by Her Majesty's Chief Inspectorate of Schools for England. It is not an agency of another department and a person may be appointed chief inspector by Order in Council. Its principal task is the management of school inspection, originally defined by the Education (Schools) Act 1992. As noble Lords know, its role has expanded over successive years and now includes inspection of: teacher training courses; education in the private, voluntary and independent nursery sector; independent schools; LEAs; and sixth form and further education colleges. Ofsted does not need to carry out directed surveillance activities in connection with those functions.
Since 2001, however, the inspectorate has also been responsible for the regulation and inspection of child minding and day care in England. That responsibility was transferred from local authorities as a result of amendments to the Children Act 1989. Ofsted may need to undertake surveillance activities in connection with powers as the registration authority for child minders and day care providers. It has the responsibility for taking enforcement action when people are child minding or providing day care without being registered and when registered people contravene the terms of their registration.
I will put flesh on those bones to give a more practical example. The two most frequent uses of regulated surveillance—which is not intrusive or within the house—is the investigation of whether a person is acting as a child minder without being registered or whether registered child minders are caring for more children than they are allowed. I need not stress the importance of a properly regulated regime in relation to child minders, because it has already been the subject of comment in this House. There have been some worrying and tragic incidents. To achieve a properly regulated regime it may be necessary to carry out surveillance on people's homes to investigate whether children are being looked after illegally or record the number of children going in and out. Again, I emphasise that this is not intrusive surveillance, but surveillance from a public place. In either case, the person concerned could be committing a criminal offence. Even more importantly, the safety and health of the children being looked after may be at risk.
I would be happy to deal with how such powers may be used by other bodies. My speaking notes give the examples of the Office of Fair Trading and the Gaming Board for Great Britain, but we have quite a lot to cover. I hope that what I have said is sufficient to indicate, first, why the Government believe that it is important to regulate; and, secondly, the strength of the conditions imposed—that is, necessity, the level of authorisation, the purpose for the particular body, and the need for such action to be proportionate. I trust that I have given enough examples to enable noble Lords to recognise why directed surveillance or covert human intelligence sources may be appropriate for the important functions that these bodies carry out.
Baroness Williams of Crosby: My Lords, perhaps the noble and learned Lord will forgive me; I am not a

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lawyer. How far are the rights to undertake such surveillance limited to the purpose for which the agency was created? How far is it limited in such a way that those investigations cannot go beyond that particular purpose? Finally, does there need to be evidence to show that there may be reasons to believe that a criminal act—for example, in the case of an unregistered childminder—has been suspected, so that this is not an open mandate to that agency to investigate every household in which there may be children?
11.30 a.m.
Lord Goldsmith: My Lords, it certainly is not an open licence. Perhaps I may take the questions asked by the noble Baroness, Lady Williams, in two parts. First, are agencies limited to their own statutory functions? The answer is absolutely yes. They have the powers to carry out their particular functions and no others. I am grateful to the noble Baroness for asking the question. In addition to the requirement that surveillance should be necessary for one of the listed purposes, it must also be within the functions of that particular agency. In relation to a particular agency, there may be only one listed purpose—namely, the prevention of crime—and no other. There are several layers of requirement.
Secondly, surveillance must be necessary for that purpose and proportionate. I would not say that a particular agency might not take the view that it is necessary by reason of knowledge about an individual or that it is necessary to use the powers in a particular case. The agency would also need to be satisfied that it was proportionate to what was being considered. I would not go so far as to say that it must already have evidence of crime, but it would have to be satisfied that it is necessary for the purpose and proportionate to the use of that purpose. In considering whether it is proportionate, the agency would also have to consider whether there is some other way of obtaining the same information.
I hope that that at least goes quite a long way to reassuring the noble Baroness that these are strict and well defined requirements. I am grateful to her for giving me the opportunity to make the point that as well as the requirement in the Act—for example, the prevention of crime—each agency in each of these orders is limited by its own functions. We absolutely are not suggesting that the chief inspector should suddenly take on, for example, a roving brief to investigate any crime of any kind that he comes across.
Passing over the further examples that I offered to give—to which I will return if any noble Lord would like me to deal with those particular agencies or any other agency listed—we have also taken the opportunity to amend the definition of "local authority" so that it now excludes parish councils and a meeting of a parish council. That was following a recommendation made by the Chief Surveillance Commissioner in his annual report of 2001–02 to the Prime Minister. That
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undertaking was given in response to a Parliamentary Question answered by my right honourable friend the Home Secretary on 11th February 2003.
I turn now to the two issues with which I dealt under the first order. What about oversight? What about complaints? Oversight of the use of directed surveillance and the use of covert human intelligence sources falls, in the main, to the Chief Surveillance Commissioner by virtue of Section 62(1)(a) of the Act. That excludes those authorisations granted by the intelligence services, the MoD and Her Majesty's forces, which are overseen by the Intelligence Services Commissioner. Either way, there is oversight by a commissioner.
As regards complaints, again, the independent Investigatory Powers Tribunal is the appropriate forum to consider complaints. As I said on the first order, it has power to award compensation for unlawful use of powers against an individual.
Baroness Blatch: My Lords, does the noble and learned Lord agree that if one does not know an abuse has taken place, it is not possible to complain? For every case that has gone before the tribunal to date, no single case has been found in favour of the complainant.
Lord Goldsmith: My Lords, I am grateful to the noble Baroness for giving me the information in her second point; I was unaware of it. No doubt, it will be checked. I take that as very reassuring. It indicates that the independent tribunal has not found evidence of misuse. I noticed that one or two noble Lords were amused by that remark, which I hope was because it was apposite rather than surprising. It certainly seems a proper response.
Lord Elton: My Lords, perhaps I may return to a point the noble and learned Lord made before he was interrupted. He said that, within the context of the powers, the definition of a local authority had been changed to exclude a parish council or a parish meeting. Do we imply from that that these powers will be available to district councils?
Noble Lords: Yes.
Lord Goldsmith: My Lords, everyone on this side of the House is saying, "Yes". I shall come back to that question in case there is an issue in relation to it. I am told that the answer is yes: I am delighted to say that there is unanimity on that point. I shall come back to the issues about where local authorities, at whatever level, have a role to play under these orders. One of the examples given in the consultation paper on the access to communications data is that of trading standards officers concerned with protecting people who may be at risk from those who provide defective gas installations. That may be something that local authorities will be responsible for policing and on

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which will need some powers in order to protect people. I shall come back to that when we deal with access to communication data.
Lord Roberts of Conwy: My Lords, will the noble and learned Lord answer the first point of my noble friend Lady Blatch about how people will know whether there has been abuse or not?
Lord Goldsmith: My Lords, I am obliged. I did not intend to overlook that point. The noble Lord, Lord Elton, asked a supplementary question before I managed to answer the noble Baroness, Lady Blatch, fully. I want to deal with this issue more comprehensively. On looking at the powers of the oversight of the commissioner, we would expect commissioners to draw attention to abuses that they have discovered. I shall also come back to that issue later so that I can give a full answer. One of the difficulties of dealing with five orders together is the risk of moving from one to another. I want to be careful not to do that.
I repeat what I said in relation to the first order because it is apposite. It is another move to ensure that public authorities carry out their activities in a strictly regulated manner in a way that is consistent with the European Convention on Human Rights and Human Rights Act obligations. That is the purpose of the orders, which we believe they will achieve.
As we go through the orders, I want to make a general point. Of course, a great deal of the activity with which we are concerned is already capable of being carried out and is being carried out. In the orders, the Government are anxious to produce a strong regulatory framework, strictly regulated with requirements of necessity, proportionality and oversight. The whole framework of regulation should be ECHR compliant, which the 2000 Act sets down.
I turn now to the Regulation of Investigatory Powers (Communications Data) Order 2003. That was laid before Parliament on 1lth September. It is made under Sections 21(1), 25(2) and 25(3) and Section 78(5) of the Regulation of Investigatory Powers Act 2000. Approval of this order will enable implementation of Chapter II of Part I of the Regulation of Investigatory Powers Act. In the Government's view, that will bring long overdue regulation to public authorities' acquisition of communications data and will improve the protection of individual privacy rights.
The use of data, such as telephone and Internet subscriber information, itemised billing records—even mobile telephone location data—is a vital tool in the prevention and detection of crime and, in some cases, saves lives.
Communications data is information about communications. It is about who called whom, and when. It is not about the interception of communications—this is an extremely important point about which I want to leave no doubt. It is not about what is said in telephone calls or written in e-mails or letters. That is already regulated quite differently and very tightly by Chapter I of Part I of the 2000 Act. We are not concerned here with the content of phone calls and e-mails.
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Parliament has already approved that certain authorities—the police, Customs and Excise, the intelligence agencies and the Inland Revenue—may, when the relevant provisions are implemented, use the Act to acquire communications data. The draft order designates additional relevant public authorities that may use the provisions. For all of these authorities, that is, both the existing authorities and the additional ones, the order restricts the purposes for which they can acquire data.
Further, the order will restrict the type of data that public authorities may acquire. Where an authority, or type of authority, has demonstrated a necessary and proportionate requirement for access to a type of data, the order provides for that, but not otherwise. It also restricts those persons who may use the powers to identified, designated senior authorising officers.
As I mentioned a few moments ago, I want to make clear a further point. The acquisition and use by public authorities of communications data is not new. Noble Lords have seen references to such access even this week, as we noted in the reports of a particular case. This activity already goes on, but it is not subject to the regulation set out in the Act; in effect, it is unregulated. Most of the public authorities listed in the draft order already seek communications data from communications service providers, using existing statutory information-gathering powers and by providers exercising exemptions to non-disclosure set out in the Data Protection Act 1998.
Some public authorities with statutory responsibilities for the investigation of specific offences have identified a necessary and proportionate requirement for acquisition of communications data in particular cases, but have chosen not to pursue that. Instead, they have elected to wait until they can demonstrate very clearly that they have assessed their requirements against the principles of the Human Rights Act 1998 and the convention, as the Regulation of Investigatory Powers Act explicitly requires.
The aim of the order, therefore, is to bring these public authorities within the strict control and oversight regime of the Regulation of Investigatory Powers Act. This means that all requisitions for the acquisition of data will have to be subject to the following requirements: first, they will have to be for a specific purpose, one that is drawn directly from the European Convention on Human Rights—such as the prevention of crime, matters of national security and so forth, as set out in the Act. Secondly, it must be necessary for one of those purposes—not simply desirable, but necessary. Thirdly, it must be proportionate to what is sought to be achieved by obtaining the data; a balance will have to be struck between the potential importance and the degree of intrusion. Finally, it will have to be authorised by an officer at a specific and senior level within the public authority.
The exercise of these powers will be subject to oversight by the Interception of Communications Commissioner, Sir Swinton Thomas, a former Lord Justice of Appeal in the Court of Appeal and a very

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distinguished and experienced High Court judge. He is obliged to keep under review the exercise and performance of powers and duties relating to the acquisition of communications data under Chapter II of Part I of the 2000 Act.
The commissioner must report to the Prime Minister if, at any time, it appears to him that there has been a contravention of the provisions of the Act relating to the acquisition of communications data. His annual report to Parliament on the interception of communications includes details of all errors that are made. It will be for the commissioner to determine how he should fulfil his obligations in respect of the acquisition of communications data—this has not arisen because we have not yet managed to put this part into force, which we are seeking to do by way of this order. It will be for him to determine how this is reported to Parliament and to consider whether, and the extent to which, he should notify individuals affected by any inappropriate or deliberate misuse of the provisions for access to communications data.
In answer to the question raised a little earlier by the noble Baroness, Lady Blatch, concerning access to communications data, it will be for the commissioner to decide the extent to which he thinks it right and appropriate to notify individuals affected by any inappropriate or deliberate misuse of the provisions for access. If so notified, those individuals will be in a position to act.
11.45 a.m.
Lord Phillips of Sudbury: My Lords, I am very reluctant to interrupt the noble and learned Lord, but it may be helpful to the House if I were to question the advice the Attorney-General has just given. So far as I am aware, there is no right under Chapter II of Part I of the Act vis-à-vis communications data for the Interception of Communications Commissioner to inform a citizen whose information has been purloined of that fact. I make the point now because it may be possible for advice to be given to the noble and learned Lord by his officials. However, it is an important issue.
Lord Goldsmith: My Lords, I am grateful to the noble Lord for giving me notice of his point and I shall take up his proposal with regard to advice. Others have heard his question and I shall come back to it with an answer.
The Countess of Mar: My Lords, while the noble and learned Lord is having a break, may I ask him whether he considers that the commissioner, who I understand has a staff of only four people and receives in the region of half a million inquiries every year, has sufficient capacity to deal with the work that he is expected to do?
Lord Goldsmith: My Lords, again, I shall take advice. However, I think the answer is that if the commissioner considers that he does not have adequate resources and staff to his job, then he will make that plain to the Government. I shall come back
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to the noble Countess if I can give her any further information. Certainly no one has suggested heretofore that the commissioner will not be in a position properly to carry out his important functions, ones which the Government now want him to be able to exercise in relation to access to communications data, which is in part why we have brought forward this order.
I shall make an additional point. Whatever the commissioner may decide to do, anyone who thinks that their data have been wrongly acquired will have the right to go to the Investigatory Powers Tribunal. The Home Secretary has made it quite clear that the commissioner will have the resources he needs to carry out his duties effectively; that is, to report to Parliament and the public. That is the assurance given by the Home Secretary. It corresponds exactly with what I have just said in response to the noble Countess, Lady Mar.
All the public authorities listed in this order must follow the procedures set down in the code of practice on acquisition of communications data explaining the statutory provisions in detail. A draft code has been published, has completed a public consultation exercise, and exists in draft for public authorities to follow. Further, the draft code will be laid before Parliament for approval.
In addition, public authorities may develop their own guidance material to foster professional standards. The Association of Chief Police Officers, working with the Association of Chief Police Officers in Scotland and Customs and Excise, has developed a manual of standards for accessing communications data under the Regulation of Investigatory Powers Act. That manual has already been published.
There are further administrative safeguards. These include a "double lock" safeguard where the acquisition of certain types of data, such as itemised call records, by certain authorities is granted only after prior approval by the Interception of Communications Commissioner. He will determine which authorities should be subject to such additional approval.
Specialist training for public authorities will support the proficient and appropriate use of the provisions, building on that developed jointly with the communications service industry by the police service and Customs and Excise. The accreditation of trained officials and authorising officers will ensure that those with legitimate and necessary access to such information know the legal and technical issues, which provides another safeguard. Accreditation of authorised officers will also support the authentication of disclosure notices served upon communications service providers.
I have spelt out a number of the safeguards that are in or lie behind the draft order. The regulation it provides and the clarity it introduces is welcomed by public authorities; it is welcomed by the communications service industry; and it was broadly welcomed by the public in response to the consultation issued by the Government last summer.

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The scope of the order is constrained by what primary legislation permits it may cover. I know that in Committee in another place and in various public meetings concerns were expressed about the order. I anticipate that noble Lords will raise some of those concerns today and it may be helpful to noble Lords if I indicate the Government's response to them. This will enable noble Lords who wish to speak to them to know in advance the Government's position.
As we understand it, the concerns do not relate to the principle of regulating public authorities' acquisition of communications data—I hope that no one will disagree with the proposition that that is highly desirable—or the enhanced protection that will be provided to an individual's human rights. The concerns are not about what the order will put in place but about the practical arrangements and how the legislation will work in practice.
Let me deal with those concerns, one of which relates to the so-called legacy powers. At the moment, various public authorities undertaking their statutory function use powers that they have already for compulsory disclosure of information—usually defined in terms of information not restricted to communications data—to acquire communications data. RIPA approves a regulated scheme for acquisition of communications data which is specifically designed to be compliant with the purposes permitted by the ECHR.
The public authorities have identified that they can best demonstrate their compliance with the Human Rights Act by using the new specific legislation—the RIPA legislation—rather than relying, as they do now, on the pre-Human Rights Act legislation that gives access to this range of information. I hope noble Lords will agree that that is a very important step to bring their acquisition of communications data within the specific, human rights-compliant, regulated scheme.
But it would not be right to repeal the legislation that is already in existence—which still provides powers for necessary and proportionate disclosure of other information—because, since the introduction of the Human Rights Act, public authorities have to exercise those powers, however they are expressed, in accordance with that Act.
There has been only one example subsequent to the coming into force of the Human Rights Act and the passage of the Regulation of Investigatory Powers Act where Parliament approved specific provision—in the Social Security Fraud Act—for benefit fraud investigators, primarily those in the Department for Work and Pensions, to acquire communications data. That is why the Department for Work and Pensions and the Social Security Agency in Northern Ireland are absent from the public authorities listed in the schedule to the order.
These bodies have a requirement to acquire communications data to prevent and detect benefit fraud, and they intend to exercise that requirement using the legislation that Parliament has relatively recently approved—and, as I said, since RIPA and the Human Rights Act were passed—for that specific purpose.
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I turn now to the next issue: for what purpose may data be acquired? I hope I have made it clear, because it runs through all that I am saying, that the permitted purposes under the Act are derived directly from Article 8.2 of the European convention. In their consultation paper the Government invited views on whether public authorities' access to communications data under the Act could be restricted not only by purpose but also by function. Although the functions of some public authorities can be captured in a way that is meaningful in law, the functions of many others responsible for enforcing wide and diverse pieces of legislation cannot.
The Government have concluded that it is not necessary to restrict by function because, as I said to the noble Baroness, Lady Williams, public authorities which try to do something that is not within their statutory remit would be acting ultra vires. They would not be acting in accordance with the law as required by the European convention and they could not properly and lawfully do so.
I know that there is some concern about the definition of communications data within Section 21 of the 2000 Act. The definition was deliberately conceived to be technology neutral and, as my note puts it, durable in a time of very rapid technological advance. Noble Lords will not need to be reminded how quickly this area can and does change—new methods of technology seem to come on stream all the time—and it was important that the definition should be neutral as to the form of technology so that it would be a durable provision. Parliament approved that definition rather than a complex and technically precise menu of categories of data. Those who work with the legislation will interpret the statutory definition. There was a guide to interpretation included in the consultation paper and, where necessary, the courts will interpret the definition.
I know that there is a concern about the transfer overseas of communications data. That subject will be raised later in an amendment and, given the length of time that I have been on my feet, I will deal with it when we come to that particular aspect.
The order represents a significant move to ensure protection and to ensure a regulated system of things which are happening already.
I turn now to the two orders arising under the Anti-terrorism, Crime and Security Act—that is, the Retention of Communications Data (Code of Practice) Order and the Retention of Communications Data (Extension of Initial Period) Order. I apologise for having to withdraw and relay the order originally laid on 11th September 2003. This was due to human error as the reference under Article 2 of the initial order for the code of practice did not precisely replicate the title of the code.
Part 11 of the 2001 Act allows for the publication of the code of practice for the voluntary retention of communications data by the communication service providers. It is not about the retention of the content of communications—it is not about the content of telephone calls and e-mails—but about the retention of related communications data such as telephone

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subscriber information, numbers dialled or addresses to which e-mails have been sent. It is, again, a vital tool in the investigation of terrorist incidents.
The purpose of the order is to bring into force the draft code of practice on the retention of communications data. The code relates to that information which is already kept by the communications service providers for their own business purposes. It does not require additional information to be stored. It sets out two matters: first, it identifies the kind of data that the Government would like to see retained by the communications service providers; secondly, it details the length of time for which they would like to see that data retained.
Terminologically, I should draw a distinction between "retention" and "preservation". "Data retention" means storage of everyone's communications data; "data preservation" relates to specific individuals—for example, those who are already under suspicion.
Past experience has shown that we are unlikely to know the identity of perpetrators of any attack at the time it takes place. Only painstaking investigative work after the event—which may depend upon identifying the communication trail of those who have committed such an outrage—will enable that to be done. The reason for the provision in the Act is the threat of terrorism. Regrettably, that threat is as clear and present today as it was when the Act was passed.
Sometimes this information may be the only piece of evidence that links a terrorist suspect to an attack. It may be available to identify any co-conspirator belonging to the same terrorist cell and ultimately it can provide clues as to how that cell links to others all over the world. There are many investigations in which the crucial steer for investigators has been communications data. I know that a number of issues have been raised about this—again, I will deal with them so far as they are raised by noble Lords.
Finally, the purpose of the Retention of Communications Data (Extension of Initial Period) Order is to extend the powers of the Secretary of State in Section 104 which would otherwise lapse on 14th December this year. It will extend those powers for a further two years. The powers in question allow the Secretary of State to give directions that he considers appropriate about the retention of communications data. Before using those powers, he must consult the communications service providers to whom it will apply.
The period of nearly two years between the passage of the Act and the presenting of the code to Parliament has been taken up with the consultative process required by the Act, but during that time the threat to the United Kingdom from terrorist activity has not diminished. This extension is necessary because by the time the voluntary code of practice has been in operation for three months and reviewed, the powers under Section 104 would have lapsed. It is essential that the Secretary of State should retain the ability to make such directions. I beg to move.
Moved, That the draft order laid before the House on 11th September be approved [28th Report from the Joint Committee].—(Lord Goldsmith. )
Noon
Baroness Blatch Baroness Blatch rose to move, as an amendment to the above Motion, to leave out all the words after "That" and insert "this House declines to approve the draft order laid before the House on 11th September".
The noble Baroness said: My Lords, I should like to take the opportunity to address all five orders and the associated amendments. I have to say that we regret that the retention orders have not been withdrawn and their inclusion on the Order Paper.
I thank the noble and learned Lord the Attorney-General for his speech, particularly as I believe he was posted in only last night to deal with these extremely complex orders.
These orders have had a chequered passage so far. The Home Office has not distinguished itself in the process. The parent Act for the amendments to the first three orders is, as Home Office officials and Ministers have admitted, flawed. Sadly, that means that many of our concerns that will be expressed during the course of this debate cannot properly be addressed without amendment of the primary Act. This is an issue which I hope the noble and learned Lord accepts requires urgent redress.
When these orders were produced last year, there was widespread concern about them—so much so, that the Secretary of State withdrew them. Unfortunately, when they were re-presented, they were hardly changed. When the Home Office was asked about this, officials replied that the time was used not to amend the orders but to improve the presentation of their case. Although some concerns have been allayed by the process of consultation, it still has to be recognised that the substance of the orders remains substantially unchanged from the text of a year ago, which earned the tag "snoopers charter".
The orders before us pose a huge dilemma. However, let me make one thing crystal clear right from the start. We do not underestimate the immense value of communications data in the fight against crime and terrorism. None of us on these Benches disputes that. Nor, in opposing these orders, are we seeking to obstruct or undermine the superb service that our agencies of law enforcement, especially the police, provide. Quite rightly, they have an expectation that they will be granted all appropriate means to safeguard our citizens.
We accept that some form of data retention should be part of their armoury, and we endorse the desirability, as expressed by law enforcement agencies, of having an effective system of data access in place as a matter of urgency. However, the Government's proposals in respect of data retention access justify what some have described as flawed legislation. That said, this House has a responsibility to ensure that what is enacted into law not only is fit for purpose but affords the ordinary citizen adequate protection—the more so, given the Human Rights Act.
I recognise that several problems are more relevant to primary legislation, aspects of which are to be found at the margins of these orders. We find the first order the least controversial. The arguments put during debate on these issues in another place, coupled with discussions I have had with the noble Viscount, Lord Colville of Culross, an Assistant Surveillance Commissioner, have eased my worries. However, could the noble and learned Lord provide the answer for the questions outstanding from another place which have yet to be answered? For example, can he comment on how the proposed regime in Ireland will differ from that in England, Wales and Scotland? Why was it that the powers given to the Northern Ireland Prison Service could not have been exercised through the Northern Ireland Police Service?
To comment generally on the communications data order and the directed surveillance order, I simply make the obvious point that the Joint Committee on Human Rights highlighted grave misgivings regarding the risk of,
"undermining the proportionality of the statutory scheme".
In particular, we are profoundly concerned about the disparity between the requested retention of data under the anti-terrorism legislation and the retention orders for national security, and the access of this data using Clause 22(2) of RIPA for other purposes.
Linked with this is the idea that Parliament really needs to make a judgment about whether the level within each public authority at which authorisations for data access are determined are, in fact, appropriate to take the decision regarding whether the necessity and proportionality of individual requests are compliant with the Human Rights Act 1998 and the Data Protection Act. For example, should a team member of the Environment Agency have power to access forms of communication data or a service manager at a county or district council? Just as a matter of interest, will the noble and learned Lord tell me what a service manager is? Could it be the head of catering services of an LEA? Could it be the head of refuse collection at a district council? There is no qualification or definition of these posts.
The communications data order specifically extends the list of public authorities which will have access to data under RIPA. These bodies are, according to the Home Office, already accessing data using other statutory powers. This raises two questions for consideration: first, those using previous legislation are apparently accessing communications data under the definition of "information". There is some question as to whether the use of "information" in the 48 different Acts used to collect data would have been designed with communications data in mind.
The oldest Act on the list was enacted in 1930. There is no way that in 1930 Parliament could have envisaged the mobile phone and Internet system that we have now. Therefore, there is a very real question about whether the Home Office is exceeding its legislative
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authority in applying an information rather than a communications data test to assess which public authorities should be included in the RIPA regime.
There is no provision to rescind any of the existing orders under RIPA when it comes into force. How crazy—the whole rationale for introducing this system was to replace the old, disparate system.
I understand but do not accept that other powers are tied up in the old laws so that they cannot be rescinded. The Home Office has made it perfectly clear to public authorities and communications service providers alike that RIPA is the only scheme to be used. Whatever the Home Secretary may say, as long as the legacy powers remain on the statute book, the Home Secretary has no power to prevent them being exercised legitimately and legally. That situation is unacceptable.
I support each of the amendments in the names of the noble Lord, Lord Lester, my noble friend Lord Northesk, and the noble Lord, Lord Phillips. They will speak in detail to their amendments, so I will be brief in my comments on them.
The noble Lord, Lord Lester, is rightly concerned about the interaction and tension between the working of the RIPA scheme and other statutes, particularly focusing on personal privacy.
In his amendment, my noble friend Lord Northesk addresses a real anomaly. If the new RIPA system is designed to be inclusive and bring in all the disparate bodies under one regulatory umbrella, it makes no sense whatever to leave on the outside the Department for Work and Pensions or the Northern Ireland social security office. Even, as my noble friend will argue, notwithstanding the Social Security Fraud Act 2001, nothing that the Home Office has said convinces me about the rationale of that anomaly.
The noble Lord, Lord Phillips, has raised an extremely important point—that a person could be adversely affected by the wilful and/or reckless abuse of the system. That issue requires remedy along the lines of the noble Lord's amendment.
The issue of oversight of the system is particularly crucial, and the Interception Commissioner has been particularly silent on his methods of oversight. That is yet another flaw to which the Home Office has admitted, arguing that it cannot pre-empt what the commissioner might want or need to fulfil his role with regards to RIPA. Yet we, in this House, are being asked to agree legislation without knowing what proper safeguards are in place.
Some of us heard at a gathering last week that there is little communication between the various commissioners who will have oversight of the RIPA scheme. Will the noble and learned Lord tell me what is being done to improve collaborative working between the different oversight bodies? I take it from what he has already said that there is an absolute commitment that the office of the Interception Commissioner and all oversight policing of the activities that we are discussing will be adequately funded to do a thoroughly effective job.
My amendments focus on the international dimension in the communications data order. This is a non-fatal amendment, as can be seen, exhorting the Government to consider an area linked to these issues, which I and various NGOs consider to have been sorely neglected. Much of the debate to date has focused on the necessary grounds listed under Section 22(2) of RIPA, under which data can be accessed, and the list of UK authorities which would be able to use RIPA to access communications data.
However, there are significant international dimensions to the policies, not least due to the disparity already mentioned between the ability to retain data for one purpose under the anti-terrorism order and the ability to access that data under RIPA for other purposes. The potential for overseas countries to access communications data via RIPA comes from both UK legislation and a range of international treaties. Part 1, chapter 1, Section 5 of RIPA allows, under a mutual assistance agreement, for the disclosure of interception and communications data, which may also be used for intelligence purposes.
I understand that under the EU Mutual Legal Assistance Convention, retained data will be shared across member states. That was decided originally on the grounds of international co-operation, since when there has been an EU/US international co-operation agreement, which allows for the sharing of communications data across the Atlantic. The recent Council of Europe Convention on Cybercrime also allows for mutual law enforcement assistance between nations. So far, 37 countries have signed the treaty, including ex-communist countries. Countries such as Armenia, Greece, Lithuania, Turkey, Estonia and Croatia have signed it. So, a Greek police officer could gain access to my communications data for whatever purpose he or she thinks fit. What safeguards are there in the Greek system to ensure that their requests are necessary and proportionate? What are the oversight safeguards in Croatia?
What authority do our public authorities have to assess any requests that they might channel on behalf of a foreign country? How are those making the requests identified? It has been suggested that a private investigator from, say, France or Turkey could make a request. Surely, that could break the necessity and proportionality conditions that the Government are so keen to impose. Even more chilling, can we be guaranteed that countries such as Zimbabwe would be denied access to communications data when their protection schemes leave much to be desired?
To my mind, it would be an international breach of Article 8 of the ECHR in respect of all 56 million citizens in the United Kingdom, an opinion supported in recent months and years by various sources. Groups such as Privacy International and the Foundation for Information Policy Research argue that the minimal standard of evidence and authentication required for the transfers could create dangers for many people in the United Kingdom. The current conditions for sharing communications data are such that the
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transfer does not require the condition of dual criminality, and the grounds for the refusal to disclose are very limited.
Second to the USA, the UK is the most likely candidate to receive communications data requests from countries with which we have mutual legal assistance treaties. Therefore, the situation portrayed is one in which the current orders and the implementation of data retention would make communications data regarding UK citizens available to governments around the world, with little oversight or control. Data may be made available without regard to dual criminality, which may in turn be kept by foreign authorities as they see fit, and without guarantee that their data protection regime is sufficiently robust.
The Home Office has predicated the composition of the list of authorised bodies on equivalence between information and communications data. In pursuing that logically, any countries with which the UK has a tax treaty, in so far as those treaties contain information-gathering provisions, could have access to communications data about individuals within the UK. If the Minister argues that there is no difference between information and communications data, the Home Office cannot have it both ways. On one hand, it says that the reason why the legacy powers cannot be easily rescinded is because information-gathering involves more than merely access to communications data. However, the concern exists that some countries around the world could adopt the same logic and thereby gain access to communications data on any United Kingdom citizen.
I want to preface my comments on the data retention orders, for the avoidance of doubt and in order not to be misunderstood, by repeating that we agree with the need for a scheme that is properly regulated, as a tool against the fight against crime and terrorism. I also repeat that it should be introduced in a way to protect, that the legislation should be fit for purpose, and that safeguards protecting the British public should not be ignored. As the legislation stands, I am far from convinced that the Home Office has achieved that.
One can only say that the passage of the retention orders has been a chequered one. The code of practice order in particular has been chaotic. There is some doubt as to whether the order that has been published is consistent with the parent Act, Sections 102 and 103. Some of my colleagues believe that the code should have been laid before the order, but I leave that aside, as I do not believe it to be a very strong point to raise at this stage.
There has also been confusion about the availability of the code in the Printed Paper Office. We have been asking for it and were told that it was not there. Yesterday, it was there, and this morning we have been told that it has been there since 18th September. I simply say that that has caused very real confusion for those of us working on the orders.
The laying and relaying of the order has not helped. However—
12.15 p.m.
Lord Goldsmith: My Lords, given that the noble Baroness raised the question of the availability of the code, I should put it on record that the House authorities have made inquiries and are satisfied that the code was provided to the Printed Paper Office on 1lth September, and has been available ever since.
Baroness Blatch: My Lords, the information that we had this morning was that it had been available since 18th September, but that does not alter the fact that those of us who asked for it have not received it.
The most extraordinary point that I want to raise relates to a Written Question put down by my noble friend Lord Skelmersdale, which was answered on 5th November, one week ago. The Question was as follows:
"Which orders give directions about retention of communications data under the Anti-terrorism, Crime and Security Act 2001; and on what dates such orders were made [HL5107]".
The Answer given by the noble Baroness, Lady Scotland, was:
"No orders giving such directions have been laid".—[Official Report, 5/11/03; col. WA 111]
That Answer came one week ago.
Even the Joint Committee on Human Rights, in its latest report, has argued that after a draft of the code has been laid and approved by resolution of each House of Parliament, the Secretary of State should bring the code into force by statutory instrument. As we all know, the code, unlike the order, is not subject to the parliamentary approval of both Houses.
Due to the emergency nature of the anti-terrorism Act itself, the parent Act, there has been insufficient discussion in both Houses. There was no discussion whatever in the House of Commons about the issue of retention. There was, fortunately, some discussion in this House, but there was not enough.
I turn, finally, to the orders dealing with retention. It would be wholly wrong to ratchet up the powers granted to law enforcement and government without ensuring that a correct balance is struck between those powers and individual rights. We have palpable concern that the proposals for data retention fail this test, as the Joint Committee on Human Rights said. It observed that it was not able to say that it was satisfied that the arrangements in the draft code would be proportionate to legitimate objectives. That should, and does, set alarm bells ringing as to whether it is right to pass these orders into law.
Contemplating the Retention of Communications Data (Extension of Initial Period) Order 2003, it is worth reminding ourselves of the thinking that underpinned the House's scrutiny of Part 11 of the Anti-terrorism, Crime and Security Act 2001. The Government's proposals for data retention were deemed a legitimate and appropriate response to the emergency situation. However, and evidently this is acceded to by the Government, it was also added that,
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because of the threat to civil liberties and individual rights posed by the proposals, it was appropriate to make any mandatory scheme specifically subject to a sunset clause. In fact, the presumption at the time, and certainly the impression conveyed by Ministers, was that not only could a voluntary scheme be put in place relatively quickly, but also that there were no reasons to move a mandatory scheme.
During your Lordships' scrutiny of Part 11 of the Act, the noble Lord, Lord Phillips of Sudbury, in particular sought to persuade the Government to recognise how muddled that approach was, not least because of the likely futility of a voluntary scheme and the absence of any proper linkage back to the Regulation of Investigatory Powers Act, the Data Protection Act and the Human Rights Act—a matter with which the noble Lord, Lord Lester, will no doubt deal in speaking to his amendment. For whatever reason, those warnings went unheeded. It cannot be denied that there is a serious tension between the passage of these orders and other statutes.
We are now nearly two years on and, contrary to expectation, the Home Office has so far been unable to initiate the voluntary scheme. Indeed, far from showing any sense of urgency, it could be said that they have been somewhat lackadaisical in their efforts to implement one. In these circumstances, we feel that it is inappropriate that the will of Parliament as expressed in the sunset clause—and I repeat that the Government have also acceded to this point—should be subverted for the convenience of the Home Office, the more so because it has demonstrated such a casual attitude. At the heart of this is the sense that, if data retention is so important and so urgent, two years should have been more than enough time to implement a voluntary scheme in the first instance. In effect, by accepting this order, we are circumventing the very purpose for which this House put the sunset clause on the face of the legislation. That strikes me as ludicrous.
I turn to the Retention of Communications Data (Code of Practice) Order. I have already suggested that a voluntary scheme for data retention is doomed to failure. In fact, I suspect that the Government have come to the same conclusion—that was more than hinted at in our meetings with officials. Bluntly, it is unsettling to realise that in all sorts of ways, the Home Office is only going through the motions of attempting to establish the voluntary scheme because it is the only route to what, despite protestations and commitments to the contrary, it has decided it wants all along— namely, a mandatory scheme.
However, be that as it may, it is generally recognised that very few, if any, communications service providers will sign up to a voluntary scheme. The reasons are obvious. The proposals are fraught with legal uncertainty, a matter with which, as I say, the noble Lord, Lord Lester, will no doubt deal in due course. There are myriad issues here, including potential breaches of Article 8 of the ECHR and so on. However, I shall confine myself to what I understand to be the nub of the issue.

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Communications service providers will be legally required to retain data under the code of practice in breach of the provisions of the Data Protection Act. It is unreasonable to suppose that a CSP should be required to expose itself to that sort of liability. What flows naturally from that is that it is inconceivable that the voluntary scheme in the code of practice can be effective.
For avoidance of doubt, I repeat that we on these Benches are well seized of the significance and importance of data retention in the fight against crime and terrorism. We would welcome the opportunity to make common cause with the Government in implementing a scheme that is fit for the purpose and that strikes the right balance between the needs of the state and the rights of the citizen. Part 11 of the Anti-terrorism, Crime and Security Act and these orders are not such a scheme. It is in the gift of the Government to introduce a new Bill in the next Session to deal with this matter properly and sensibly. We would welcome that and we would give it all possible co-operation. In such circumstances, I can offer the Minister a guarantee. If such a Bill were to come forward, we would work tirelessly with the Government to ensure its enactment at the earliest opportunity.
I have covered many issues of real concern. There will be more elaboration by other noble Lords during our debate. My plea is to invite the noble and learned Lord to accept that there is real desire on our part to arrive at an effective, deliverable scheme with proper safeguards for the British people. I beg to move.
Moved, as an amendment to the above Motion, to leave out all the words after "That" and insert "this House declines to approve the draft order laid before the House on 11th September".—(Baroness Blatch.)
Lord Richard: My Lords—
The Deputy Speaker (Lord Elton): My Lords, the original Question was that the draft order laid before the House on 1lth September be approved, since when an amendment has been moved, to leave out all the words after "That" and insert the words, "this House declines to approve the draft Order laid before the House on 11th September". The Question I now have to put is that this amendment be agreed to.
Lord Richard: My Lords, I was trying to ask the noble Baroness a question before she sat down. Perhaps I can at least metaphorically ask her a question before she sits down. I should start by apologising for having missed the first two or three minutes of her speech.
Do I take it from what the noble Baroness has said this morning that the Front Bench of the Official Opposition are moving a fatal Motion on a statutory instrument? She will know, as I do—I have good cause to know—that throughout the whole period when we were in opposition we did not move a fatal amendment. We certainly did not vote on a fatal amendment. Indeed, there was a practice, verging on a convention of this House, that statutory
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instruments were not voted on in a fatal way. The only example I can think of in recent years, I suppose, involved the Rhodesia order in the mid-1960s.
If the noble Baroness will be kind enough to address herself to that question, I would be greatly obliged. Is it now the policy of the Official Opposition to move fatal amendments to statutory instruments in this House?
Lord Smith of Clifton: My Lords, I should like to ask the noble and learned Lord the Attorney-General a question on the intrusive surveillance order. Is there expected to be any provision by which the Northern Ireland Assembly will be able to monitor the activities of the Prison Service?
The Earl of Northesk: My Lords, I rise to speak to the amendment in my name on the Order Paper.
There is no doubt that communications data can be of immense help in the fight against terrorism and crime. None of us would disagree with that. Moreover, I readily accept that law enforcement agencies believe delivery of powers to retain and access data to be a matter of urgency. Equally, I am entirely happy to state my support for the underlying principle of the RIPA orders; namely, that activity which has thus far been unregulated should be regulated under a single— I repeat, single—procedure. Notwithstanding my support for those general principles, the devil is in the detail, as usual. Happily, the eloquent contribution of my noble friend Lady Blatch has covered many of the points of concern. It would be invidious for me to repeat her arguments. I merely say for the record that I wholeheartedly support and endorse her comments. That said, there are a few additional points that I believe are relevant.
There is a perception that the subject matter of all five of these orders is the exclusive province of "anoraks", or "geeks" or "techies". It is true that it would be quite easy to fall into the trap of mouthing incomprehensible techno-babble in speaking to them. However, I shall try to avoid that. Rather I think it useful to attempt to measure them against a statement of general principle. One that I have in mind is the following:
"Any limitations on individual freedom must be proportionate to the threat; they must be sanctioned by law and cannot take place on an ad hoc basis; and they must be implemented in a way which ensures that there are safeguards and that the activities of the executive are subject to monitoring, scrutiny and accountability".— [Official Report, 26/3/03; col. 852.]
Those are fine words, but they are certainly not mine. They are those of the noble and learned Lord the Lord Chancellor in March of this year in his then incarnation as a Home Office Minister. I think we can therefore safely assume that they are a fair representation of the Government's view.
Evidently these orders represent a "limitation on individual freedom". The Joint Committee on Human Rights has highlighted the fact that data retention and access raise,
"very important issues relating to the rights to respect for private life and for correspondence".

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That being so, I fear that, as a generality, the orders do not stand up to the general statement of principle of the noble and learned Lord the Lord Chancellor. I quote again from the Joint Committee's report on the data retention orders:
"It is [therefore] particularly important to establish the necessity for and proportionality of standard retention of all communications data. However, we have insufficient information which would enable us to satisfy ourselves that those requirements are met".
Evidently there is doubt that the Government's proposals for data retention are "proportionate to the threat".
It is appropriate here for me to turn to the amendment in my name on the Order Paper. It is, of course, the case that in respect of the RIPA orders the Home Office is seeking to establish a single procedure for regulation of surveillance activity that is ECHR compliant. As I say, I adjudge that to be both welcome and desirable. However, because it has separate legislative provision under the Social Security Fraud Act 2001, the Department for Work and Pensions and the Northern Ireland social security investigators, in so far as they need access to communications data in their investigations, have elected to exclude themselves from the regime. To my mind that is nonsense. Either we have a single procedure with all—I stress "all"— appropriate public authorities bound by it, or we do not. Leaving the Department for Work and Pensions outside the regime wholly undermines the premise upon which this Home Office policy is based.
There is the additional problem here already mentioned by the noble and learned Lord the Attorney-General and by my noble friend Lady Blatch. In determining which public authorities should be included on the face of the communications data order, the Home Office has assumed that there is equivalence between information and communications data. The justification for inclusion of the authorities listed is that they have all been granted "information gathering" powers in previous legislation. Yet, as my noble friend observed, there are no plans to repeal or rescind any of the "legacy legislation" powers because, so the Home Office argues, information is a different commodity from communications data. The simple fact that the Department for Work and Pensions is outside the RIPA regime and a host of unregulated information-gathering powers remain in statute—again outside the RIPA regime—cannot mean anything other than that an ad hoc approach is being adopted to the whole issue.
I need not dwell on the issue of whether adequate safeguards are in place to protect individual rights. The noble Lord, Lord Lester of Herne Hill, will no doubt cover that ground much more adequately and with far more expertise and eloquence than I. However, I would just make one small point. It is important to realise that, by definition and of necessity, data access under the existing communications data proposals would be to all intents and purposes covert in character. Data subjects, individual citizens, can have no way of knowing whether or not their data have been accessed or for what purpose. That must be wrong. As I understand it, knowledge of this by an individual is a specific right granted by
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provisions in the Data Protection Act. To this extent the safeguards for the individual citizen are less robust than they should be.
There are considerable problems too with "monitoring, scrutiny and accountability" of both the retention and access regimes. I acknowledge that this is probably not relevant per se to the orders. Nevertheless it is important to understand the context in which the respective regimes will operate. It has been estimated that the Office of the Interception Commissioner will have oversight of more than a million surveillance requests per year, although I suspect that the Home Office considers that that figure is rather overstated. Whatever the true figure, even when properly resourced, it is unlikely that the office will be able to examine more than a fraction of the total requests made. It should be noted too that the Information Commissioner has already reported "significant" and "unacceptably high" numbers of errors in RIPA Part 1, Chapter I interception warrants. The Home Office, and, indeed, the noble and learned Lord the Attorney-General, may wish to parade the success rate of the interception of communications and investigatory powers tribunals as testimony of the robustness of this element of the oversight regime. However, for the convenience of the noble and learned Lord I confirm that of the 470 cases considered by them between 1996 and 2003, none was adjudicated in favour of the complainant.
As Dr Chris Pounder has observed—in contrast to the Attorney-General's view—
"This 100% 'perfection', like 100% support for Saddam Hussein in the recent 'presidential election' in Iraq, is simply not credible".
From a broader perspective he adds:
"The oversight system is fragmented, overlaps and is riddled with competing bodies".
In effect there is a justifiable case for arguing that "monitoring, scrutiny and accountability" of the oversight regime is less than adequate.
I turn to a matter of which I have given the Government advance notice—the status of the orders in respect of the technical standards and regulations directives. I am extremely grateful to the noble Baroness, Lady Scotland, for the promptness of her written reply to me on that yesterday. None the less I think that it would be helpful if the noble and learned Lord the Attorney-General could state the position for the record.
My antipathy towards data retention as encapsulated in Part 11 of the Anti-terrorism, Crime and Security Act is well known. I stand by the remarks that I made at that Bill's Second Reading; namely, that the provisions fail four essential tests: those of effectiveness, necessity, proportionality and consequence. I need not rehearse those arguments here. They are a matter of record. Quite apart from that, as my noble friend Lady Blatch has already said, the implementation of the Government's voluntary scheme is an exercise in futility. It will be wholly ineffective if only because there is every prospect that very few, if any, CSPs will sign up to it. Nor should we lose sight of the fact that a form of data retention is

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already permitted under extant statute. As the Explanatory Notes to the Anti-terrorism, Crime and Security Bill stated:
"Whilst the Regulations permit the retention of communications data on national security and crime prevention grounds there is currently no general guidance given as to when these might apply".
To my perception the Government could more usefully have turned their attention to determining appropriate general guidance for the exercise of those extant powers rather than getting bogged down by their ill fated attempts to make credible sense of Part 11 of the Act. I have pursued this issue on a number of occasions and have yet to receive an adequate reply. So, can the noble and learned Lord now confirm that powers for data retention already exist, irrespective of the status of Part 11? Can he also confirm that, in so far as such powers do exist, they were exercised in the wake of the September 11th atrocity? Can he shed some light on the period of time for which these powers were granted, indeed, whether or not even now they are still being actively exercised in the interests of national security and criminal investigation? Can he indicate whether the exercise of retention powers has led directly to any arrests?
I have a host of other issues and concerns—the blurring of the data categories on the face of RIPA, the single point of contact arrangements, the absence of appropriate sanctions against abuse of the access regime, and so on. However, time is short and in the circumstances I refer to them only in passing. In sum, I have deep misgivings as to the wisdom of enacting the communications data order and the two data retention orders irrespective of whether they are amended. I ask myself a simple question; should flawed law be entrenched?
12.45 p.m.
Lord Lester of Herne Hill: My Lords, I should like to speak to the two amendments in my name to the communications data order and the code of practice order. I am very pleased that the Official Opposition, led by the noble Baroness, Lady Blatch, and the noble Earl, Lord Northesk, have supported the principles underlying my amendments.
I am sorry that the noble Lord, Lord Richard, is not in his place when I say that my amendments are not fatal. I would not have dreamed of tabling fatal amendments unless the clock had stopped at 13 and we really were in George Orwell's world of Nineteen Eighty-Four. In those circumstances, I would have done, but I did not. My amendments are designed to send back the orders, to have them returned to us in a form that gives adequate respect to personal privacy.
It is very agreeable to be able to say that I am particularly glad that the noble and learned Lord the Attorney-General introduced the debate, not only because he and I are old and good friends, but because we were colleagues on the Joint Committee on Human Rights. I have no doubt about his personal commitment to human rights as Attorney-General, and it is very good that he should be dealing with the subject today.
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As a member of that committee, I pay tribute to its chair, the right honourable Jean Corston MP. Although she is also chair of the Parliamentary Labour Party, she and my colleagues have always performed their jobs on the committee with conspicuous independence. We do not play politics, as I am sure that the noble Baroness, Lady Whitaker, who is a member of the committee, would confirm.
I said that the clock had not stopped at 13, as it did at the beginning of George Orwell's Nineteen Eighty-Four, but the debate raises very important issues about the right to personal privacy and the principles of legal certainty and proportionality to which the noble and learned Lord the Attorney-General referred. No one other than him has yet said something that I recognise; namely, that such orders are necessary to meet one important principle of the convention, that of legal certainty. That is to say that there has to be lawful authority for the kind of invasions of personal privacy that would otherwise not be regulated by law. Therefore, if one is to have a regime of this sort at all, such orders are certainly necessary. As the noble and learned Lord recognises, that leaves over the key issues of proportionality.
The House has the benefit of two reports that had not been before the other place when it debated the matter. The first is that of the Joint Committee on Human Rights of 10th November, and the second is that of the Joint Committee on Statutory Instruments of 12th November, although the subject matter of that came earlier. When the matter was debated by the Third Standing Committee on Delegated Legislation on 4th November, it was made clear that several Members of the other place wished to have the report of the Joint Committee on Human Rights before them before they approved the orders. However, they did not have that benefit.
That is why it is important in this House to give careful attention to what the Human Rights Committee said. Although reference has been made to part of the report, I would like to focus on the main issues, if I may without boring the House to death, so that the House fully understands the context. I was not present at the meeting that finalised the report on Monday, but I was present before that, and I respectfully agree with what my colleagues put in the report.
There are four main important issues. The first issue dealt with in the report was that:
"The communications providers which retain the communications data are nearly always likely to be private businesses rather than public officials. If they are not 'public authorities' for the purposes of the Human Rights Act 1998, they are not directly subject to the legal obligation imposed by section 6 of that Act to act compatibly with Convention rights".
The committee was concerned, because it is,
"unclear how the Draft Code would ensure that the state can discharge its obligations under ECHR Article 8 in relation to the retention and storage of the data".

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The second important issue is that:
"It is not clear how the Draft Code's standard periods of retention would meet the requirement of proportionality",
in accordance with Article 8. The third issue is that:
"The availability of the communications data to agencies for purposes other than the protection of national security would call in question the legitimacy of the aim for which the data are to be retained, the necessity for that retention and its proportionality, all of which are elements",
required by our convention rights.
The fourth and final issue is that:
"It is not clear how thoroughly the consultation exercise required by section 103 of the Anti-terrorism, Crime and Security Act 2001 was carried out and how far the frui:s of it have been taken into account in the Draft Code".
I shall go back to the first issue, which is about the fact that the communications providers are mainly private and not public, and therefore not subject to direct liability under the Human Rights Act.
We asked the Government,
"whether it considered that service providers holding information for the purposes of the Anti-terrorism, Crime and Security Act 2001 were to be regarded as functional public authorities for the purposes of the Human Rights Act 1998. The Home Secretary told us that the Government takes the view that the retention of communications data by communications providers is 'a private function that arises out of the commercial service that the communication services providers provide"'.
We pointed out that that had "the disadvantage"—it is a serious one—that,
"the communications providers are not public authorities for that purpose and are not bound by… section 6 of the Human Rights Act".
We then pointed out that that makes it absolutely vital to ensure that other safeguards can deal with the problem that the communications providers are not public authorities yet can exercise the powers given to them under the orders. That is a real problem that the House needs to consider.
The more substantial matter is that of:
"Across-the-board standard retention periods for communications data in various categories".
As the House will know, in:
"Paragraphs 7 and 8 of the Draft Code … the Secretary of State considers it to be necessary for the purpose of national security for service providers to retain communications data for the periods set out in Appendix A to the Draft Code … This would not deal with the position under ECHR … and the Human Rights Act 1998. If a service provider is a functional public authority when retaining data for national security purposes, it would have to show both that the retention is necessary (… to a pressing social need) and proportionate … We therefore asked the Government why it considers that it would be proportionate to retain communications data by reference to across-the-board standard periods of time, without reference to the identity of the user of the service or the circumstances in which the communications took place".
We expressed the view that whether or not the service provider is a functional public authority, the state has an obligation under the convention to take positive steps to safeguard the service user's right to respect for private life and correspondence. I would be grateful if the noble and learned Lord the Attorney-General would confirm that it is the Government's view that they do have a policy of obligation, under Articles 1 and 8 of the convention, in that respect.
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We also asked the Government whether, and if so why, they consider that a code that does not mention the requirement of proportionality would discharge the UK's international obligations. In paragraph 18 of our report, we give the Government's response. Although the following point has been partly quoted, I want to emphasise it because it illustrates the importance of our debate and the view taken by this House. We noted that the provisions had not been debated in another place at all and that after receiving evidence from the Home Office, we had not been able to establish for ourselves how pressing is the need or how often the police and the security and intelligence services find it necessary to make use of such data or are significantly hampered by their absence. We stated:
"Those matters seem to us to be relevant to the assessment, to be made by each House, of the necessity for the retention which would be sought by the Draft Code, and of the proportionality of the periods set for retention".
Having raised the issue clearly in our report, we hope that the noble and learned Lord the Attorney-General will give more than a blanket or general reply to our dilemma in paragraph 19 of the report. It is important that he satisfies the House on those matters.
We dealt thirdly with the equally important matter of the transfer of data from the terrorist context to other contexts, because of the interaction of the two statutes. We pointed out that the draft order would greatly extend the range of bodies by whom the data could be obtained and how they could be disclosed. The Home Secretary told us the Government do not intend to take any legal or technological measure to restrict the use of the data for national security purposes, because it is their view that if the data are available, they should be accessible to other public authorities for other purposes.
After considering the matter, we recognised that there may be cases not involving national security where it is necessary, as the noble and learned Lord the Attorney-General has submitted, that there should be access to that data; for example, for the investigation of a murder. We pointed out in the report that,
"we do not consider the relationship between the powers under the two Acts is as straightforward as the Government suggests".
Your Lordships can read that in paragraph 24 of the report.
The report goes on to state:
"It seems to us that the main safeguard against abuse of the power to access for non-national-security purposes communications data retained under the 2001 Act is the fact that any access will have to be authorised or required by a designated person in a public authority empowered to access such data by the 2000 Act. The designated person will be a public authority, bound by the Human Rights Act 1998".
I am sure that the noble and learned Lord the Attorney-General was gratified to read that:
"On balance, we were prepared to accept the Government's view that, as a matter of policy, it should be possible to have access to any communications which are available and are relevant to a case if those conditions are satisfied on the facts of a particular case".
We came to the conclusion that the safeguards already mentioned, plus the availability of judicial review of a notice or authorisation and the need to

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comply with the data protection legislation, are capable of being proportionate. I would be grateful if the noble and learned Lord the Attorney-General could tell the House exactly how the judicial review would provide an effective remedy in the sensitive context that we are discussing.
Lord Goldsmith: My Lords, the noble Lord quoted the conclusion from the Joint Committee's report. Would he agree that while it expressed the view that the safeguards are capable of being adequate, the conclusion of the committee was that, "on balance", it was "satisfied" that those safeguards,
"are likely to provide adequate safeguards for Convention rights"?
I am reading from paragraph 32 of the committee's conclusion. It is an important point.
Lord Lester of Herne Hill: My Lords, I was reading from paragraph 25. In that paragraph, we reported in the way in which I have just described. In paragraph 32, we reported in the way in which the noble and learned Lord the Attorney-General has quoted. I regard that as confirmation that, on balance, the requirement of proportionality would be satisfied, but perhaps I may ask the noble and learned Lord the Attorney-General exactly how he believes that the availability of judicial review could provide an effective safeguard. That is obviously important to this House.
I shall not detain the House much further on consultation. I shall not repeat the views that were expressed so eloquently by the noble Baroness, Lady Blatch, but in paragraph 30 of the report, we made an observation on the parliamentary procedure and stated:
"The total sitting period allowed for consideration of these proposals… amounts to about five weeks. In our view, this is not sufficient in view of the importance of the measures, their potential to affect human rights, and the long period of gestation of the proposals since December 2001".
The Joint Select Committee on Statutory Instruments was also concerned about that. The Government are therefore confronted by two watchdog bodies, neither of which has been satisfied by the manner in which the consultation on matters of such great importance to the citizen has been handled. I would be grateful if the noble and learned Lord the Attorney-General would express at least some regret on behalf of the Government at the way in which the matter has been handled. The other place has not been allowed to consider the proposals properly and it now requires us to do so in a hurry, not in terms of the length of the debate, but of the length of the consultation.
Lord Phillips of Sudbury: My Lords, I want to speak to the amendment standing in my name, which would amend in a non-fatal way the orders before us; in particular, the Regulation of Investigatory Powers (Communications Data) Order 2003. We are not staging in any sense a contest about who has the best
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civil libertarian credentials. Our debate might well have taken place during the course of the RIPA legislation itself. However, as the noble and learned Lord the Attorney-General has rightly said, and others have reflected, I not aware of any measure during my five years in this House where your Lordships' House has been so at sea for so much of the time. The issues with which we are contending are arcane, complicated and interlocking, and one of the dangers in such circumstances is that the politics of the issue does not reach the wider public. If ever a measure affected the wider public—not in thousands, but in millions, because the communications data of millions will be accessed under the order—this is it. However, as I have said, it is not a contest, but rather a challenge to try, even at the eleventh hour, to improve an order that everybody believes needs to be improved.
It would be cynical and irresponsible for us to pretend that we protect the citizen against abuse of his communications data while denying the selfsame citizen the information without which he cannot protect his personal data, because he will not know that an abuse and a breach has taken place. That is most vividly demonstrated by the whole tribunal mechanism to which the noble and learned Lord the Attorney-General referred in his opening remarks. The tribunal exists to protect aggrieved citizens. Section 65(4) of the Act states:
"The Tribunal is the appropriate forum for any complaint if it is a complaint by a person who is aggrieved by any conduct falling within"—
and so forth. I suggest that it is a farce to have that section and the others alongside it if there is no means of the citizen knowing of the abuse. Judge Brandeis of the Supreme Court said:
"Experience should teach us to be most on guard to protect liberty when the Government's purposes are beneficent".
And that they are beneficent there is no doubt. We support the broad thrust of the legislation in the orders, but this is a challenge to our ability.
While thanking Home Office officials for the help they have tried to give to those of us who are bemused by these orders, I remind the House that the Home Office has form when it comes to legislation of this kind. Perhaps I may take noble Lords' minds back to the Anti-terrorism, Crime and Security Act 2001. In my view, and in the view of many Members of this House, it was not proper, correct or right that on the back of emergency anti-terrorism legislation the Government should sweep up many petty offences which had nothing whatever to do with terrorism—
Noble Lords: Hear, hear!
1 p.m.
Lord Phillips of Sudbury: My Lords, if there is a touch of extra caution, that must be excused. In any event, we must be jealous and vigilant when liberties are at stake, particularly when seeing the libertarian woods for the bureaucratic and state trees is hugely difficult, as it is here.

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Let me come to the point. What are the protections for a citizen whose communications data rights have been abused? First, the communications data definition in the RIPA is not at all clear. That is an impediment to the huge number of officials who under the order will have the right and duty to seek authorisation to tap into the communications data concerned.
Secondly, the Attorney-General repeats the mantra of proportionality. That is all very well because lawyers, particularly the able, senior lawyers such as himself and my noble friend Lord Lester, live by proportionality— they wake up breathing proportionality. However, the officials who will have to deal with this legislation are not chief constables and the like; they are middle-ranking civil servants. In the Charity Commission, their rank is PB5, if that means anything to your Lordships. That is a middle-ranking civil servant. It is totally excessive for the Government to place such huge reliance on this rubbery word that only expensive lawyers can understand—and even they cannot because they have to go to the House of Lords to have it decided.
Furthermore, the severe drawback in the regime on communications data compared with any other part of the RIPA is that there is no pre-event check on a decision made by a middle-ranking civil servant to seek authorisation. Under any other part of the Act, it is necessary to go to the Secretary of State for an interception warrant. That is a massive protection of the citizen because the Secretary of State will be extremely cautious and judicious in the way he exercises the power. Above all, if there is no second check, the matter is left solely in the hands of the official who is personally involved in wanting the information, and who may have an excessive zeal in relation to his actions. That is not good enough.
I have referred to the fact that without information, the tribunal protection which exists in the RIPA is useless. Furthermore, the Interceptions of Communications Commissioner has no duty to tell a citizen when his or her information has been purloined or otherwise abused. I am afraid to say that I take no solace from the point made by the noble and learned Lord the Attorney-General in his opening remarks that under Section 58(2)(a) he will be required to report to the Prime Minister. We achieved that change to the Bill. The duty report is in respect of contraventions of the provisions of the Act. That refers to the many criminal offences that are available as a protection for the citizen in all other parts of the Act except this. In Chapter 2 of Part 1 of the RIPA legislation there is no criminal offence. Therefore, I do not believe that there will be a duty to report to the Prime Minister because I do not believe that there will be contraventions within the technical meaning of that word.
Even if I am wrong on that, what solace to the citizen? The matter goes to the Prime Minister, but he has no duty to do anything in regard to it. There is a duty to report and the report is laid before Parliament. Jolly good, but there is no warrant in the legislation to name names in the report. The most recent report of
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the Interception of Communications Commissioner for 2002 is extraordinarily cautious in its detail. For example, at paragraph 34 he states:
"I can only provide the information on the total number of complaints made to the tribunal".
Nothing more. One assumes that the Interception Commissioner has a great body of people charging around the country seeing that nothing amiss is occurring. I have to tell the House that the staff available to the commissioner is not remotely sufficient to do that. At paragraph 7 of his recent report, he talks of his twice yearly visits to various bodies, which he names. He then states:
'"I then select, largely at random … a sample of warrants for close inspection".
Fair enough, but how big is the sample? And what about the majority—I suggest the vast majority—of matters which are not investigated at all? This is the only protection for the citizen against this massive extension of state surveillance. And it is a massive extension. We are not talking about 10,000, 20,000 or 50,000 because estimates from the industry are between 1 million and 1.5 million authorisations a year. I put it to the House that that is not good enough.
We then come to the question of whether the interception of communications data is important. There was a hint that it was pretty minor beer compared with interception, direct surveillance, covert human surveillance and so forth. I suppose in the sense that it does not go to the contents, that is a fair point. However, sometimes what is not said is more important than what is and often actions are more important than communications. Communications data include who, when, where and how any of us communicates at any time with any other person by any technological means. I am told by people in the industry that an extremely sensitive profile can be built up of any of us who uses any of those instruments frequently. There can be built up an extremely sensitive profile of our life patterns, our contacts, where we go and when we go—not why we go, but the "why" can be built up out of a great deal of data. The Rio Ferdinand case gave one a slight hint of the kind of thing that can occur.
Therefore, the reason for putting forward the amendment—I am grateful for the support of others who have spoken and I, in my turn, extend my support for their amending resolutions—is that there are simply not sufficient and adequate protections in place for the so-called "ordinary" citizen.
I extend to the noble and learned Lord the Attorney-General my deep sympathy for the fact that he is sitting where he is today. I would extend it to him even if he had had three years to prepare for the occasion. However, when he comes to respond, I should be grateful if he could say whether or not the Government would be minded to make a wilful or reckless abuse of the communications data chapter the subject of an offence. The same protection might be afforded as under the Data Protection Act, which, incidentally, provides all the protections that do not occur in relation to personal data. The protection would be that there would not be a

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prosecution without the consent of the Interception of Communications Commissioner or the Director of Public Prosecutions.
Lord Jenkin of Roding: My Lords, my noble friend Lady Blatch delivered what I can describe only as a devastating attack on the way that this whole matter has been handled by the Home Office. I have every sympathy with the plea that she has made for the Government to take away these orders and think again. We have heard other attacks. My noble friend Lord Northesk and the noble Lord, Lord Phillips of Sudbury, have very much reinforced that case.
I ask only one question and, in a sense, I ask it of my noble friend Lady Blatch. I do so on behalf of the local authorities. I declare an interest in that I am a vice-president of the Local Government Association and a joint president of the Association of London Government.
Local authorities make regular use of the powers to intercept—in particular, with the communications data and the directed surveillance and covert human intelligence sources—frequently to detect and so prosecute serious fraud, which they are under a duty to do in order to protect local communities and local families. However, if the orders are now withdrawn, as has been sought, or if they are voted down—the noble Lord, Lord Richard, made the point that this is a somewhat unusual procedure—will local authorities continue to have the powers which they currently use?
Can I also be assured that there would be no lacuna between the powers being defeated today and the point at which the orders are brought back in a more acceptable form? Local authorities would be devastated if they found that suddenly their powers to detect rogue traders were stopped. Glass fitters have been mentioned. There is another case of an electricity fitter who left equipment in a thoroughly dangerous state. The only way that local authorities can get such people is through the use of telephone and other information. I hope that I can be given that assurance.
Viscount Colville of Culross: My Lords,—
Baroness Blatch: My Lords, it may be for the convenience of the House if I respond to my noble friend, given that he directed the question to me. In the meetings that we have had, I have received reassurance on two points. One is that the RIPA scheme is doing no more than bringing under a single umbrella and a single regulatory framework all the organisations which currently have powers to seek and access information. It is absolutely true that no single power to access information is being rescinded as a result of the orders, and we believe that that is a problem. It means that the orders under which local authorities presently operate will continue and that there is respite time for the Government to take away the orders and bring them back in good order. However, in the mean time, having spoken to Home Office officials, my
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understanding is that local authorities will be able to continue to pursue crime and disorder in their localities.
1.15 p.m.
Viscount Colville of Culross: My Lords, I believe that the noble Baroness is correct. I declare the interest that she has already declared to the House—that is, I am a Surveillance Commissioner. I operate under Part 2 of RIPA and I have visited a very large number of local authorities under the aegis of the noble Lord, Lord Jenkin of Roding. I am sure that they will be able to continue to act in the way described, whether or not the orders are made. However, I wish to put in a word for the RIPA orders to be endorsed by this House. I shall do so very briefly, otherwise we shall never finish in time for the Law Lords.
The first one brings the intrusive surveillance procedures and safeguards in Northern Ireland prisons on to the same basis as prisons in England, Wales and Scotland. At present, there is no system to deal with that. I have talked to the Prison Service in Northern Ireland, which would benefit from having this power, and I am sure that the prisoners would benefit from the supervision that they would receive under that order.
So far as concerns the communications data order, there is, indeed, great confusion, particularly among local authorities and, I believe, other public bodies as well. Until Chapter 2 of Part 1 is brought into force, there is a very haphazard system whereby they can find out the type of information about which the noble Lord has just spoken. They need it to enforce their duties and the powers that they have under other legislation. Therefore, it would be very convenient for them, although perhaps not essential, that this order should be made.
I believe that the third order should be approved. It brings up to date Statutory Instrument 2417, which is now hopelessly out of date. It includes a whole collection of public authorities which no longer exist but it does not include many public authorities that do exist. The whole system of authorising officers needed to be reviewed, and a fourth column has now been included in the schedule, which describes under which category of necessity each public authority can operate. All those issues will make for greater clarity, will bring the measure up to date and will make it far easier to carry out the duties that the Office of Surveillance Commissioners must carry out under Part 2. It would be the greatest possible pity if the order were to fail.
I do not want to say very much about the Anti-terrorism, Crime and Security Act matters because they are not in the least within my jurisdiction or much within my knowledge. However, I believe that two things could be said. Earlier, a noble Lord said that there are a large number of commissioners and other bodies that supervise this whole matter. So there are, and one will now be the Information Commissioner under the orders and procedures that occur in Part 11 of the 2001 Act.

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I want to ask the noble and learned Lord the Attorney-General a question. There is now a directive—2002/58/ EC—which pulls together this whole matter. Having read it, it seems to me to provide a very sensible regime— probably rather better than cobbling together Part 11 of the 2001 Act with the Data Protection Act, which, although it bears some resemblance to the ECHR regime, certainly preceded it and is not entirely in tune with it. When will the directive be implemented? It would take the place of both these matters; it is entirely up to date; and it should have been introduced in this country by 31st October last. Perhaps that would be a good opportunity to reconsider this issue and pull together all the threads.
Lord Cobbold: My Lords, briefly, I support the amendment of the noble Lord, Lord Phillips of Sudbury. My personal concern is that there are still inadequate safeguards for the individual citizen against the possibility that those gathering permitted information may accidentally or deliberately come across data of a personal or market-sensitive nature which they can obviously exploit.
The Earl of Erroll: My Lords, I want to make one or two comments on the commercial side of this subject. I shall not take very long because I agree with, and shall heartily support, everything that has been said so far.
In principle, like everyone else I thought that the concept of RIPA was good as it would bring everything together. Then I suddenly remembered the old saying: "Just because you are paranoid doesn't mean to say they're not out to get you". So, what is the fear?
My remarks will address the second order, the Regulation of Investigatory Powers (Communications Data) Order 2003. As the noble Lord, Lord Phillips, so accurately said, the terms of the order enable a picture to be built up of a person's life. The definition of data which fall within Section 24(4)(a)(b) will determine the information district authorities and people working at fairly low levels can obtain to build up a picture of someone's life. Some of that could be commercially sensitive, and on this point I agree with my noble friend Lord Cobbold.
Unscrupulous people could build up a picture of someone's life. For example, a person trying to "chase up" a divorce case, who knew someone at the right level in the local authority, could, if the right data were released, obtain a picture of when and where someone was at a particular time and with who they communicated. As has been mentioned, from the point of view of foreign agencies and commercial intelligence, it could be useful to know who senior executives are talking to in other companies, particularly if one were bidding for large contracts. One would be able to build up a picture of what was going on. I do not think people realise how much intelligence information is gathered from analysing publicly available data. The order would
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make a lot of data more or less publicly available, particularly if one was abroad because of the lower level of scrutiny. Assurances on that point would be useful.
The key words here are "strictly regulated", on which I agree with the noble and learned Lord the Attorney-General. The problem is the word 'strictly". I am concerned about self-authorisation—authorities will authorise themselves to proceed with inquiries— and the word "proportionate". Thousands of people will be involved. The police, four other bodies and intelligence services will be authorised under RIPA. This will add another 28 bodies or types of body to that. Will the people who are trained to carry out such authorisations understand the word "proportionate" and what that is to mean?
I am told that there will be checks from around eight oversight bodies. However, according to Home Office figures, we are talking of half a million general requests per year. That is some 2,500 inquiries per working day. Not many of those will be got through and checked by just four people. I do not know what the resources are, but that needs to be considered.
There is no requirement in the code of practice to report to the oversight bodies what one is up to; they will have to come in and investigate. The other point is that you do not know what it is that you do not know. Will you catch in your trawl what is going on?
One of the interesting points made is that if we do not pass the order it will cause a lot of trouble but that it does not really matter because the police carry out 85 to 90 per cent of the requests. I find that interesting. If only 10 per cent of requests are to come from all the other bodies, why are they not channelled through the police, who would do a brilliant job of ensuring that other authorities are not abusing their power? Police services would have to be increased slightly to do that, but it would be a wonderful check. I would prefer checks to be done by the police than by an outside body. The other threat is that we should have to proceed under the existing powers of PACE: and so forth, and for authorisations to be carried out by circuit judges. That would be wonderful as there would be yet more checks. We are removing the checks and balances, which concerns me.
We are talking about people trying to investigate information on other people—communications data are a subdivision of that. This is where I find real difficulty with the comments of the noble and learned Lord the Attorney-General. On the one hand he says that we need RIPA in order to be compliant with the ECHR. Part of the ECHR concerns the right to a personal and private life. Therefore, paper files are equally relevant to the ECHR. Either these powers are ECHR compliant, in which case RIPA is not so urgent, or they are not, in which case they have to be repealed and come under RIPA, and requests for all information on a person must be regulated by RIPA.
Equally, if it is so important to bring all of this under one umbrella—I echo the noble Earl, Lord Northesk— so that the communication service providers (CSPs)

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know what they are doing and there is one single training process, why are we excluding the Department for Work and Pensions? Unfortunately, we did not realise the implications when this was slipped through. Therefore, it is no good saying that Parliament approved this. Parliament did not understand the implications at the time. A small Bill to remove those powers and bring them under RIPA is essential.
I have two final points. First, I do not know whether people realise but there are 500 to 600 small internet service providers (ISPs) employing five or fewer people. As these 2,500 inquiries go out, some of them will have to trawl for data and will have a serious problem responding to requests. I am not sure how they will handle that without going bankrupt.
Secondly, paragraph 32 of the code of practice states:
"Once the individual communication service provider has the technical capacity to retain data for the extended time periods-then the communication service provider shall inform existing and new customers that the purpose for retention and the periods of retention have been varied to meet with the needs of the Act".
There are no powers to do anything about that; they cannot reject it. Yet that means that everyone with a mobile telephone, an e-mail address and a landline telephone will have to be mailed or informed somehow by their CSP that information has been retained. There is nothing they can do about it anyway. What a waste of money. Of course, I may be wrong.
I do not understand the undue haste. Protections are in place. Interestingly, I learnt that at present, CSPs vet applications. Some are referred to the information commissioner under the Data Protection Act and some are turned down. So, we are not unprotected at present. Measures are in place. I believe that this is a better way to proceed and that this is the way forward for the future but we must get it right. I shall vote to approve the first order. I shall vote in favour of all the non-fatal amendments. I shall not vote for the fatal amendments, with the exception that I shall think about data retention.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Hollis of Heigham): My Lords, by the leave of the House I shall seek to respond briefly to the amendment in the name of the noble Earl, Lord Northesk, as it affects the Department for Work and Pensions. This was picked up by the noble Baroness and referred to as a major anomaly. That is why I intrude on your Lordships' time.
There has been no challenge that DWP needs the powers it has. I bridle a little at the assumption that your Lordships did not scrutinise the Bill. I remember vividly the noble Lord, Lord Higgins, pressing me on credit agencies, fishing trips and the like. But it was a Bill which passed through this House without Division.
No one denies that the powers that the DWP has are ECHR-compliant. No one would deny that fraud is a major concern of the department and of your Lordships costing perhaps £2 billion or very much
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more per year. Each year we initiate around 330,000 to 340,000 inquiries and take around 9,000 to prosecution. Therefore, given that communications information is vital to us, why are we not happy to accept the amendment standing in the name of the noble Earl, Lord Northesk?
The noble Earl raises three basic issues concerning RIPA: first, the issue of transparency and accountability, which was the particular concern of the noble Lord, Lord Phillips; secondly, cost; and, thirdly, effectiveness. As regards transparency and accountability, I am perfectly happy on behalf of my department to take away some of the concerns to see whether in the annual report to Parliament and the like we could increase the transparency of our procedures. That would be entirely proper. If I can meet the concerns of the House in that way I am very happy to do so and would do so in good faith.
However, I wish to explore briefly two other options. The first is that of cost. Ever since the foundation of the Department of Social Security in 1948, on behalf of taxpayers and to protect taxpayers, it has requested information as of right from employers for National Insurance purposes and from landlords for housing benefit and the like. If within RIPA we were required to pay, as we would be, for telecommunications details and then were not able to refuse similar requests from banks, building societies and other agencies which give us information about health, income, capital, identity, address and family circumstances—all of the bread-and-butter data of the department which piggybacks on other sources of information for the benefit of the taxpayer—we would face multi-million-pound bills in order to pay for what we currently get with consent in the public interest. So I urge the House not to go down that path.
The third consideration—to my mind the most important—is the consideration of effectiveness. As I say, we lose something like £2 billion—perhaps £4 billion—per year in fraud. We need this information. Since the enactment of the Social Security Fraud Act 2001 we have had an integrated, robust and effective structure for pursuing fraud. Let me give one example. Operation Utah was an investigation in which four defendants pleaded guilty to 25 charges of benefit fraud of a total overpayment of nearly a quarter of a million pounds. The Act was used for 42 credit references, 25 bank checks, eight credit finance checks and one telephone subscriber check.
Is the House really asking us to pay for each and every one of those checks? If so, does it then become financially worthwhile pursuing fraud, in particular low-level fraud? Is the House asking our staff— recently trained—to seek two sets of authorisation where now they operate within—thanks to the Act— an integrated and robust structure?
Let me explain to your Lordships what would happen if the House took the amendment on board. We would have to return to Parliament to change the legislative framework of the Social Security Fraud Act, within which we operate. We would probably have to change and amend the statutory code of

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guidance, which was the result of extensive consultation and laid before Parliament. On the ground we would require more senior staff and our recent training of staff would be wasted. We would have to retrain and restructure our existing fraud teams. Essentially, we would have to run two parallel routes to seek authorisation for data requests instead of, as now, one integrated coherent structure.
In other words, to bring telecommunications used by the department into RIPA, we would have to fragment our integrated coherent structure, which allowed us to be so effective with Operation Utah. As a result I suspect—I have checked this information this morning—we would disrupt the use of our fraud powers for anything up to three months.
1.30 p.m.
Baroness Blatch: My Lords, I am grateful to the noble Baroness for giving way. She has made coming under the RIPA regulatory framework sound extremely laborious, very time-consuming, extremely expensive in staffing and very expensive in terms of paying the providers. Do not these arguments apply to all other bodies which operate under different statutes? All the arguments put to us about coming under the regulatory framework indicate that it will not make any difference to these bodies, and that the position will not be as the noble Baroness has just described. It seems extraordinary that it should apply only to DWP and not to any other body.
Baroness Hollis of Heigham: My Lords, that is precisely why, as I was trying to say, our legislation was introduced in 2001; it is ECHR-compliant; and it builds on existing practices of obtaining the information which protects all our interests at no public expense. The noble Baroness may not like the information I am giving. It is information from my department about the implications on the ground of the cost, the laboriousness, the expense to staff training and our effectiveness. I know that the noble Baroness will not feel comfortable with any—
The Earl of Erroll: My Lords, is not this a very good argument for using the DWP model for the code of practice under RIPA, to bring everything into the DWP-type framework, and call that RIPA? Then everything is under a united umbrella. I have been told that the DWP has better procedures for checking the identity of a person making a request than those under the code of practice proposed under RIPA. So I am not against it at all.
Baroness Hollis of Heigham: My Lords, as I understand the position, one of the powers under RIPA is to require payment for all requests for such information. I spent some time trying to explain that since 1948 we have not, for the most part, paid for such information, whether to employers for information about national insurance and earnings, to landlords
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for information about housing benefit or to banks and building societies and so on. That was thoroughly discussed in your Lordships' House. It was recognised that, in pursuing the protection of taxpayers' financial interests, we all had a public policy duty to persist in allowing the department to acquire the information it needs. To do as the noble Earl, Lord Erroll. suggests would add to public cost, add to delay, add to complexity and would actually reduce the capacity of the department to be effective on the ground.
The noble Earl's amendment would be wholly negative and disrupt the Department for Work and Pensions' capacity to pursue and eradicate fraud. We have a good coherent, integrated and robust structure in place. To disrupt it now would be to undermine the very thing that this House has called for on several occasions, which is the effective and proper pursuit of fraud at the taxpayers' expense.
The Earl of Northesk: My Lords, perhaps I may clarify one point with the noble Baroness. The purpose underpinning my amendment is to make sure that, where the DWP has a need for access to communications data, communications data alone are brought within the RIPA regime. That is the logic of it. The rest of the DWP's investigatory activity would not be in any way affected. So I do not see how the nightmare scenario painted by the noble Baroness can be generated.
Baroness Hollis of Heigham: My Lords, I tried to give the answer in the example called Operation Utah. I could have given any other example. Our staff have a single route to acquire a range of data which include bank credit references, credit checks, information from building societies, information about utility bills to get people's addresses and so on. What the noble Earl's proposal—
The Earl of Erroll: My Lords, they are not covered by RIPA. That is the point.
Baroness Hollis of Heigham: My Lords, as I understand the position, RIPA would require us to seek to establish separate routes of authorisation and payment for the information we seek. Both would be severely disruptive and entirely negative for the department.
Lord Davies of Oldham: My Lords, I beg to move that the debate on the amendment of the noble Baroness, Lady Blatch, be adjourned.
Moved accordingly, and, on Question, Motion agreed to.
Lord Davies of Oldham: My Lords, I beg to move that the House do now adjourn during pleasure.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 1.37 to 2 p.m. for Judicial Business and to 3 p.m. for Public Business.]

Iraq: Increased Aid
Baroness Northover Baroness Northover asked Her Majesty's Government:
Whether the increase in aid to Iraq is at the expense of aid to other parts of the world.
The Lord President of the Council (Baroness Amos): My Lords, the Government are committed to spending 90 per cent of Department for International Development country programmes in low-income countries by 2005–06. That, together with contributing to the cost of recovery in Iraq, is leading to some reductions in aid to other middle-income countries in future years.
Baroness Northover: My Lords, I thank the noble Baroness for that precise reply. On Monday, she told me that I had misunderstood the matter. I remind her that DfID stated to the International Development Select Committee—
Noble Lords: Question!
Baroness Northover: My Lords, does the noble Baroness recall that DfID stated that it would clearly be wrong to consider withdrawing DfID funding from development efforts elsewhere in the world; that she said a week later that money for Iraq would come from DfID's reserves; and that the Prime Minister wrote to a director of Christian Aid on 25th April stating:
"Funds will not be redirected to Iraq from programmes supporting poor people elsewhere"?
Is that not clear?
As the security situation in Iraq worsens—
Noble Lords: Order!
Baroness Northover: My Lords, you do not want to hear it, do you? What assurance can the noble Baroness give the House that the poorest people elsewhere in the world will not be affected by this situation?
Baroness Amos: My Lords, I shall repeat what I said on Monday. We are currently spending 78 per cent of our bilateral funding on the poorest countries in the world. We have a target to increase that to 90 per cent of our bilateral funding by 2005–06. That commitment remains. In addition, we shall be spending £1 billion in Africa by 2005–06. That commitment remains.
Again, as I said on Monday, we are considering our spending in middle-income countries. Iraq is a special case as a post-conflict country. That is the basis on which the World Bank will make a special case of Iraq for the next two years.
So our spending in middle-income countries for the current financial year will be sustained, but the ongoing reprioritisation—it is ongoing because we are moving from 78 per cent to 90 per cent—will continue. We will have to advance the closure of some programmes in middle-income countries to fund our
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programmes in Iraq as a special post-conflict country. That will not affect our commitment to the poorest countries in the world.
Lord Astor of Hever: My Lords, in the light of the decision of the Red Cross and other charities to close their offices in Baghdad and Basra, what discussions have the Government had with non-governmental organisations about the reallocation of funding?
Baroness Amos: My Lords, we have had ongoing discussion with NGOs, especially about security issues in Iraq. In fact, we have told NGOs that we will help to fund some security measures that they need to put in place, and which can be expensive, to enable them to continue to work in Iraq. Several NGOs have expressed concern about our long-term programme in middle-income countries more generally, but that would have been the case regardless of the situation in Iraq.
Lord Tomlinson: My Lords, does not my noble friend agree that the best way to ensure effective aid in Iraq would be if all our allies, especially some other countries in the European Union, would accept all the obligations of the most recent Security Council resolution, which calls on them to provide all sorts of assistance to create the security environment in which that aid can be properly dispersed?
Baroness Amos: My Lords, I agree with my noble friend. The UN Security Council resolution put in place a framework that would enable other countries to engage more effectively with that agenda. We will continue to work with our partners to ensure that they can contribute to the longer-term future of Iraq.
Lord Eden of Winton: My Lords, is there any truth in the reports that the Government are going to cut back the extremely important funding that they provide in support of the G7 pilot programme for the conservation of Brazilian rainforests? If so, why?
Baroness Amos: My Lords, that is not correct. A number of projects were agreed. They are all approaching the end of their funding period. Only one of them will undergo review because it has come to the end of its funding period, but it will continue. I will be happy to write to the noble Lord with details.
Lord Renton: My Lords, in order to restore prosperity in Iraq, should not the priority be the restoration of the oilfields, which in the past have brought a good income to Iraq?
Baroness Amos: My Lords, the noble Lord is quite right. We need to ensure that Iraq's own resources, which will be fundamental for the longer-term development effort, are restored. Noble Lords will know that the current security situation and the

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ongoing programme of sabotage is the result of a deliberate effort to ensure that Iraqi resources cannot be used in that way.
Lord Oakeshott of Seagrove Bay: My Lords, as the noble Baroness mentioned middle-income countries, what does she expect to be the effect of the money spent in Iraq on our aid to Latin America by 2005–06? In particular, Brazil has been mentioned as a middle-income country. Is she aware that some of the poorest people in the world are in middle-income countries such as Brazil?
Baroness Amos: My Lords, of course I am aware that there are poor people in many middle-income countries, but this country's strategy for our development effort has been clear. It was set out in our White Paper in 1997, when we stated that our core commitment was to the achievement of the Millennium Development Goals. The continent in the world in which we are least likely to achieve the Millennium Development Goals is sub-Saharan Africa. That is why our focus on increasing our spending in sub-Saharan Africa to £1 billion by 2005–06 remains.
It is important for noble Lords to remember that all our spending does not go through the bilateral route; 40 per cent of our expenditure goes through multilateral channels. As for Latin America, in 2001, our share of European Commission spending in Latin America was about £21 million. That level of spending will continue. The total for all multilaterals, including the Commission, was £49 million.

Rural Delivery Review
3.8 p.m.
Baroness Byford Baroness Byford asked Her Majesty's Government:
What action they will take in response to the Lord Haskins' rural delivery review.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty): My Lords, the report of my noble friend Lord Haskins was published on Tuesday. It recommended significant and wide-ranging changes to modernise the way in which government delivers rural policy. The Secretary of State's Statement in the House of Commons set out the Government's initial response. Her first priorities are immediately to review rural funding schemes and to set up an integrated agency to conserve and improve the natural environment. The Government will publish a practical implementation plan in the spring.
Baroness Byford: My Lords, what is the Minister's response to the remarks yesterday of the noble Lord, Lord Haskins, at the crops conference at which I spoke? He said:
"Defra will fall flat on its face when it tries to cope with CAP reform if it does not respond"—
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that is, to his report. Secondly, the Minister said that the department will have a review and will be modernised, but that will not happen until next year. What urgent action will the Government take to address the description of the noble Lord, Lord Haskins, of Defra's current structure as,
"a dog's dinner of the highest order"?
Lord Whitty: My Lords, we asked the noble Lord, Lord Haskins, to look at the delivery of the policy and the mechanisms for delivery. Defra's inherited structure, particularly from MAFF, has long been recognised as in need of serious reform. But we should also look at each of the agencies and NDPBs involved in delivery and, as the noble Lord, Lord Haskins, said, bring delivery further down the line so that the regions and, to some extent, local authorities bring the action closer to rural businesses and farmers. That will take time, but we need to do it in parallel with the delivery of the change in the common agricultural policy, whose implementation starts at the beginning of 2005. We intend to clarify by then the proposed structure and to deliver the outcome of CAP reform in that way.
Earl Peel: My Lords, does the Minister not agree with me that, if the Government are to remain consistent with their previous responses to other reports produced by the noble Lord, Lord Haskins, they have only option: to disregard completely this new tome from the noble Lord?
Lord Whitty: My Lords, I am not clear what report the noble Earl attempts to draw to our attention. We have had very effective reports from my noble friend Lord Haskins, particularly on recovery from foot and mouth disease, much of which was implemented and has guided government policy. That will also be the case with this report. We accept the broad principles of the report. We will need to sort out some details. But the most important thing is to find the best means of delivery for the best policy. Those two aspects need to be taken in parallel.
The Lord Bishop of Hereford: My Lords, although there are convincing arguments in the report about the devolution of the delivery of many rural services to a more local level, can the Minister assure us that there will be proper parliamentary debate before any firm changes are established? Is he aware of the strong need to maintain the autonomy and the expertise of English Nature, and to give a great deal of training to RDAs if they are to take over, with their present strong urban bias, the delivery of rural services?
Lord Whitty: My Lords, devolution of responsibility will need to be accompanied by an assurance that we have the correct staff in place with the correct orientation, towards rural business in particular. On English Nature, my right honourable friend the Secretary of State made clear that we will continue to rely heavily on independent advice from the new agency proposed by the noble Lord, Lord Haskins. General parliamentary debate is not a matter for me.

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However, if we are to change the status of English Nature and other agencies, there will be legislative implications, which, I am sure, will receive thorough consideration by this House.
Lord Carter: My Lords, there is an overdue need for the rationalisation of the plethora of local schemes and initiatives in the countryside. However, if responsibility for delivery is transferred from the centre to local authorities and the RDAs, will they have the necessary expertise? The existing agencies have that expertise at ground level. Can we ensure that it will survive after the changes are implemented?
Lord Whitty: My Lords, there is substantial expertise at the centre, both in the department and the agencies. The noble Lord, Lord Haskins, proposed that we bring those together and move them closer to where rural businesses operate and farming is carried out, so many of the same people will be involved and undoubtedly that expertise will be retained.
Baroness Miller of Chilthorne Domer: My Lords, there is no doubt that local authorities, as democratically elected bodies, are in a very good position to receive information from communities and to deliver services. However, can the Minister assure me that in this case the Government will not do their usual trick of asking local authorities to deliver an awful lot more with no extra money?
Lord Whitty: My Lords, that is not a correct description of providing greater powers to local authorities to deliver closer to where enterprises operate. If significant responsibilities for delivering schemes are devolved to local authorities, or indeed to RDAs, we will ensure that the resources go with them.
Lord Tanlaw: My Lords, what role will broadband play in delivering his department's services to small businesses, post offices, farmers and schools? I have read the report— cursorily, only twice—and can see no reference to easy broadband access for any of the units that would require its services.
Lord Whitty: My Lords, it is to be hoped that discussions on the changes to the CAP, for example, can be delivered via broadband to the central systems. We therefore need to provide farmers with the means to deal with detailed information, such as mapping, that can be delivered only through broadband. My colleagues in the DTI have committed themselves to ensuring that we get broadband to rural areas so that farmers and other rural businesses can take advantage of it.
Lord Tebbit: My Lords, to what knowledge was the noble Lord, Lord Haskins, privy that was not available to Ministers when they created that dog's dinner, Defra?
Lord Whitty: My Lords, as the noble Lord will know, in the creation of government departments, we
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are often required to accept an inheritance that has had its own ethos and status for many years. Under all governments MAFF had operated in a certain way. There may have been an era when that was the appropriate way, but it was more akin to a Stalinist production ministry than to a department trying to engage the enterprise and creativity of our agricultural sector to meet the economic and environmental needs of the modern age. We had to live with that and to change it; we need to change it further. The insights of the noble Lord, Lord Haskins, have been very helpful in pointing the way.

Yoghurt
3.16 p.m.
Lord Monro of Langholm Lord Monro of Langholm asked Her Majesty's Government:
Whether there are any plans by the European Union to ban the use of the descriptive term "yoghurt" as used in the United Kingdom.
The Parliamentary Under-Secretary of State, Department of Health (Lord Warner): My Lords, the European Commission issued a consultation document in October covering the composition and labelling of yoghurt and yoghurt-like products. The Food Standards Agency is consulting interested parties on the document and will seek to ensure that the interests of UK consumers are fully taken into account.
Lord Monro of Langholm: My Lords, I thank the noble Lord for his Answer. However, how come all the information in press reports suggests that yoghurt must now be labelled as "fermented milk pudding", which would be a disaster for the British dairy industry? I hope that the Government can squash that rumour forthwith.
Does the Minister agree that the farming industry is going through very difficult times? It still awaits good leadership on the common agricultural policy and how the grants system will work. The National Farmers' Union has not been consulted in enough detail on the host of orders coming out of Brussels. Farmers are finding the provisions difficult, expensive and time-consuming to implement. It is time that the Government began to help agriculture instead of sitting on top of it.
Lord Warner: My Lords, as I recall, the question was about yoghurt, which is what I proposed to respond to. The noble Lord may be aware that most of the yoghurt that we eat in this country is mild, using lactobacilli species other than the real McCoy, which is lactobacillus delbrueckii sub-species bulgaricus. Other countries who eat the real McCoy are very concerned

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that there should be no misleading labelling. Those countries are as entitled as this one to have their views considered by the Commission.
Lord Wright of Richmond: My Lords, can the Minister assure us that those plans will be reconsidered when, and if, Turkey joins the European Union?
Lord Warner: My Lords, I have no idea how long the consultation process on the Commission's document will take.
Earl Ferrers: My Lords, if the word "yoghurt" is a misleading description, does the noble Lord not agree that "fermented milk pudding" is even worse and more misleading?
Lord Warner: My Lords, I have no idea whether we are going along the path of "fermented milk pudding", but I see nothing in this document to suggest that we are.
Baroness Barker: My Lords, does the Minister agree that it is an important scientific point that live yoghurt has been demonstrated to have pro-biotic qualities and is important in the treatment of conditions such as candidiasis? It is therefore important that consumers have full knowledge and choice. Does he agree that if we do not go down that route it will not be long before we have on our supermarket shelves small pots labelled "I can't believe it's not milk"?
Lord Warner: My Lords, the noble: Baroness is exactly right. This issue is about the public not being misled by the labels on particular products. It is important that the public understand what they are eating.
Baroness Byford: My Lords, will not the Minister fight the corner of British producers to keep the name "yoghurt", which we all understand? Why have milk and milk chocolate been allowed to keep their names when people on the Continent view those products in a different light? Surely, what is good for the goose is good for the gander.
Lord Warner: My Lords, noble Lords on the Benches opposite seem to get rather excited when any document emanates from the Commission. There is no plan to drop the word "yoghurt". We are considering only whether there are problems with products being properly labelled. I am confident that the term "yoghurt" will survive whatever the outcome of the consultation. The question is whether any qualifying words should be added to make it clear to the public what is in the container.
Baroness O'Cathain: My Lords, is the Minister aware that the general public think that yoghurt is a healthy product? In view of the fact that one in three adults and one in four children are either overweight or obese, it is probably regarded as a good thing to eat yoghurt. However, there is a problem if it is labelled as
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fermented milk pudding because, by its nature, "pudding" means something that is fattening and not very good. The Government should resist any attempt, even if it does not come about, to ensure that we can still have our yoghurt.
Lord Warner: My Lords, the Government's policy is that people should pursue a healthy balanced diet— children included. I do not know where this argument about fermented milk pudding comes from. It is not part of the consultation in which the Food Standards Agency is involved.
Lord King of Bridgwater: My Lords, is the Minister aware that behind these problems is a serious issue. I was with a manufacturer of healthy bacilli yesterday. It is a growing UK industry and also has great benefits in animal husbandry. The manufacturer said that it is now quite impossible to trade with Europe because the degree of regulation and complication has made it impossible to carry on any active trade in that area at all.
Lord Warner: My Lords, I fundamentally disagree. This exercise it is about ensuring that consumers throughout Europe do not have misleading labels on their products.
Lord Monson: My Lords, the Minister has said that he does not know where the term fermented milk pudding comes from. I flew back on a British Airways flight from Lyons on Monday and at lunchtime I was served exactly that—fermented milk pudding. It splattered all over me, which tends to happen on planes because of pressurisation.
Lord Warner: My Lords, the fermented milk pudding eaters of this world should have their product properly labelled in the same way as consumers of yoghurt.

Judicial Independence
3.24 p.m.
Lord Dholakia Lord Dholakia asked Her Majesty's Government:
In the light of recent comments made by the Lord Chief Justice, what discussions are taking place with him to ensure that the independence of the judiciary is not compromised.
The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton): My Lords, I have had several constructive meetings with the Lord Chief Justice about the constitutional reforms I announced to this House on 14th July. I expect to have further discussions. Protecting judicial independence is fundamental and was one of the principal reasons why the reforms were introduced. I am committed to ensuring that such independence is maintained and strengthened.
Lord Dholakia: My Lords, I am grateful to the noble and learned Lord for that Answer. However, despite all the assurances given to the your Lordships' House, it is clear from the comments of the noble and learned Lord the Lord Chief Justice only last Friday that judicial independence is at risk from the Government's constitutional reforms. The Judges' Council report states that the reforms that are proposed,
"would enable a future government to create a judiciary that was committed to its own political agenda by selecting criteria that would result in the appointment of judges sympathetic to its policies".
Does the noble and learned Lord accept that judicial independence is at the heart of our democratic process? What action does he propose to take to ensure that the appointment and functions of the judiciary are not tampered with?
Lord Falconer of Thoroton: My Lords, I entirely accept that judicial independence is at the heart of our constitution and our democratic process. I would also entirely accept that the judges, the Government and I are at one in ensuring that that independence is preserved under the changes that we introduce. One way in which we seek to embed and strengthen judicial independence is by taking the ability to appoint judges from the hand of a government Minister and placing it much more firmly in the hands of an independent appointments commission. We must discuss the matter in detail with the judges to ensure that we get the detail right.
Lord Sheldon: My Lords, is my noble and learned friend aware that the law of unintended consequences can have powerful results in a country without a written constitution? What we do have is a tradition that has given the judiciary the independence that has been entrenched in that particular tradition. Will my noble and learned friend acknowledge that the role of Lord Chancellor has provided the high position and special standing as the head of the judiciary from which we have all benefited? Is he absolutely certain that, before tinkering with one of the foundations of our liberties, he will be able fully to justify these changes?
Lord Falconer of Thoroton: My Lords, as we have made clear at every stage, the preservation and strengthening of the independence of the judiciary is what we seek to achieve. As I said in answer to the noble Lord, Lord Dholakia, it is a fundamental part of our constitution. That is why the detail matters and that is why we have adopted our approach. As somebody said this morning, imagine if we had said to Parliament or the judges, "How about having a Cabinet Minister appoint the judges, discipline a large number of them and decide where individual judges sit?". We do not believe that that is a sensible basis on which to continue. The independence of the judiciary is embedded in our constitution. We will ensure that that is reflected in the statute that we introduce.
Lord Ackner: My Lords, will the noble and learned Lord explain why the Sentencing Guidelines Council set up by the Criminal Justice Bill was pre-empted by the Home Secretary producing Schedule 19, which ups by 50 per cent the sentence previously approved by the Lord Chief Justice himself and the Lord Chancellor? In the words of the Lord Chief Justice in his memorandum deposited in the Library, that has made it quite impossible to accommodate those who, as a result of that upping by 50 per cent—without any consultation—will over-fill the prisons and, as a result, it will show that judicial discretion has been tampered with by ministerial decree.
Lord Falconer of Thoroton: My Lords, there is no doubt that sentencing is a matter for judges and Parliament together, sometimes by setting minimum sentences, sometimes by setting maximum sentences and, in the case of murder, by setting out principles in statute. As has been made clear in all of the debates in this House, the provisions set the starting point in each individual case. It is then for the judge to reach a conclusion about the right sentence based on the merits of the case.
Lord Mayhew of Twysden: My Lords, to what deficiency on whose part does the noble and learned Lord the Lord Chancellor attribute the Lord Chief Justice's present anxiety for the future independence of the judges?
Lord Falconer of Thoroton: My Lords, so far as the current position is concerned, there is absolutely no deficiency whatever in the independence of the judges. However, as was made clear on 12th June when the reforms were first announced and on 14th July, we need to embed that independence and look forward to the future. As we made clear, having one person making all the appointments is not an appropriate way forward. An independent Appointments Commission preserves independence and provides a better way for the future. Every other modern, developed democracy has been able to have that. I think that we can.
Lord Thomas of Gresford: My Lords, will the supervising and disciplining of the judiciary be in the hands of an elected government Minister, such as the Home Secretary, after these reforms come into effect?
Lord Falconer of Thoroton: My Lords, the disciplining of the judiciary is absolutely vital to ensure the independence of the judiciary. We made it clear in the paper that we produced on 14th July that, with the absence of the Lord Chancellor—with the abolition of that role—new arrangements would have to be introduced. Those arrangements must give the judiciary

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confidence. They cannot be ordered to give particular decisions by the executive. That is vital. It would have to be a partnership between the executive and the judiciary.
Lord Renton: My Lords, will the noble and learned Lord confirm that some of our ablest judges have served in Parliament and belonged to various parties?
Lord Falconer of Thoroton: My Lords, indeed, if one looks back in history, some of our ablest judges have indeed served in Parliament and have been members of political parties.
The Earl of Listowel: My Lords, is the noble and learned Lord the Lord Chancellor concerned that in the Criminal Justice Bill the minimum starting point is being raised from 12 to 15 years old for those children who kill? Only last May, the Lord Chief Justice, with advice from the Sentencing Advisory Panel, decided that the minimum starting point should be 12 years old. Is the Lord Chancellor concerned that a minimum starting point at 15 years old is being imposed on the judiciary? Does that not inevitably lead to an increase—perhaps only a slight increase—in the likely length of sentence for those children? Is he not concerned about that?
Lord Falconer of Thoroton: My Lords, I know that the noble Earl has participated fully and helpfully in all the debates on the schedule in which the juvenile figure is mentioned. There are different starting points for different ages. Most juveniles convicted of murder are convicted at the age of 16 or 17. The schedule allows a starting point for different ages. It also allows judges to take into account the precise age at which the offence was committed. There is still a substantial discretion.

Regulation of Investigatory Powers (Intrusive Surveillance) Order 2003
3.30 p.m.
Debate resumed.
Viscount Goschen: My Lords, those noble Lords fresh to the debate, who did not attend before lunch, will have missed the extraordinary spectacle of the noble Baroness, Lady Hollis, arguing vigorously against government legislation—that is, the orders regarding the Regulation of Investigatory Powers Act being considered today—being applied to her own department. A number of noble Lords in the Chamber seemed to have puzzled faces because the noble Baroness's comments appeared to drive a fairly substantial coach and horses through the arguments being advanced by her noble and learned friend the Attorney-General as to the effectiveness and the necessity of the regime.
Indeed, we live in dangerous times. No Member of the House who spoke on any of the orders today—either against or for the amendments—would do anything
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which would weaken the ability of the appropriate agencies to prevent terrorism, nor to prosecute serious offenders. However, we must recognise that the public's trust in the integrity of the law enforcement process will be weakened if advantage is taken by the Government to take additional powers in this climate without proper safeguards. If it were realised beyond this Chamber and beyond the speciality press the degree to which the Government have awarded themselves new powers under the two Acts to which we are referring—that is, the Regulation of Investigatory Powers Act and the Anti-terrorism, Crime and Security Act—there would be considerable disquiet.
In addition, there is the great laundry list of organisations contained in the communications data order which is being added to those bodies which can acquire communications data. Not only the police, security services, Customs and that type of organisation, but also National Health Service trusts, ambulance services, the Department of Transport and fire authorities will be able to acquire all types of data under Section 21(4) of the Act. Of course, those are all very worthy bodies, but as the noble Earl, Lord Erroll, asked just before lunch, why could their inquiries not be forwarded through the police? Would it not be much more appropriate to use a regime through the police, such as that for search warrants? If the net is cast absurdly wide, abuse would not be just expected, it would be guaranteed. With the addition of the bodies contained within the communications data order, how many additional individuals will be authorised to acquire the data?
There has also been a great deal of argument about whether the requisite powers already exist and whether they are just being brought under the safeguards of the Act. Up to a point, that may be so. But are the original powers being rescinded? When my noble friend Lady Blatch asked that question this morning, I think that the answer from the noble and learned Lord the Attorney-General was that if the powers were rescinded, it would be difficult not to disrupt other powers. That appears to be an extremely weak argument. How can the Government have it both ways? How can they say that while they have the existing powers they would like to have them under a new regulatory regime, but they will retain the old powers, just in case.
We are also concerned about the definition of communications data. I recall the long and tortuous debates—the noble Lord, Lord Bassam, represented the Government—when we discussed the original Regulation of Investigatory Powers Bill and the great changes made in another place because of those representations. The key point is that it is far from clear. It was not clear three years ago and it is less clear now.
In an age of cookies and hyperlinks being attached to e-mails and voice mail being accessed electronically, are these communications data or communications themselves? They may sound like esoteric points, but they are very important. The noble and learned Lord drew a firm parallel between the interception or the monitoring of communications data and the interception of communications itself. When communications largely were written by letter, that clear definition could be

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made; now it cannot. As we have heard, a firm picture can be built up of an individual's life and with whom he or she is in contact, just by the use of communications data.
We need specific answers from the noble and learned Lord about the capacity that the commissioner will have to oversee the enormous number of requests. The Home Office has admitted to at least 500,000 possible requests. I should be interested to know how that figure compares with the total number of police investigations. But it is a huge number, which the industry thinks might be three times higher. We have heard from some speakers today that the commissioner will have a staff of four to monitor a possible 1 million transactions, which would be extraordinarily difficult to do. What is the commissioner's budget? How many staff will there be? How many inquiries do they expect?
The noble Lord, Lord Phillips of Sudbury, also put a powerful case for a provision to be made to require the commissioner to inform the subject of a wilful misuse, subject to the interests of national security. At Question Time yesterday, the noble Baroness, Lady Scotland, was asked that exact question by the noble Countess, Lady Mar. The Minister ducked the question just as it was ducked earlier today. How can one complain without knowing whether abuse has been made of one's own data?
A number of serious concerns have come from around the House. I suggest that satisfactory answers are needed before accepting the orders.
Lord Goldsmith: My Lords, I shall take the orders in turn. Many points have been raised; I shall try to deal with what seem to be the main points raised in opposition to the orders. If there is a point or a question that I do not address, I shall seek to do that later. No doubt noble Lords who consider that it is necessary for the purposes of the debate to ask questions will do so, but I am very conscious of the time and the other business of the House.
I shall start with the intrusive surveillance order. If my memory and my notes are right, the only questions in relation to that order were those asked by the noble Baroness, Lady Blatch. First, how will that now relate the system in Northern Ireland to that in England, Wales and Scotland? Secondly, why cannot the Northern Ireland police deal with the matter?
As the noble Viscount, Lord Colville, said, this will bring Northern Ireland into line with England and Wales. It will mean that the Northern Ireland Prison Service will be able to do what the Prison Service in England and Wales can do. Rather than creating a different system, it will be brought into line.
In answer to the question why the police cannot deal with it, it is for the prison services to manage their estate, not for the police to do so. Just as in the case of England and Wales, if there were any concerns that a mutiny or a hostage situation in a prison might arise,
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it would be for the prison services to take steps to deal with it, and so it will be for the prison service in Northern Ireland to deal with.
Lord Smith of Clifton: My Lords, I thank the noble and learned Lord for giving way. I apologise for having intervened at an inappropriate moment but I, too, asked a question about the prison service for Northern Ireland.
Lord Goldsmith: My Lords, the noble Lord is quite right; I was just about to come to that. He asked whether the Northern Ireland Assembly can be told about intrusive surveillance conducted by the Northern Ireland Prison Service. The answer is no, but the Chief Surveillance Commissioner reports on the exercise of powers under Part II of RIPA, and that report will be published by Parliament. So the information will be made available in that form, certainly to the Northern Ireland Assembly. However, no report as such is made to the Northern Ireland Assembly. I hope that I have given a reasonable assurance.
As regards the first order on intrusive surveillance, the only objection raised about it, if objection it was, was the question: why cannot the police deal with it? The answer is that it is simply not appropriate to tell the Prison Service that, while it is responsible for managing the estate, it must look to someone else for this. We do not expect that to happen in England and Wales and we should not expect it in Northern Ireland. I hope that, at least so far as concerns that issue, the noble Baroness will not press her amendment.
I turn now to the second order covering directed surveillance and covert human intelligence sources. I did not note any specific objection made to that order. Thenoble Baroness, Lady Blatch, asked a question about the definition of a "service manager". Perhaps I may deal with that.
Baroness Blatch: My Lords, for the sake of accuracy, I believe that the noble and learned Lord is speaking to the third order on the Order Paper, not the second one.
Lord Goldsmith: My Lords, yes, but it is the second order that I dealt with earlier; I addressed them in a different order. However, the noble Baroness is quite right. Perhaps I may continue to deal with the orders in the same way that I addressed them in my opening remarks.
The only point I noted in relation to this order was a concern expressed about the description of a "service manager". I took that reference in the order to be the identification of prescribed officers for local authorities. The description does not arise in relation to any other body, but I want to refer to a comment made by the noble Baroness about the Environment Agency. The order states that the prescribed officer for local authorities is an assistant chief officer, assistant head of service, service manager or equivalent.

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The simple point is this: to find titles for different local authorities which represent the same level of seniority requires the use of a number of terms, reflecting how they are used in different local authorities. I am told by the local authorities and by the commissioners that it will be well understood that to describe someone as a "service manager or equivalent" is to describe someone who is second or third in the chain of command, similar to an assistant chief officer or an assistant head of service. I can assure the noble Baroness that the term does not cover a catering services manager.
The noble Baroness raised this point in relation to the Environment Agency, as I recall, to ask whether it could be someone who is simply a team manager. I may have misunderstood her, and if so I apologise unreservedly.
Baroness Blatch: My Lords, that is what it says in the order.
Lord Goldsmith: My Lords, the order does not refer to a "team member", it refers to an "area management team member". Being a member of an area management team is not the same as being simply a team member. With respect, that point is not a reason for opposing the order.
I turn to the communications data order, listed second on the Order Paper and probably the one on which most time was spent in debate. I start by addressing a question that was touched on by many noble Lords: why does it matter to pass this order? Two things will happen if noble Lords do not accept the order. First, by voting it down, noble Lords will be voting to strip away the safeguards which are contained in the Act and the order. It will mean that there will be no purpose limitation on access by individual agencies; there will be no limitation on the type of data that they can access; there will be no limitation on the level of person who has to authorise; there will be no independent oversight; and there will be no report to Parliament.
3.45 p.m.
The Earl of Erroll: My Lords, I rise to correct the noble and learned Lord the Attorney-General. Under the existing powers on which we would have to fall back, all those protections are already in place. Further, under the Data Protection Act 1998, the Chief Surveillance Commissioner is at present referring material to the information commissioner in order to protect the individual. I agree that, under a proper R1PA, the position would be better, but we now need the safeguards to be properly in place.
Lord Goldsmith: My Lords, in a moment, I shall outline the present position as regards the way that particular agencies access information. However, there can be no doubt about the safeguards which are set out in the order, requiring that data can be gathered only for particular purposes, only for certain types of data and authorised only by particular persons, and
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oversight carried out only by a particular commissioner who reports to Parliament. All those would disappear if this order does not go through.
Lord Lester of Herne Hill: My Lords, I am grateful to the noble and learned Lord the Attorney-General. Does he agree that that catastrophic consequence would arise only if the orders were not replaced by new orders that contained more effective safeguards? There is nothing to stop the Government coming back to the House with fresh orders containing more effective safeguards.
Lord Goldsmith: My Lords, we are now bringing to the House orders containing effective safeguards. To reject the orders would mean that the safeguards that we are seeking to put forward, safeguards that the industry wants, will not be put in place. With respect, it is perverse to say, "We are not prepared to accept an order containing safeguards because we are concerned about those safeguards". If we want to build on the safeguards which are set out in the order, there are ways to deal with those concerns.
I do not doubt for a moment the importance and sincerity of the questions that have been raised. The Government have made it clear that they accept entirely that the question of privacy is extremely important. Last year the Home Secretary accepted that we had got it wrong. A consultation document was put out that was well received, and I hope that noble Lords will have had the opportunity to look at it.
Let me identify some of what will happen in the future if this order goes through. We will be able to look at the commissioner's annual report. Some of the questions raised by noble Lords were based on the assumption that either there is or there might be abuse. The commissioner's report, enabled by this order, would allow us to look at what the commissioner finds. If the commissioner finds general abuse and the need for more safeguards, then that would be a matter for consideration. Alternatively—I suggest 1o noble Lords that this would be very important—if the commissioner finds that a particular authority is using the powers in inappropriate ways, he can recommend to the Home Secretary that such a person should be taken off the list. That safeguard would not be introduced if the order is voted down.
We will be able to look at the commissioner's resources. The question has been put to the commissioner as regards what resources he will need in order to take on these new responsibilities. He has not yet come back to the Home Secretary with his response. However, what resources he needs will be made available to him.
Lord Phillips of Sudbury: My Lords, I am most grateful to the noble and learned Lord for giving way. Is he suggesting that the Government are minded to bring in further powers, ones that are not available either in the present RIPA order or in the Act, which would enable the Interception of Communications

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Commissioner to take steps with regard to individual transgressions and to name the people concerned in his report?
Lord Goldsmith: My Lords, this relates to the amendment tabled by the noble Lord, Lord Phillips of Sudbury. If he will permit me, I should like to deal with it when I come to the amendment because I have something to say which I hope he will find helpful in relation to that issue.
I said that I wished to make two points. The first point is that the safeguards and the strict regulation that we have been discussing will not be brought in if the orders are voted down. The second point concerns what will happen to the requirement that authorities should be able to exercise these powers, which all noble Lords who have spoken agree is extremely important.
Without bringing in the RIPA power for access to communications data, authorities will be thrown back on one of two alternatives. The first alternative, which many authorities adopt at the moment, is to call upon communications service providers voluntarily to disclose data under the Data Protection Act. There is an exemption for non-disclosure. The noble Baroness looks surprised, but that is the fact. Communications service providers currently provide information voluntarily under an exemption in the Data Protection Act, most usually under the crime exemption provided in Section 29(3).
This voluntary disclosure places the communications service providers in the difficult position of having to make a decision of whether or not to exercise the exemption. With the police service, that may well be a clear decision, but with other public authorities exercising their statutory functions it may be less clear. Where a public authority which does not have an investigatory function tries it on, it may have no idea whether or not it should exercise the exemption.
Baroness Blatch: My Lords, the noble and learned Lord the Attorney-General said that if the order was not passed the public authorities would have to fall back on the voluntary powers. But it is the Government's intention to have a voluntary scheme. They have not yet expressed their intention for a compulsory scheme. Is the noble and learned Lord now talking about the merits between a voluntary and a compulsory scheme?
Lord Goldsmith: My Lords, unless I am very much mistaken, the powers in RIPA which would be conferred as a result of the access to communications data would enable people to require information to be passed to them. I am getting strong nods from the Box. We are not talking about retention of data; we are talking about the access to communications data. RIPA provides powers which do not exist at the moment and which will not exist unless and until this order is brought into effect.
As to what will happen if communications service providers simply go back to the Data Protection Act exemption, there are potential difficulties. Some have
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already arisen in certain cases. I am told that the Maritime and Coastguard Agency has been frustrated in trying to obtain communications data that would assist in the location of individuals reported lost in coastal waters. What happens there is that someone manages to make a call but locating that person, who does not know where he is in a storm, depends upon being able to track traffic data. The agency has been unable to obtain that information in certain cases because the service providers have been unable to assure themselves that they were exercising their exemption under the Data Protection Act appropriately.
The noble Viscount, Lord Goschen, referred to the NHS. The NHS Counter Fraud and Security Management Service has tried to obtain communications data to investigate NHS fraud—which is very important to the taxpayer and to the country—and it has found that providers are unclear about what is their service function and whether it is appropriate to disclose data.
Communications service providers have made clear that once this part of the Act comes into force they will no longer disclose information under the Data Protection Act. There is a real risk that, if this order does not come into effect, some providers will take it as a signal that Parliament is of the view that they should not provide the information. That would create further confusion and could lead to great problems, an inability to deal with important matters and perhaps even a risk to lives.
The Association of Chief Police Officers has told the Home Office and, I understand—if I am wrong, I shall withdraw the point—the official Opposition that should the communications data order fail the police service will decide to stop relying on the good will of communications service providers, as they do at the moment, and instead rely upon compulsory Police and Criminal Evidence Act production orders issued by circuit judges.
The problem in relation to that is that some crimes will go uninvestigated because the powers relate only to the investigation of serious arrestable offences; the industry will not be recompensed because the arrangements in place for providers to be recompensed will not be required; the Crown Courts would be flooded with applications for production orders; industry would incur extra legal costs in attending hearings; and there would be inconsistency because the established single point of contact system between the police and the industry would break down. The Government want to ensure that a single point of contact with the industry is established.
The noble Lord, Lord Jenkin of Roding, asked about local authorities. There will be some cases where local authorities will be able to rely upon existing powers—for example, under the Timeshare Act trading standards officers have powers to obtain information. But they do not have such powers in all cases and they would have to go back to relying upon voluntary disclosure by service providers—if they will do it—under the Data Protection Act.
So there is absolutely no certainty at all that voting this order down will not matter or that everything will go on as it does at the moment. There will not be the

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regulation in place; there will not be the safeguards in place; and there is a very real risk that information that ought to be provided for the protection of all our citizens will simply not be available.
Lord Lester of Herne Hill: My Lords, the noble and learned Lord's reply is predicated on an all or nothing approach. He is saying, "You either accept the orders or you have no orders, and then look where we are". But I do not understand why one cannot have the orders reconsidered to include more effective safeguards than there are already. In that way we could reach a fair compromise that protects the right of privacy and balances it more appropriately.
Lord Goldsmith: My Lords, we need the orders now. We have reached the stage where, having brought forward the orders, the amendments of the noble Baroness, Lady Blatch—I am not talking about the non-fatal amendments—would prevent the orders having effect at all. There is no getting away from it. That is what would happen.
Baroness Blatch: My Lords, perhaps I may suggest to the noble and learned Lord that he is being extremely disingenuous. During the course of my speech to these amendments I emphasised many times that the purpose of both my fatal amendment and the supporting amendments was to give the Home Office time to take them away and re-present:hem. I made it clear time and again that we support the principle; that we support the framework of regulations; and that we believe it is right that all people should come under the same regulatory framework. Everything I said was constructive to that end. The idea that we would be voting the orders out for all time so that their powers are never exercised was not part of my presentation.
Lord Goldsmith: My Lords, I hope, in turn, that noble Lords opposite have heard what I have been trying to say about how we can see if the scheme is operating. I shall deal with some specific points, including those made by the noble Lords, Lord Phillips and Lord Lester, but if the orders are voted down and do not go through today, they will not come into effect.
The question of the noble Lord, Lord Lester, presupposed that the order could introduce more safeguards. The power that Parliament has given under this order is to add authorities and to place restrictions. That is what has been done. I do not believe that the order could, for example, do what the noble Lord, Lord Phillips, would like it to do. There may be another way of achieving that, but it cannot be done by this order. It is not, therefore, a reason for not accepting the order now. Those concerns have been expressed.
4 p.m.
Viscount Goschen: My Lords, I am grateful to the noble and learned Lord for giving way. Could the orders not be amended or brought back with additional restrictions not only in terms of the four
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columns detailing the bodies that can acquire data at the moment but also to restrict the type of data, not just the purpose for which they can obtain them., which is an existing restriction? I am talking about an additional restriction to acquire the type of data—not just that described under paragraphs (a), (b), (c) and (d). In that way, the Maritime and Coastguard Agency could acquire location data about mobile telephones, for example.
Lord Goldsmith: My Lords, it is already restricted in two ways. First, the order carefully identifies which sort of communications data a particular agency can obtain. There is a difference between what is called traffic data, which tells you about the location of individuals, and subscriber details, which tell you who has a certain telephone number. Certain agencies are limited to the lowest category of communications data. Someone wanting to know who is the cowboy who has been going around fitting dangerous gas heaters, to use the example of the noble Lord, Lord Jenkin, may be able to identify someone only because they have a card with a telephone number. That is subscriber information which one would need.
Lord Jenkin of Roding: My Lords, with respect, the local authorities are already using many of these powers under RIPA. Of course they do not deny that if the order comes in, there would be additional safeguards and additional powers. As they point out, the same powers will be conferred on a number of additional bodies. I was greatly reassured by what my noble friend said; the local authorities will not be deprived of using their powers—they have RIPA powers already.
Lord Goldsmith: My Lords, they do not have RIPA powers at the moment to access communications data because the order has not been passed so the powers have not come into force. They have the ability to ask communications service providers voluntarily to provide information to them under the exemption in the Data Protection Act. That is a voluntary provision by the communications service providers except in those cases where there are specific powers. There are some specific powers—there are timeshare powers, the Serious Fraud Office has powers, and so forth. Local authorities are not operating powers under RIPA to get access to communications data because the order has not come into force.
The Earl of Erroll: My Lords, the noble and learned Lord made a point about traffic data. This is where we had problems, as I mentioned in my speech. Regarding paragraphs (a), (b) and (c), I cannot find the Maritime and Coastguard Agency among the bodies that are allowed to access the traffic data which the noble and learned Lord has defined as the stuff that tells you where the person is. I cannot find the agency in the list of bodies that can access such information. I can only see the security services, intelligence services, Government HQ, the Armed Forces and the police. In fact, the Maritime and Coastguard Agency will not be able to access such data under these powers unless it

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comes under paragraph (b), in which case a huge number of bodies also have access to them, which was my point earlier. Subsection (4)(a), (b) and (c) give the definitions of data. This is one of my points—it is not clear and the blurring of the edges is causing us problems. The Government should go through this; some caveats have to be included so that they can come back with something better in the future.
Lord Goldsmith: My Lords, with a little assistance, I am sure I can answer the noble Earl's question in a moment.
I said in answer to the noble Viscount, Lord Goschen, that there were two points. First, the order restricts the type of data. Secondly, as I said this morning, the authorities cannot use their powers except for a function that they have. That, in itself, results in a significant restriction on what they do. I respectfully commend the consultation paper to noble Lords because it sets this out so clearly and deals with a lot of the concerns that have been expressed.
In answer to the noble Earl, the Maritime and Coastguard Agency comes under the area operations manager of the Department of Transport. That is on page 5 of the order.
I want to deal next with the shortcomings that are alleged. I am trying to identify from what noble Lords have said what the shortcomings in the legislation are. The first such concern is whether there is any penalty for misuse in the legislation. There are other sanctions for misuse of data. Section 55 of the Data Protection Act makes it an offence knowingly or recklessly to obtain personal data without the consent of the Data Controller. An official of a public authority misusing the power to acquire communications data could commit this offence.
The Earl of Erroll: My Lords, I am terribly sorry, but the answer the noble and learned Lord has given me is nothing to do with the question. Page 5 is about the people who are authorised and the purpose for which they are authorised. My question was about having access to traffic data, which the coastguard agency is not allowed, which will give them the location.
Lord Goldsmith: My Lords, may I draw the noble Earl's attention to page 4? In Part 1, under the heading to Schedule 2, it reads:
"Individuals in additional public authorities that may acquire all types of communications data within section 21(4)".
I hope the noble Earl is now satisfied.
The Earl of Erroll: Absolutely, my Lords.
Lord Phillips of Sudbury: My Lords, again, I am grateful to the noble and learned Lord for giving way. The definition of personal data in the Data Protection Act is much more limited than communications data under RIPA. I have checked that with the noble and learned Lord's officials.
Lord Goldsmith: My Lords, I was going on to say that there are certain safeguards and penalties already.
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However, the Home Secretary acknowledged in the consultation paper that there is a concern about where the balance should lie between respect for individual privacy and the need to protect the public from crime and terrorism. It is not limited to access to communications data—it is much wider than that. It includes the use of CCTV, the use of automatic number plate recognition cameras, covert surveillance, and so forth. I entirely understand why notifying individuals where that right has been improperly interfered with is a concern. It has been raised by noble Lords and has been acknowledged in the consultation paper.
The Home Secretary and his officials are working on proposals which will address the privacy balance with the organisation Liberty and researchers working for the office of the Information Commissioner. Obviously, it is for the Home Secretary to say when he will bring forward proposals for consultation by the public and Parliament, but proposals will be brought forward, perhaps early next summer. So the issue about which the noble Lord is concerned is under active consideration as part of a wider question of the balance between privacy and powers. I hope that the noble Lord will find it helpful, therefore, to know that the issue he is concerned about, which cannot be sorted in this order as there is not the power to do it, is under active consideration. The very cogent remarks that he and other noble Lords have made on this subject will be taken into account in that consideration. I hope that he finds that assurance helpful.
The noble Baroness referred to the sharing of information, particularly with overseas authorities. I want to deal with the big points. This raises two issues: first, will United Kingdom public authorities acquire communications data on behalf of foreign agencies? The answer to that is yes, but it will happen only where the normal safeguards apply—that is, it is necessary for the prevention of crime and, in this respect, contrary to the belief of the noble Baroness, the dual criminality requirement applies in relation to the use of this part of the powers. It will have to be proportionate in the particular circumstances of the case, and the authority in question will have to assess that for itself.
The second issue concerns what other restrictions are in place. The vast majority of public authorities which obtain communications data have no need to disclose them to anyone outside the United Kingdom. There are some occasions when it might be necessary and right to do so. As noble Lords said, in debate on the Crime (International Co-operation) Bill, with trans-national organised crime it is often very important that there is co-operation between international agencies in the right case.
If the foreign agency is within the European Union, it will be bound by the data protection directive and its own data protection legislation. The data will be protected in the same way there as they are here. The directive also recognises the need to protect data that might be transferred out of the European Union. The eighth data protection principle says:
"Personal data shall not be transferred to a country or territory outside the European Economic Area unless that country or territory ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data".

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That is a requirement before such information should be passed across. The public authority that contemplated disclosing information would need to assess that data would be adequately protected and what steps could be taken to ensure that. We would be happy to set out and lay in a report before the House the particular circumstances in which that might happen—saying, for example, under what treaties it might happen.
As regards legacy legislation, I repeat what I said in opening. Some authorities have general powers. The Serious Fraud Office, for which I have ministerial responsibility, has them. Those powers can be, and are occasionally, used to access communications data, but they are also used to access a great deal of other information. It is the basic power under which directors can be required to answer questions. We cannot conceivably repeal that section, because that would prevent all other methods of gathering information from being operated. Once the order is in place, the communication service providers will be saying, "We will provide information to you under RIPA—that is what the order says, and in accordance with the safeguards set out in it". That is what will happen.
The noble Viscount, Lord Goschen, asked whether the number of instances of requiring information data would go up. We cannot be precise until the order comes into effect, but the indications are that, in so far as authorities and providers have followed the RIPA model not in force in relation to access to communications data, the number of requests has gone down. Other parts of RIPA are in force—in relation to directed surveillance, for example. That may be why the noble Lord, Lord Jenkin of Roding, has information from local authorities. There has been something like a 6 per cent reduction in authorisations sought from police forces, the National Criminal Intelligence Service, the National Crime Squad and others in the past year. That is an indication that applying the safeguards in the RIPA order has the result of reducing the number of authorisations and access taking place.
One or two noble Lords asked why the police did not use the provisions in every case. There are specialist investigators for specialist issues. If a trading officer was concerned to investigate defective gas fittings, it would not be sensible to say that the police had to take over part of the investigation. It is more than that, however. There will be a number of areas, such as the Financial Services Agency, where there are specialist investigators who need the powers to do it themselves. It simply is not sensible to say that they cannot make those investigations and that the police must take on that responsibility. The police do not want it.
The noble Baroness, Lady Blatch, raised one point with which I must deal. She complained about an Answer given to a Question asked by the noble Lord, Lord Skelmersdale. The Question was specific. The noble Lord asked:
"Which orders give directions about retention of communications data".—[Official Report, 5/11/03; col. WA 111.]
I emphasise the word "retention".
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The Act is very specific; no orders for the retention of communications data—not access but retention— can be given, until the voluntary approach has been reviewed. None of the orders gives directions, and the reply to his Question reflected that. The orders open the way for the voluntary code to be put in place in relation to the retention of data.
The noble Earl, Lord Northesk, referred to an answer that he had received from the noble Baroness, Lady Scotland. I am happy to have that put in the Library, if that would satisfy him as having the answer on the record, to save time reading it out. I am glad to see the noble Earl nodding assent to that.
Finally, in relation to communications data, the noble Baroness, Lady Blatch, said that nothing had changed since last year. With respect, that is simply not the case. The order that the Home Secretary put forward and withdrew was simply a list of public authorities, which did not include the qualifications or restrictions. The new order not only lists the public authorities but restricts access to data to specific purposes, restricts access by the type of data, and restricts who may give authorisations. It is significantly different from the previous order.
4.15 p.m.
The Earl of Northesk: My Lords, I apologise for intervening on the noble and learned Lord. My understanding was that last year there were two orders; one of them was the list and the other contained safeguard elements. What happened in the intervening period was that the Home Office compiled a single order rather than two.
Lord Goldsmith: My Lords, I shall deal with the next issue and get information on that, as I do not have the previous order in front of me. I am working from what I have been told, and do not have it in my recollection.
I turn to the retention of data and the amendment proposed by the noble Lord, Lord Lester. The Government have stated consistently that Part 11 of the 2001 Act provides for the retention of communications data and chapter 2 of Part 1 of the 2000 Act provides for the regulated acquisition of communications data in a way that requires explicitly respect for individual human rights. It follows that the legislation already provides that any communications data retained under the Anti-terrorism, Crime and Security Act 2001, only because of that Act and for no other purpose, can be obtained or disclosed under RIPA, but only in accordance to the fundamental right to personal privacy. That is what lies behind the access to communications data order.
I repeat what I said to the noble Lord when he was speaking—that the Joint Committee on Human Rights, for which I, like him, have great respect, reached the conclusion that, on balance, it was satisfied that other safeguards within the structure of the Regulation of Investigatory Powers Act and the procedures for judicial review were likely to provide adequate safeguards for convention rights. That essentially deals with the issue. I wanted to take that point a little further, as the noble Lord asked who would form the view that retention of

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data was necessary. The Secretary of State would form the view that data retention was necessary in order to safeguard national security. His decision is based, as it always is in matters of that sort, on reports given him by the relevant agencies. He is not under an obligation to prove that case to the industry; the view has been echoed by the Information Commissioner, who told industry that it was entitled to rely heavily on the conclusions formed by the Home Secretary.
Under the Act, communications data can be accessed only if it is proportionate and appropriate to do so. There will be the stringent oversight regime to which I referred. The clear view of the Government is that the additional retention period is for retention of information that the service providers already keep for business purposes. The retention period may add up to additional days or months, but not years, and is nothing that people need to fear.
Before I turn to the final order, I want to return to the question that I was asked by the noble Earl, Lord Northesk. The second order to which he referred was never laid. The proposal last year did not restrict access to any type of data. Every authority potentially had access, for example, to traffic data. That has been restricted this time round. It is plain that I overstated the case in what I said before but there are still important differences, if only in that respect. But the purposes—in that respect and in the respect that we are discussing—open to authorities have been restricted as well so that now the permitted purposes that each authority may rely upon are clearly identified. That has been done as a result of a process of asking them to prove what they actually need.
The Earl of Northesk: My Lords, I am grateful to the noble and learned Lord for that reply but I now have to ask another question as I fear that he is about to leave the code of practice order. Will he respond to the specific questions that I asked in my speech regarding what kind of data retention regime emanated as a result of the September 11th atrocity, and how longstanding has that been post that event? Have any arrests emanated directly from that?
Lord Goldsmith: My Lords, I am afraid that I cannot answer the question regarding the use of the information that the agencies have retained and what that has given rise to. I certainly cannot do so in terms of the number of arrests. I shall see what more detailed information can be provided and write to the noble Earl. I know from my own responsibilities as Attorney-General the amount of work that has been carried out by agencies since September 11th in order to try to track down those who put our citizens, and citizens of other countries, at risk. Communications data are often a key part of being able to track down such people. I personally have no doubt at all that they are important.
As regards the length of time for retention, as I said previously people do not leave their calling cards at the time that an atrocity takes place. Often it is possible to track the information only after painstaking work
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undertaken over a period of time. If by the time one tracks information back to a particular individual the communications data is no longer being retained, one comes to a dead end. This is an important matter and the Government so regard it for the reasons that I have given.
I am conscious of how long I have spoken, although I pray in aid the number of questions that I have attempted to answer in the course of speaking. I refer to the extension of the initial period. We now have a voluntary code that can be tested. Until that has happened, it is not possible to enforce a mandatory code. I suggest that the kind of extension which the order seeks is reasonable.
I am conscious that I have not touched at all on the point made by the noble Earl, Lord Northesk, about the Department for Work and Pensions. My noble friend Lady Hollis, as a Minister in that department, set out the position. The fact is that the department has a special power post-dating the two Acts. Noble Lords heard what my noble friend said about the circumstance in which that came into effect. The fact that the department seeks to stay outside the regime does not undermine the great benefit to the public, providers and authorities of bringing in this strictly regulated scheme which will apply to everyone else.
Lord Lester of Herne Hill: My Lords, I am grateful to the noble and learned Lord for giving way. In deciding what position I should take on behalf of the committee on which I have the privilege of serving, it would help me if the noble and learned Lord the Attorney-General could be a little clearer about what is proposed to occur between now and July—next summer. During that period will there be full consultation on how the right to privacy might be further strengthened without damaging the legitimate aims of this legislation? It would very much help me if we could be told something a little more specific about that.
Lord Goldsmith: My Lords, I am afraid that I cannot be more specific than I have been. The issue was stated very clearly in the consultation paper and discussions are already taking place with Liberty and with officials from the office of the Interception Commissioner. Although I cannot tie the Secretary of State regarding when matters will be brought forward, I hope that it will be by the date that the noble Lord indicated.
The Earl of Northesk: My Lords, will the noble and learned Lord comment on the issue raised by the noble Viscount, Lord Colville, regarding the status of the draft directive on data retention? That would be extremely helpful.
Lord Goldsmith: My Lords, the noble Viscount gave me leave not to reply to that point as he cannot be present this afternoon. However, I thought that I should inform him of the position. I promised to write to the noble Viscount with the answer. I understand that the directive will come into force and that the noble Viscount may be mistaken regarding the date. I

1589
am told that there is no question about our not having implemented the directive in time. I think—but I shall clarify this in writing—that there will be implementation of the directive by the due date which is December of this year. I cannot assist further on that matter. I hope that the noble Earl will forgive me on the basis that I have been relieved of answering the examination paper in that respect.
I say to the noble Lord, Lord Lester, that if there is any further information that I can provide about the detail of what is going to take place, I shall write to him and place a copy of the letter in the Library of the House so that other noble Lords are aware of it.
I have spoken for a very long time. I have tried to answer what I believe are the main points. The noble Earl, Lord Northesk, might think that there is a directive regarding data retention. That is not the case. The directive concerns electronic communications and privacy. I do not know whether that helps him.
The noble Earl also asked about the length of retention following the atrocity of September 11th. Communication service providers voluntarily preserved data generated on September 11th and the days immediately around it. The Home Secretary is very grateful for that assistance.
I have attempted to demonstrate why these orders are important. The Government recognise the concern that arose last year and carried out an important consultation that contained considerable detail. That consultation was welcomed. The orders that are now proposed—particularly regarding communications data, which has been the subject of most debate—are welcomed by the industry. The industry wants certainty and clarity. Other measures may emerge that can be put in place but they are not for this order. By putting these orders in place we can get on with the regulatory scheme that Parliament wanted to have when it passed RIPA. For that reason I very much hope that noble Lords will support all the orders.
Lord Phillips of Sudbury: My Lords, before the noble and learned Lord sits down I should be most grateful if he would help me decide exactly how to react on the Motion in my name. I am grateful to the noble and learned Lord for his sympathetic comments vis-à-vis the prospect of an offence being legislated for breach of Chapter 2 of Part I, bearing in mind that at present there is none. The noble and learned Lord said that the consultation would take place and held out the implicit promise that legislation may arise in its wake.
However, the noble and learned Lord did not refer at all—I do not blame him given the massive task he has this afternoon—to my amending resolution. That of course was concerned with requiring the interception of communications commissioner to inform citizens where there had been a wilful or reckless breach of their communications data. I got no hint from the noble and learned Lord on whether that would form part of the consultation and ensuing legislation. I would be most grateful to know.
4.30 p.m.
Lord Goldsmith: My Lords, the answer to that clear question is yes, that will form part of the legislation. I should also have said—we had the short passage of arms before—that we take a different view at the moment on what the commissioner could in any event do under the powers that he has, but he could in the Government's view take on further reporting tasks if he wished to do so.
Baroness Blatch: My Lords, I am grateful to all noble Lords, and in particular to the noble and learned Lord the Attorney-General. As I said at the outset of the debate, he undertook to deal with these complex orders at very short notice, and his expertise has certainly shown through in the way in which he has dealt with some pretty penetrating questions from all parts of the House.
There have been many powerful and persuasive speeches in favour of the amendments. I speak now of the non-fatal amendments as opposed to my own amendments, which are fatal. Many of the concerns that I flagged up at the start of the debate have been reinforced by almost all the speeches that followed. The cases put via the amendments in the names of the noble Lords, Lord Lester and Lord Phillips of Sudbury, and my noble friend Lord Northesk were advocated with care, were constructive and were based on points of principle.
I want to pick up some of the points mentioned by the noble and learned Lord in his response on the amendments. First, I shall deal with the discussions taking place with Liberty. We have all been in receipt of a missive from Liberty that is as current as only yesterday. There is no hint whatever from Liberty that any discussions are taking place along the lines suggested by the noble and learned Lord. I am not suggesting that he is personally responsible for what he has said, because he is in receipt of advice from Home Office officials.
However, we have been with such officials, met Home Office Ministers, been to conferences, and met people from the industry and all sorts of very learned people concerning the orders. On no occasion whatever have our fears been allayed and have we been told that there are constructive, active discussions to address some of the points made in the amendments. Had we been told that, it might have made quite a difference to what appeared on the Order Paper today.
However one looks at the present statute, there is no duty to inform. I believe that the noble Lord, Lord Phillips of Sudbury, is as much concerned about duty to inform the person aggrieved by the abuse as about simply informing the Prime Minister or some third-party body that abuses have taken place. The individual citizen who is on the receiving end of malicious, vexatious abuse of the system has a right to be informed. If we do not do that, trust in the system will be destroyed.

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I shall deal with penalties. Again, if wilful, vexatious and reckless activities take place that result in abuse of the system against an individual by an invasion of privacy for the wrong reasons, that must be considered a breach of the law. That needs to be addressed.
The noble and learned Lord was very careful—he used his words wisely, as he always does—on the intrusive surveillance order to refer to the system as it covered England and Wales. He did not mention Scotland. Therein lies an interesting point.
Lord Goldsmith: My Lords, I am so sorry. The noble Baroness is quite right. I have a note on that. The answer is that the Scottish regime is dealt with by the Regulation of Investigatory Powers (Scotland) Act, which I am told—I have not checked it myself—is in the same terms as the English Act so far as the matter is concerned.
Baroness Blatch: My Lords, I believe that there is a difference, but I would be dancing on the head of a pin if I pursued that any further.
The concern addressed by the noble and learned Lord on directed surveillance referred to my query about service managers. I have had his interpretation of what such a manager is. That is either a personal view of his or the view of the Home Office, but there is no definition or qualification anywhere in the statute. It is not referred to in the primary Act or the order, so it is very much in the interpretation of the chief executives who appoint people for such purposes to be responsible for a level of authority. That is a very real area of concern. If what the noble and learned Lord said was somewhere in statute and there was some qualification, we would feel more assured.
I am winding up on all the orders, so that I save time later.
Lord Goldsmith: My Lords, as the noble Baroness pauses for breath, as it were, I want to come back on her point about the involvement of Liberty. Obviously, I am grateful that she said that I had not said anything false, but I am told that the noble Lord, Lord Phillips of Sudbury—he may be able to confirm it—is participating with the Home Office in the Liberty work. If that is right, it may give the noble Baroness assurance that the work is actually taking place.
Lord Phillips of Sudbury: My Lords, perhaps I should speak for myself. Liberty and Justice are running a project into the whole realm of privacy, and what we are discussing today is at the heart of it. I chair an advisory committee on which certain noble and learned members of the Home Office team are lending their great knowledge. If that helps, I shall be happy.
Baroness Blatch: My Lords, my point stands, because it was in the context of something happening imminently. I took from the noble and learned Lord the first thing that he said rather than the qualified statement
1592
that came later, which was that something was going to happen, and it was likely to do so in spring or summer next year. If that is the case, in 13 days' time we expect a line in the Gracious Speech to indicate that the work is going ahead and that something will appear on the statute book during the coming legislative Session. However, I hold out no great hope on that.
The noble and learned Lord suggested that the communications data order would have two results. First, it would strip away safeguards. There would be no purpose definition, no limitation on access, no definition of what the level of person was to authorise such applications for access, and no independent oversight. The noble Earl, Lord Erroll, dealt with some of that. However, one of the interesting points— it links to a point made by my noble friend Lord Jenkin of Roding—is that the local authorities and many other bodies that exist have more scope to do what they are doing at the moment.
One of the arguments put forward by the Home Office was that the provisions were about regulating and making things more restrictive. More restrictive was the very phrase used by the noble and learned Lord. At the moment, bodies are relatively unrestricted and relatively unregulated. That is why we always agreed in principle that to be restricted and have proper definitions of types of access, and certainly to have a regulatory framework, was right. That is rather a weak first point.
The second point was that authorities with RIPA powers would be thrown back on the alternative voluntary system. I make an abject apology to the noble and learned Lord, because my mind jumped— not surprisingly; I have had a towel round my head for about a month on these orders—from the RIPA orders to retention. I apologise most profusely to him for that. I understand what he is saying about the voluntary scheme, but the system is in place now. The past two years are probably some of the most vulnerable years in terms of possible acts of terrorism and such activity. It does not seem to me that the world has fallen apart and that people have been prevented from accessing the kind of information that they need.
Something that the noble and learned Lord said over and again gives me cause for concern. I shall ask him a direct question. Does the RIP Act override the Data Protection Act in terms of protection of the individual? Service providers might be concerned about their vulnerability—about betraying the privacy of an individual—but he went on to say that the information could be found under RIPA. What is the interaction between the two Acts? Which has primacy over the other? To what extent is the individual protected, and under which statute?
I repeat that the purpose of voting down the orders is to give an opportunity to the Government to strengthen the safeguards rather than to go away and lose them in the back room. That would act as a spur and we might just see something on the statute book by June or July of next year.

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Interestingly, the noble and learned Lord pointed out that if the orders were voted down, the safeguards would not be put in place. That is a decision for the department. If they are threatening to do nothing if the orders are voted down, one has to ask what the Home Office is doing. We regard them as important; I believe that the Liberal Democrats regard them as important; the Government say that they regard the provisions to be important; they sympathise with the safeguard that we would all like to see in the orders. The case for getting a move on is more than made.
The Government said that the current situation cannot continue while they rethink the flaws. The world will not fall apart if RIPA is not introduced and the situation continues. The noble and learned Lord described a chaotic situation, but the Home Office and the Government have sat on their hands for two years and allowed that to exist. They have had two years in which to be much more proactive on the matter. They cannot have it both ways. They cannot claim, on the one hand, that the world is pretty chaotic, but, on the other, sit around and do nothing about it.
Until now, Ministers and Home Office officials have argued that the RIPA orders do not represent more powers. They have said that since we currently have 48 different statutes operating in many different ways, with unregulated bodies and no restriction on the type of access, we need a single framework under which everybody operates. We have accepted that argument. The noble and learned Lord may claim that only if the orders are passed will the Government gain more powers. There are either more powers or there are not. I do not know what they are if that is the noble and learned Lord's argument.
I turn to my final point. The noble and learned Lord said nothing about my example of Zimbabwe or about that of the Greek policeman seeking access to information. I understood his response to everything else. I understood his comments on the difficulty of rescinding legacy powers. However, his comments on legacy powers totally answer the point raised by the noble Baroness, Lady Hollis. All the fears that she expressed about the Government's impotence under RIPA were answered simply and succinctly by the noble and learned Lord.
On retention, I wish to be clear. I said unequivocally that retention is an important weapon in the armoury for those who are seeking to detect crime and fraudulent activity. It is also the case that if the orders are not put in place, there is nothing to stop the Government introducing a voluntary scheme. They have had two years in which to do so. The sunset clause could be enacted in a couple of weeks. Nothing has been done in those two years. The voluntary scheme is not in place. It could quite easily have been brought into play. If the two retention orders are not enacted, that would not prevent the Government putting a voluntary scheme into place. We all know that it is a doomed scheme anyway. Anyone
1594
who knows anything about the subject will say that the only scheme that will work is a compulsory one, but the Government have not shown their hand on that.
Lord Goldsmith: My Lords, perhaps the noble Baroness is not aware that under the Act, we cannot put forward a mandatory scheme until a voluntary scheme has been tried.
Baroness Blatch: My Lords, I shall come to that point. The Government have had two years in which to put a voluntary scheme in place, to make a judgment about whether it works and to move on to a compulsory scheme. They have chosen not to use the two years that Parliament gave to them. If the Government put a voluntary scheme into place now and if, in 18 months' to two years' time, they believe that the case is made for a compulsory scheme, that is such an important issue that the Government should come back to Parliament. There are two reasons for that; first, because it is such a fundamental issue; secondly, because the issue rode on the back of an emergency anti-terrorism Bill. It spent one day in the Commons and was shunted through this House under the emergency procedures. There has not been a full discussion in either House on the ramifications of the measures.
If the Government wish to proceed to a voluntary scheme, we will co-operate in making sure that that has full parliamentary time.
Lord Richard: My Lords, when the noble Baroness spoke earlier, I tried to ask her a question before she sat down. If the noble Baroness comes to it, perhaps she will allow me to ask a question on it after she has spoken.
4.45 p.m.
Baroness Blatch: My Lords, that will be my final point. The noble and learned Lord the Attorney-General introduced the debate on the basis that RIPA does not grant any new powers. He cannot claim on the one hand that it does not grant any new powers, while claiming on the other that it does. If the orders are not enacted, the sky will not fall in and the Government will have an opportunity to get the orders right.
Finally, I shall address the specific point of the noble Lord, Lord Richard. First, the power to divide was exercised as recently as 2000 on the matter of a free leaflet that was being sent to all voters in the London mayoral elections. Although the exercise to vote down an order is a rare occurrence, this House affirmed in 1994 its unfettered freedom to vote on any subordinate legislation submitted for its consideration.
I shall add my own words to that. If a question comes before Parliament, whether it be this House or another place, to which the answer is yes or no, with no powers to amend, we must have the freedom to say yes or no.

1595
I agree that that freedom should be extremely rarely used and that the reasons for it should be carefully thought through, but the whole area of invasion of privacy, of getting the balance right between detecting fraudulent and terrorist activity, and of the freedom of the individual is fundamental to the people of this country. That is why it is an important issue.
Lord Richard: My Lords, I am bound to tell the noble Baroness that her argument is casuistic verging on pedantic. We had a clear convention in this House when I was Leader of the Opposition; namely, that the Opposition did not vote on statutory instruments. That was a firm convention. It was urged on me when I was Leader of the Opposition by, among others, the noble Baroness herself. It now seems that we are moving into a new doctrine for a new era, where if the Opposition take the view that an issue is so fundamental, they will vote against a statutory instrument. That is wrong and the Opposition should not do it.
Lord Carter: My Lords, perhaps I may add my voice to that of my noble friend Lord Richard. He is absolutely right. The noble Baroness is not out of order if she divides the House. As she said, a Motion tabled in 1994 by the noble and learned Lord, Lord Simon of Glaisdale, showed that the House has the power to divide on orders if it so wishes. It was used once, in 1968, under a Labour government; it was not used at all during the 19 years when we were in Opposition; it was used once during the five years when I was Chief Whip—on the GLA Bill, when the Opposition also divided on the negative instrument for good measure. I accept that it is not out of order, but there has been a long-standing convention that this House does not divide on orders. They cannot be brought back to the House and they are not subject to the Parliament Act. I have no doubt that they will fall in this Session if the noble Baroness divides the House. It is her choice. Her Back-Benchers divided the House last night on the cannabis order and her Front Bench abstained. Only a few weeks ago, I was on the Woolsack when she spoke to an education order. She had put down a Motion to decline to approve the order, but said that she would not change the habit of a lifetime and divide the House. The House should be aware of what we are embarking on. Last night, there was a Division on an order that the Government won, but that changed the convention. If the Opposition choose now to go down that road, they should know where they are going. At the moment, we are the Government; one day, no doubt, we will be the Opposition. We have long memories.
The Earl of Onslow: My Lords, I have been listening to the debate and I understood the noble Lord, Lord Carter, to say that one day our party will be the Government and his will be the Opposition and we are doing something silly. I hope then he will divide the
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House because there seems no point in the convention that an order cannot be amended and we can never do anything about. We might as well let everything go through completely and not allow any change to be made.
Lord Richard: My Lords, the noble Earl must realise that that has been the state of affairs for a very long time. For 19 years when his party was in Government that was the state of affairs that this House accepted and the Labour Party lived up to. Now we find that because the Conservative Party does not like a particular resolution they want to divide the House against it. It is a denial of the conventions of this House and I am bound to say that I feel very strongly about it.
Lord Roper: My Lords, it is worth remembering that we are discussing a group of amendments and that the majority of them are non-fatal. The amendment we are now discussing is fatal, but that is not the case with a number of others, which I trust we shall reach shortly.
Earl Russell: My Lords, as one who took part in the debate on 20th October 1994, perhaps I may point out that there was a general agreement in the House that there was in normal circumstances a convention that one did not divide on fatal Motions. However, that convention was dependent on another convention; that was the exercise of restraint by the Government in the importance of the matters they put into fatal Motions. If the noble Lord would care to read the debate, he will find that recollection borne out. That is the point at issue.
Lord Richard: My Lords, I am not sure whether that remark was addressed to me, but if it was perhaps I may reply. When I was leading the Opposition, there were many occasions on which I took the view that what the then government were doing was absolutely appalling and that they had done it without sufficient consultation and discussion. I felt strongly that they should not do it. However, if a proposal came in front of the House as a statutory instrument, I did what all in opposition have done up until now; that is, I held my nose and did not vote against it.
Earl Russell: My Lords, the patience of opposition is very great but it is not total.
Baroness Blatch: My Lords, on the particular amendment before us, I was not influenced one jot by what has just been said. However, as I said in my first speech today, I have been influenced by my discussions with the noble Viscount, Lord Colville of Culross, with those in the Home Office and other colleagues. I shall not move the first fatal amendment.
[Amendment not moved.]
On Question, Motion agreed to.

Regulation of Investigatory Powers (Communications Data) Order 2003
4.52 p.m.
Lord Goldsmith Lord Goldsmith rose to move, That the draft order laid before the House on 1lth September be approved [28 th Report from the Joint Committee.]
The noble and learned Lord said: My Lords, I beg to move.
Moved, That the draft order laid before the House on 1lth September be approved [28th Report from the Joint Committee.]—(Lord Goldsmith.)
Baroness Blatch Baroness Blatch had given notice of her intention to move, as an amendment to the above Motion, to leave out all the words after "That" and insert "this House declines to approve the draft order laid before the House on 1lth September".
The noble Baroness said: My Lords, I shall not move the amendment.
[Amendment not moved.]
Lord Lester of Herne Hill Lord Lester of Herne Hill had given notice of his intention to move, as an amendment to the Motion, at end to insert "and this House calls upon Her Majesty's Government to lay a new draft order containing effective safeguards to ensure that communications data retained pursuant to the Anti-terrorism, Crime and Security Act 2001 will not become liable to be obtained or disclosed under the Regulation of Investigatory Powers Act 2000 unless the criteria for obtaining or disclosing communications data under the 2000 Act are met in relation to those data in accordance with the fundamental right to personal privacy".
The noble Lord said: My Lords, I shall not move the amendment.
[Amendment not moved.]
The Earl of Northesk The Earl of Northesk rose to move, as an amendment to the Motion, at end to insert "and this House calls upon Her Majesty's Government to lay a new draft order wherein, notwithstanding the provisions of the Social Security Fraud Act 2001, the Department for Work and Pensions and the Northern Ireland Social Security Investigators are included in the list of named public authorities on the face of the order and thereby subject to Part 1, Chapter 2, of the Regulation of Investigatory Powers Act 2000".
The noble Earl said: My Lords, I beg to move.
Moved, as an amendment to the Motion, at end to insert "and this House calls upon Her Majesty's Government to lay a new draft order wherein, notwithstanding the provisions of the Social Security Fraud Act 2001, the Department for Work and Pensions and the Northern Ireland Social Security Investigators are included in the list of named public authorities on the face of the order and thereby subject to Part 1, Chapter 2, of the Regulation of Investigatory Powers Act 2000".—(The Earl of Northesk.)
4.53 p.m.
On Question, Whether the said amendment shall be agreed to?
Their Lordships divided: Contents, 92; Not-Contents, 108.

Division No.1

CONTENTS

Anelay of St Johns, B.

Laing of Dunphail, L.

Ashcroft, L.

Lamont of Lerwick, L.

Astor of Hever, L.

Lawson of Blaby, L.

Attlee, E.

Liverpool, E.

Beaumont of Whitley, L.

Lucas, L.

Biffen, L.

Luke, L.

Blackwell, L.

McAlpine of West Green, L.

Blatch, B.

MacGregor of Pulham Market,

Bridgeman, V.

L.

Brittan of Spennithorne, L.

MacLaurin of Knebworth, L.

Brooke of Sutton Mandeville, L.

Mayhew of Twysden, L.

Brougham and Vaux, L.

Miller of Hendon, B.

Byford, B.

Monro of Langholm, L.

Campbell of Alloway, L.

Monson, L.

Carlisle of Bucklow, L.

Montrose, D.

Chorley, L.

Mowbray and Stourton, L.

Coe, L.

Moynihan, L.

Colwyn, L.

Murton of Lindisfarne, L.

Cope of Berkeley, L. [Teller]

Noakes, B.

Crickhowell, L.

Northesk, E.

Darcyde Knayth, B.

Norton of Louth, L.

Denham, L.

O'Cathain, B.

Dixon-Smith, L.

Onslow, E.

Eden of Winton, L.

Park of Monmouth, B.

Elliott of Morpeth, L.

Perry of Southwark, B.

Elton, L.

Phillips of Sudbury, L.

Erroll, E.

Rawlings, B.

Feldman, L.

Reay, L.

Ferrers, E.

Rees, L.

Flather, B.

Renton, L.

Freyberg, L.

Roberts of Conwy, L.

Geddes, L.

St. John of Bletso, L.

Glenarthur, L.

Seccombe, B.[Teller]

Glentoran, L.

Selborne, E.

Goschen, V.

Simon of Glaisdale, L.

Hanham, B.

Skelmersdale, L.

Hayhoe, L.

Soulsby of Swaffham Prior, L.

Higgins, L.

Stoddart of Swindon, L.

Hodgson of Astley Abbotts, L.

Strathclyde, L.

Howe, E.

Swinfen, L.

Howe of Aberavon, L.

Tebbit, L.

Hurd of Westwell, L.

Thomas of Gwydir, L.

Hylton, L.

Thomas of Swynnerton, L.

Jenkin of Roding, L.

Trefgarne, L.

Jopling, L.

Vivian, L.

Kingsland, L.

Waddington, L.

NOT-CONTENTS

Acton, L.

Brookman, L.

Ahmed, L.

Burlison, L.

Allenby of Megiddo, V.

Carter, L.

Alli, L.

Christopher, L.

Amos, B. (LordPresident)

Clarke of Hampstead, L.

Andrews, B.

Clinton-Davis, L.

Archer of Sandwell, L.

Cohen of Pimlico, B.

Ashton of Upholland, B.

Corbett of Castle Vale, L.

Bach, L.

Crawley, B.

Bassam of Brighton, L.

Davies of Coity, L.

Berkeley, L.

Davies of Oldham, L. [Teller]

Bernstein of Craigweil, L.

Dean of Thornton-le-Fylde, B.

Billingham, B.

Dixon, L.

Blackstone, B.

Donoughue, L.

Bragg, L.

Dormand of Easington, L.

Brennan, L.

Dubs, L.

Brett, L.

Evans of Parkside, L.

Brooke of Alverthorpe, L.

Evans of Temple Guiting, L.

1599

Falconer of Thoroton, L. (Lord

Mallalieu, B.

Chancellor)

Massey of Darwen, B.

Farrington of Ribbleton, B.

Merlyn-Rees, L.

Faulkner of Worcester, L.

Mishcon, L.

Fitt, L.

Mitchell, L.

Gale, B.

Morgan, L.

Gibson of Market Rasen, B.

Morgan of Huyton, B.

Golding, B.

Morris of Aberavon, L.

Goldsmith, L.

Pendry, L.

Gould of Potternewton, B.

Pitkeathley, B.

Graham of Edmonton, L.

Ponsonby of Shulbrede, L.

Grocott, L. [Teller]

Radice, L.

Hannay of Chiswick, L.

Ramsay of Cartvale, B.

Harrison, L.

Rendell of Babergh, B.

Hollis of Heigham, B.

Richard, L.

Howe of Idlicote, B.

Rogers of Riverside, L.

Howells of St. Davids, B.

Roll of Ipsden, L.

Howie of Troon, L.

Sandwich, E.

Hoyle, L.

Scotland of Asthal, B.

Hughes of Woodside, L.

Sewel, L.

Hunt of Chesterton, L.

Sheldon, L.

Hunt of Kings Heath, L.

Simon, V.

Irvine of Lairg, L.

Slim, V.

Stallard, L.

Janner of Braunstone, L.

Strange, B.

Jay of Paddington, B.

Temple-Morris, L.

Jordan, L.

Tenby, V.

Judd, L.

Thornton, B.

King of West Bromwich, L.

Turnbere, L.

Layard, L.

Turner of Camden, B.

Lea of Crondall, L.

Warner, L.

McCarthy, L.

Wedderburn of Charlton, L.

Macdonald of Tradeston, L.

Whitaker, B.

McIntosh of Haringey, L.

Whitty, L.

McIntosh of Hudnall, B.

Wilkins, B.

MacKenzie of Culkein, L.

Williamson of Horton, L.

Mackenzie of Framwellgate, L.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
5.3 p.m.
Lord Phillips of Sudbury Lord Phillips of Sudbury rose to move, as an amendment to the Motion, at end to insert "and this House calls upon Her Majesty's Government to lay a new draft order requiring the Interception of Communications Commissioner to inform any person who appears to have been adversely affected by any wilful or reckless failure on the part of any person exercising or undertaking any of the powers and duties conferred or imposed on him by the Regulation of Investigatory Powers Act 2000 in relation to the acquisition or disclosure of communications data, subject to national security safeguards".
The noble Lord said: My Lords, I beg to move.
Moved, as an amendment to the Motion, at end to insert "and this House calls upon Her Majesty's Government to lay a new draft order requiring the Interception of Communications Commissioner to inform any person who appears to have been adversely affected by any wilful or reckless failure on the part of any person exercising or undertaking any of the powers and duties conferred or imposed on him by the Regulation of Investigatory Powers Act 2000 in relation to the acquisition or disclosure of communications data, subject to national security safeguards".—(Lord Phillips of Sudbury.)
On Question, Whether the said amendment shall be agreed to?
Their Lordships divided: Contents, 126; Not-Contents, 99.

Division No.2

CONTENTS

Ackner, L.

Luke, L.

Addington, L. [Teller]

McAlpine of West Green, L.

Allenby of Megiddo, V.

MacLaurin of Knebworth, L.

Astor of Hever, L.

McNally, L.

Attlee, E.

Maddock, B.

Avebury, L.

Mar and Kellie, E.

Barker, B.

Mayhew of Twysden, L.

Beaumont of Whitley, L.

Methuen, L.

Biffen, L.

Miller of Chilthorne Domer, B.

Blackwell, L.

Miller of Hendon, B.

Blatch, B.

Monro of Langholm, L.

Bradshaw, L.

Monson, L.

Bridgeman, V.

Montrose, D.

Brittan of Spennithorne, L.

Mowbray and Stourton, L.

Brooke of Sutton Mandeville, L.

Moynihan, L.

Brougham and Vaux, L.

Murton of Lindisfarne, L.

Byford, B.

Newby, L.

Campbell of Alloway, L.

Nicholson of Winterbourne, B.

Carlisle of Bucklow, L.

Noakes, B.

Chorley, L.

Northesk, E.

Cobbold, L.

Northover, B.

Coe, L.

Norton of Louth, L.

Colwyn, L.

Oakeshott of Seagrove Bay, L.

Cope of Berkeley, L. [Teller]

O'Cathain, B.

Crickhowell, L.

Onslow, E.

Darcy de Knayth, B.

Park of Monmouth, B.

Denham, L.

Patten, L.

Dholakia, L.

Perry of Southwark, B.

Dixon-Smith, L.

Phillips of Sudbury, L.

Eden of Winton, L.

Rawlings, B.

Elliott of Morpeth, L.

Reay, L.

Elton, L.

Redesdale, L.

Erroll, E.

Rees, L.

Falkland, V.

Rennard, L.

Feldman, L.

Renton, L.

Ferrers, E.

Roberts of Conwy, L.

Flather, B.

Rodgers of Quarry Bank, L.

Freyberg, L.

Roper, L.

Geddes, L.

Russell, E.

Glenarthur, L.

Sandberg, L.

Glentoran, L.

Seccombe, B.

Goodhart, L.

Selborne, E.

Goschen, V.

Shutt of Greetland, L.

Hanham, B.

Simon of Glaisdale, L.

Harris of Richmond, B.

Skelmersdale, L.

Hayhoe, L.

Slim, V.

Higgins, L.

Smith of Clifton, L.

Hodgson of Astley Abbotts, L.

Soulsby of Swaffham Prior, L.

Howe, E.

Stoddart of Swindon, L.

Howe of Aberavon, L.

Strange, B.

Howe of Idlicote, B.

Strathclyde, L.

Hylton, L.

Swinfen, L.

Jenkin of Roding, L.

Tebbit, L.

Jopling, L.

Thomas of Gresford, L.

Kingsland, L.

Thomas of Gwydir, L.

Laing of Dunphail, L.

Thomas of Swynnerton, L.

Lamont of Lerwick, L.

Thomas of Walliswood, B.

Lawson of Blaby, L.

Thomson of Monifieth, L.

Lester of Herne Hill, L.

Vivian, L.

Linklater of Butterstone, B.

Waddington, L.

Liverpool, E.

Walmsley, B.

Livsey of Talgarth, L.

Wedderburn of Charlton, L.

Lucas, L.

Williams of Crosby, B.

1601

NOT-CONTENTS

Acton, L.

Howells of St. Davids, B.

Ahmed, L.

Howie of Troon, L.

Alli, L.

Hoyle, L.

Amos, B. (Lord President)

Hughes of Woodside, L.

Andrews, B.

Hunt of Chesterton, L.

Archer of Sandwell, L.

Hunt of Kings Heath, L.

Ashton of Upholland, B.

Irvine of Lairg, L.

Bach, L.

Janner of Braunstone, L.

Bassam of Brighton, L.

Jay of Paddington, B.

Berkeley, L.

Joffe, L.

Bernstein of Craigweil, L.

Jordan, L.

Billingham, B.

King of West Bromwich, L.

Blackstone, B.

Lea of Crondall, L.

Bragg, L.

McCarthy, L.

Bramall, L.

Macdonald of Tradeston, L.

Brennan, L.

McIntosh of Haringey, L.

Brett, L.

McIntosh of Hudnall, B.

Brooke of Alverthorpe, L.

MacKenzie of Culkein, L.

Brookman, L.

Mackenzie of Framwellgate, L.

Burlison, L.

Mallalieu, B.

Carter, L.

Massey of Darwen, B.

Christopher, L.

Merlyn-Rees, L.

Clarke of Hampstead, L.

Mishcon, L.

Clinton-Davis, L.

Mitchell, L.

Cohen of Pimlico, B.

Morgan, L.

Corbett of Castle Vale, L.

Morgan of Huyton, B.

Crawley, B.

Morris of Aberavon, L.

Davies of Coity, L.

Pendry, L.

Davies of Oldham, L. [Teller]

Pitkeathley, B.

Dean of Thornton-le-Fylde, B.

Radice, L.

Dixon, L.

Ramsay of Cartvale, B.

Donoughue, L.

Rendell of Babergh, B.

Dormand of Easington, L.

Richard, L.

Dubs, L.

Rogers of Riverside, L.

Evans of Parkside, L.

Roll of Ipsden, L.

Evans of Temple Guiting, L.

Scotland of Asthal, B.

Falconer of Thoroton. L. (Lord

Sewel, L.

Chancellor)

Sheldon, L.

Farrington of Ribbleton, B.

Simon, V.

Faulkner of Worcester, L.

Stallard, L.

Gale, B.

Temple-Morris, L.

Gibson of Market Rasen, B.

Tenby, V.

Golding, B.

Thornton, B.

Goldsmith, L.

Turnberg, L.

Gould of Potternewton, B.

Turner of Camden, B.

Graham of Edmonton, L.

Whitaker, B.

Grocott, L. [Teller]

Whitty, L.

Hannay of Chiswick, L.

Wilkins, B.

Harrison, L.

Williamson of Horton, L.

Hollis of Heigham, B.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
5.14 p.m.
Baroness Blatch Baroness Blatch rose to move, as an amendment to the Motion, at end to insert "and this House calls upon Her Majesty's Government to lay a new draft order only when a full report has been given to Parliament on the entitlement (and the conditions attaching thereto) on the part of any foreign government, body or person to require access to communications data in the United Kingdom pursuant to any legislation, agreement, treaty or convention whether national, international or in relation to the European Union and when the Government have taken note of Parliament's view on that report".
The noble Baroness said: My Lords, I beg to move.
Moved, as an amendment to the Motion, at end to insert "and this House calls upon Her Majesty's Government to lay a new draft order only when a full report has been given to Parliament on the entitlement (and the conditions attaching thereto) on the part of any foreign government, body or person to require access to communications data in the United Kingdom pursuant to any legislation, agreement, treaty or convention whether national, international or in relation to the European Union and when the Government have taken note of Parliament's view on that report".—(Baroness Blatch.)
On Question, Whether the said amendment shall be agreed to?
Their Lordships divided: Contents, 120; Not-Contents, 98.

Division No.3

CONTENTS

Ackner, L.

Hayhoe, L.

Addington, L. [Teller]

Higgins, L.

Allenby of Megiddo, V.

Hodgson of Astley Abbotts, L.

Ashcroft, L.

Hooper, B.

Astor of Hever, L.

Howe, E.

Attlee, E.

Howe of Aberavon, L.

Avebury, L.

Howe of Idlicote, B.

Barker, B.

Jenkin of Roding, L.

Beaumont of Whitley, L.

Kingsland, L.

Biffen, L.

Laing of Dunphail, L.

Blackwell, L.

Lamont of Lerwick, L.

Blatch, B.

Lawson of Blaby, L.

Bradshaw, L.

Lester of Herne Hill, L.

Bridgeman, V.

Linklater of Butterstone, B.

Brittan of Spennithorne, L.

Liverpool, E.

Brooke of Sutton Mandeville, L.

Livsey of Talgarth, L.

Brougham and Vaux, L.

Lucas, L.

Byford, B.

Luke, L.

Campbell of Alloway, L.

McAlpine of West Green, L.

Carlisle of Bucklow, L.

MacLaurin of Knebworth, L.

Chorley, L.

Maclennan of Rogart, L.

Cobbold, L.

McNally, L.

Colwyn, L.

Maddock, B.

Cope of Berkeley, L.

Methuen, L.

Crickhowell, L.

Miller of Chilthorne Domer, B.

Darcy de Knayth, B.

Miller of Hendon, B.

Denham, L.

Monro of Langholm, L.

Dholakia, L.

Monson, L.

Dixon-Smith, L.

Montrose, D.

Eden of Winton, L.

Moynihan, L.

Elliott of Morpeth, L.

Murton of Lindisfame, L.

Elton, L.

Newby, L.

Erroll, E.

Nicholson of Winterbourne, B.

Falkland, V.

Noakes, B.

Feldman, L.

Northesk, E.

Ferrers, E.

Northover, B.

Flather, B.

Norton of Louth, L.

Freyberg, L.

Oakeshott of Seagrove Bay, L.

Geddes, L.

O'Cathain, B.

Glenarthur, L.

Onslow, E.

Glentoran, L.

Park of Monmouth, B.

Goodhart, L.

Patten, L.

Goschen, V.

Perry of Southwark, B.

Hanham, B.

Phillips of Sudbury, L.

Harris of Richmond, B.

Quirk, L.

1603

Rawlings, B.

Skelmersdale, L.

Reay, L.

Slim, V.

Redesdale, L.

Smith of Clifton, L.

Rees, L.

Soulsby of Swaffham Prior, L.

Rennard, L.

Stoddart of Swindon, L.

Renton, L.

Swinfen, L.

Roberts of Conwy, L.

Tebbit, L.

Rodgers of Quarry Bank, L.

Thomas of Gresford, L.

Roper, L.

Thomas of Swynnerton, L.

Russell, E.

Thomas of Walliswood, B.

Sandberg, L.

Thomson of Monifieth, L.

Seccombe, B. [Teller]

Vivian, L.

Selborne, E.

Waddington, L.

Shutt of Greetland, L.

Walmsley, B.

Simon of Glaisdale, L.

Williams of Crosby, B.

NOT-CONTENTS

Acton, L.

Howie of Troon, L.

Ahmed, L.

Hoyle, L.

Alli, L.

Hughes of Woodside, L.

Andrews, B.

Hunt of Chesterton, L.

Archer of Sandwell, L.

Hunt of Kings Heath, L.

Ashton of Upholland, B.

Janner of Braunstone, L.

Bach, L.

Jay of Paddington, B.

Bassam of Brighton, L.

Jordan, L.

Berkeley, L.

Judd, L.

Bernstein of Craigweil, L.

King of West Bromwich, L.

Billingham, B.

Lea of Crondall, L.

Blackstone, B.

McCarthy, L.

Bragg, L.

Macdonald of Tradeston, L.

Brennan, L.

McIntosh of Haringey, L.

Brett, L.

McIntosh of Hudnall, B.

Brooke of Alverthorpe, L.

MacKenzie of Culkein, L.

Brookman, L.

Mackenzie of Framwellgate, L.

Burlison, L.

Mallalieu, B.

Carter, L.

Massey of Darwen, B.

Christopher, L.

Merlyn-Rees, L.

Clarke of Hampstead, L.

Mishcon, L.

Clinton-Davis, L.

Mitchell, L.

Cohen of Pimlico, B.

Morgan, L.

Corbett of Castle Vale, L.

Morgan of Huyton, B.

Morris of Aberavon, L.

Crawley, B.

Pendry, L.

Davies of Coity, L.

Pitkeathley, B.

Davies of Oldham, L. [Teller]

Radice, L.

Dean of Thomton-le-Fylde, B.

Ramsay of Cartvale, B.

Dixon, L.

Rendell of Babergh, B.

Donoughue, L.

Richard, L.

Dormand of Easington, L.

Rogers of Riverside, L.

Dubs, L.

Roll of Ipsden, L.

Evans of Parkside, L.

Scotland of Asthal, B.

Evans of Temple Guiting, L.

Sewel, L.

Falconer of Thoroton, L. (Lord

Sheldon, L.

Chancellor)

Simon, V.

Farrington of Ribbleton, B.

Stallard, L.

Faulkner of Worcester, L.

Temple-Morris, L.

Gale, B.

Tenby, V.

Gibson of Market Rasen, B.

Thornton, B.

Golding, B.

Turnberg, L.

Goldsmith, L.

Turner of Camden, B.

Gould of Potternewton, B.

Warner, L.

Graham of Edmonton, L.

Wedderburn of Charlton, L.

Grocott, L. [Teller]

Whitaker, B.

Hannay of Chiswick, L.

Whitty, L.

Harrison, L.

Wilkins, B.

Hollis of Heigham, B.

Williamson of Horton, L.

Howells of St. Davids, B.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
Motion, as amended, agreed to.

Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2003
5.25 p.m.
Lord Goldsmith: My Lords, on behalf of my noble friend Lady Scotland, I beg to move.
Moved, That the draft order laid before the House on 15th October be approved [28th Report from the Joint Committee].—(Lord Goldsmith.)
Baroness Blatch Baroness Blatch had given notice of her intention to move, as an amendment to the above Motion, to leave out all the words after "That" and insert "this House declines to approve the draft order laid before the House on 15th October".
[Amendment not moved.]
On Question, Motion agreed to.

Retention of Communications Data (Code of Practice) Order 2003
Lord Goldsmith: My Lords, on behalf of my noble friend Lady Scotland, I beg to move.
Moved, That the draft order laid before the House on 29th October be approved [30th Report from the Joint Committee].—(Lord Goldsmith.)
Baroness Blatch Baroness Blatch had given notice of her intention to move, as an amendment to the above Motion, to leave out all the words after "That" and insert "this House declines to approve the draft order laid before the House on 29th October".
The noble Baroness said: My Lords, I wish to say just a few words on this order. We are closely watching the Home Office and its statements today about the concerns we have expressed. Those concerns will apparently be addressed in the coming months. We look forward to something perhaps in the gracious Speech. We hope that something will happen between June and July of next year. However, I put it on the record that if we have an opportunity and there is no activity from the Home Office, we will resort to a Private Member's Bill to amend the primary Act.
[Amendment not moved.]
Lord Lester of Herne Hill Lord Lester of Herne Hill had given notice of his intention to move, as an amendment to the Motion, at end to insert "and this House calls upon Her Majesty's Government to lay a new draft order containing effective safeguards to ensure that communications data retained pursuant to the Anti-terrorism, Crime and Security Act 2001 will not become liable to be obtained or disclosed under the Regulation of Investigatory Powers Act 2000 unless the criteria for obtaining or disclosing communications data under

1605
the 2000 Act are met in relation to those data in accordance with the fundamental right to personal privacy".
[Amendment not moved]
Baroness Blatch Baroness Blatch had given notice of her intention to move, as an amendment to the Motion, at end to insert "and this House calls upon Her Majesty's Government to lay a new draft order only when a full report has been given to Parliament on the entitlement (and the conditions attaching thereto) on the part of any foreign government, body or person to require access to communications data in the United Kingdom pursuant to any legislation, agreement, treaty or convention whether national, international or in relation to the European Union and when the Government have taken note of Parliament's view on that report".
[Amendment not moved.]
On Question, Motion agreed to.

Retention of Communications Data (Extension of Initial Period) Order 2003
Lord Goldsmith: My Lords, on behalf of my noble friend Lady Scotland, I beg to move.
Moved, That the draft order laid before the House on 11th September be approved [28th Report from the Joint Committee].—{Lord Goldsmith.)
Baroness Blatch Baroness Blatch had given notice of her intention to move, as an amendment to the above Motion, to leave out all the words after "That" and insert "this House declines to approve the draft order laid before the House on 1lth September".
[Amendment not moved.]
On Question, Motion agreed to.

Sexual Offences Bill [H.L.]
5.27 p.m.
Baroness Scotland of Asthal: My Lords, I beg to move that the Commons amendments be now considered.
Moved, That the Commons amendments be now considered.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
[The page and line refer to HL Bill 128 as first printed for the Commons.]

COMMONS AMENDMENT
1 Clause 2, Leave out Clause 2
Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1.
1606
We recognise the difficulties associated with this area of law. Being accused of a sex offence often carries with it a great social stigma, and the adverse publicity that often results from being linked to such an allegation can have serious consequences for a person's status and reputation in the community, employment and sense of self-worth. Amendment No. 1 leaves out the clause introduced by the noble and learned Lord, Lord Ackner, at Lords Report which gave defendants in rape and other cases the same right to anonymity as that enjoyed by the defendants.
Moved, That the House do agree with the Commons in their Amendment No. 1.—(Baroness Scotland of Asthal.)
Clause 2, The Lord Ackner rose to move, as an amendment to the Motion that the House do agree with the Commons in their Amendment 1, at end insert "but do propose the following amendment in lieu of the words so left out of the Bill—
1A Clause 2, Insert the following new Clause—
"Disclosure of matter likely to identify defendant
In section 1 of the Sexual Offences (Amendment) Act 1992, after subsection (3) insert—
"(3A) Where a person ("the defendant") is accused of an offence to which this Act applies, no matter likely to lead members of the public to identify the defendant as the person by whom the offence is alleged to have been committed shall during the defendant's lifetime be included in any publication unless the defendant has been convicted of the offence.""
The noble and learned Lord said: My Lords, I express my thanks to the noble Lord, Lord Goodhart, who provided at my request this particular drafting of my amendment in lieu. My original draft had to be done in a hurry, but it served its purpose. My amendment reads as follows:
"Disclosure of matter likely to identify defendant
In section 1 of the Sexual Offences (Amendment) Act 1992, after subsection (3) insert—
"(3A) Where a person ("the defendant") is accused of an offence to which this Act applies, no matter likely to lead members of the public to identify the defendant as the person by whom the offence is alleged to have been committed shall during the defendant's lifetime be included in any publication unless the defendant has been convicted of the offence.'"
Amendments Nos. 1B and 1C—tabled respectively by the noble Baroness, Lady Noakes, and by the noble Lord, Lord Thomas of Gresford—although using different language, point to the contrast with my amendment. Instead of giving anonymity to the defendant right up until conviction or acquittal, they say that he should have anonymity only so long as he has not been charged.
I shall submit to your Lordships that that is quite inadequate because the period between charging and trial is the vital period. It is in that time that newspapers get to work and a defendant's life can be rendered utterly miserable.
I should point out that when I tabled my amendment, which provided that anonymity should last until the defendant was convicted or acquitted, I had the support of both the noble Baroness, Lady Noakes, and the noble Lord, Lord Thomas of

1607
Gresford. I remind your Lordships of the substance of the debate on this matter on Report. I pointed out that the anonymity which I sought had been granted by Section 6 of the Sexual Offences (Amendment) Act 1976 and enjoyed for some 12 years until Section 158 of the Criminal Justice Act 1988 withdrew it.
The noble and learned Lord the Lord Chancellor referred to the Heilbron committee report which ante-dated the 1976 Act. It suggested that it was not right to select out sexual offences concerning anonymity for the defendant, although it recommended and achieved anonymity for the complainant. Her approach was not adopted by Parliament in the 1976 Act; and it is interesting to note that one of the strongest proponents of anonymity was the noble Lord, Lord Ashley.
On Report I said:
"The Government's cri de Coeur has been that we must adjust any imbalance that exists between complainant and defendant in criminal trials".—[Official Report, 2/6/03; col. 1084.]
I hope noble Lords will have noted that I used the word "complainant". I am averse to using the word "victim" because that reverses the whole onus of proof and presupposes that the complainant has already shown the validity of her complaint, which of course she has not.
I was supported by a number of noble Baronesses. The noble Baroness, Lady Walmsley, was the first speaker in my favour. She said:
"My Lords, from these Benches"—
I underline the word "Benches"—
"we support the amendment tabled by the noble and learned Lord, Lord Ackner. We strongly believe in equality under the law".
She went on to say that she raised the subject at Second Reading because of her conviction that,
"we are to be seen to be as fair to the defendant as we are to the complainant".
She recalled the Minister's response:
"'Well, if rapists; why not murders or shoplifters?'".—[Official Report, 2/6/03; cols. 1085–86.]
The difference is quite important and has been overlooked by the Government. It is that that we live in a society that is obsessed with sex. As a result the publicity given to a person accused of a sexual offence occupies front page space whereas that dealing with murderers and shoplifters—unless of course little children are concerned with murders—receives very much back page response.
The noble Baroness, Lady Noakes, who also supported me, said in terms:
"In recent cases involving Mr John Leslie and Mr and Mrs Neil Hamilton, they were subjected to appalling adverse publicity with no charges pressed. But there are people who will always say, "There is no smoke without fire". The intention behind the amendment is wholly laudable. I hope that the Government will say that they are prepared to consider introducing a provision to deal with the issue both pre-charge and during the course of a case, once it is decided to press a charge".—[Official Report, 2/6/03; col. 1087.]
The noble Baroness, Lady Mallalieu, who has enormous experience in trials involving sexual offences, said in terms that she thought that it was clear
1608
that some protection was needed for those who are not subsequently charged, as well as defendants awaiting trial. She said at col. 1088:
"That is a real problem. As noble Lords have said, whether or not there is ultimately a charge, reputations are wrongly ruined and a great deal of suffering is caused".
The noble Baroness, Lady Blatch, whom I hope will remain faithful—in a forensic sense of the term—to me, said that she hoped that the Minister would take the amendment away and even consider anonymity beyond the point of charge. She preferred that amendment to that which provided anonymity only up to charge. She continued:
"Some men in such situations are driven not just to the point of, but to actual, suicide. I cannot think of anything more dreadful to someone who is completely innocent and vexatiously charged with such a serious offence than having to live through the kind of publicity that goes with it. We should not underestimate the effect of that".—[Official Report, 2/6/03; col. 1088.]
Not long ago, on the Isle of Wight, a suicide case received a great deal of publicity. The explanation was that the person concerned, although protesting his innocence, could not stand the stress and strain of the publicity.
I also pray in aid the support of the right reverend Prelate the Bishop of Chester, who considered the arguments for anonymity only up to charge and for anonymity right up until the court's decision. He said:
"On balance, the argument comes down in favour of granting the same rights of anonymity in principle to those who are accused".— [Official Report, 2/6/03; col. 1089.]
Later he said:
"My Lords, the noble and learned Lord referred to the guidance issued last November"—
that is the guidance to the police not to provide any information until charge. He continued:
"Soon after that a well-known entertainer, Matthew Kelly, was dragged through the papers in an unfortunate way. He was dragged from his pantomime performance and it was in the press within five minutes. This was on the back of the guidance being issued. I happen to know this because my wife is involved in charitable affairs in my diocese. I know the impact on him and his family. Unless the guidance the Association of Chief Police Officers has issued is given some teeth, it is not worth the paper it is written on".—[Official Report, 2/6/03; col. 1094.]
Those are excerpts from our debate.
If your Lordships are persuaded, as you should be, that the media, with the sexual obsession that nowadays enters all aspects of society, treats publicity for sexual offences so differently from the publicity accorded to offences even more serious, there is a whole justification for singling out the defendant and allowing him to have the same anonymity as that provided, which we all agree should be provided, to the complainant. I beg to move.
Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 1, at end insert Amendment No. 1A in lieu of the words so left out of the Bill.—(Lord Ackner.)
5.45 p.m.
Baroness Noakes: My Lords, this group includes Amendment No. 1B, which stands in my name. It proposes a different anonymity in cases involving

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sexual offences. As the noble and learned Lord, Lord Ackner, pointed out, my amendment proposes anonymity running only until a defendant has been charged.
We debated the issue in your Lordships' House on Report, what seems almost half a lifetime ago. The case was made forcibly then that defendant anonymity in rape cases throughout the process could prevent other victims of rape or sexual offences coming forward. That was a very powerful point, which, on reflection, has led these Benches to propose the variant of pre-charge anonymity. We do not believe that justice would be served sufficiently by total anonymity for defendants as proposed in the amendment tabled by the noble and learned Lord, Lord Ackner.
My amendment and that of the noble Lord, Lord Thomas of Gresford, allow publicity to ensue once the police have established that there is a case to answer and to charge the individual. But if there is not enough evidence to warrant a charge, publicity of any kind would be against the law. The Minister will argue that sexual offences should be treated no differently from other serious offences, such as murder, where defendant anonymity does not apply. But, as the noble and learned Lord, Lord Ackner, has already pointed out, society is obsessed with sex, and for that reason, a particular social stigma is attached to those accused of sexual crimes. The celebrity cases that we debated when we discussed the issue previously are very pertinent and reputations have been damaged unnecessarily.
The noble Lord, Lord Thomas of Gresford, whose legal abilities are infinitely superior to mine, tells me that his amendment is superior to mine. Both amendments are directed at granting anonymity pre-charge, but the precise wording of each differs. Given that I am surrounded by very eminent lawyers, as a mere accountant, I am extremely humbled and bow to all their legal expertise. I did, however, put one non-lawyer's question to the noble Lord, Lord Thomas, yesterday. I asked him why his amendment, unlike mine and that of the noble and learned Lord, Lord Ackner, had no prescribed penalty. I think that I managed the beginner's luck of scoring a bull's eye. I know that the noble Lord, Lord Thomas, will address that point when he speaks to his amendment.
The Minister may argue, as did her honourable friend Mr Goggins in another place, that serious discussions are in train between the Home Office, the police and the media to try to find a solution based on self-regulation. I am sure that if a self-regulatory solution could be found and made to stick, that would be the most satisfactory way forward. But I hope that the Minister will forgive the touch of cynicism on these Benches, as the plain fact is that sex sells and the pressures on a self-regulatory system would be very intense.
I hope that the Minister will be able to accept pre-charge anonymity for defendants in sexual offences cases. In accepting that, it need not imply early commencement. Indeed, we would be more than happy if the Government did not commence a new section to deal with the issue if that was the result of
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a self-regulatory system that actually worked. But we believe that the offence as set out in my amendment or that of the noble Lord, Lord Thomas of Gresford, should be available to the Government in case their discussions break down or if a future self-regulatory system breaks down.
Let me conclude by saying for the guidance of my noble friends that we do not support the amendment tabled by the noble and learned Lord, Lord Ackner. As between my amendment and that of the noble Lord, Lord Thomas, I am persuaded that his formulation of the offence is preferable, subject to the issue that I have raised concerning the penalty. Subject to that point, which I believe the noble Lord, Lord Thomas, intends to address, I shall advise my noble friends to support Amendment No. 1C.
Lord Thomas of Gresford: My Lords, the noble Baroness, Lady Noakes, is about to leave this area of legislation. I thank her for the way in which she has conducted this brief on behalf of her party. This is her swansong, and as she flies away to a larger pond she cannot resist swiping me with her wing on the way. It is perfectly true that she discovered that I was in error in omitting the prescribed penalty from my amendment.
I had in mind to move a manuscript amendment in order to put that right, but I read a book that said that that could not be done on Third Reading—I see that the Minister is nodding her head. However, about five seconds ago I was handed a manuscript Motion in the name of the Government, so it looks as though they are about to propose one. We propose that, if this House accepts my amendment, the prescribed penalty can be put in place in another place. If that does not happen, it could be added on the Bill's return to this House.
The answers that the Government have given to the question of anonymity are that it should be open justice. However, when we talk about open justice in the field of sexual offences, we swiftly run into a brick wall, certainly with regard to rape cases. In such cases, the anonymity of the claimant is preserved. If the naming of an arrested person may bring forward more complaints from other people who may have been subject to similar conduct, the naming of the complainant may similarly bring forward other witnesses who can aver that she has made false allegations in the past. What is good for one person for open justice must be good for the other.
However, I would not for one moment suggest that a complainant should lose her anonymity in such cases. There are much larger reasons why that is so. The effect of the trial on a victim of a sexual offence is bad enough, but the effects of the publicity are far worse. Rape is indeed a terrifying crime when it is committed. It is a violation of both body and mind and is rightly visited by very harsh punishment. The guidelines for rape start at a minimum of five years' imprisonment, but sentences are usually longer than that.

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The other sexual offences that are listed in Schedule 3 that are the subject of my amendment also carry heavy punishment, especially allegations of child abuse. This is a very serious crime with very serious effects, but it also has a peculiarity that other crimes do not have. Nobody complains that their house has been burgled when it has not. However, in my experience and, I am sure, in that of the Minister, in sexual cases complainants do not always tell the truth. I have experience in my capacity as an advocate of a daughter bursting into tears on returning home when asked by her parents why she has been out so late. She is swiftly taken to the police with a false complaint of rape. I also knew a woman who fell out with her partner and used the police to punish him, and another woman who was seduced into a consensual act but very much regretted it later. Those are circumstances that are peculiar to sexual offences when complainants are not always truthful.
An acquitted defendant carries a very heavy burden, as the noble and learned Lord, Lord Ackner, pointed out. There may be permanent damage to his reputation, to his family and to his state of mind. I have great sympathy with the proposal in the noble and learned Lord's amendment for anonymity to remain for all time for an acquitted defendant. However, we must take one step at a time in this area. We have focused on what I regard as the most pernicious aspect of the present time, to which the noble Baroness, Lady Noakes, referred— the pernicious practice of the leaking of names of arrested persons to the press, sometimes for cash.
The noble Baroness referred to the Hamilton case. The Hamiltons had their names leaked to the press before they ever arrived at Barkingside police station in the first place. When they emerged from that police station 90 minutes later, they stumbled into a barrage of cameras and reporters. From there they were forced to go on the offensive. We now know beyond peradventure—because the complainant has been convicted of attempting to pervert the course of justice— that the complaints made against the Hamiltons were completely untrue. In our amendment, we have attempted to deal with that situation; namely, the leaking of the names of arrested persons before charge and the publication of them in newspapers. Our amendments seek to make it an offence for the editor or publisher of a newspaper or the controller of a programme to publish the identity of an individual before a charge has been brought.
However, we recognise that there may be two exceptions to that, which are included in paragraph (3) of Amendment No. 1C. The person against whom the allegation has been made may waive his right of anonymity for the very reason that I suggested at the beginning of my remarks: he believes that other people may come forward to say, "This woman is a liar".
Alternatively, it may be that the police have reason to suppose that the person who has been caught is a serial rapist. Under paragraph (3)(b) of Amendment No. 1C, they may apply to a magistrates' court for the section to be disapplied, giving proper grounds for it and being subject to judicial control. In our view, those two
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exceptions to the basic anonymity of the defendant deal with the problems outlined by the Minister on the earlier occasion. In due course, I shall press this amendment.
The Government say that we have a voluntary scheme, that we have the Press Council and that the police have disciplinary powers. Those have not worked in the past. If the Government want to try a voluntary arrangement, perhaps they could defer bringing the clause into operation while they have that attempt. But the last pint would have been pulled in the last chance saloon.
Lord Corbett of Castle Vale: My Lords, perhaps I may begin by apologising for not taking part during the Report stage on this topic. I apologise specifically to the noble and learned Lord, Lord Ackner. When his amendment on Report was put to the vote, regrettably, I went into the wrong Lobby. I am being frank about that and I regret it very much. I say that because it was a Private Member's Bill that I sponsored in 1976. It was taken through this House by the late Lord Willis, which gave matching anonymity to the defendant in a rape trial unless convicted. That became the Sexual Offences (Amendment) Act 1976 with the sponsorship and support of my noble friends Lady Hayman and Lord Ashley of Stoke, and others, when we were all in another place.
As the noble and learned Lord, Lord Ackner, said, anonymity for the complainant woman had been argued for in a report by Justice Heilbron. She said that it should apply from the time that a man was accused of the offence. That anonymity was meant to protect women from the salacious intrusion of the press—in both words and pictures—which, in my view, it was rightly felt could deter some women from reporting rape to the police. We can all recall cases of that.
Initially, in Committee, I resisted the move to give matching anonymity to the male defendant. But I was persuaded on the grounds of equality of treatment, which won all-party support in that Committee. The argument for anonymity for the defendant, unless convicted, is—in my view, it still remains—that an accusation of rape, even where there is an acquittal, is so uniquely damaging to a man's reputation among his family, friends, those with whom he works, and in his community, that this matching protection is exceptionally warranted.
Because of the interest taken by the press and media in rape trials where, say, a vicar's daughter is involved or a footballer or show business personality is accused, there might be a disproportionate degree of pre-trial publicity as compared with other serious criminal offences. I do not regard it as any part of the criminal justice system to help newspaper editors sell extra copies on the basis of prurient reporting and coverage.
There are those who say that this is an attempt to do justice in the dark. I deny that. Names are used in court, but what can be reported is restricted in the way that matters in other kinds of trials are restricted. Blackmail and espionage trials come to mind.

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When the other place considered the anonymity clause added by your Lordships to the Bill, it was argued that its restoration would restrict the police in trying to trace possible witnesses or to hear from other women who might have been raped by the defendant, but had not reported it. I have to say to noble Lords that during the 12 years that anonymity for the defendant was provided under the 1976 Act, I am not aware of any complaint made either by the police or prosecution on those grounds in rape trials.
In any event, as the noble Lord, Lord Thomas of Gresford, reminded us, the 1976 Act gave the judge powers to remove anonymity if she or he felt it to be in the public interest to do so, or it could be removed at the request of the defendant. So I do not believe that the argument is at all convincing.
The present law recognises that in rape trials it is very much the complainant woman who feels on trial. A verdict turns on whether it is the woman complainant or the defendant man who is most believed. But in law, of course, it is the defendant man who is on trial and I remain of the view that justice is neither damaged nor denied if he has matching anonymity unless convicted.
The other amendments which have been tabled acknowledge the justification for matching anonymity for the defendant, but seek to provide it only up to the point of charge. I see no good reason for stopping at that stage. As the noble and learned Lord, Lord Ackner, argues in his amendment, anonymity should extend throughout the trial and be removed only upon conviction. I hope that your Lordships will agree.
Lastly, I wish to echo what was said by the noble Baroness, Lady Noakes. If there are people around who believe that there will be a voluntary agreement by the Press Complaints Commission that will be enforceable in all circumstances, then I have to say to them that they have not learnt from past experience.
6 p.m.
The Earl of Erroll: My Lords, I thought that I had been brought up in a civilised country in which a person was innocent until proved guilty. That is not worth much if an innocent person cannot return to a normal life. I therefore support the amendment of the noble and learned Lord, Lord Ackner.
Lord Monson: My Lords, although I tend to prefer the amendment tabled by the noble and learned Lord, Lord Ackner, when considering realistically the voting strengths in this House, we probably ought to go for one of the other two.
I listened with great interest to the noble Lord, Lord Thomas of Gresford, in speaking to his amendment. I do not know whether the noble Lord is allowed to respond to me, but is he absolutely certain that, if the other place declines to add the prescribed penalties to his amendment—which it is perfectly entitled to do, assuming that his amendment is accepted this evening—it will be technically possible to add the penalties, with no slip-ups, when the Bill
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returns to this House? If there is any doubt whatever, it might be better to support the amendment tabled by the noble Baroness, Lady Noakes, even if it is not quite as good as that of the noble Lord, Lord Thomas.
Baroness Mallalieu: My Lords, I rise to support every word just spoken by my noble friend Lord Corbett, and to reassure the noble and learned Lord, Lord Ackner, that I have not got cold feet since the last occasion on which we discussed this matter. I am sorry about the approach that has been taken by both the Front Benches opposite because the principle is clear and I do not think that either of the proposed amendments will cover the full position.
I can quite understand that no government would want to be seen either by the press or by the public as trying to stifle proper public knowledge and discussion, but no one in this House or anywhere else could argue that self-regulation has worked effectively. As my noble friend has just pointed out, which of us would put money on even sabre-rattling in a measure such as this producing any better effect? The reality is that sex and well-known people sell newspapers. The temptation will always be there and usually people will give in to it in order to print the story.
If we go along the line of, in a sense, taking a small bite at this, as is suggested in the amendments from both the Front Benches opposite, we shall still be left with the very considerable difficulty that now arises in almost every case involving either someone well known or something notorious. I speak of the applications that are made before the trial can even begin to try to deal with the prejudicial publicity which has taken place. As we know, the tip-off starts— perhaps sometimes it is given by the police themselves; who knows?—before anyone even arrives at the door and knocks on it to arrest or question the suspect.
It is said that we should restrict ourselves in order that there can be publicity which may bring forward other complainants. Over the past few years, in that area we have seen a number of miscarriages and potential miscarriages of justice where, by publicising, people have in a sense been trawling—the police particularly—for additional evidence to back up cases which they know to be lacking in strength. Those who are attracted to come forward may, in some cases, be genuine complainants—but there may also be those seeking attention.
I do not accept the arguments put forward by the noble Lord, Lord Thomas of Gresford. His amendment seems to me to be second best. If he moves it later, as he said he will, I shall support it, but only if the amendment of the noble and learned Lord, Lord Ackner, is either not pressed or fails. We are in danger of letting go an opportunity which will not come again in the near future, and certainly will not come again until other people's reputations have been destroyed, jobs lost and untold distress caused to people who should not have suffered.
The Lord Bishop of Hereford: My Lords, I agree with the noble Baroness, Lady Mallalieu. In the absence of

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the right reverend Prelate the Bishop of Chester on this occasion, I also support the amendment moved by the noble and learned Lord, Lord Ackner.
I agree that there is an urgent need to protect innocent people from undesirable press publicity and intrusion. I am not persuaded that the arguments put forward by the noble Lord, Lord Thomas of Gresford, are sufficient to outweigh the potential danger of false accusation, as the noble Baroness, Lady Mallalieu, clearly explained. I should need to be persuaded that there was a sufficient reason for limiting anonymity to the point of charge rather than to the point of conviction. I should be grateful if the noble Lord, Lord Thomas, or the noble Baroness, Lady Noakes, could be rather more persuasive on that before I have to make up my mind one way or the other.
I hope very much that the Minister will understand the extreme strength of feeling that there is on this matter and that the Government will accept, at the very least, the lesser amendment, but I hope the greater one.
Lord Carlisle of Bucklow: My Lords, I have listened carefully to the noble Baroness, Lady Mallalieu, but there is one genuine problem: what do you do during the course of a trial if the anonymity of the defendant is to remain at that time? You will be immediately accused by the press of interfering with its right to report public trials. If there is a sensational trial taking place, say, at the Old Bailey, and you attempt to retain anonymity, everyone will know effectively who the defendant is. He will be seen walking to court and coming back from court. Or, if he is not recognised, rumours will start that it is someone else being tried.
Obviously the ideal would be to have anonymity all the way through but there is a practical argument that the time when it is really effective is up until charge, when there is no reason, if anonymity is imposed, for people to get round it. In other words, anonymity would work until charged, but I wonder whether it would work during the course of a trial.
Lord Eden of Winton: My Lords, I agree with the noble Baroness, Lady Mallalieu, and support the amendment moved by the noble and learned Lord, Lord Ackner.
I do so because I have met quite a number of people who have been accused falsely of sexual offences. The moment the accusation was made—or before even the accusation became public knowledge—the fact that they had been accused was in the public domain. The noble Lord, Lord Thomas of Gresford, made the point about the police giving such information to the press and to the media, sometimes before even the so-called accused has any knowledge of what is about to overtake him.
I have met men whose lives have been completely ruined as a result of what has taken place, yet when the facts have been impartially examined, or when their case has gone to trial, the accused has been shown to be innocent. We ought not to allow this sort of situation to continue.
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I take the point that my noble friend made about the difficulty of retaining anonymity during the course of a trial. However, by notifying the media in this way, I believe that there will be at least some restraint imposed upon the reporting that might take place. I think it is illusory to expect any form of self-regulation in cases of this kind. That will not happen, for the reasons advanced by my noble friend Lady Noakes when she said, in effect, that sex sells copies. It does, and the media will got out of their way to find opportunities to give publicity to such cases. Therefore, I support what has been said by the noble and learned Lord, Lord Ackner, and noble Lords who spoke from the Benches opposite. Like them, if the noble and learned Lord's amendment should not pass, I shall support the amendment standing in the name of the noble Lord, Lord Thomas of Gresford.
Lord Maclennan of Rogart: My Lords, I, too, am moved to support the amendment of the noble and learned Lord, Lord Ackner, if he seeks the opinion of the House, for the reasons which have already been given.
I have heard the argument from the noble Baroness, Lady Noakes, that there might be some difficulty in persuading people—or hoping that there will be volunteers—to complain of such sexual attacks, if publicity were not available. However, in the event of there being a conviction, it appears to me that publicity of a kind would certainly be released at the conclusion of the trial which would encourage others who had experienced comparable events to come forward. It does not seem necessary to have the long, protracted, prurient reportage of these cases in order to achieve the result that the noble Baroness had in mind.
My noble friend Lord Thomas of Gresford described his amendment as a step. It is indeed a step, but it does not go far enough to deal with the mischief that was eloquently described by the noble and learned Lord, Lord Ackner. Like other noble Lords, I would support my noble friend's amendment if it were to follow that of the noble and learned Lord, Lord Ackner, and an opportunity presented itself. However, I am bound to say that the noble and learned Lord, Lord Ackner, has put forward an irresistible case.
6.15 p.m.
Baroness Scotland of Asthal: My Lords, as I said in moving the government amendment, we very much recognise the difficulties associated with this area of law. As the noble Lord, Lord Eden of Winton, the right reverend Prelate the Bishop of Hereford and my noble friend Lord Corbett have made plain, it is a matter which can carry great stigma and difficulty.
I have a word of comfort for the noble Baroness, Lady Noakes, who drew attention to the flaws identified in her amendment. Each of the amendments has fundamental flaws, but for different reasons, so she need feel no anxiety that her skill has in any way

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been compromised by the nature of her original profession. I shall not repeat all the details, but we prefer self-regulation and a code of practice as the better way. The noble Baroness acknowledged that. We are not without hope in that regard.
It might assist if I identified why we believe that each of the amendments moved by noble Lords opposite, and by the noble and learned Lord, Lord Ackner, is flawed. The noble and learned Lord's new amendment would extend anonymity to defendants up to the point of conviction. It is the only amendment of the group that does so. I recognise that it is supported by many in the House, the noble Lord, Lord Maclennan, being the last to speak in support of it.
The previous amendment proposed by the noble and learned Lord suggested that the defendant should have the same right to anonymity as complainants. In effect, that would have provided life-long anonymity, regardless of whether a defendant was convicted. This amendment would amend the Sexual Offences (Amendment) Act 1992, which provides anonymity for victims of some offences. Although the amendment is similar to his previous amendment, which was narrowly successful in your Lordships' House, it does not reflect the general sentiments expressed so far in both Houses.
The main concern in this matter relates to the pre-charge period. For that reason, the noble Lord, Lord Thomas of Gresford, and the noble Baroness limited their amendments. It would appear that the noble and learned Lord's amendment does not cover the pre-charge period at all. It provides for anonymity from the point where the defendant is accused of an offence. It does not define what is meant by a person being accused of an offence, but the definition in the 1992 Act of "being accused" is essentially "being charged". Thus the amendment appears to cover the post-charge period but not the pre-charge period, which is of most concern.
Amendment No. 1B would provide anonymity to persons suspected of an offence listed in Schedule 3, up to the point of charge. The schedule lists a wide range of offences that trigger registration on the sex offenders' list. That amendment would also introduce a penalty, including a maximum of two years' imprisonment. There are various deficiencies to the clause; I do not know whether they were all enumerated by the noble Lord, Lord Thomas of Gresford, but it may assist if I do so.
First, it imposes criminal liability on proprietors, editors and publishers, regardless of whether they are aware that the person's identity is being revealed. That unfairness is compounded by the risk of a fairly lengthy term of imprisonment—a deficiency also arises in Amendment No. 1C. If that provision had been in force at the time of the unexpected revelation of the identity of John Leslie by a TV presenter on a live show, the editor of the broadcast would have been liable and could have faced a prison sentence.
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Secondly, the proposed penalties are inconsistent with reporting restrictions relating to persons under 18 in the Youth Justice and Criminal Evidence Act 1999 and anonymity of complainants in the Sex Offences (Amendment) Act 1992, and in the Criminal Justice Bill. A level 5 fine, which is a maximum of £5,000, is sufficient for those purposes.
Thirdly, the proposal makes no provision for lifting reporting restrictions in exceptional circumstances, such as when a dangerous suspect is at large and the public needs to be warned or if a suspect needs publicity for alibi purposes. Failure to provide the defence with the ability to waive anonymity, for, say, the purposes of obtaining alibi information may in certain circumstances impede the right to a fair trial thereby making this amendment in contravention of Article 6 of the European Convention on Human Rights. Similarly, the fact that the courts have no discretion whatever to lift reporting restrictions is likely to make the provision incompatible with Article 10 and the right to freedom of expression. Finally, this amendment and Amendment No. 1C—the noble Baroness can feel comforted that the noble Lord, Lord Thomas of Gresford, shares this position with her— refer to applying the measure to offences listed in Schedule 3 of this Bill.
If I may respectfully say so, referring to an offence listed in Schedule 3 does not make sense pre-conviction as it would bring in all the thresholds in Schedule 3 which would include those relating to imprisonment. For example, Schedule 3 applies only to a young person who commits a child sex offence if he is sentenced to a term of imprisonment of at least 12 months. It is difficult to see how that would be applied at the pre-charge stage.
I turn to Amendment No. 1C. This amendment seeks to improve Amendment No. 1B by adding exceptions to reporting restrictions. The exceptions would provide that a suspect may waive his right to anonymity and that a court may lift the restrictions on application by a police officer at least of the rank of inspector. Such a delay in making an application to a court could still leave the police with operational difficulties which could put the safety of the public at risk. Furthermore, it would still mean an application to a court in any case where a TV programme such as "Crimewatch"—I am sure that noble Lords will be familiar with that programme—or a newspaper asked to give publicity involving identifying the suspect in order to apprehend him. This amendment does not make provision as to the test that should be used by the magistrates' court for disapplying anonymity. We believe that the court should have power to disapply anonymity only if it would be in the interests of justice to do so. There is also no provision for allowing the press to apply for the lifting of reporting restrictions.
The term "publication" is left undefined in this amendment. Yet what constitutes a publication is critical to the scope of the amendment. We believe that it should be defined in the same way as it is for the purposes of the reporting restrictions in the Youth

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Justice and Criminal Evidence Act 1999. If I may respectfully say so, the amendment makes no sense because it refers to a "relevant programme" without defining what that is and without explaining how it relates to a "publication". Again, we would have thought that the term should be defined in the same way as it is in the 1999 Act.
Finally, this amendment does not spell out the appropriate mode of trial or penalty for this offence— a point which the noble Baroness, Lady Noakes, with her usual acuity, alighted upon. The effect of this is that the offence would be triable on indictment only with a limitless penalty meaning that a defendant in such a case could, at least in theory, face an unlimited fine and/or a term of life imprisonment!
We have listened very carefully indeed to representations from those concerned about the very real harm that can be caused through the reporting of defendants' details. We also recognise that much concern in these cases arises from the damaging publicity that is often generated pre-charge.
We believe that informed and strengthened guidance to the police and the media is preferable to any change in legislation. The police code of conduct provides that information which comes into the possession of the police should be treated as confidential. It should not be used for personal benefit and nor should it be divulged to other parties except in the proper course of police duty. The code also demands that police officers have a particular responsibility to act with fairness and impartiality in all their dealings with the public and their colleagues. Regardless of whether on or off duty they should not behave in a way which is likely to bring discredit upon the police service. Unauthorised disclosure of information on the suspect by a police officer is likely to be considered a breach of the code. Such a breach means that an officer's conduct has not met the appropriate standard for the purposes of the police conduct regulations, and disciplinary proceedings may commence.
An officer could face dismissal or even prosecution, depending on the circumstances of the case. In 2002–03, approximately 61 such cases were substantiated. An agreement has been reached with ACPO that it would amend its media and disciplinary guidelines to all forces, to give greater prominence to the rules that govern the release of information about anyone suspected but not yet charged with an offence. That stronger guidance has already been put into effect, bringing the importance of the issue to the attention of police officers.
The Government have also engaged in detailed discussions with the chairman of the Press Complaints Commission. As a result, the press is now looking at its code of conduct to see how that can be strengthened to ensure that those suspected but not yet charged with offences are not named in the media.
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The Government have gone much further than the amendments would do. They are limited to certain sexual offences under the Bill. We have made it clear in our dealings with the police and the media that we expect them to apply such self-regulation in relation to all offences, including the heinous crime of murder. The Government have never been of the view that sexual offences should be singled out in the way proposed by the amendments.
Of course I have listened with great care to what has been said. The noble Lord, Lord Carlisle of Bucklow, was right in saying that the matters might be capable of being contained pre-charge, but that there would be a terrible hornets' nest if one were to extend further than that. There is a balance between the freedom of the press to report in a proper way and liberty in that sense, and the interests of the parties concerned.
Lord Carlisle of Bucklow: My Lords, I hope that the Minister is not suggesting that I in any way withdrew my support of the position pre-charge. I believe that there should be anonymity pre-charge.
Baroness Scotland of Asthal: No, my Lords. I was merely alluding to the fact that the noble Lord was referring to the difficulty that comes after charge in managing. He was quite right to raise concern about the practicality of how one would seek to manage that. That does not mean in any way a failure to appreciate the concerns so ably outlined by my noble friend Lord Corbett, who mentioned the work that he and my noble friend Lady Hayman did when they were in the other place, in relation to the 1976 legislation.
I want to make it clear that the sentiments mentioned by the right reverend Prelate the Bishop of Hereford, the noble Earl, Lord Erroll, the noble Lord, Lord Monson, and my noble friend Lady Mallalieu have been very much at the forefront of the Government's thinking. We have come to the decision that the balance is properly struck by strengthening the code as I have just indicated. I invite noble Lords not to press their amendments.
Lord Ackner: My Lords, at the outset of the debate on Report, I drew attention to the gap between 1976 and 1988, 12 years during which the defendant enjoyed anonymity. I said in terms that there had been no evidence of that giving rise to injustice or causing any problem at all. That was referred to by the noble Lord, Lord Corbett, for whose speech I am much indebted. Where is the problem? We have had a situation where the defendant enjoyed anonymity. What is the anxiety about putting that back? I will tell noble Lords what the anxiety is. It is the fear of criticism by the press.
In a speech which I and all other High Court judges had to make once a year at the University of Birmingham, I said in terms that the greatest problem facing any democracy is how to achieve a responsible

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press. Your Lordships may agree that recent events concerning the Prince of Wales make that position even clearer today.
This Government, like any other, refuse to face up to the need for legislation on privacy and they have left it entirely to self-regulation. One of my critics was the noble Baroness, Lady Kennedy. She said that one would lose the willingness of people to come forward, but she also said this about the press:
"The editor of one of our tabloid newspapers recently gave evidence before the Home Office Select Committee and said that her newspaper had paid money to police officers for information. It is well known that there are leaks from the police, particularly when the people involved have a public profile or an eminent position, whatever it might be. There are frequently leaks because it makes for good tabloid coverage".—[Official Report, 2/6/03; cols. 1092–3.]
The noble Baroness, Lady Walmsley. made a strong point on the subject. She said:
"The noble Baroness, Lady Kennedy of The: Shaws, said that others may come forward. If someone has a complaint, he or she should make it. It is rare for people to come forward when there is publicity. It is much more important that both the defendant and the complainant are treated equally in these exceptional circumstances".—[Official Report, 2/6/03; col. 1086.]
That is why she supported the amendment.
Returning to other matters that have been raised, perhaps I may deal first with the law on rape as it is now. An obligation on the judge to give the jury a warning about the absence of corroboration has been removed. I suppose that that was because pressure groups said that it was rude to suggest that women make up false allegations.
I have had the pleasure of listening, in Privy Council in particular, to the noble Lord, Lord Thomson, but I have never had the pleasure of leading him. I am grateful to him for being an efficient junior by pointing out the fact that there are frequently cases that are made up. Your Lordships may recall that they are made up not only maliciously, but also by an illusion. That was firmly demonstrated in that fine drama, A Passage To India. A wretched Indian was put into prison, but while he was being tried, the situation suddenly became clear to the complainant. The penalty deficiency can easily be put right as has been properly pointed out by the noble Lord, Lord Thomson, during the course of his observations.
That completes the points I want to raise because it deals with the various criticisms which have been made. I do not believe that the timid reliance on self-regulation, in order to ensure that you do not fall out with the press, is any argument at all. It is the Government's function primarily to stand up to the press. Until they do so, we shall continually have an irresponsible press.
1622
Having listened to what has been said, I believe that this is an appropriate case in which to test the opinion of the House.
6.36 p.m.
On Question, Whether the said amendment (No. 1A as an amendment to Amendment No. 1) shall be agreed to?
Their Lordships divided: Contents, 26; Not-Contents, 86.

Division No.4

CONTENTS

Ackner, L.

Hylton, L.

Ashcroft, L.

Lamont of Lerwick, L.

Beaumont of Whitley, L.

Maclennan of Rogart, L.

Corbett of Castle Vale, L.

Mallalieu, B.

Craig of Radley, L.

Monson, L. [Teller]

Craigavon, V.

Palmer, L.

Eden of Winton, L.

Renton, L.

Erroll, E.[Teller]

Sandwich, E.

Feldman, L.

Slynn of Hadley, L.

Hannay of Chiswick, L.

Stoddart of Swindon, L.

Hayman, B.

Tebbit, L.

Hereford, Bp.

Wade of Chorlton, L.

Howe of Idlicote, B.

Weatherill, L.

NOT-CONTENTS

Acton, L.

Gilbert, L.

Ahmed, L.

Golding, B.

Alli, L.

Goldsmith, L.

Amos, B. (Lord President)

Gould of Potternewton, B.

Andrews, B.

Graham of Edmonton, L.

Archer of Sandwell, L.

Grocott, L. [Teller]

Ashton of Upholland, B.

Harris of Haringey, L.

Bach, L.

Harrison, L.

Bassam of Brighton, L.

Hollick, L.

Berkeley, L.

Hollis of Heigham, B.

Bernstein of Craigweil, L.

Howells of St. Davids, B.

Bhatia, L.

Howie of Troon, L.

Billingham, B.

Hoyle, L.

Blackstone, B.

Hughes of Woodside, L.

Borrie, L.

Hunt of Chesterton, L.

Bragg, L.

Hunt of Kings Heath, L.

Brett, L.

Jay of Paddington, B.

Brooke of Alverthorpe, L.

Judd, L.

Brookman, L.

King of West Bromwich, L.

Burlison, L.

Macdonald of Tradeston, L.

Carter, L.

McIntosh of Haringey, L.

Chandos, V.

McIntosh of Hudnall, B.

Christopher, L.

MacKenzie of Culkein, L.

Clarke of Hampstead, L.

Mackenzie of Framwellgate, L.

Clinton-Davis, L.

Massey of Darwen, B.

Cohen of Pimlico, B.

Merlyn-Rees, L.

Crawley, B.

Mitchell, L.

Davies of Coity, L.

Morgan, L.

Davies of Oldham, L. [Teller]

Parekh, L.

Dean of Thornton-le-Fylde, B.

Pendry, L.

Donoughue, L.

Pitkeathley, B.

Dormand of Easington, L.

Ramsay of Cartvale, B.

Dubs, L.

Rea, L.

Evans of Parkside, L.

Rendell of Babergh, B.

Evans of Temple Guiting, L.

Richard, L.

Falconer of Thoroton, L. (Lord

Rogers of Riverside, L.

Chancellor)

Sainsbury of Turville, L.

Farrington of Ribbleton, B.

Scotland of Asthal, B.

Faulkner of Worcester, L.

Sewel, L.

Finlay of Llandaff, B.

Simon, V.

Gale, B.

Temple-Morris, L.

1623

Thornton, B.

Whitty, L.

Turner of Camden, B.

Woolmer of Leeds, L.

Whitaker, B.

Resolved in the negative, and amendment disagreed to accordingly.
6.46 p.m.
[Amendment No. 1B not moved.]
Lord Thomas of Gresford rose to move, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 1, at end insert "but do propose the following amendment in lieu of the words so left out of the Bill—
1C Insert the following new Clause—
"Anonymity of suspects and defendants in certain cases (No. 2)

(1) Subject to subsection (3), where an allegation has been made that a person has committed an offence listed in Schedule 3, no matter relating to that person shall be included in any publication if it is likely to lead members of the public to identify that person as the person who is alleged to have committed the offence, until and unless that person is charged.

(2) If any matter is published or included in a relevant programme in contravention of subsection (1), the following persons, namely—

(a) in the case of a publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical;

(b) in the case of any other publication, the person who publishes it; and

(c)in the case of a matter included in a relevant programme, any body corporate which is engaged in providing the service in which the programme is included and any person having functions in relation to the programme corresponding to those of an editor of a newspaper;

shall be guilty of an offence.

(3) Subsection (1) shall not apply—

(a) if the person against whom the allegation has been made waives his right to anonymity; or

(b) if it is disapplied in relation to a specific person by a magistrates' court on application by a police officer of at least the rank of inspector.""

The noble Lord said: My Lords, I spoke to this amendment in the debate on Amendment No. 1A. I have nothing to add. I ask the House to agree to it. I beg to move.
Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 1, at end insert Amendment No. 1C in lieu of the words so left out of the Bill.—(Lord Thomas of Gresford.)
On Question, Whether the said amendment (No. 1C) shall be agreed to?
✶Their Lordships divided: Contents, 101; Not-Contents, 79.

Division No.5

CONTENTS

Addington, L.

Attlee, E.

Anelay of St Johns, B.

Avebury, L.

Ashcroft, L.

Barker, B.

Astor of Hever, L. [Teller]

Beaumont of Whitley, L.

1624

Bridgeman, V.

Miller of Hendon, B.

Brooke of Sutton Mandeville, L.

Monro of Langholm, L.

Brougham and Vaux, L.

Monson, L.

Byford, B.

Montrose, D.

Campbell of Alloway, L.

Moynihan, L.

Carlisle of Bucklow, L.

Newby, L.

Colwyn, L.

Noakes, B.

Cope of Berkeley, L.

Northesk, E.

Corbett of Castle Vale, L.

Northover, B.

Craig of Radley, L.

Norton of Louth, L.

Craigavon, V.

Oakeshott of Seagrove Bay, L.

Denham, L.

O'Cathain, B.

Dholakia, L.

Onslow, E.

Dixon-Smith, L.

Palmer, L.

Eden of Winton, L.

Park of Monmouth, B.

Erroll, E.

Pearson of Rannoch, L.

Falkland, V.

Phillips of Sudbury, L.

Feldman, L.

Rawlings, B.

Finlay of Llandaff, B.

Razzall, L.

Flather, B.

Redesdale, L.

Forsyth of Drumlean, L.

Rennard, L.

Geddes, L.

Renton, L.

Glenarthur, L.

Roberts of Conwy, L.

Glenarthur, L.

Rodgers of Quarry Bank., L.

Glentoran, L.

Roper, L.[Teller]

Goodhart, L.

Russell, E.

Hanham, B.

Sandberg, L.

Hannay of Chiswick, L.

Sandwich, E.

Harris of Richmond, B.

Scott of Needham Market, B.

Hereford, Bp.

Seccombe, B.

Higgins, L.

Selborne, E.

Hodgson of Astley Abbotts, L.

Shutt of Greetland, L.

Howe, E.

Skelmersdale, L.

Howe of Aberavon, L.

Slynn of Hadley, L.

Howell of Guildford, L.

Smith of Clifton, L.

Lamont of Lerwick, L.

Stoddart of Swindon, L.

Linklater of Butterstone, B.

Strathclyde, L.

Listowel, E.

Tebbit, L.

Livsey of Talgarth, L.

Thomas of Gresford, L.

Lucas, L.

Thomas of Walliswood, B.

Luke, L.

Tope, L.

Maclennan of Rogart, L.

Wade of Chorlton, L.

McNally, L.

Wallace of Saltaire, L.

Maddock, B.

Walmsley, B.

Mallalieu, B.

Watson of Richmond, L.

Methuen, L.

Weatherill, L.

Miller of Chilthorne Domer, B.

Williams of Crosby, B.

NOT-CONTENTS

Ahmed, L.

Donoughue, L.

Alli, L.

Dormand of Easington, L.

Amos, B.(Lord President)

Dubs, L.

Andrews, B.

Evans of Parkside, L.

Archer of Sandwell, L.

Evans of Temple Guiting, L.

Ashton of Upholland, B.

Falconer of Thoroton, L. (Lord

Bach, L.

Chancellor)

Bassam of Brighton, L.

Farrington of Ribbleton, B.

Berkeley, L.

Faulkner of Worcester, L.

Bernstein of Craigweil, L.

Gale, B.

Billingham, B.

Gilbert, L.

Blackstone, B.

Golding, B.

Borrie, L.

Goldsmith, L.

Bragg, L.

Gould of Potternewton, B.

Brooke of Alverthorpe, L.

Graham of Edmonton, L.

Brookman, L.

Grocott, L.[Teller]

Burlison, L.

Harris of Haringey, L.

Carter, L.

Harrison, L.

Chandos, V.

Hollick, L.

Clarke of Hampstead, L.

Hollis of Heigham, B.

Clinton-Davis, L.

Howells of St. Davids, B.

Cohen of Pimlico, B.

Howie of Troon, L.

Crawley, B.

Hughes of Woodside, L.

Davies of Coity, L.

Hunt of Chesterton, L.

Davies of Oldham, L.[Teller]

Hunt of Kings Heath, L.

Dean of Thornton-le-Fylde, B.

Jay of Paddington, B.

1625

Judd, L.

Rea, L.

King of West Bromwich, L.

Rendell of Babergh, B.

Macdonald of Tradeston, L.

Richard, L.

McIntosh of Haringey, L.

Rogers of Riverside, L.

McIntosh of Hudnall, B.

Scotland of Asthal, B.

MacKenzie of Culkein, L.

Sewel, L.

Mackenzie of Framwellgate, L.

Simon, V.

Massey of Darwen, B.

Temple-Morns, L.

Merlyn-Rees, L.

Thornton, B.

Morgan, L.

Turner of Camden, B.

Parekh, L.

Warwick of Undercliffe, B.

Pendry, L.

Whitaker, B.

Pitkeathley, B.

Whitty, L.

Ramsay of Cartvale, B.

Woolmer of Leeds, L.

[✶The name of a Lord who voted in both Lobbies has been removed from the voting lists.]
Resolved in the affirmative, and amendment agreed to accordingly.
On Question, Motion, as amended, agreed to.
6.59 p.m.

COMMONS AMENDMENTM
2 Clause 9, page 4, line 2, leave out "(A)"
Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2. This group of government amendments deals with several issues; namely, minor drafting matters to tidy up certain clauses, some consequential alterations to other legislation, the extension of the Bill to Northern Ireland: and Scotland and the application of Part 2 of the Bill in the services' courts. I beg to move.
Moved, That the House do agree with the Commons in their Amendment No. 2.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.
7 p.m.

COMMONS AMENDMENTS
3 Clause 9, page 4, line 7, leave out from "section," to "if" in line 11
4 Page 4, line 16, at end insert ",
is liable, on conviction on indictment, to imprisonment for life.
( ) Unless subsection (2) applies, a person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years."

5 Clause 10, page 4, line 26, after "section" insert ", if the touching involved—

(a) penetration of B's anus or vagina with a part of A's body or anything else,

(b) penetration of B's mouth with A's penis,

(c) penetration of A's anus or vagina with a part of B's body, or

(d) penetration of A's mouth with B's penis,"

6 Page 4, line 27, at end insert—
"( ) Unless subsection (2) applies, a person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years."

7 Clause 11, page 4, line 37, after "section" insert ", if the activity caused or incited involved—

(a) penetration of B's anus or vagina,

(b) penetration of B's mouth with a person's penis,

(c)penetration of a person's anus or vagina with a part of B's body or by B with anything else, or

(d) penetration of a person's mouth with B's penis,"

8 Page 4, line 38, at end insert—
"( ) Unless subsection (2) applies, a person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years."

Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 3 to 8.
This group of amendments is intended to bring more consistency to the offences in the Bill with respect to the mode of trial. Some offences in the Bill, whether committed against adults or children, are so serious that trial should be on indictment only. Rape and sexual assault by penetration fall into that category.
However, many of the offences in the Bill against children or against vulnerable adults which do not require lack of consent to be proved cover behaviour of a range of seriousness. The amendments would mean that where the specified offence involves penetration by an adult of a child under 16 or of a vulnerable adult, the mode of trial should be on indictment only. Where the activity falls short of penetration, the offence should be triable either way.
Amendments Nos. 3, to 8, 27 to 30, 41 and 42, 48 and 49, 55, 61, 64 and 65, 68 and 69, 101 and 102 and 103 amend the mode of trial for the offences in Clauses9 to 11, 27 and 28, 32 to 37 and 49, so that where the activity does not involve penetration, the offence will be triable either way. Those changes strike a sensible balance between ensuring that manifestly serious cases will always be dealt with at Crown Court while retaining a degree of flexibility about other behaviour that covers a range of seriousness.
I invite your Lordships to accept the amendments for the sake of greater consistency.
Moved, That the House do agree with the Commons in their Amendments Nos. 3 to 8.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
9 Clause 12, page 5, line 3, leave out from "it" to "knowing" in line 4 and insert—

"(i) when another person (B) is present or is in a place from which A can be observed, and

(ii) "

10 Clause 13, page 5, line 19, leave out "a photograph or pseudo-photograph" and insert "an image"
11 Clause 15, page 6, line 15, after "not" insert "for the purpose of obtaining sexual gratification or"
12 Clause 16, Leave out Clause 16
13 Clause 17, page 7, line 21, leave out "7" and insert "10"
14 Clause 20, page 9, line 10, leave out from "it" to "knowing" in line 11 and insert—

"(i) when another person (B) is present or is in a place from which A can be observed, and

(ii) "

15 Clause 21, page 10, line 5, leave out "a photograph or pseudo-photograph" and insert "an image"
Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 9 to 15.
The purpose of the amendments is to make changes to Part 1. A loophole in Clause 12—"Engaging in sexual activity in the presence of a child"—meant that the situation in which a person engages in sexual activity and sends the live image of that via a webcam or other electronic means to a child was not covered. Government Amendments Nos. 9, 14, 50, 70 and 85 have closed that loophole in Clause 12 and in other clauses that involve engagement in sexual activity in the presence of a person.
The police raised concerns that offences involving causing a person to watch a sexual act extended only to showing photographs or pseudo-photographs. The police gave us examples whereby paedophiles had shown children tracings of indecent photographs and drawings and cartoons of sexual activity. Government Amendments Nos. 10, 15, 56, 74 and 90 extend those offences to cover any form of visual representation.
Amendment No. 11 excludes from the exception at Clause 15—"Arranging or facilitating commission of a child sex offence"—people acting for their own sexual gratification. Amendments Nos. 128 and 129 make a similar change to Clause 74. That will ensure that a person does not commit an offence if he acts for the purpose of protecting a child's physical safety, protecting a child from pregnancy or sexually transmitted infection, or promoting the child's emotional well-being by the giving of advice, provided that he is not acting to cause or encourage an offence and that he is not acting for the purpose of obtaining sexual gratification.
Government Amendment No. 12 removes the marriage defence in Clause 16 for the child sex offences. We do not believe that someone should be able to engage in sexual activity with a child under the age of consent just because the two are married. However, government Amendments Nos. 25, 34 and
1628
96 retain a marriage defence where offences criminalise sexual activity with children over the age of consent—for example, in the abuse of a position of trust offences—but only in circumstances where the child is 16 or over.
Government Amendment No. 13 increases the penalty for the grooming offence in Clause 17 from seven to 10 years. That will enable appropriate sentences to be passed in the most serious cases. The situation could arise, for example, whereby a paedophile with many previous and serious convictions had repeatedly communicated with children on the Internet, there was clear evidence that he intended to commit maybe a violent sex offence against one or more of them, and he set off to meet one of those children for that purpose but the police were able to intervene to protect the child. In such cases, a maximum sentence of seven years' imprisonment may not be adequate. The proposed new maximum penalty of 10 years brings the offence in Clause 17 into line with the preparatory offences in Clauses 62 to 64, which also carry 10-year maximum penalties.
Government Amendments Nos. 17 to 24 extend the scope of the abuse of trust offences in Clauses 18 to 21. The circumstances in which step-parents fall within the scope of the familial child sex offences have been changed by government Amendments Nos. 31, 32 and 33 so that they are treated equally with foster parents.
The offences involving a person with a mental disorder have been amended by government Amendments Nos. 36, 39, 43, 46, 51, 54, 57 and 60 so that the link between someone's inability to refuse and their mental disorder does not exclude persons who are unable to refuse because of medication that they have received to treat their mental disorder. Furthermore, the term "mental disorder or learning disability" has been replaced with "mental disorder", by government Amendments Nos. 37, 38,44, 45, 52, 53, 58, 59, 62, 63, 66, 67, 72, 73, 75 to 89, 91 to 95 and 211 to 213. Given that the definition of "mental disorder" as stated in the Mental Health Act 1983, which we adopt in Clause 80, covers all forms of learning disability, the inclusion of "learning disability" in the text of those clauses is redundant.
Following debates in this House, the wording of Clauses 32 and 33—on sexual activity with a person with a mental disorder and causing or inciting a person with a mental disorder to engage in sexual activity— was changed by government Amendments Nos. 40 and 47. An understanding of the "reasonably foreseeable" rather than the "possible" consequences of what is being done is now required to qualify as being unable to refuse.
Amendment No. 98 addresses concerns that the effect of the wording in Clause 47 of the exception relating to indecent photographs featuring a child aged 16 or 17 did not cover those in a lawful enduring relationship with one another while it included some people we would not wish to cover.
Amendments Nos. 99 and 100 would provide a workable and secure defence to the offence of making child pornography based on proof—on the balance of

1629
probabilities—that it is necessary to do so for one of the specified purposes: detection, investigation or prevention of crime, for criminal proceedings or by members of the security service or GCHQ for the function of their services.
The trafficking offences have been amended by government Amendments Nos. 107, 109 and 111 to criminalise someone intentionally moving a person to where they believe another person is likely to do something to the victim that, if done as intended, will involve (he commission of a relevant sexual offence. That addresses concerns raised by the police that trafficking offences would be extremely difficult to prove.
The scope of offences relating to sex with an adult relative has been widened by government Amendments Nos. 112 and 113 to include blood uncles and aunts and their blood nieces and nephews. That is because there exists the same amount of genetic similarity between blood uncles and aunts and their blood nieces and nephews as between half-brothers and sisters, who are already included in the offence.
As previously drafted, the exposure offence required a person who exposes his genitals to know or intend that someone will see them and be caused alarm or distress. There was still some concern that that might criminalise legitimate naturist behaviour. The clause has been altered by Amendment No. 121 to limit the offence of exposing the genitals to the situation in which a person intends that someone will see them and be caused alarm or distress.
The term "structure" has been removed by government Amendments Nos. 124 and 126 from the definition of "private act" in the interpretation of the voyeurism offence. The offence will now protect anyone engaging in a private act in any place where they would have a reasonable expectation of privacy, not just when they are in a structure.
Finally, a further category has been added to the list of circumstances giving rise to the rebuttable presumptions. Government Amendment No. 130 includes in the list in Clause 76(2) the situation in which the defendant knows that someone has administered a substance to the victim that would render him incapable of resisting sexual activity.
With your Lordships' leave, I have taken a little time so that we are absolutely clear about what these amendments do. I beg to move.
Baroness Noakes: My Lords, this is a large group of amendments and noble Lords will be pleased to hear that I will not be speaking at length to any of them. The amendments in this group reflect the careful scrutiny that this Bill has received both in your Lordships' House and in another place. Many of the points that we are seeing brought back again in amendments from the Commons originated on issues that were first debated in your Lordships' House. Almost everybody got something changed that they tried to get changed in the Bill—if not quite a lot. That goes not only for responses to issues raised by the Front Bench, but for those raised by other colleagues in the House.
1630
My noble friend Lady Blatch, who is unable to be in her place for this stage of proceedings, has asked me to place on record her thanks for the amendments that have come back dealing with trust provisions and the exclusion of sexual gratification from the Clause 15 exception. We support the amendments.
Lord Thomas of Gresford Lord Thomas of Gresford My Lords, I add my thanks to the Minister and to the noble and learned Lord, Lord Falconer, for the lengthy discussions that he and the Minister permitted us to have on this Bill. That has resulted, we believe, in a very significant improvement.
Lord Lucas: My Lords, I thank the noble and learned Lord, Lord Falconer, for Amendment No. 130, on which we had long discussions when the Bill was in the House. He promised to do something about the matter and I am delighted with the result. I would also like to thank Lesley Dix, an official in the criminal law policy unit and, doubtless, others like her who took up the point that I raised, which is now the subject of Amendments Nos. 112 and 113.
My point was completely nerdy and made no impression at all on the Minister in debate, but I am delighted to say that it was taken up by officials and has emerged as an amendment, which I am delighted to see. That deserves a very special thank you, because one thinks ill of officials from time to time, especially when they are supporting the government line. It is very nice to have the chance to say, "Thank you".
On Question, Motion agreed to.

COMMONS AMENDMENTS
16 Clause 23, page 11, line 4, leave out "subsections (2) to (8)" and insert "the following subsections"
17 Page 11, line 30, at end insert—
"( ) This subsection applies if A is appointed to be the guardian of B under Article 159 or 160 of the Children (Northern Ireland) Order 1995 (S.I. 1995/ 755 (N.I. 2))."
18 Page 11, line 32, leave out from "under" to end of line 33 and insert "—

(a) sections 8 to 10 of the Employment and Training Act 1973 (c. 50), or

(b) section 114 of the Learning and Skills Act 2000 (c. 21)

and, in that capacity, looks after B on an individual basis.

( ) This subsection applies if A regularly has unsupervised contact with B (whether face to face or by any other means)—

(a) in the exercise of functions of a local authority under section 20 or 21 of the Children Act 1989 (c. 41), or

(b) in the exercise of functions of an authority under Article 21 or 23 of the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2))."

19 Page 11, line 33, at end insert—
"( ) This subsection applies if A, as a person who is to report to the court under section 7 of the Children Act 1989 (c. 41) or Article 4 of the Children (Northern Ireland) Order 1995 (S.I.I 995/ 755 (N.I. 2)) on matters relating to the welfare of B, regularly has unsupervised contact with B (whether face to face or by any other means)."
20 Page 11, line 39, at end insert—
"( ) This subsection applies if—

(a) B is subject to a care order, a supervision order or an education supervision order, and

(b) in the exercise of functions conferred by virtue of the order on an authorised person or the authority designated by the order, A looks after B on an individual basis.

( ) This subsection applies if A—

(a) is an officer of the Service appointed for B under section 41(1) of the Children Act 1989 (c. 41),

(b) is appointed a children's guardian of B under rule 6 or rule 18 of the Adoption Rules 1984 (S.I. 1984/265), or

(c) is appointed to be the guardian ad litem of B under rule 9.5 of the Family Proceedings Rules 1991 (S. I.1991/ 1247) or under Article 60(1) of the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)),

and, in that capacity, regularly has unsupervised contact with B (whether face to face or by any other means)."

21 Clause 24, page 12, line 9, leave out "alone"
22 Page 12, line 23, at end insert—
""care order" has—

(a) in relation to England and Wales, the same meaning as in the Children Act 1989 (c. 41), and

(b) in relation to Northern Ireland, the same meaning as in the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2));"

23 Page 12, line 34, at end insert—
""education supervision order" has—

(a) in relation to England and Wales, the meaning given by section 36 of the Children Act 1989 (c. 41), and

(b) in relation to Northern Ireland, the meaning given by Article 49(1) of the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2));"

24 Page 13, line 8, at end insert—
""supervision order" has—

(a) in relation to England and Wales, the meaning given by section 31(11) of the Children Act 1989 (c. 41), and

(b) in relation to Northern Ireland, the meaning given by Article 49(1) of the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2));"

25 Clause 25, page 13, line 18, leave out from "if to end and insert "at the time —

(a) B is 16 or over, and

(b) A and B are lawfully married"

26 Page 13, line 19, leave out "A to prove that he" and insert "the defendant to prove that A"
27 Clause 27, page 14, line 12, after "liable" insert "—

(a) where subsection (6) applies, on conviction on indictment to imprisonment for a term not exceeding 14 years;

(b) in any other case—

(i) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(ii) "

28 Page 14, line 19, at end insert—
"(6) This subsection applies where the touching involved—

(a) penetration of B's anus or vagina with a part of A's body or anything else,

(b) penetration of B's mouth with A's penis,

(c) penetration of A's anus or vagina with a part of B's body, or

(d) penetration of A's mouth with B's penis."

29 Clause 28, page 14, line 43, after "liable," insert"—

(a) where subsection (6) applies, on conviction on indictment to imprisonment for a term not exceeding 14 years;

(b) in any other case—

(i) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(ii) "

30 Page 15, line 4, at end insert—

"(6) This subsection applies where the touching to which the incitement related involved—

(a) penetration of B's anus or vagina with a part of A's body or anything else,

(b) penetration of B's mouth with A's penis,

(c) penetration of A's anus or vagina with a part of B's body, or

(d) penetration of A's mouth with B's penis."

31 Clause 29, page 15, line 13, leave out from beginning to second "or"
32 Page 15, line 18, leave out "partner of the other's parent" and insert "other's step-parent"
33 Page 15, line 40, at beginning insert ""step-parent" includes a parent's partner and"
34 Clause 30, page 15, line 43, leave out from "if" to end of line 44 and insert "at the time—

(a) B is 16 or over, and

(b) A and B are lawfully married"

35 Page 16, line 1, leave out "A to prove that he" and insert "the defendant to prove that A"
36 Clause 32, page 16, line 20, after "of insert "or for a Amendment related to"
37 Page 16, line 20, leave out "or learning disability"
38 Page 16, line 23, leave out "or learning disability"
39 Page 16, line 23, after "it" insert "or for a reason related to it"
40 Page 16, line 28, leave out "possible" and insert "reasonably foreseeable"
41 Page 16, line 31, leave out from "section" to "if in line 35
42 Page 16, line 40, at end insert ",
is liable, on conviction on indictment, to imprisonment for life.
( ) Unless subsection (3) applies, a person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years."

43 Clause 33, page 17, line 7, after "of insert "or for a Amendment related to"
44 Page 17, line 7, leave out "or learning disability"
45 Page 17, line 10, leave out "or learning disability"
46 Page 17, line 10, after "it" insert "or for a reason related to it"
47 Page 17, line 15, leave out "possible" and insert "reasonably foreseeable"
48 Page 17, line 18, leave out from "section" to "if in line 22
49 Page 17, line 27, at end insert ",
is liable, on conviction on indictment, to imprisonment for life.
( ) Unless subsection (3) applies, a person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum, or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years."

50 Clause 34, page 17, line 33, leave out from "it" to "knowing" in line 34 and insert—

"(i) when another person (B) is present or is in a place from which A can be observed, and

(ii) "

51 Page 17, line 36, after "of insert "or for a reason related to"
52 Page 17, line 36, leave out "or learning disability"
53 Page 17, line 39, leave out "or learning disability"
54 Page 17, line 39, after "it" insert "or for a reason related to it"
55 Page 18, line 1, after "liable" insert "—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(b)"

56 Clause 35, page 18, line 8, leave out "a photograph or pseudo-photograph" and insert "an image"
57 Page 18, line 11, after "of insert "or for a reason related to"
58 Page 18, line 11, leave out "or learning disability"
59 Page 18, line 14, leave out "or learning disability"
60 Page 18, line 14, after "it" insert "or for a reason related to it"
61 Page 18. line 21, after "liable" insert "—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(b)"

62 Clause 36, page 18. line 32, leave out "or learning disability"
63 Page 18, line 34, leave out "or learning disability"
64 Page 18, line 35, leave out from "section" to "if in line 39
65 Page 18, line 44, at end insert ",
is liable, on conviction on indictment, to imprisonment for life.
( ) Unless subsection (2) applies, a person guilly of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years."

66 Clause 37, page 19, line 8, leave out "or learning disability"
67 Page 19, line 10, leave out "or learning disability"
68 Page 19, line 11, leave out from "section" to "if in line 15
69 Page 19, line 20, at end insert ",
is liable, on conviction on indictment, to imprisonment for life.
( ) Unless subsection (2) applies, a person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years."

70 Clause 38, page 19, line 26, leave out from "it" to "knowing" in line 27 and insert—

"(i) when another person (B) is present or is in a place from which A can be observed, and

(ii) "

71 Page 19, line 29, after "present" insert "or in the place referred to in paragraph (c)(i)"
72 Page 19, line 32, leave out "or learning disability"
73 Page 19, line 34, leave out "or learning disability"
74 Clause 39, page 20, line 1, leave out "a photograph or pseudo-photograph" and insert "an image"
75 Page 20, line 7, leave out "or learning disability"
76 Page 20, line 9, leave out "or learning disability"
77 Clause 40, page 20, line 21, leave out "or learning disability"
78 Page 20, line 23, leave out "or learning disability"
79 Page 20, line 26, leave out "or learning disability"
80 Page 20, line 28, leave out "or learning disability"
81 Clause 41, page 21, line 6, leave out "or learning disability"
82 Page 21, line 8, leave out "or learning disability"
83 Page 21, line 11, leave out "or learning disability"
84 Page 21, line 13, leave out "or learning disability"
85 Clause 42, page 21, line 36, leave out from "it" to "knowing" in line 37 and insert—

"(i) when another person (B) is present or is in a place from which A can be observed, and

(ii) "

86 Page 21, line 39, leave out "or learning disability"
87 Page 21, line 41, leave out "or learning disability"
88 Page 21, line 44, leave out "or learning disability"
89 Page 21, line 46, leave out "or learning disability"
90 Clause 43, page 22, line 13, leave out "a photograph or pseudo-photograph" and insert "an image"
91 Page 22, line 16, leave out "or learning disability"
92 Page 22, line 18, leave out "or learning disability"
93 Page 22, line 21, leave out "or learning disability"
94 Page 22, line 23, leave out "or learning disability"
95 Clause 44, page 23, line 6, leave out "or learning disability"
96 Clause 45, page 23, line 31, leave out from "if to end and insert "at the time—

(a) B is 16 or over, and

(b) A and B are lawfully married"

97 Page 23, line 32, leave out "A to prove that he" and insert "the defendant to prove that A"
98 Clause 47, page 24, leave out lines 8 to 27 and insert—
"" 1A Marriage and other relationships

(1) This section applies where, in proceedings for an offence under section 1(1)(a) of taking or making an indecent photograph of a child, or for an offence under section l(l)(b) or (c) relating to an indecent photograph of a child, the defendant proves that the photograph was of the child aged 16 or over, and that at the time of the offence charged the child and he—

(a) were married, or

1635

(b) lived together as partners in an enduring family relationship.

(2) Subsections (5) and (6) also apply where, in proceedings for an offence under section 1(1)(b) or (c) relating to an indecent photograph of a child, the defendant proves that the photograph was of the child aged 16 or over, and that at the time when he obtained it the child and he—

(a) were married, or

(b) lived together as partners in an enduring family relationship.

(3) This section applies whether the photograph showed the child alone or with the defendant, but not if it showed any other person.

(4) In the case of an offence under section l(l)(a), if sufficient evidence is adduced to raise an issue as to whether the child consented to the photograph being taken or made, or as to whether the defendant reasonably believed that the child so consented, the defendant is not guilty of the offence unless it is proved that the child did not so consent and that the defendant did not reasonably believe that the child so consented.

(5) In the case of an offence under section l(l)(b), the defendant is not guilty of the offence unless it is proved that the showing or distributing was to a person other than the child.

(6) In the case of an offence under section l(l)(c), if sufficient evidence is adduced to raise an issue both—

(a) as to whether the child consented to the photograph being in the defendant's possession, or as to whether the defendant reasonably believed that the child so consented, and

(b) as to whether the defendant had the photograph in his possession with a view to its being distributed or shown to anyone other than the child,

the defendant is not guilty of the offence unless it is proved either that the child did not so consent and that the defendant did not reasonably believe that the child so consented, or that the defendant had the photograph in his possession with a view to its being distributed or shown to a person other than the child."

( ) After section 160 of the Criminal Justice Act 1988 (c. 33) (possession of indecent photograph of child) insert—
"160A Marriage and other relationships

(1) This section applies where, in proceedings for an offence under section 160 relating to an indecent photograph of a child, the defendant proves that the photograph was of the child aged 16 or over, and that at the time of the offence charged the child and he—

(a) were married, or

(b) lived together as partners in an enduring family relationship.

(2) This section also applies where, in proceedings for an offence under section 160 relating to an indecent photograph of a child, the defendant proves that the photograph was of the child aged 16 or over, and that at the time when he obtained it the child and he—

(a) were married, or

(b) lived together as partners in an enduring family relationship.

(3) This section applies whether the photograph showed the child alone or with the defendant, but not if it showed any other person.

(4) If sufficient evidence is adduced to raise an issue as to whether the child consented to the photograph being in the defendant's possession, or as to whether the defendant reasonably believed that the child so consented, the defendant is not guilty of the offence unless it is proved that the child did not so consent and that the defendant did not reasonably believe that the child so consented.""

99 Clause 48, page 24, line 31, leave out from beginning to end of line 16 on page 25 and insert—

"(1) In proceedings for an offence under section 1(1)(a) of making an indecent photograph or pseudo-photograph of a child, the defendant is not guilty of the offence if he proves that—

(a) it was necessary for him to make the photograph or pseudo-photograph for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings, in any part of the world,

(b) at the time of the offence charged he was a member of the Security Service, and it was necessary for him to make the photograph or pseudo-photograph for the exercise of any of the functions of the Service, or

(c) at the time of the offence charged he was a member of GCHQ, and it was necessary for him to make the photograph or pseudo-photograph for the exercise of any of the functions of GCHQ.

(2) In this section "GCHQ" has the same meaning as in the Intelligence Services Act 1994.""

100 Page 25, leave out lines 20 to 46 and insert—

"(1) In proceedings for an offence under Article 3(l)(a) of making an indecent photograph or pseudo-photograph of a child, the defendant is not guilty of the offence if he proves that—

(a) it was necessary for him to make the photograph or pseudo-photograph for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings, in any part of the world,

(b) at the time of the offence charged he was a member of the Security Service, and it was necessary for him to make the photograph or pseudo-photograph for the exercise of any of the functions of the Service, or

(c) at the time of the offence charged he was a member of GCHQ, and it was necessary for him to make the photograph or pseudo-photograph for the exercise of any of the functions of GCHQ.

(2) In this Article "GCHQ" has the same meaning as in the Intelligence Services Act 1994.""

101 Clause 49, page 26, line 17, leave out from "where" to "is" in line 24, and insert "subsection (5A) applies,"
102 Page 26, line 26, after "liable" insert "—

(a) where subsection (5A) applies, on conviction on indictment, to imprisonment for a term not exceeding 14 years;

(b) in any other case—

(i) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(ii) "

103 Page 26, line 33, at end insert—

"(5A) This subsection applies where the offence involved—

(a) penetration of B's anus or vagina with a part of A's body or anything else,

(b) penetration of B's mouth with A's penis,

(c) penetration of A's anus or vagina with a part of B's body or by B with anything else, or

(d) penetration of A's mouth with B's penis."

104 Clause 53, page 27, line 35, leave out "moving or still"
Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 16 to 104. I spoke to these amendments with Amendments Nos. 2,3 and 9.
Moved, That the House to agree with the Commons in their Amendments Nos. 16 to 104.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.
7.15 p.m.

COMMONS AMENDMENT
105 After Clause 56, Insert the following new Clause—
"Penalties for keeping a brothel
In paragraph 33 of Schedule 2 to the Sexual Offences Act 1956 (c. 69) (mode of prosecution, punishment etc. for offences under section 33 of that Act)—

(a) for the entries in the second and third columns substitute—

"(i) On indictment

Seven years

(ii) Summarily

Six months, or the statutory maximum or both";

(b) omit the entry in the fourth column."

105A After Clause 56, Insert the following new Clause—
"Penalties for keeping a brothel used for prostitution

(1) The Sexual Offences Act 1956 (c. 69) is amended as follows.

(2) After section 33 insert—

"33A Keeping a brothel used for prostitution

(1) It is an offence for a person to keep, or to manage, or act or assist in the management of, a brothel to which people resort for practices involving prostitution (whether or not also for other practices).

(2) In this section "prostitution" has the meaning given by section 53(2) of the Sexual Offences Act 2003."

(3) In Schedule 2 (mode of prosecution, punishment etc.), after paragraph 33 insert (as a paragraph with no entry in the fourth column)—

"33A

Keeping a brothel used for prostitution (section 33A).

(i) on indictment

Seven years,

(ii) summarily

Six months, or the statutory maximum, or both.""

Baroness Scotland of Asthal: My Lords, I beg to move that the House do disagree with the Commons in their Amendment No. 105 but propose Amendment No. 105A in lieu thereof.
Amendment No. 105, tabled in the other place, raised the maximum penalty available for the offence of keeping a brothel at Section 33 of the Sexual Offences Act 1956 from three months' imprisonment, or six months for a second or subsequent offence, to seven years' imprisonment.
Currently, where the police need to prosecute those who derive income from the management of several brothels at which prostitution takes place, but who distance themselves from the day-to-day running of
1638
the brothel, they use the offence at Section 30 of the Sexual Offences Act 1956—that is, living on the earnings of prostitution. However, the sex offences review recommended the repeal of Section 30 because it is not focused solely on exploitative behaviour. Potentially, it also captures the genuine, long-term partner of a woman who is supported by her earnings from prostitution or the daughter of a woman involved in prostitution who is supported through university by her mother's earnings. That is why we are repealing Section 30.
However, the police raised concerns with us that, in some cases, it would be difficult to prove the new offence of controlling prostitution for gain, at Clause 55 of the Bill, where a person was not involved in the day-to-day running of the brothel but none the less derived his income from it. It has always been our position that the law on prostitution fell outside the scope of the sex offences review but that the targeted exploitation of the prostitution of others did not. The review of sexual offences recommended that there should be a further review of the law on prostitution. We are currently scoping a review of prostitution, organised criminality, class A drug abuse and social nuisance associated with it.
Pending the outcome of that scoping exercise, we did not want the repeal of the offence of living on the earnings of prostitution to create a loophole that could be used by those who derive money from exploiting the prostitution of others. After consultation with the police, we therefore decided that the best way to tackle the issue was to raise the penalty for the offence of keeping a brothel, at Section 33 of the 1956 Act, from its present relatively low level of three months' imprisonment for a first offence, or six months for a subsequent offence, to seven years' imprisonment. That brings it into line with the offences at Clauses 54 and 55 relating to the exploitation of prostitution.
That gave rise to Commons Amendment No. 105 and the consequential amendments to the schedules— that is, Commons Amendments Nos. 274 and 291. But it was brought to our attention on Report in another place that the "keeping a brothel" offence is sometimes used to target the proprietors of saunas and clubs where people go to have consensual sex with each other, without money being paid for the sexual encounter. Case law confirms that the term "brothel" does not just apply to places where prostitution takes place.
Our policy intention was limited solely to places where prostitution took place. We are therefore proposing government Amendment No. 105A to replace Commons Amendment No. 105. It inserts new Clause 33A into the Sexual Offences Act 1956, providing for a new offence with a higher penalty of seven years for keeping a brothel where prostitution, as defined by Section 53(2) of this Bill, takes place, whether or not it is also used for other purposes. Where the brothel does not have any prostitution taking place, existing Section 33 of the 1956 Act remains in force and unchanged, and can be used by police in those cases where they decide to take action.

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Amendments Nos. 274A and 291A make the necessary consequential drafting amendments to Commons Amendments Nos. 274 and 291 to take account of the switch from Commons Amendment No. 105 to the new clause introduced by Amendment No. 105A. I invite the House to accept the new clause introduced by Amendment No. 105A.
Moved, That the House do disagree with the Commons in their Amendment No. 105, but propose Amendment No. 105A in lieu thereof.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
106 Clause 58, page 28, line 36, leave out "(A)"
107 Page 29, line 4, leave out from "he" to second "done" in line 6 and insert "believes that another person is likely to do something to or in respect of B, after B's arrival but in any part of the world, which if
108 Clause 59, page 29, line 14, leave out "(A)"
109 page 29, line 19, leave out from "he" to second "done" in line 21 and insert "believes that another person is likely to do something to or in respect of B, during or after the journey and in any part of the world, which if
110 Clause 60, page 29, line 29, leave out "(A)"
111 Page 29, line 34, leave out from "he" to "done" in line 36 and insert "believes that another person is likely to do something to or in respect of B, after B's departure but in any part of the world, which if
112 Clause 65, page 31, line 37, leave out "or half-sister" and insert "half-sister, uncle, aunt, nephew or niece.
( ) In subsection (2)—

(a) "uncle" means the brother of a person's parent, and "aunt" has a corresponding meaning;

(b) "nephew" means the child of a person's brother or sister, and "niece" has a corresponding meaning."

113 Clause 66, page 32, line 17, leave out "or half-sister" and insert "half-sister, uncle, aunt, nephew or niece.
( ) In subsection (2)—

(a) "uncle" means the brother of a person's parent, and "aunt" has a corresponding meaning;

(b) "nephew" means the child of a person's brother or sister, and "niece" has a corresponding meaning."

Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 106 to 113.
Moved, That the House do agree with the Commons in their Amendments Nos. 106 to 113.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
114 Clause 67, Transpose Clause 67 to after Clause 72
115 Page 32, line 32, leave out "public lavatory" and insert "lavatory to which the public or a section of the public has or is permitted to have access, whether on payment or otherwise,"
116 Page 32, line 33, leave out "activity within subsection (2)," and insert "an activity, and"
Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 114 to 116.
Government Amendment No. 114 moves Clause 67,
"Sexual activity in a public lavatory"
to the end of the section of the Bill dealing with "other offences". Government Amendments Nos. 115 and 119 are designed to make Clause 67 more workable in practice and to remove the possibility of trial on indictment and the maximum penalty of two years' imprisonment that attaches to it. Government Amendment No. 131 provides that the definition of "sexual" in Clause 79 does not apply to the offence at Clause 67.
The definition of "sexual" at Clause 79 was amended in the Commons in response to concern that the original definition was too complicated. The sense of the definition and its practical effect were not changed in any way.
I do not know whether it would be convenient for me to speak now to Amendment No. 132A, to be moved in due course by the noble Lord, Lord Thomas of Gresford. However, I see that the noble Lord shakes his head.
Moved, That the House do agree with the Commons in their Amendments Nos. 114 to 116.—(Baroness Scotland of Asthal.)
Baroness Noakes: My Lords, Clause 67, which is the subject of most of these amendments, was inserted into the Bill in your Lordships' House. I had feared that the Government would seek to overturn it. I should like to place on the record my appreciation to the Government for choosing not to overturn the amendment, but to improve it by way of the amendments in this group. We regard the outcome as very satisfactory and I thank the Government for that.
While I am on my feet for what I hope is the last time in connection with this Bill, I should like also to place on the record the appreciation of Members on these Benches not only for the co-operation that we have had from the Minister and her predecessor, but also from the Bill team, which has been quite exceptional. Even after the Bill had left this House, the Bill team kept us fully informed of what was happening in another place, which made the task of dealing with the Bill when it returned to your Lordships' House much easier.
My final thought is to suggest to the Minister that she should distil the essence of her Bill team and market it to her colleagues.
Lord Thomas of Gresford: My Lords, I, too, should like to express my thanks to the Bill team, which has worked exceptionally hard on this legislation and has helped us all the way.
Amendments Nos. 117A and 132A tabled in my name seek to probe the reasons why the purpose of a person in relation to sexual activity is regarded as irrelevant. I ask the question because in the case of Court, which was heard before the Judicial Committee

1641
of the House of Lords some 10 to 15 years ago, the activity committed by the defendant was that of smacking the bottom of a young girl. That was an assault, but the question was whether it was a sexual assault. His purpose was probed because, when interviewed by the police and asked why he had done it, his reply was, "I don't know. Bottom fetish, I suppose".
The whole case was concerned with what was his purpose, and whether his purpose would turn what was otherwise an ordinary assault into a sexual assault. Noble Lords in this House, in a case in which I appeared for the defence, my noble friend Lord Carlile of Berriew appeared for the prosecution, and to which the noble and learned Lord, Lord Ackner, was a party, decided that neither of the arguments put forward by my noble friend Lord Carlile and myself were right, but that the purpose of the defendant was in fact material.
The wording in both of these clauses seems to move away from that finding. Presumably, therefore, if there is an activity which is not overtly sexual, it will not be a sexual assault, whatever may be in the mind of the defendant. It is for the reason of securing enlightenment on that point that I have tabled these amendments.
Lord Lucas: My Lords, I want to add another thank you. During the passage of the Bill we had long arguments on the definition of "sexual" and we made, I felt, remarkably little progress. We talked a lot but we did not get anywhere. The last concession I got out of the noble and learned Lord the Lord Chancellor was that he would find me someone to talk to further. That someone turned out to be Sarah Cookson from the Legal Adviser's Department. One of the highlights of my year is the way in which she dealt with the points and the arguments I was making on that and the results it has had.
Back-Benchers like me come into the House in the hope that we will be able to influence and make small improvements to legislation. This is something I cared about immensely and thought that I had lost. The noble Lord, Lord Thomas, thinks it is coming through imperfectly, but I believe that it is so much better than it was and I am absolutely delighted.
Baroness Scotland of Asthal: My Lords, I am grateful for the warmth of the noble Lord's commendation and, indeed, for the words of commendation of the noble Baroness and the noble Lord, Lord Thomas of Gresford, for the Bill team. The Bill team has worked extremely hard, but I should say that their efforts have been emulated by the teams that have assisted me on the Extradition Bill, the Criminal Justice Bill and the Anti-social Behaviour Bill. They must all be drinking from the same well, and long may it continue.
I am very happy to elucidate on the concerns expressed by the noble Lord, Lord Thomas of Gresford, in terms of his request for an annual explanation of the scope of the definition of "sexual". I understand that he has tabled the amendment to seek
1642
an explanation of why this offence contains a specific definition of the term "sexual" and does not rely upon the generic definition at Clause 79.
The purpose of this is to prevent sexual activity taking place in public lavatories because people find it offensive. In practice, people only find it offensive to see or to hear acts which, from all their circumstances, appear to be sexual. If an act takes place which, unbeknown to anyone other than the perpetrator, gives that individual a sexual thrill, no offence could possibly be caused to another person and we see no reason to ban it from taking place in public lavatories.
We firmly believe that this is the right threshold to apply to what is essentially a public order offence. It would not be right to use the definition at Clause 79(a) because it includes a test based on the defendant's purpose. This would bring into the scope of the offence activity that is only sexual because of a person's purpose. Although it is right for such activity to be included within the scope of offences that are designed to protect people, particularly children and vulnerable adults, from abuse, we can see no justification for applying the same test in this offence, which is, as I have said, essentially a public order offence. So while it may seem undesirable to have two different definitions of prohibited sexual activity in the same Act, we feel that this is unavoidable if we are to ensure that the right test is applied to the right circumstances.
I hope the noble Lord finds that explanation helpful. For the reasons I have given, I obviously cannot accept his amendment.
On Question, Motion agreed to.

COMMONS AMENDMENT
117 Clause 67, page 32, line 35, leave out subsection (2) and insert—
"( ) For the purposes of this section, an activity is sexual if a person would, in all the circumstances but regardless of any person's purpose, consider it to be sexual."
Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 117, to which I spoke on Commons Amendment No. 114.
Moved, That the House do agree with the Commons in their Amendment No. 117.—(Baroness Scotland of Asthal.)
[Amendment No. 117A, as an amendment to Commons Amendment No. 117, not moved.]
On Question, Motion agreed to.

COMMONS AMENDMENTS
118 Clause 67, page 33, line 1, leave out subsection (3)
119 Clause 67, page 33, line 5, leave out from "exceeding" to end of line 7 and insert "level 5 on the standard scale or both."
120 Clause 68, page 33, line 9, leave out "(A)"
121 Page 33, line 11, leave out "knows or"
122 Page 34, line 2, leave out subsection (1)
123 Page 34, line 3, at beginning insert "For the purposes of section 69,"
124 Page 34, line 3, leave out "structure" and insert "place"
125 Page 34, line 10, leave out subsection (3)
126 Page 34, line 12, leave out "and this section"
127 Page 34, leave out line 13
128 Clause 74, page 35, line 38, after "not" insert "for the purpose of obtaining sexual gratification or"
129 Page 35, line 38, leave out "either"
130 Clause 76, page 36, line 36, at end insert—
"( ) any person had administered to or caused to be taken by the complainant, without the complainant's consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act."
131 Clause 79, page 37, line 33, after "Part" insert "(except section 67)"
Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 118 to 131 en bloc, to which I spoke with Amendments Nos. 2 and 9.
Moved, That the House do agree with the Commons in their Amendments Nos. 118 to 131.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.

COMMONS AMENDMENT
132 Clause 79, page 37, line 34, leave out from "if to end of line 39 and insert "a reasonable person would consider that—

(a) whatever its circumstances or any person's purpose in relation to it, it is because of its nature sexual, or

(b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual."

Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 132. I have spoken to this amendment with Amendment No. 114.
Moved, That the House do agree with the Commons in their Amendment No. 132.—(Baroness Scotland of Asthal.)
[Amendment No. 132A, as an amendment to Commons Amendment No. 132, not moved.]
On Question, Motion agreed to.

COMMONS AMENDMENTS
133 Clause 80, page 38, line 3, at end insert—
"( ) "Image" means a moving or still image and includes an image produced by any means and, where the context permits, a three-dimensional image.
( ) References to an image of a person include references to an image of an imaginary person."
134 Page 38, line 6, leave out subsection (5) and insert—
"( ) References to observation (however expressed) are to observation whether direct or by looking at an image."
135 Clause 83, page 41, line 16, at end insert—
"( ) in the case of a person within section 82(7), the date which, for the purposes of Part 1 of the Sex Offenders Act 1997 (c. 51), was the relevant date in relation to that person."
136 Clause 84, page 41, line 25, leave out first "the" and insert "a"
137 Page 41, line 32, after "82(1)" insert "or an order within section 82(7)"
138 Page 41, line 33, leave out "or caution" and insert "caution or order"
139 Page 41, line 40, leave out first "the" and insert "a"
140 Clause 85, page 42, line 29, leave out "the" and insert "a"
141 Page 43, line 4, leave out "Part" and insert "section"
142 Clause 86, page 43, line 9, after "must" insert ", within the period of one year after each event within subsection (1A),"
143 Page 43, line 10, leave out from "84(5)" to of line 11 and insert ", unless within that period he has given a notification under section 85(1).
(1A) The events are—"
144 Page 43, line 12, at end insert "(but only in the case of a person who is a relevant offender from that commencement);"
145 Page 43, line 13, leave out from "given" to end of line 15 and insert "by the relevant offender under section 84(1) or 85(1), and"
146 Page 43, line 16, leave out from "given" to end of line 17 and insert "by him under subsection (1)."
147 Clause 89, page 44, line 41, at end insert "or a finding in relation to such an offence;"
148 Page 44, line 42, at end insert "or a finding in relation to such an offence;"
149 Page 45, line 8, at end insert ";
and in paragraphs (a) and (b), "finding" in relation to an offence means a finding of not guilty of the offence by reason of insanity or a finding that the person was under a disability and did the act or omission charged against him in respect of the offence."
150 Clause 90, page 45, line 20, leave out "conviction" and insert "offence"
151 Page 45, line 22, leave out "conviction" and insert "offence"
152 Clause 91, page 46, line 24, after "Scotland" insert ", where the appropriate court is a civil court"
153 Page 46, line 28, at end insert—
"and in any other case, the prosecutor;"
154 Page 46, line 34, after "Court" insert "(or in Scotland a criminal court)"
Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 133 to 154. I have spoken to these amendments with Amendments Nos. 2 and 9.
Moved, That the House do agree with the Commons in their Amendments Nos. 133 to 154.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
155 After Clause 93, Insert the following new Clause—
"Abolished homosexual offences
Schedule (Procedure for ending notification requirements for abolished homosexual offences) (procedure for ending notification requirements for abolished homosexual offences) has effect."
156 After Clause 93, Insert the following new Clause—
"Part 2: supply of information to Secretary of State etc. for verification

(1) This section applies to information notified to the police under—

(a) section 84, 85 or 86, or

(b) section 2(1) to (3) of the Sex Offenders Act 1997 (c. 51).

(2) A person within subsection (3) may, for the purposes of the prevention, detection, investigation or prosecution of offences under this Part, supply information to which this section applies to—

(a) the Secretary of State,

(b) a Northern Ireland Department, or

(c) a person providing services to the Secretary of State or a Northern Ireland Department in connection with a relevant function,

for use for the purpose of verifying the information.

(3) The persons are—

(a) a chief officer of police (in Scotland, a chief constable),

(b) the Police Information Technology Organisation,

(c) the Director General of the National Criminal Intelligence Service,

(d) the Director General of the National Crime Squad.

(4) In relation to information supplied under subsection (2) to any person, the reference to verifying the information is a reference to—

(a) checking its accuracy by comparing it with information held—

(i) where the person is the Secretary of State or a Northern Ireland Department, by him or it in connection with the exercise of a relevant function, or

(ii) where the person is within subsection (2)(c), by that person in connection with the provision of services referred to there, and

(b) compiling a report of that comparison.

(5) Subject to subsection (6), the supply of information under this section is to be taken not to breach any restriction on the disclosure of information (however arising or imposed).

(6) This section does not authorise the doing of anything that contravenes the Data Protection Act 1998 (c. 2)).

(7) This section does not affect any power existing apart from this section to supply information.

(8) In this section—

"Northern Ireland Department" means, the Department for Employment and Learning, the Department of the Environment or the Department for Social Development;

"relevant function" means—

(a) a function relating to social security, child support, employment or training,

(b) a function relating to passports,

(c) a function under Part 3 of the Road Traffic Act 1988 (c. 52) or Part 2 of the Road Traffic (Northern Ireland) Order 1981 (S.I. 1981/154 (N.I. 1))."

157 After Clause 93, Insert the following new Clause—
"Part 2: supply of information by Secretary of State etc.

(1) A report compiled under section (Part 2: supply of information to Secretary of State etc. for verification) may be supplied by—

(a) the Secretary of State,

(b) a Northern Ireland Department, or

(c) a person within section (Part 2: supply of information to Secretary of State etc. for verification)(2)(c),

to a person within subsection (2).

(2) The persons are—

(a) a chief officer of police (in Scotland, a chief constable),

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

(c) the Director General of the National Crime Squad.

(3) Such a report may contain any information held—

(a) by the Secretary of State or a Northern Ireland Department in connection with the exercise of a relevant function, or

(b) by a person within section (Part 2: supply of information to Secretary of Stale etc. for verification)(2)(c) in connection with the provision of services referred to there.

(4) Where such a report contains information within subsection (3), the person within subsection (2) to whom it issupplied—

(a) may retain the information, whether or not used for the purposes of the prevention, detection, investigation or prosecution of an offence under this Part, and

(b) may use the information for any purpose related to the prevention, detection, investigation or prosecution of offences (whether or not under this Part), but for no other purpose.

(5) Subsections (5) to (8) of section (Part 2: supply of information to Secretary of State etc. for verification) apply in relation to this section as they apply in relation to section (Part 2: supply of information to Secretary of State etc. for verification)."

Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 155 to 157.
Amendments Nos. 155 and 261 introduce a new schedule that provides a procedure for the removal of the notification requirements from offenders convicted of buggery and indecency between men where the activity was consensual and the victim was aged 16 or 17. However, it has come to my attention that Amendment No. 261 is insufficient; it does not cover those who have been convicted of, or as well as, offences themselves and attempt conspiracy or incitement to commit the offences or of aiding, abetting, counselling or procuring the commission of offences.
This mistake came to our attention only this morning and it is important that we get this procedure right. I will ask the House to reject Amendment No. 261 so that we may rectify the omission in the other place. My manuscript Motion No. 261A to this effect is in the Printed Paper Office.
Moved, That the House do agree with the Commons in their Amendments Nos. 155 to 157.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
158 Clause 93, page 47, line 24, after "where" insert "on any date"
159 Page 47, line 34, leave out "to which this Part applies" and insert "listed in Schedule 3"
160 Page 47, line 39, after "where" insert "on any date"
161 Page 47, line 43, leave out "to which this Part applies" and insert "listed in Schedule 3"
162 Clause 95, page 48, line 16, after "includes" insert "any part of"
163 Clause 102, page 51, line 36, leave out "a conviction for"
164 Page 52, line 2, leave out "the" and insert "a"
165 Clause 106, page 55, line 41, after "2" insert "or 20"
166 Page 55, line 42, after "Wales" insert "or Scotland"
167 Clause 107, page 56, line 2, after "102(5)" insert "or 103(1)"
168 Page 56, line 18, leave out subsections (5) and (6) and insert—
"( ) Section 105(3) to (5) apply to an interim sexual offences prevention order as if references to an order were references to such an order, and with the omission of "as renewed from time to time" in both places."
169 Page 56, line 27, after "2A" insert "or 20(4)(a)"
170 Page 56, line 28, after "Wales" insert "or Scotland"
171 Clause 110, page 57, line 30, leave out "an offence listed at paragraph 64" and insert "any offence listed at paragraphs 64 to 64ZU"
172 Page 57, line 32, leave out paragraphs (c) and (d)
173 Clause 111, page 58, line 46, at end insert "or, in Scotland, a probation order"
174 Clause 112, page 59, line 3, leave out "the" and insert "a"
175 Clause 121, page 63, line 24, leave out "the" and insert "a"
176 Page 64, line 11, leave out "5" and insert "2"
177 Clause 123, page 65, line 17, leave out "5" and insert "2"
178 Clause 127, page 66, line 39, leave out "in England and Wales or Northern Ireland"
179 Clause 129, page 68, line 17, after "of insert "or paragraph 10(l)of Schedule 5A to"
180 Page 68, line 18, after "of insert "or paragraph 10(1) of Schedule 4A to"
181 Clause 130, page 68, line 35, at end insert "(a "sentencing condition").
( ) Where an offence is listed if either a sentencing condition or a condition of another description is met, this section applies only to the offence as listed subject to the sentencing condition."
182 Page 68, line 37, leave out "such an offence" and insert "an offence to which this section applies"
183 Page 68, line 40, before "condition" insert "sentencing"
184 Page 69, line 15, leave out from "a" to "this" and insert "sentencing condition,"
185 Clause 131, page 70, line 7, after "order" insert";
"community supervision order" means an order"
186 Page 70, leave out lines 11 and 12
187 Page 71, leave out line 17
188 Page 71, line 41, at end insert—
"( ) Where under section 138 different days are appointed for the commencement of different provisions of this Part, a reference in any such provision to the commencement of this Part is to be read (subject to section 96(4)) as a reference to the commencement of that provision."
189 Clause 132, page 72, line 10, after "discharge" insert "or community supervision order"
190 Page 72, line 11, leave out "This section" and insert"Subsection (1)"
191 Page 72, line 11, at end insert—
"( ) The provisions listed in subsection (l)(d) do not apply for the purposes of this Part to a conviction for an offence in respect of which a community supervision order is or has (before or after the commencement of this Part) been made."
192 Before Clause 135, Insert the following new Clause—
"Service courts

(1) In this Act—

(a) a reference to a court order or a conviction or finding includes a reference to an order of or a conviction or finding by a service court,

(b) a reference to an offence includes a reference to an offence triable by a service court,

(c) "proceedings" includes proceedings before a service court, and

(d) a reference to proceedings for an offence under this Act includes a reference to proceedings for the offence under section 70 of the Army Act 1955 (3 & 4 Eliz. 2 c. 18) or the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or section 42 of the Naval Discipline Act 1957 (c. 53) for which the offence under this Act is the corresponding civil offence.

(2) In sections 93 and 102(1), "court" includes a service court.

(3) Where the court making a sexual offences prevention order is a service court—

(a) sections 102(l)(a) and (4) to (6), 103, 107, 109 and 110 do not apply,

(b) in section 106, "the appropriate court" means the Crown Court in England and Wales, and

(c) in section 108(3)(a), the references to the Crown Court and Court of Appeal are references to the Crown Court and Court of Appeal in England and Wales.

(4) In this section "service court" means a court-martial or Standing Civilian Court."

193 Clause 139, page 74, line 19, leave out "Except as follows," and insert "Subject to section (Service courts) and to subsections (2) to (3A),"
194 Page 74, line 21, after "48" insert "to 56, 58"
195 Page 74, line 21, at end insert—
"( ) Schedule 2,"
196 Page 74, line 23, leave out paragraph (c) and insert—
"(c) sections 135, 138,140 and this section."
197 Page 74, line 25, leave out "121 to 127" and insert "(Abolished homosexual offences) and 121 to 127 and Schedule (Procedure for ending notification requirements for abolished homosexual offences)"
198 Page 74, line 26, leave out paragraph (b) and insert—
"(b) sections 135, 138, 140 and this section."
199 Page 74, line 26, at end insert—
"(3A) Unless otherwise provided, any amendment, repeal or revocation made by this Act has the same extent as the provision to which it relates."
200 Schedule 2, page 76, line 15, leave out "15 and"
201 Page 76, line 31, leave out "an offence of"
202 Page 76, leave out line 32
203 Schedule 3, page 78, line 36, at end insert "and—

(a) the conviction, finding or caution was before the commencement of this Part, or

(b) the offender—

(i) was 18 or over, or

(ii) is sentenced in respect of the offence to imprisonment for a term of at least 12 months."

204 Page 78, line 41, at end insert "and—

(a) the conviction, finding or caution was before the commencement of this Part, or

(b) the offender—

(i) was 18 or over, or

(ii) is sentenced in respect of the offence to imprisonment for a term of at least 12 months."

205 Page 79, line 3, at end insert "and—

(a) the conviction, finding or caution was before the commencement of this Part, or

(b) the offender—

(i) was 18 or over, or

(ii) is sentenced in respect of the offence to imprisonment for a term of at least 12 months."

206 Page 79, line 6, leave out paragraphs 17 to 19 and insert—
"( ) An offence under section 1 or 3 of this Act (rape, assault by penetration).
( ) An offence under section 4 of this Act (sexual assault) if—

(a) where the offender was under 18, he is or has been sentenced, in respect of the offence, to imprisonment for a term of at least 12 months;

(b) in any other case—

(i) the victim was under 18, or

(ii) the offender, in respect of the offence or finding, is or has been—

(a) sentenced to a term of imprisonment,

(b) detained in a hospital, or

(c) made the subject of a community sentence of at least 12 months.

( ) An offence under any of sections 5 to 7 of this Act (causing sexual activity without consent, rape of a child under 13, assault of a child under 13 by penetration).
( ) An offence under section 8 of this Act (sexual assault of a child under 13) if the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months.

( ) An offence under any of sections 9 to 13 of this Act (causing or inciting a child under 13 to engage in sexual activity, child sex offences committed by adults)."
207 Page 79, line 30, leave out", where the offender is under 18, he" and insert "the offender—

(a) was 18 or over, or

(b) "

208 Page 79, line 39, at end insert—
"23A An offence under section 27 or 28 of this Act (familial child sex offences) if the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months."

209 Page 79, line 40, leave out "27, 28 or"
210 Page 79, line 40, leave out "familial child sex offences,"
211 Page 79, line 41, leave out "or learning disability''
212 Page 79, line 42, leave out "or learning disability"
213 Page 79, line 45, leave out "or learning disability"
214 Page 79, line 45, after "if insert "—

(a) where the offender was under 18, he is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months;

(b) in any other case,"

215 Page 80, line 3, leave out from "least" to end of line 7 and insert "12 months."
216 Page 80, line 9, at end insert ", and the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months."

217 Page 80, line 13, at end insert—

"(a) where the offender was under 18, he is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months;

(b) in any other case—"

218 Page 80, line 20, at end insert "—

(a) where the offender was under 18, he is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months;

(b) in any other case,"

219 Page 80, line 25, after "sentenced" insert "in respect of the offence"
220 Page 80, leave out lines 34 to 38 and insert" 12 months."
221 Page 80, line 40, after "sentenced" insert "in respect of the offence"
222 Page 80, line 46, leave out "or"
223 Page 81, line 1, at end insert ", or
(c) made the subject of a community sentence of at least 12 months."
224 Page 81, line 3, after "if insert"—

(a) where the offender was under 18, he is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months;

(b) in any other case,"

225 Page 81, leave out lines 17 to 19 and insert "every person involved in the offence was 16"
226 Page 82, leave out lines 12 to 18 and insert "every person involved (whether in the offence or in the homosexual act) was 16 or over and was a willing participant"
227 Page 82, line 31, leave out paragraph 59
228 Page 83, line 11, leave out "18" and insert "12"
229 Page 83, line 13, at end insert "if the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months."

230 Page 83, line 14, leave out "consent was not present or"
231 Page 83, line 17, leave out" 17" and insert"18"
232 page 83, line 19, leave out "17" and insert "18, and the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months"

233 Page 83, line 32, leave out"18" and insert "12"
234 Page 83, line 34, at end insert "if the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months."

235 Page 83, line 36, at end insert "if the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months."

236 Page 83, line 38, at end insert "if the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months."

237 Page 83, line 41, at end insert "if the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months."

238 Page 84, line 2, leave out from "if" to end of line 3 and insert"—

(a) where the offender was under 18, he is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months;

(b) in any other case—

(i) the victim or (as the case may be) other party was under 18, or

(ii) the offender, in respect of the offence or finding, is or has been—

(a) sentenced to a term of imprisonment, or

(b) detained in a hospital."

239 Page 84, line 4, leave out from "if" to end of line 5 and insert

(a) where the offender was under 18, he is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months;

(b) in any other case—

(i) the victim or (as the case may be) other party was under 18, or

(ii) the offender, in respect of the offence or finding, is or has been—

(a) sentenced to a term of imprisonment, or

(b) detained in a hospital."

240 Page 84, line 8, at end insert "if the offender—

(a) was 18 or over, or

1652

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months."

241 Page 84, line 9, at end insert "if the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months."

242 Page 84, line 11, at end insert "if the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months."

243 Page 84, line 16, at end insert ", and the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months."

244 Page 84, line 19, at end insert "if the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months."

245 Page 84, line 23, at end insert "if—

(a) where the offender was under 18, he is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months;

(b) in any other case, the offender, in respect of the offence or finding, is or has been—

(i) sentenced to a term of imprisonment,

(ii) detained in a hospital, or

(iii) made the subject of a community sentence of at least 12 months."

246 Page 84, line 26, at end insert "if the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months."

247 Page 84, line 28, leave out "was 20 or over" and insert ", in respect of the offence or finding, is or has been—

(a) sentenced to a term of imprisonment,

(b) detained in a hospital, or

(c) made the subject of a community sentence of at least 12 months."

248 Page 84, line 34, at end insert "and the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months."

249 Page 85, line 2, leave out "18" and insert "12"
250 Page 85, line 11, at end insert "and the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to a term of imprisonment of at least 12 months"

251 Page 85, line 13, after "sentenced" insert "in respect of the offence"
252 Page 85, line 22, leave out "18" and insert "12"
253 Page 85, line 24, after "sentenced" insert "in respect of the offence"
254 Page 85, line 30, leave out "or"
255 Page 85, line 31, at end insert ", or
(c) made the subject of a community sentence of at least 12 months."
256 Page 85, line 33, after "if" insert "—

(a) where the offender was under 18, he is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months;

(b) in any other case,"

257 Page 85, line 43, leave out "under a provision"
258 Page 85, line 43, at end insert—
"( ) A reference in any of those paragraphs to being made the subject of a community sentence of at least 12 months is to be read, in relation to an offence under an enactment referred to in sub-paragraph (1), as a reference to being sentenced to a term of service detention of at least 112 days."
259 Page 86, line 11, leave out from "In" to 'the" in line 18 and insert "this Schedule "community sentence" has—

(a) in relation to England and Wales, the same meaning as in the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6), and

(b) in relation to Northern Ireland,"

260 Page 86, line 26, leave out "(b)"
Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 158 to 260. I have already spoken to these amendments.
Moved, That the House do agree with the Commons in their Amendments Nos. 158 to 260.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.

COMMONS AMENDMENT
261 After Schedule 3, Insert the following new Schedule—
"PROCEDURE FOR ENDING NOTIFICATION REQUIREMENTS FOR ABOLISHED HOMOSEXUAL OFFENCES.
Scope of Schedule
1 This Schedule applies where a relevant offender is subject to the notification requirements of this Part as a result of a conviction, finding or caution in respect of an offence under—

(a) section 12 or 13 of the Sexual Offences Act 1956 (c. 69) (buggery or indecency between men), or

(b) section 61 of the Offences against the Person Act 1861 (c. 100) or section 11 of the Criminal Law Amendment Act 1885 (c. 69) (corresponding Northern Ireland offences).

Application for decision
2 (1) The relevant offender may apply to the Secretary of State for a decision as to whether it appears that the person with whom the act of buggery or gross indecency was committed—

(a) where paragraph l(a) applies, was aged 16 or over at the time of the offence,

(b) where paragraph l(b) applies, was aged 17 or over at that time,

and that that person consented to the act.
(2) An application must be in writing and state—

(a) the name, address and date of birth of the relevant offender,

(b) his name and address at the time of the conviction, finding or caution,

1654

(c) so far as known to him, the time when and the place where the conviction or finding was made or the caution given and, for a conviction or finding, the case number,

(d) such other information as the Secretary of State may require.

(3) An application may include representations by the relevant offender about the matters mentioned in sub-paragraph (1).
Decision by Secretary of State
3 (1) In making the decision applied for, the Secretary of State must consider—

(a) any representations included in the application, and

(b) any available record of the investigation of the offence and of any proceedings relating to it that appears to him to be relevant, but is not to seek evidence from any witness.

(2) On making the decision the Secretary of State must—

(a) record it in writing, and

(b) give notice in writing to the relevant offender.

Effect of decision
4 (1) If the Secretary of State decides that it appears as mentioned in paragraph 2(1), the relevant offender ceases, from the beginning of the day on which the decision is recorded under paragraph 3(2)(a), to be subject to the notification requirements of this Part as a result of the conviction, finding or caution in respect of the offence.
(2) Sub-paragraph (1) does not affect the operation of this Part as a result of any other conviction, finding or caution or any court order.
Right of appeal
5 (1) If the Secretary of State decides that it does not appear as mentioned in paragraph 2(1), and if the High Court gives permission, the relevant offender may appeal to that court.

(2) On an appeal the court may not receive oral evidence.

(3) The court—

(a) if it decides that it appears as mentioned in paragraph 2(1), must make an order to that effect,

(b) otherwise, must dismiss the appeal.

(4) An order under sub-paragraph (3)(a) has the same effect as a decision of the Secretary of State recorded under paragraph 3(2)(a) has under paragraph 4.

(5) There is no appeal from the decision of the High Court.

Transitional provision 6 Until the coming into force of the repeal by this Act of Part 1 of the Sex Offenders Act 1997 (c. 51), this Schedule has effect as if references to this Part of this Act were references to Part 1 of that Act. "
The Deputy Speaker (Lord Geddes): My Lords, subsequent to Amendment No. 261, the noble Baroness, Lady Scotland of Asthal, has tabled a manuscript Motion. I now call manuscript Motion No. 261A.
Baroness Scotland of Asthal: My Lords, I beg to move that the House do disagree with the Commons in their Amendment No. 261. I have spoken to this amendment with Amendment No. 155.
Moved, That the House do disagree with the Commons in their Amendment No. 261.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
262 Schedule 4, page 89, line 30, leave out lines 30 and 31 and insert—
"64 Murder.
64A Culpable homicide.
64B Assault.
64C Assault and robbery.
64D Abduction.
64E Plagium.
64F Wrongful imprisonment.
64G Threatening personal violence.
64H Breach of the peace inferring personal violence.
64I Wilful fireraising.
64J Culpable and reckless fireraising.
64K Mobbing and rioting.
64L An offence under section 2 of the Explosive Substances Act 1883 (c. 3) (causing explosion likely to endanger life or property).
64M An offence under section 3 of that Act (attempt to cause explosion, or making or keeping explosives with intent to endanger life or property).
64N An offence under section 12 of the Children and Young Persons (Scotland) Act 1937 (c. 37) (cruelty to persons under 16).
64O An offence under section 16 of the Firearms Act 1968 (c. 27) (possession of firearm with intent to endanger life).
64P An offence under section 16A of that Act (possession of firearm with intent to cause fear of violence).
64Q An offence under section 17(1) of that Act (use of firearm to resist arrest).
64R An offence under section 17(2) of that Act (possession of firearm at time of committing or being arrested for offence specified in Schedule 1 to that Act).
64S An offence under section 18 of that Act (carrying a firearm with criminal intent).
64T An offence under section 1 of the Taking of Hostages Act 1982 (c. 28) (hostage-taking).
64U An offence under section 1 of the Aviation Security Act 1982 (c. 36) (hijacking).
64V An offence under section 2 of that Act (destroying, damaging or endangering safety of aircraft).
64W An offence under section 3 of that Act (other acts endangering or likely to endanger safety of aircraft).
64X An offence under section 4 of that Act (offences in relation to certain dangerous articles).
64Y An offence under section 105 of the Mental Health (Scotland) Act 1984 (c. 36) (ill-treatment of patients).
64Z An offence under section 1 of the Prohibition of Female Circumcision Act 1985 (c. 38) (prohibition of female circumcision).
64ZA An offence under section 134 of the Criminal Justice Act 1988 (c. 33) (torture).
64ZB An offence under section 1 of the Road Traffic Act 1988 (c. 52) (causing death by dangerous driving).
64ZC An offence under section 3A of that Act (causing death by careless driving when under influence of drink or drugs).
64ZD An offence under section 1 of the Aviation and Maritime Security Act 1990 (c. 31) (endangering safety at aerodromes).
64ZE An offence under section 9 of that Act (hijacking of ships).
64ZF An offence under section 10 of that Act (seizing or exercising control of fixed platforms).
64ZG An offence under section 11 of that Act (destroying fixed platforms or endangering their safety).
64ZH An offence under section 12 of that Act (other acts endangering or likely to endanger safe navigation).
64ZI An offence under section 13 of that Act (offences involving threats).
64ZJ An offence under Part II of the Channel Tunnel (Security) Order 1994 (S.I. 1994/570) (offences relating to Channel Tunnel trains and the tunnel system).
64ZK An offence under section 7 of the Criminal Law (Consolidation) (Scotland) Act 1995 (c. 39) (procuring).
64ZL An offence under section 9 of that Act (permitting girl to use premises for intercourse).
64ZM An offence under section 11 of that Act (trading in prostitution and brothel-keeping).
64ZN An offence under section 12 of that Act (allowing child to be in brothel).
64ZO An offence under section 13(9) of that Act (living on earnings of male prostitution etc.).
64ZP An offence under section 50A of that Act (racially-aggravated harassment).
64ZQ An offence under section 51 or 52 of the International Criminal Court Act 2001 (c. 17) (genocide, crimes against humanity, war crimes and related offences), other than one involving murder.
64ZR An offence under section 1 of the International Criminal Court (Scotland) Act 2001 (asp 13) (genocide, crimes against humanity, war crimes and related offences as specified in Schedule 1 to that Act).
64ZS An offence under section 22 of the Criminal Justice (Scotland) Act 2003 (asp 7) (traffic in prostitution etc.).
64ZT An offence to which section 74 of that Act applies (offences aggravated by religious prejudice).
64ZU An offence under section 315 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) (ill-treatment and wilful neglect of mentally disordered person)."
263 Page 92, line 25, leave out "16" and insert "17"
264 Page 92, line 26, leave out "52" and insert "54"
265 Schedule 5, page 93, line 20, at end insert—
"Children and Young Persons Act 1933 (c. 12)
In Schedule 1 to the Children and Young Persons Act 1933 (offences to which special provisions of that Act apply), for the entry relating to offences under the Sexual Offences Act 1956 (c. 69) substitute—
"Any offence against a child or young person under any of sections 1 to 43, 49 to 55, 58 to 62, 68 and 69 of the Sexual Offences Act 2003, or any attempt to commit such an offence.
Any offence under section 63 or 64 of the Sexual Offences Act 2003 where the intended offence was an offence against a child or young person, or any attempt to commit such an offence."
Visiting Forces Act 1952 (c. 67)
(1) Paragraph 1 of the Schedule to the Visiting Forces Act 1952 (offences referred to in section 3 of that Act) is amended as follows.
(2) Before sub-paragraph (a) insert—
"(za) rape and buggery (offences under the law of Northern Ireland);".
(3) In sub-paragraph (a), omit "rape" and "buggery".
(4) In sub-paragraph (b), after paragraph (xii) insert— "(xiii) Part 1 of the Sexual Offences Act 2003."
Army Act 1955 (3 &4 Eliz. 2 c 18)
In section 70(4) of the Army Act 1955 (person not to be charged with an offence committed in the United Kingdom where corresponding civil offence is within the subsection)—

(a) omit "or rape", and

(b) after "International Criminal Court Act 2001" insert "or an offence under section 1 of the Sexual Offences Act 2003 (rape)".

Air Force Act 1955 (3&4 Eliz 2.c. 19) in section 70(4) of the Air Force Act 1955 (person not to be charged with an offence committed in the United Kingdom where corresponding civil offence is within the subsection)—

(a) omit "or rape", and

(b) after "International Criminal Court Act 2001" insert "or an offence under section 1 of the Sexual Offences Act 2003 (rape)"."

266 Page 93, line 23, leave out ", 41 to 43, 45, 46A and" and insert "and 41 to"
267 Page 93, line 24, at end insert—
"Naval Discipline Act 1957 (c. 53) In section 48(2) of the Naval Discipline Act 1957 (courts-martial not to have jurisdiction as regards certain offences committed in the United Kingdom)—

(a) omit "or rape", and

(b) before "committed on shore" insert "or an offence under section 1 of the Sexual Offences Act 2003 (rape)"."

268 Page 94, line 4, at end insert—
"Firearms Act 1968 (c. 27)
( ) In Schedule 1 to the Firearms Act 1968 (offences to which section 17(2) of that Act applies), for paragraph 6 substitute— "

6. Offences under any of the following provisions of the Sexual Offences Act 2003—

(a) section 1 (rape);

(b) section 3 (assault by penetration);

(c) section 5 (causing a person to engage in sexual activity without consent), where the activity caused involved penetration within subsection (4)(a) to (d) of that section;

(d) section 6 (rape of a child under 13);

(e) section 7 (assault of a child under 13 by penetration);

(f) section 9 (causing or inciting a child under 13 to engage in sexual activity), where an activity involving penetration within subsection (3)(a) to (d) of that section was caused;

(g) section 32 (sexual activity with a person with a mental disorder), where the touching involved penetration within subsection (4)(a) to (d) of that section;

(h) section 33 (causing or inciting a person with a mental disorder to engage in sexual activity), where an activity involving penetration within subsection (4)(a) to (d) of that section was caused.""

269 Page 94, line 22, leave out paragraph 13 and insert—
"Rehabilitation of Offenders Act 1974 (c. 53)
( ) In section 7 of the Rehabilitation of Offenders Act 1974 (limitations on rehabilitation under that Act), in subsection (2), for paragraph (bb) substitute—
(bb) in any proceedings under Part 2 of the Sexual Offences Act 2003, or on appeal from any such proceedings;"."
270 Page 94, line 25, leave out paragraph 14 and insert—

"(1) The Sexual Offences (Amendment) Act 1976 is amended as follows.

(2) In section 1 (meaning of "rape"), omit subsection (2).

1658

(3) In section 7 (citation, interpretation etc.)— (a) for subsection (2) substitute—

"(2) In this Act—
(a) "a rape offence" means any of the following—

(i) an offence under section 1 of the Sexual Offences Act 2003 (rape);

(ii) an offence under section 3 of that Act (assault by penetration);

(iii) an offence under section 5 of that Act (causing a person to engage in sexual activity without consent), where the activity caused involved penetration within subsection (4)(a) to (d) of that section;

(iv) an offence under section 6 of that Act (rape of a child under 13);

(v) an offence under section 7 of that Act (assault of a child under 13 by penetration);

(vi) an offence under section 9 of that Act (causing or inciting a child under 13 to engage in sexual activity), where an activity involving penetration within subsection (3)(a) to (d) of that section was caused;

(vii) an offence under section 32 of that Act (sexual activity with a person with a mental disorder), where the touching involved penetration within subsection (4)(a) to (d) of that section;

(viii) an offence under section 33 of that Act (causing or inciting a person with a mental disorder to engage in sexual activity), where an activity involving penetration within subsection (4)(a) to (d) of that section was caused;

(ix) an attempt, conspiracy or incitement to commit an offence within any of paragraphs (i) to (vii);

(x) aiding, abetting, counselling or procuring the commission of such an offence or an attempt to commit such an offence.

(b) the use in any provision of the word "man" without the addition of the word "boy" does not prevent the provision applying to any person to whom it would have applied if both words had been used, and similarly with the words "woman" and "girl".";
(b) omit subsection (3)."
271 Page 94, line 32, leave out paragraph 16 and insert—
"Internationally Protected Persons Act 1978 (c. 17) In section 1 of the Internationally Protected Persons Act 1978 (attacks and threats of attacks on protected persons)—

(a) in subsection (l)(a)— (i) omit "rape,"; (ii) after "Explosive Substances Act 1883" insert "or an offence listed in subsection (1 A)";

(b) after subsection (1) insert—

"(1A) The offences mentioned in subsection (l)(a) are—

(a) in Scotland or Northern Ireland, rape;

(b) an offence under section 1 or 3 of the Sexual Offences Act 2003;

(c) an offence under section 5 of that Act, where the activity caused involved penetration within subsection (4)(a) to (d) of that section;

(d) an offence under section 6 or 7 of that Act;

(e) an offence under section 9 of that Act, where an activity involving penetration within subsection (3)(a) to (d) of that section was caused;

(f) an offence under section 32 of that Act, where the touching involved penetration within subsection (4)(a) to (d) of that section;

(g) an offence under section 33 of that Act, where an activity involving penetration within subsection (4)(a) to (d) of that section was caused."

Suppression of Terrorism Act 1978 (c. 26)

(1) Schedule 1 to the Suppression of Terrorism Act 1978 (offences for the purposes of that Act) is amended as follows.

1659

(2) In paragraph 3, after "Rape" insert "under the law of Scotland or Northern Ireland".

(3) For paragraph 9 substitute—

"9. An offence under any of the following provisions of the Sexual Offences Act 2003—

(a) sections 1 or 3 (rape, assault by penetration);

(b) section 5 (causing a person to engage in sexual activity without consent), where the activity caused involved penetration within subsection (4)(a) to (d) of that section;

(c) section 6 or 7 (rape of a child under 13, assault of a child under 13 by penetration);

(d) section 9 (causing or inciting a child under 13 to engage in sexual activity), where an activity involving penetration within subsection (3)(a) to (d) of that section was caused;

(e) section 32 (sexual activity with a person with a mental disorder), where the touching involved penetration within subsection (4)(a) to (d) of that section;

(f) section 33 (causing or inciting a person with a mental disorder to engage in sexual activity), where an activity involving penetration within subsection (4)(a) to (d) of that section was caused.""

272 Page 94, line 36, at end insert—
"Rehabilitation of Offenders (Northern Ireland) Order 1978 (S.I. 1978/1908 (N.I. 27))
In Article 8 of the Rehabilitation of Offenders (Northern Ireland) Order 1978 (limitations on rehabilitation under that Order), in paragraph (2), for sub-paragraph (bb) substitute—
"(bb) in any proceedings under Part 2 of the Sexual Offences Act 2003, or on appeal from any such proceedings;"."
273 Page 95, line 2, leave out paragraph 18 and insert—

"(1) The Magistrates' Courts Act 1980 is amended as follows.

(2) In section 103 (evidence of persons under 14 in committal proceedings), in subsection (2)(c), after "the Protection of Children Act 1978" insert "or Part 1 of the Sexual Offences Act 2003".

(3) In Schedule 7 (consequential amendments), omit paragraph 18."

Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 262 to 273.
Moved, That the House do agree with the Commons in their Amendments Nos. 262 to 273.—(Baroness Scotland of Asthal)
On Question, Motion agreed to.

COMMONS AMENDMENT
274 Page 95, line 5, leave out paragraphs 19 to 21 and insert—
"Criminal Justice Act 1982 (c. 48)

(1) The Criminal Justice Act 1982 is amended as follows.

(2) In section 35 (abolition of enhanced penalties on subsequent conviction of summary offences) for subsection (3)(a) substitute—

(a) sections 34 to 36 of the Sexual Offences Act 1956 (letting premises for use as a brothel and prostitution); or".

(3) In Part 2 of Schedule 1 (offences excluded from early release provisions), after the entry relating to the Proceeds of Crime Act 2002 (c. 29) insert—

"SEXUAL OFFENCES ACT 2003 Sections 1 and 3 (rape, assault by penetration).
Section 5 (causing a person to engage in sexual activity without consent), where the activity caused involved penetration within subsection (4)(a) to (d) of that section.
Sections 6 and 7 (rape of a child under 13, assault of a child under 13 by penetration).
Section 9 (causing or inciting a child under 13 to engage in sexual activity), where an activity involving penetration within subsection (3)(a) to (d) of that section was caused.
Section 32 (sexual activity with a person with a mental disorder), where the touching involved penetration within subsection (4)(a) to (d) of that section.
Section 33 (causing or inciting a person with a mental disorder to engage in sexual activity), where an activity involving penetration within subsection (4)(a) to (d) of that section was caused."
Police and Criminal Evidence Act 1984 (c. 60)

(1) The Police and Criminal Evidence Act 1984 is amended as follows.

(2) In section 80(7) (sexual offences for purposes of compellability of spouse), after "the Protection of Children Act 1978" insert "or Part 1 of the Sexual Offences Act 2003".

(3) In Schedule 1A (specific arrestable offences), after paragraph 25 insert—

"Sexual Offences Act 2003

26. An offence under—

(a) section 67 of the Sexual Offences Act 2003 (sexual activity in public lavatory);

(b) section 68 of that Act (exposure);

(c) section 69 of that Act (voyeurism);

(d) section 71 of that Act (intercourse with an animal); or

(e) section 72 of that Act (sexual penetration of a corpse)."

(4) In Part 2 of Schedule 5 (serious arrestable offences), after the entry relating to the Obscene Publications Act 1959 (c. 66) insert—

"Sexual Offences Act 2003

16 Section 1 (rape).

17 Section 3 (assault by penetration).

18 Section 5 (causing a person to engage in sexual activity without consent), where the activity caused involved penetration within subsection (4)(a) to (d) of that section.

19 Section 6 (rape of a child under 13).

20 Section 7 (assault of a child under 13 by penetration).

21 Section 9 (causing or inciting a child under 13 to engage in sexual activity), where an activity involving penetration within subsection (3)(a) to (d) of that section was caused.

22 Section 32 (sexual activity with a person with a mental disorder), where the touching involved penetration within subsection (4)(a) to (d) of that section.

23 Section 33 (causing or inciting a person with a mental disorder to engage in sexual activity), where an activity involving penetration within subsection (4)(a) to (d) of that section was caused.""

Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 274 and do propose Amendment No. 274A thereto:
274A Schedule 5, Line 3, leave out from beginning to "Part" in line 8 and insert "In the Criminal Justice Act 1982, in"
Moved, That the House do agree with the Commons in their Amendment Nos. 274 and do propose Amendment No. 274A thereto.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
275 Page 95, line 14, leave out paragraph 22 and insert—

"(1) The Criminal Justice Act 1988 is amended as follows.

(2) In section 32 (evidence through television links), in subsection (2)(c). after "the Protection of Children Act 1978" insert "or Part 1 of the Sexual Offences Act 2003".

(3) In section 160(1) (possession of indecent photograph of child), at the beginning insert "Subject to subsection (1A),"."

276 Page 95, line 17, leave out paragraph 23 and insert—
"Criminal Justice Act 1991 (c. 53)
In section 34A of the Criminal Justice Act 1991 (power to release short-term prisoners on licence), in subsection (2)(da), for "Part 1 of the Sex Offenders Act 1997" substitute "Part 2 of the Sexual Offences Act 2003"."
277 Page 95, line 20, leave out paragraph 24 and insert—

"(1) Section 2 of the Sexual Offences (Amendment) Act 1992 (offences to which that Act applies) is amended as follows.

(2) In subsection (1) (England and Wales)—

(a) after paragraph (d) insert—

(da) any offence under any of the provisions of Part 1 of the Sexual Offences Act 2003 except section 65, 66, 67 or 71;";

(b) in paragraph (e) for "(d)" substitute "(da)".

(3) In subsection (3) (Northern Ireland)—

(a) after paragraph (hh) insert—

(ha) any offence under any of sections 17 to 23,49 to 55, 58 to 60, 68 to 70, 72 and 73.";

(b) in paragraph (i) for "(hh)" substitute "(ha)"."

278 Page 95, line 23, leave out paragraph 25 and insert—

"(1) The Criminal Justice and Public Order Act 1994 is amended as follows.

(2) In section 25 (no bail if previous conviction for certain offences), for subsection (2)(d) and (e) substitute—

(d) rape under the law of Scotland or Northern Ireland;

(e) an offence under section 1 of the Sexual Offences Act 1956 (rape);

(f) an offence under section 1 of the Sexual Offences Act 2003 (rape);

(g) an offence under section 3 of that Act (assault by penetration);

(h) an offence under section 5 of that Act (causing a person to engage in sexual activity without consent), where the activity caused involved penetration within subsection (4)(a) to (d) of that section;

(i) an offence under section 6 of that Act (rape of a child under 13);

(j) an offence under section 7 of that Act (assault of a child under 13 by penetration);

(k) an offence under section 9 of that Act (causing or inciting a child under 13 to engage in sexual activity), where an activity involving penetration within subsection (3)(a) to (d) of that section was caused;

(l) an offence under section 32 of that Act (sexual activity with a person with a mental disorder), where the touching involved penetration within subsection (4)(a) to (d) of that section;

(m) an offence under section 33 of that Act (causing or inciting a person with a mental disorder to engage in sexual activity), where an activity involving penetration within subsection (4)(a) to (d) of that section was caused;

(n) an attempt to commit an offence within any of paragraphs (d) to (m)."

1662

(3) Omit sections 142 to 144.

(4) Schedule 10 (consequential amendments) omit paragraphs 26 and 35(2) and (4)."

279 age 95, line 29, at end insert—
"Criminal Law (Consolidation) (Scotland) Act 1995 (c. 39)
In section 5(6) of the Criminal Law (Consolidation) (Scotland) Act 1995 (which relates to construing the expression "a like offence"), after paragraph (c) insert "or
(cc) any of sections 10 to 15 of the Sexual Offences Act 2003;"."
280 Page 95, line 31, leave out paragraph 26 and insert—
"Criminal Injuries Compensation Act 1995 (c. 53)
In section 11 of the Criminal Injuries Compensation Act 1995 (approval by parliament of certain alterations to the Tariff or provisions of the Scheme)—

(a)in subsection (3)(d), after "rape" insert "or an offence under section 32 of the Sexual Offences Act 2003";

(b)after subsection (8) insert—

"(9)In subsection (3) "rape", in relation to anything done in England and Wales, means an offence under section 1 or 6 of the Sexual Offences Act 2003."

Sexual Offences (Conspiracy and Incitement) Act 1996 (c. 29)
In the Schedule to the Sexual Offences (Conspiracy and Incitement) Act 1996 (sexual offences for the purposes of that Act), in paragraph 1 —

(a)for sub-paragraph (I)(b) substitute—

"(b)an offence under any of sections 1 to 13,15 and 17 to 28 of the Sexual Offences Act 2003.";

(b)in sub-paragraph (2), for "In sub-paragraph (l)(a), sub-

paragraphs (i), (iv), (v) and (vi) do" substitute "Sub-paragraph (l)(b) does".

Sexual Offences (Protected Material) Act 1997 (c. 39) In the Schedule to the Sexual Offences (Protected Material) Act 1997 (sexual offences for the purposes of that Act)—

(a) after paragraph 5 insert—

"5A. Any offence under any provision of Part 1 of the Sexual Offences Act 2003 except section 65, 66, 67 or 71.";

(b) in paragraph 6, for "1 to 5" substitute "5 and 5A"."

281 Page 96, line 31, at end insert—
"Youth Justice and Criminal Evidence Act 1999 (c. 23)

(1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.

(2) In section 35 (cross examination of child witnesses), in subsection (3)(a), after sub-paragraph (v) insert "or

(vi) Part 1 of the Sexual Offences Act 2003;".

(3) In section 62 (meaning of "sexual offence" etc.), for subsection (1) substitute—

"(1) In this Part "sexual offence" means any offence under Part 1 of the Sexual Offences Act 2003."

Criminal Evidence (Northern Ireland) Order 1999 (S.I 1999/ 2789 (N.I. 8))

(1) The Criminal Evidence (Northern Ireland) Order 1999 is amended as follows.

(2) In Article 3(1) (meaning of "sexual offence"), after sub- paragraph (gg) insert—

"(ga) any offence under any of sections 17 to 23,49 to 55, 58 to 60, 67 to 70, 72 and 73 of the Sexual Offences Act 2003."

1663

(3) In Article 23 (protection of child complainants and other child witnesses)—

(a) in paragraph (3), after sub-paragraph (c) insert—

"(cc) any offence under any of sections 17 to 23,49 to 55, 58 to 60, 67 to 73 of the Sexual Offences Act 2003;";

(b) in paragraph (4)(a), after "(3)(a)" insert "or (cc)"."

282 Page 96, line 33, at beginning insert—

"(1) The Powers of Criminal Courts (Sentencing) Act 2000 is amended as follows.

(2) In section 91 (power to detain offenders under 18 convicted of certain offences), for subsection (l)(b) and (c) substitute—

(b) an offence under section 4 of the Sexual Offences Act 2003 (in this section, "the 2003 Act") (sexual assault); or

(c)an offence under section 14 of the 2003 Act (child sex offences committed by children or young persons); or

(d) an offence under section 27 of the 2003 Act (sexual activity with a child family member); or

(e) an offence under section 28 of the 2003 Act (inciting a child family member to engage in sexual activity)."

(3) In section 109 (life sentence for second serious offence), in subsection (5), after paragraph (0 insert—

(fa) an offence under section 1 or 3 of the Sexual Offences Act 2003 (in this section, "the 2003 Act") (rape, assault by penetration);

(fb) an offence under section 5 of the 2003 Act (causing a person to engage in sexual activity without consent), where the activity caused involved penetration within subsection (4)(a) to (d) of that section;

(fc) an offence under section 6 or 7 of the 2003 Act (rape of a child under 13, assault of a child under 13 by penetration);

(fd) an offence under section 9 of the 2003 Act (causing or inciting a child under 13 to engage in sexual activity), where an activity involving penetration within subsection (3)(a) to (d) of that section was caused;

(fe) an offence under section 32 of the 2003 Act (sexual activity with a person with a mental disorder), where the touching involved penetration within subsection (4)(a) to (d) of that section;

(ff)an offence under section 33 of the 2003 Act (causing or inciting a person with a mental disorder to engage in sexual activity), where an activity involving penetration within subsection (4)(a) to (d) of that section was caused;

(fg) an attempt to commit an offence within any of paragraphs (fa) to (ff);"-

(4) In section 161 (definition of "sexual offence" etc.), in subsection (2)—

(a) after paragraph (0 insert—

(fa) an offence under any provision of Part 1 of the Sexual Offences Act 2003 except section 54, 55 or 67;";

(b) in paragraph (g), for "(a) to (0" substitute "(f) and (fa)". (5)"

283 Page 96, line 33, leave out from "9" to end
284 Page 96, line 36, leave out paragraph 32
285 Page 97, line 2, leave out paragraph 33 and insert—

" (1) The Criminal Justice and Courts Services Act 2000 is amended as follows.

(2) Omit sections 39 and 66.

(3) In section 68 (sexual and violent offenders for the purposes of risk assessment etc.), in subsection (2), for "Part I of the Sex Offenders Act 1997" substitute "Part 2 of the Sexual Offences Act 2003".

1664

(4) In section 69 (duties of local probation boards in connection with victims of certain offences), in subsection (8)(b), for "Part I of the Sex Offenders Act 1997" substitute "Part 2 of the Sexual Offences Act 2003".

(5) In Schedule 4 (offences against children for the purposes of disqualification orders)—

(a) in paragraph 1, for sub-paragraph (m) substitute—

"(m) an offence under any of sections 6 to 28 and 49 to 52 of the Sexual Offences Act 2003 (offences against children).";

(b) in paragraph 2, for sub-paragraph (n) substitute—

"(n) an offence under any of sections 1 to 5, 32 to 43, 54, 55, 58 to 62, 68 and 69 of the Sexual Offences Act 2003.";

(c) in paragraph 3, after sub-paragraph (s) insert—

"(sa) he commits an offence under section 63 or 64 of the Sexual Offences Act 2003 (committing an offence or trespassing with intent to commit a sexual offence) in a case where the intended offence was an offence against a child."

(6) Omit Schedule 5."

286 Page 97, line 17, leave out paragraphs 35 and 36 and insert—
"Proceeds of Crime Act 2002 (c. 29)

(1) The Proceeds of Crime Act 2002 is amended as follows.

(2) In paragraph 4 of Schedule 2 (lifestyle offences: England and Wales), for sub-paragraph (2) substitute—

"(2) An offence under any of sections 58 to 60 of the Sexual Offences Act 2003 (trafficking for sexual exploitation)."

(3) For paragraph 8 of that Schedule substitute— "Prostitution and child sex

8

(1) An offence under section 33 or 34 of the Sexual Offences Act 1956 (keeping or letting premises for use as a brothel).

(2) An offence under any of the following provisions of the Sexual Offences Act 2003—

(a) section 15 (arranging or facilitating commission of a child sex offence);

(b) section 50 (causing or inciting child prostitution or pornography);

(c) section 51 (controlling a child prostitute or a child involved in pornography);

(d) section 52 (arranging or facilitating child prostitution or pornography);

(e) section 54 (causing or inciting prostitution for gain);

(f) section 55 (controlling prostitution for gain).

(3) In paragraph 4 of Schedule 5 (lifestyle offences: Northern Ireland), for sub-paragraph (2) substitute—

"(2) An offence under any of sections 58 to 60 of the Sexual Offences Act 2003 (trafficking for sexual exploitation)."

(4) In paragraph 8 of that Schedule—

(a) after sub-paragraph (1) insert—

"(1 A) An offence under any of the following provisions of the Sexual Offences Act 2003—

(a) section 50 (causing or inciting child prostitution or pornography);

(b) section 51 (controlling a child prostitute or a child involved in pornography);

(c) section 52 (arranging or facilitating child prostitution or pornography);

(d) section 54 (causing or inciting prostitution for gain);

(e) section 55 (controlling prostitution for gain).";

(b) omit sub-paragraphs (2) to (5)."

287 Page 97, line 35, at end insert—
"Protection of Children and Vulnerable A dulls (Northern Ireland) Order 2003(S.I. 2003/417 'N.I. 4))
In paragraph 1 of Schedule 1 to the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003, after sub-paragraph (n) insert—
"(o) any offence under any of sections 17 to 23 and 49 to 52 of the Sexual Offences Act 2003."
Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/435 (N.I. JO))
In Schedule 2 to the Access to Justice (Northern Ireland) Order 2003, in paragraph 2(d)—

(a) omit sub-paragraph (x),

(b) omit "or" at the end of sub-paragraph (xi),

(c) at the end of sub-paragraph (xii) insert "or (xiii) under section 90, 91, 95, 98, 102, 106, 107, 112, 116, 121, 123 or 124 of the Sexual Offences Act 2003,"."

288 Page 98, line 1, leave out from "(a)" to "and" in line 2
289 Schedule 6, page 98, line 21, at end insert—

"Visiting Forces Act 1952 (c. 67)

In the Schedule, in paragraph

l(a) the words "rape, buggery"; paragraph l(b)(viii).

Army Act 1955 (3&4 Eliz. 2 c.18)

In section 70(4), the words "or rape".

Air Force Act 1955 (3 &4 Eliz.2 c. 19)

In section 70(4), the words "or rape"."

290 Page 98, line 25, column 2, leave out from "to" to "47" in line 28l
Baroness Scotland of Asthal: My Lords, I beg to move Amendments Nos. 275 to 290.
Moved, That the House do agree with the Commons in their Amendments Nos. 275 to 290.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.

COMMONS AMENDMENT
291 Page 98, line 29, at end insert—

", and in paragraph 33, the entry in the fourth column.

Naval Discipline Act 1957 (c. 53)

In section 48(2), the words "or rape"."

Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 291 and do propose Amendment No. 291A thereto:
291 A Schedule 6, Leave out lines 2 and 3
Moved, That the House do agree with the Commons in their Amendment No. 291 and do propose Amendment No. 291A thereto.
On Question, Motion agreed to.

COMMONS AMENDMENTS
292 Schedule 6, page 98, line 43, at end insert—
"Criminal Justice Act 1972 (c. Section 48." 71)
293 Page 99, line 9, at end insert—

"Internationally Protected Persons Act 1978 (c. 17)

In section l(l)(a), the word "rape,".

Suppression of Terrorism Act 1978 (c. 26)

In section 4(l)(a), the word "11,".

In Schedule 1, paragraph 11."

294 Page 99, line 10, column 2, at beginning insert—

"In section 103(2)(c), the words from "the Indecency with Children Act 1960" to "1977 or".

In Schedule 1, paragraphs 23,27 and 32."

295 Page 99, line 11, at end insert—

"Criminal Attempts Act 1981 (c. 47)

In section 4(5), paragraph (a) and the word "and" immediately after it."

296 Page 99, line 15, at end insert—

"Criminal Justice Act 1982 (c. 48)

In Schedule 1, in Part 1, paragraph 2, and in Part 2, the cross-heading immediately before paragraph 12, and paragraphs 12 to 14 "

297 page 99, line 30, at end insert—

"Police and Criminal Evidence Act 1984 (c. 60)

In section 80(7), the words from. "the Sexual Offences Act 1956" to "1977 or".

In Schedule 1A, paragraph 4 and the cross-heading immediately before it.

In Part 1 of Schedule 5, paragraphs 4 and 6 to 8.

In Part 2 of Schedule 5, paragraph 2 and the cross-heading immediately before it.

In Part 1 of Schedule 6, paragraph 9."

298 Page 99, line 31, column 2, at beginning insert—

"Section 3."

299 Page 99, line 35, at end insert—

"Criminal Justice Act 1988 (c. 33)

In section 32(2)(c), the words from "the Sexual Offences Act 1956" to "1977 or""

300 Page 99, leave out lines 37 and 38
301 Page 99, line 40, at end insert—
"Criminal Procedure and Section 56(2)(a).

Investigations Act 1996 (c. 25).

Sexual Offences (Conspiracy and Incitement) Act 1996 (c. 29)

In the Schedule, paragraph 1(l)(a).

Sexual Offences (Protected Material) Act 1997 (c. 39)

In the Schedule, paragraphs 1 to 4."

302 Page 100, line 17, column 2, leave out "paragraph" and
insert "paragraphs 36 and"
303 Page 100, line 23, at end insert—

"Youth Justice and Criminal Evidence Act 1999 (c. 23)

In section 35(3)(a), sub-paragraphs (i) to (iv)."

304 Page 100, line 24, at beginning insert—

"Section 161(2)(a) to (e)."

305 Page 100, line 28, at end insert—

"In Schedule 4, paragraphs l(c) to (i), 2(g) to (m) and 3(b) to (r)."

306 Page 100, line 36, at end insert—

"Proceeds of Crime Act 2002 (c. 29)

In Schedule 5, paragraph 8(2) to (5)."

307 Page 100, line 39, at end insert—

"Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/435 (N.I. 10))

In Schedule 2, in paragraph (2)(d), sub-paragraph (x) and the word "or" at the end of sub-paragraph (xi)."

308 Page 100, line 40, column 2, leave out from "(a)" to end of line 41
Baroness Scotland of Asthal: My Lords, I beg to move Amendments Nos. 292 to 308.
Moved, That the House do agree with the Commons in their Amendments Nos. 292 to 308.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.

Water Bill [H.L.]
7.37 p.m.
Lord Whitty: My Lords, I beg to move that the Commons amendments be now considered.
Moved, That the Commons amendments be now considered.—(Lord Whitty.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
[The page and line refer to HL Bill 149 as first printed for the Lords.]

COMMONS AMENDMENT
1 Clause 1, page 1, line 4, leave out Clause 1.
Lord Whitty: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1. In so doing, I shall also speak to Amendment No. 82.
The amendment relates to the issue of water conservation, to which your Lordships prefer to refer here. The House of Commons and spokespeople of all parties accepted that the amendments rightly gave greater prominence to water conservation in the Bill, by inserting Amendment No. 82, which we shall reach in due course. The intention of the amendments was to strengthen the duty to conserve water resources. They retain the principle driven at in Clause 1 while addressing concerns about the potentially adverse consequences of such a wide and general duty.
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I note that Amendment No. 1A, in the name of the noble Baroness, Lady Miller, seeks to reinstate Clause 1 with an additional reference to the duty to encourage water conservation.
Baroness Byford: My Lords, I believe that the amendment is in my name.
Lord Whitty: I apologise to the noble Baroness. Indeed, the amendment is in her name. I am not sure to whom I should apologise most, but I apologise to both noble Baronesses.
I note that Amendment No. 1A, to which the noble Baroness will no doubt speak shortly, seeks to go back to Clause 1, whereas the insertion of Amendment No. 82 was intended to replace Clause 1. I believe that the retention of Clause 1 would cause further confusion.
As I explained when the Bill was previously debated in this House, there are difficulties with the wording of Clause 1, and they have not disappeared. It would oblige the Secretary of State to take action, regardless of whether it was beneficial or cost-effective, and, more directly, it cuts across the statutory duties of regulators and water undertakers, which would weaken the provisions for them. It is also unclear how the Secretary of State would implement measures referred to under Clause 1 with no further statutory provision as to how that should be done. As a matter of law it is unclear what entities are in Clause 1, and that could cause additional confusion.
Whether a particular activity constitutes an appropriate use of water or a waste would also be a difficult question and that is not a strong basis for a statutory duty. It will be far more constructive for the Secretary of State to look towards the clear objective of conserving water, which will be placed in Part 3 of the Bill through Amendment No. 82.
By placing the new duty in Part 3 of the Bill it probably also has a wider application than in Part 1, where it may be taken to relate primarily to abstraction and impounding. In that respect the Environment Agency already has a duty to secure the proper use of water resources, and this has been clarified in the Bill to require the agency to secure the efficient use of abstracted water.
Amendment No. 82 places a new duty on the Secretary of State and the Welsh Assembly to take steps to encourage water conservation and report to Parliament or the Assembly on progress and proposed steps. This will advance the interests of water conservation and give Parliament the opportunity to scrutinise the sufficiency of the steps taken.
Moved, That the House do agree with the Commons in their Amendment No. 1.—(Lord Whitty.)

COMMONS AMENDMENT
1 Clause 1, page 1, line 4, leave out Clause 1
Baroness Byford Baroness Byford rose to move, as an amendment to the Motion that the House do agree with the Commons in their Amendment

1669
No. 1, leave out from "House" to end and insert "do disagree with the Commons in their Amendment 1, but do propose the following amendment to the words so restored to the Bill—
1A Clause 1, page I, line 6, at end insert ", and in carrying out his duty, shall have particular regard to the steps to be taken under section (Duty to encourage water conservation)""
The noble Baroness said: My Lords, in our various discussions during the passage of the Bill through the House we tried desperately to persuade the Government that there was a need to have a duty to conserve water placed at the beginning of the Bill. I am grateful to the noble Lord, Lord Whitty, who wrote to me on 12th September 2003. The letter states:
"While the intention of the amendment is sound"
in other words, the Government accept the thrust of what we are trying to do—
"as drafted it presents a number of significant concerns. The duty is very wide so there is a danger that it might have unforeseen and undesirable implications. In particular, it has been suggested that it could cut across the statutory responsibilities of regulators".
I read that very carefully and I am still not convinced that we should not try to proceed with our amendment.
As noble Lords will realise, last summer was extremely dry. It is said that unless we get rainfall this winter that is 30 per cent higher than average it is likely that we shall have a serious drought next spring. I return to the Minister's letter. I understand the term "unforeseen"; obviously, crises can arise. I have no difficulty with that. However, I should like the Minister to explain further the term "undesirable implications". In what way could such a duty have undesirable consequences unless the Secretary of State took actions which were ill-judged or poorly implemented? I do not see where the Minister is coming from.
I turn to government Amendment No. 82. I am grateful to the Government for having taken on board the thrust behind our original amendment which we pursued at every stage of the Bill's passage through this House. I realise that the measure is an important addition to the Bill but I should like to see it at the beginning of the Bill. I think that the Minister will not be surprised to hear me say that that is where I think it should be. It is very important that one of the first things that a reader of the Bill sees is a duty to encourage water conservation. I cannot understand why there is so much resistance from the Government to that particular aspect.
I am trying to be constructive and helpful, as one does at the end of a Bill's passage. I suggest therefore that my amendment would partly meet the Minister's concerns in that it would make the reader of the Bill refer to the terms of government Amendment No. 82, which I presume he is happy with as he is proposing it. I am in a slightly difficult position, and would like to hear further from the noble Lord on that. My real desire is to see the duty to conserve water resources moved to Clause 1.I beg to move.
Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 1, leave out from "House" to end and insert Amendment No. 1A as an amendment to the words so restored to the Bill.—(Baroness Byford)
7.45 p.m.
Baroness Miller of Chilthorne Domer: My Lords, I support the noble Baroness's amendment. Since we discussed the matter in the House, we have seen rainfall continue to diminish during the year. Indeed, the noble Baroness, Lady Farrington, in reply to my Question only on Tuesday said that we had had the worst rainfall figures for February to October for 74 years, with the exception of 1959. Under those circumstances, even the past few months could show us why it is more important than ever that we have the provision at the beginning of the Bill. After all, many of its clauses are concerned with changing the water regime so that it is more sustainable and more about conserving water. That is what the extraction changes and the drought plans are all about.
As the noble Baroness, Lady Farrington, also said on Tuesday, the drought plans are applied region by region and are for water companies to implement. Of course, what was not said on Tuesday was that we now have Water Grid Ltd, which is to do with moving water around the country. That and Mr Morley's comments at Third Reading in another place—he said that a measure to deal with the very low levels in reservoirs was to pump the rivers out—leads me to lend the noble Baroness even stronger support for the amendment. The scenario that we have seen this year is likely to be repeated in other years if we are to believe, as I do, the forecasts by scientists who study climate change. We cannot afford to be complacent in this area.
I, too, look forward to hearing exactly what the problem is with underlining the importance of conservation as one of the prime purposes of the Bill. The Minister mentioned adverse effects. I cannot understand what the adverse effects of the Secretary of State having such a duty could be.
Baroness O'Cathain: My Lords, I wish to speak to Amendment No. 82. Before I do so, I declare an interest as a director of a water-only company in the South East. As we know, Amendment No. 82 inserts a new clause requiring the Secretary of State and the Assembly in Wales to take appropriate steps to encourage the conservation of water. I agree wholeheartedly with my noble friend Lady Byford that that really should be at the beginning of the Bill, because it is one of the most important issues.
I should like to ask the Minister what action the Government intend to take in respect of the water-resource situation in the south-east of England. We heard from the noble Baroness, Lady Miller, that there had been a huge drought. It makes me smile wryly when I consider that, in Committee, we talked about drought and were not quite laughed out of court, but we were told that the matter was not in our ken, that

1671
the country had too much water and had not had drought for seven years, and goodness knows what else. The situation is now very serious.
As I explained many times during the passage of the Bill, the south-east region is water-resource deficient. A recent Environment Agency report, State of the Environment 2003—The Environment Agency's assessment of the environment in South East England, showed that Kent, Sussex, Hampshire and the Isle of Wight's water resources were the most precious in the UK. More water is consumed for each person in the South East than anywhere else in the country, which, combined with the fact that it is more deficient there, sets up a real problem. The area receives one of the lowest amounts of rainfall each year.
The amount of water available to each person is already lower than in Egypt, Morocco and Kenya, and less than a fifth of that in Turkey. As the noble Baroness, Lady Miller, has said, drier summers are predicted in Britain in the future as a result of climate change. Added to that, a huge increase in demand for water in the South East is forecast as a direct result of population growth. Our population is going to grow by about 2 million. According to the Environment Agency, that will cause more unsustainable water abstractions unless demand is managed and new resources are developed. We all know about the outcry that greets new resource development such as reservoirs.
At last month's Economist Water Conference, the Environment Minister, Mr Elliot Morley, was quoted as saying that the South East has already been officially recognised as a water stressed area. In that context I want to ask the Minister what the Government's intentions are regarding demand management measures for the South East and, in particular, for water metering? The Defra policy paper, Directing The Flow: Priorities For The Future of Water Policy, published in November 2002, discusses the water resource situation and identifies as a priority for water policy,
"prudent use of water resources and keeping its use within the limits of its replenishment".
That point was made by the noble Baroness, Lady Miller, and my noble friend. The paper goes on to state:
"We will continue to use the twin track approach of demand management and development of resources to achieve sustainable management of water resources".
The Water Bill takes forward the main supply measures set out in the Defra paper, putting water resource and drought plans on a statutory basis and makes changes to the abstraction licensing system. The Government are also aware of the need for water companies to reduce their leakage rates. However, as the Environment Agency has pointed out, the majority of the region's water companies achieved a reduction in their leakage rates between 1997–98 and 2000–01.
I turn to demand management measures. The Government's policy is to permit the growth of metering on a voluntary basis. It is now clear that that
1672
approach is less than equal to the water resource challenges that we face in the South East. The agency's report, State of the Environment 2003, the Environment Agency's assessment of the environment in south-east England, published in June this year, states:
"All water companies in the South East have seen an increase in the number of metered properties since 1997/98. This increase has mainly been through voluntary take-up, installations in new homes and the metering of sprinkler or swimming pool users".
But it goes on to state:
"Continuation of this policy is unlikely to achieve the metering levels the Environment Agency believes is necessary. Most of the companies are unlikely to achieve the forecasts for 2004/05 and 2024/35 proposed in their water resource plans".
For some time, the agency has accepted that real water savings from metering will come only when there is sufficient metering penetration to introduce innovative tariffs that dissuade high domestic use.
As I have explained previously, the reality is that pursuit of a policy of optional metering, at the request of customers and free of charge, is ineffective as a demand management tool. Compulsory metering is much more economical than optional or selective metering. Optional metering is more costly because meters may be situated only in every third, 10th or 20th house. In other words, compulsory metering is the only economic way of applying demand management in a scarce water area.
Furthermore, the situation in the South East has deteriorated since we last discussed the Bill and since the agency produced its report. For eight consecutive months, the region has had below-average rainfall. According to the Met Office, 575 mm of rain should have fallen in south-east England during the first 10 months of the year where only 346 mm fell. River flows have continued to fall throughout the autumn, which has been the third driest in the region since records began. As has been pointed out, if we do not have substantial rainfall this winter, the region faces water shortages next spring.
The water companies that serve the region have called on their customers to help conserve water supplies, but it seems ludicrous to suggest to people in the middle of November that there should be a hose-pipe ban, because few hose-pipes are used at this time of year. I note that WaterVoice Southern, which is the voice of the consumer, is backing these efforts.
Therefore, in light of the new Clause 81 and the deteriorating situation in the South East of England, do the Government have any plans to change their policy on metering? If not, do they believe that the situation in the South East is now sufficiently serious to warrant the Secretary of State declaring it "an area of water scarcity" and therefore to be subject to compulsory metering without the need for a company application, which would only delay the inevitable that a change in policy is required to recognise the seriousness of the situation?
Lest I should be accused of worrying only about the South East, although that is where the situation is serious, the whole of England and Wales is seriously water deficient. According to a press notice from the

1673
Environment Agency this month, throughout England and Wales there is less water available per person than in some countries in Africa and the Middle East. Given the Government's own projection that there will be an increase of 3.3 million households in England and Wales between 1996 and 2016, and that the population is set to increase by 2 million over the same period, the situation is serious. Can the Minister inform the House what other measures the Government are considering in terms of demand management or resource development in order to comply with their new duty to take appropriate steps to encourage the conservation of water?
Lord Whitty: My Lords, the noble Baroness, Lady O'Cathain, raised a number of points which go beyond the terms of the alternative amendments. Clearly, there is a serious situation in the South East. We recognised that in this House and during the course of this Bill. The water resource plans, parts of which are reflected in the Bill, are aimed at ensuring that long-term planning of water supply meets the demand. The restrictions on abstraction, the powers given to water companies, the requirements on them to have drought plans, and their powers of persuasion and ability to impose, for instance, hose-pipe bans all go together to mitigate the potential water shortages in areas such as the South East. Water companies can also require the metering of new developments, which also helps the situation.
I am not trying to belittle the problems in the South East, but there are a number of different measures—
Baroness O'Cathain: My Lords, I am grateful to the Minister for giving way. In the case of new housing developments, water companies can ask for meters to be installed but it is not a statutory requirement. That would help.
Lord Whitty: My Lords, no, but in practice water companies take advantage of the ability, in particular in the South East. New developments could be covered by that. However, we are talking about encouraging water conservation and the argument is. about where, and the form in which, the provision should appear in the Bill. I interpreted the noble Baroness as saying that she had no real objection to Amendment No. 82, merely its place in the Bill. We could always argue about that, but the problem with putting it where she should wish it—as an additional amendment to Clause 1—is that Part 1 is described as "Abstraction and impounding" and it deals with restrictions on impounding. On the other hand, as regards some of the more general provisions in Part 3, the duty on conservation would apply more widely.
Ultimately, where we put the provision in the Bill is to some extent a matter of taste because every part of the Bill has the same legal significance. The more important objection to the noble Baroness's amendment is the form in which Clause 1 came out of the House and has been deleted in the Commons amendment. It states that:
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"The Secretary of State shall have a duty to devise and implement measures to ensure that all entities and persons who use water do so without wasting it".
That is a somewhat wider power than others given to the Secretary of State in the Bill. It could cut across powers which are given to other entities in the Bill. The term "entities" here is not described and the term "persons" could mean that the Secretary of State in some sense has the ability to check the level of water in our baths or the number of showers we take per day. That may be at the extreme end of interpretation, but it is a legitimate and logical interpretation of this clause because there is no limitation on it; nor are any powers, other than those already in the Bill or in existing legislation, given to the Secretary of State to carry out that rather wide-ranging duty.
The other reason for placing the provision in Part 3 of the Bill is that that would apply to all aspects of water legislation. It would apply to parts which amended the Water Industry Act and those which amended the Water Resources Act. Therefore, the key issue is that the new clause, which would place a duty on the Secretary of State to carry a responsibility for water conservation, would apply throughout all the powers which accrue to the Secretary of State in the Bill, but it does not imply that she would have more powers, nor that her powers might override the powers given statutorily, for example, to the Environment Agency and the regulator. Those are prescribed separately in the Bill and in previous legislation.
That is my objection to keeping Clause 1 as it stood when we last saw the Bill. My objection to it being in this place in the Bill is perhaps more marginal. There are obviously advantages to having the duty up front but, in practice, that would limit its application to the areas covered by Part 1, which includes amendment to one piece of legislation but not the other.
Baroness Byford: My Lords, I thank both the noble Baroness, Lady Miller of Chilthorne Domer, and my noble friend Lady O'Cathain. I particularly thank my noble friend Lady O'Cathain because she explained in great detail why she considers this amendment to be important.
I listened with care to what the Minister said but I am afraid that he has not convinced me either way. I believe that I quote him correctly. We shall have to wait until we read Hansard tomorrow before we can be sure, but I think that he implied that the Secretary of State should not have powers to override other people who have responsibilities. I believe that the Secretary of State should be able to do that. Ultimately, someone must be able to do so.
The Minister said that his feelings about where the clause appeared in the Bill were "marginal" but that he was not so concerned about that matter. However, I believe that the Secretary of State should have the power to dictate other aspects of responsibility in the Bill. I am not very happy with the answer that I have been given and I believe I should seek the opinion of the House.
8.3 p.m.
On Question, Whether the said amendment (No. 1 A), as an amendment to the Motion, shall be agreed to?
Their Lordships divided: Contents, 43; Not-Contents, 72.

Division No.6

CONTENTS

Addington, L.

Methuen, L.

Anelay of St Johns, B.

Miller of Chilthorne Domer, B.

Astor of Hever, L.

Montrose, D.

Attlee, E.

Newby, L.

Barker, B.

Noakes, B.

Bridgeman, V.

Northesk, E.

Brooke of Sutton Mandeville, L.

Northover, B.

Brougham and Vaux, L.

O'Cathain, B.

Byford, B.

Onslow, E.

Cope of Berkeley, L.[Teller]

Palmer, L.

Person of Rannoch, L.

Craigavon, L.

Phillips of Sidbury, L.

Dholakia, L

Razall, L.

Dixon-Smith, L.

Rennard, L.

Geddes, L.

Roper, L.

Glentoran, L.

Seccombe, B.[Teller]

Hamwee, B.

Selborne, E.

Hanham, B.

Skelmersdale, L.

Higgins, L.

Soulsby of Swaffham Prior, L.

Howell of Guildford, L.

Thomas of Walliswood, B.

Livsey of Talgarth, L.

Wallace of Saltaire, L.

Luke, L.

Williams of Crosby, B.

NOT-CONTENTS

Acton, L.

Hayman, B.

Alli, L.

Hollis of Heigham, B.

Amos, B. (Lord President)

Howells of St. Davids, B.

Andrews, B.

Hoyle, L.

Archer of Sandwell, L.

Hughes of Woodside, L.

Ashton of Upholland, B.

Hunt of Chesterton, L.

Bach, L.

King of West Bromwich, L.

Bassam of Brighton, L.

Lea of Crondall, L.

Bernstein of Craigweil, L.

Macdonald of Tradeston, L.

Borrie, L.

McIntosh of Haringey, L.

Bragg, L.

McIntosh of Hudnall, B.

Brooke of Alverthorpe, L.

MacKenzie of Culkein, L.

Burlison, L.

Mackenzie of Framwellgate, L.

Carter, L.

Mallalieu, B.

Chandos, V.

Massey of Darwen, B.

Clarke of Hampstead, L.

Morgan, L.

Clinton-Davis, L.

Parekh, L.

Corbett of Castle Vale, L.

Pitkeathley, B.

Craig of Radley, L.

Ramsay of Cartvale, B.

Crawley, B.

Rea, L.

Davies of Oldham, L. [Teller]

Rendell of Babergh, B.

Donoughue, L.

Richard, L.

Dubs, L.

Rogers of Riverside, L.

Evans of Parkside, L.

Sainsbury of Turville, L.

Evans of Temple Guiting, L.

Sawyer, L.

Farrington of Ribbleton, B.

Scotland of Asthal, B.

Faulkner of Worcester, L.

Sewel, L.

Gale, B.

Simon, V.

Gilbert, L.

Stone of Blackheath, L.

Golding, B.

Temple-Morris, L.

Goldsmith, L.

Turnberg, L.

Graham of Edmonton, L.

Warwick of Undercliffe, B.

Grocott, L. [Teller]

Whitaker, B.

Hannay of Chiswick, L.

Whitty, L.

Harris of Haringey, L.

Wilkins, B.

Harrison, L.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
On Question, Motion agreed to.
8.13 p.m.

COMMONS AMENDMENT
2 Clause 2, page 1, line 7, leave out Clause 2
Lord Whitty: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2. The government amendment removes Clause 2 from the Bill that left this House. Clause 2 placed a duty on the Secretary of State to make regulations to implement aspects of the Water Framework Directive. That clause as it stood when it left this House did not transpose the directive and in some respects went beyond its requirements. An enabling power to transpose the directive already exists in the European Communities Act 1972. The Government published a third consultation paper, in August, with proposed draft transposing regulations. October marked the end of successive government consultations on transposition, which started in March 2001.
As with most European legislation, it has been the longstanding practice, agreed in the House and used by successive governments, to transpose European legislation using the European Communities Act. The regulations will of course come to Parliament in the normal way.
The Government obviously are already under a legal obligation to implement the directive because it is a piece of European legislation. No specific provision along the lines proposed in Amendment No. 2A is necessary. Indeed, it would duplicate the powers under the European Communities Act.
The Government's proposed regulations to transpose the directive, which were published in August, already contain regulations transposing Articles 5 and 8, to which the noble Baroness's amendment refers. The corresponding draft regulations are already there. No further provision along the lines of subsections (2) and (3) of the amendment is therefore needed in the Bill.
I therefore hope that the noble Baroness, and others who support the amendment, will recognise that it would be counterproductive and duplication to provide this provision under the Bill, and that the normal procedure should apply to the Water Framework Directive as it applies to the vast majority of European legislation and regulation.
Moved, That the House do agree with the Commons in their Amendment No. 2.—(Lord Whitty.)

MOTION MOVED ON CONSIDERATION OF COMMONS AMENDMENT NO. 2
Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer rose to move, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 2, at end insert "but do propose the following amendment in lieu of the words so left out of the Bill—
2A Clause 2, Insert the following new Clause—
"Compatibility with EC Directive

(1) Wherever applicable, all provisions of this Act shall be implemented in such a way as to comply with and contribute to the requirements of the EC Water Framework Directive (2000/ 60/EC).

(2) The Secretary of State and the Assembly shall prepare and publish targets, together with a timetable by which each shall be achieved, for Articles 5 and 8 of the EC Water Framework Directive.

(3) The targets and timetable shall be laid before both Houses of Parliament and the Assembly within one year after the Directive has been transposed.""

The noble Baroness said: My Lords, the Minister says that there is a usual way to transpose directives. I agree. Does he also accept that the UK has an astoundingly poor record in transposing environmental directives? It is so bad that the UK came bottom of the league in Europe in the European Commission's Fourth Annual Survey on the Implementation and Enforcement of Community Environmental Law. That is enough proof of why the old method of transposing directives is simply not good enough. In my view, that alone would be good enough reason to use primary legislation.
There is astounding agreement between all sides involved with anything to do with water. The water industry—that is the companies themselves, the environmental NGOs and academics—£.nd everyone I have spoken to about the Bill have one thing in common: they are all angry, disappointed and disbelieving that the Government could have put this legislation through without as much as a reference to the Water Framework Directive. After all, this will be the biggest change in our water management, certainly in living memory. They are worried for very good reason. Without the backing of primary legislation, the Water Framework Directive has been downgraded in importance. It is likely to be implemented in a non-cost effective way and without the urgency needed.
To be effective, the implementation really needs to mesh with planning and spatial planning functions, for example—hence my reference to Article 5. Article 5 is concerned with the type of measures that will be needed in the planning process to enable the Water Framework Directive to be properly implemented.
It is very difficult to see how the framework's objective of reducing, for example, diffuse pollution will possibly be achieved unless those changes are given the kind of urgency and planning that is needed. If the Government do not achieve the timescale, which my amendment also requires them at least to set out, it will cost us all in infraction proceedings.
More importantly, perhaps, the Minister will remember that the noble Lord, Lord Haskel, spoke exceedingly well in Grand Committee of the costs to industry—not only the costs of all the lost opportunities that innovation will bring in having industries that seek to clean up pollution. They are opportunities to be grasped and not to be taken at the last minute.
Article 8 is about monitoring surface and groundwater status. That work will tell us what needs to be done and where, and how difficult it is likely to be. Again, there is no use in leaving that until the last possible moment.
I hear the Minister's remarks that there is plenty of time and that people are fully seized and prepared to put the Water Framework Directive into action in the timescale. However, since the Bill left this House, when the Minister asserted that that would happen, I have spoken to all sorts of people, from local authorities throughout the country, those concerned with development control issues, developing local plans, spatial planning and transport, who are unaware of the demands that the Water Framework Directive will make, if they are aware of it at all. It is an extremely serious situation. If, at least, the provisions were included in primary legislation, the Government would have made a statement that it was important. I beg to move.
Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 2, at end insert Amendment No. 2A in lieu of the words so left out of the Bill.—(Baroness Miller of Chilthorne Domer.)
Baroness Byford: My Lords, I support the noble Baroness, Lady Miller of Chilthorne Domer. Throughout the proceedings we have run a duet, supported by other noble Lords around the House, who are unfortunately absent, on the need to include in the Bill the Water Framework Directive responsibilities. It is a timely occasion, as there will not be a water Bill for many years to come. I wish to add to the noble Baroness's comments.
In his letter on the Water Framework Directive, the noble Lord, Lord Whitty, said:
"Clause 2 of the Bill simply provides an enabling power to implement aspects of the Water Framework Directive—it does not transpose the Directive. An enabling power already exists in the European Communities Act. Formal transposition of the Directive must be achieved by 22 December this year"
The letter was originally sent on 12th September. It continued:
"The Government published a consultation paper in August with proposed draft transposing regulations. Our consultation period runs until October".
I ask the Minister whether that consultation has finished; what has happened to it since then; and will the aims be achieved by 22nd December, bearing in mind that it is now 13th November? The noble Lord said:
"You will remember from the exchanges during the Bill's passage through the Lords that the Government firmly believes that there is no need to depart from the longstanding practice".

1679
He has referred to that today. He adds:
"The amendment to leave out clause 2 reflects this".
The noble Baroness, Lady Miller, has said that the changes are major and will affect us whether we are individual users or business users, in whatever capacity. Can the Minister assure us that everything that has come from Europe has been transposed using the European Communities Act? Are other important things being dealt with differently, or is just this Bill involved?
The Government's reply to the Water Framework Directive, which was printed on 4th June 2003, underlines the importance of what the noble Baroness is trying to do. Chapter 1, paragraph 1, states:
"The Water Framework Directive offers the potential of enormous environmental and social benefits, but at the same time it will dramatically affect the ways in which farming, industries and others conduct their activities. Therefore the first—and perhaps over-riding—conclusion of our inquiry is that the Directive needs much greater public promotion".
That is the exact issue on which the noble Baroness has just touched. At chapter 10, on page 11, it clearly states:
"The Government should now clarify the timetable for completion of the strategic review of diffuse pollution from agriculture".
It continues:
"We trust that the review will consult as widely as possible about the scale of the problem, and the strategies and resources needed to bring this most intractable of pollution sources under control".
Most importantly, it states:
"Given the likely impact that dealing with diffuse pollution will have on the agriculture industry we recommend that the review assess carefully the financial implications of the Directive for the agricultural industry to ensure that costs of implementation for this sector are proportionate in respect of its present ability to pay".
I cannot help but reinforce that point. It is hugely important.
I now turn to page 13, chapter 15, which deals with administration and the directive. It states:
"The Directive requires legal effect to be given to the Directive by December 2003".
It is now 13th November, so when and how?
Page 15, paragraph 20, on integration and powers, states:
"We strongly recommend that the Government begin now to develop the arrangements, agreements and protocols which will be needed to ensure that the river basin management plans drawn up by the Environment Agency as competent authority carry sufficient force—and to ensure that the Agency is required to take into account the views of others in drawing up the management plans".
There are many other examples that I could cite, but those are the particular ones to which I wish to refer tonight.
The Minister should be in no doubt that there is extreme concern, not only on the part of noble Lords on these Benches and others in the House, but also in the wider domain outside. The Government need to explain more fully why they think that the measure will
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not be necessary and, even more importantly, how they will achieve their own objectives. I would be grateful if the Minister would answer those questions.
Lord Whitty: My Lords, the first answer to the question asked by the noble Baroness, which, in a sense, is the key answer, is that the vast majority of European regulation is implemented under the European Communities Act 1972. It is very rare that we use primary legislation. In this particular respect, we have been through three periods of consultation on all aspects of the Water Framework Directive. The consultees, the stakeholders, the industry, the consumers, and those representing environmental concerns were all involved in that process.
The noble Baroness rightly referred to the time-scale. The Government intend to bring forward regulations following that consultation—which finished in October—next month. That is the normal process. A whole range of people have been engaged in that process. The noble Baroness, Lady Miller of Chilthorne Domer, says that nobody understands it, but I cannot accept that. All those people have been involved. Indeed, they would expect to be involved in that degree of consultation over proposed regulation on an extremely complex and—I agree—vitally important piece of European regulation.
Baroness Miller of Chilthorne Domer: My Lords, I did not say that people did not understand it, I said that those involved in planning, development, control and spatial planning were barely aware of it.
Lord Whitty: My Lords, perhaps I misunderstood. I thought that the noble Baroness said that people could not understand why the Water Framework Directive was not in this Bill. However, those same people have been consulted about the Water Framework Directive over a period of years, at least since March 2001—in some cases earlier than that because the directive was in a draft form.
It would require very special circumstances for us not to use the normal process, especially when we are 99 per cent of the way through it, rather than put in this Bill at this stage a particular form of ability to transpose a part—admittedly an important part—of the Water Framework Directive. I am afraid that I have not heard tonight or in earlier discussions any reason why we should depart from normal practice in that respect. I therefore hope that the noble Baroness will not pursue this matter tonight.
Baroness Byford: My Lords, before the noble Lord sits down, he said that legislation would be brought before Parliament next month. We have no more time in this Session. When we return we start with the Queen's Speech, which will take us to the end of the first week of December. Is the statutory instrument already written or is it not in being? If 99 per cent of it is ready, what is not ready?
We want it in the Bill because this is a major change; it is not a minor change. I suspect that many of the statutory instruments taken through in the normal

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way are of a minor rather than a major nature. That is why, on these Benches, we are trying to push the Minister further than he is obviously willing to go. Perhaps he could comment on my two questions.
Lord Whitty: My Lords, I am unsure of what else I can say. The fact is that we are well through the process of drafting, but it is not quite completed. It is scheduled to be in a form to place before Parliament next month. Everyone who has been consulted expects that to be the way in which we proceed. I do not understand why, either at earlier stagss or now, we should propose to shove into the Bill a partial transposition trigger. As everyone recognises, the actual implementation will take time. It is a massive change to the way in which we regulate water. But the whole of it can be done under the European Communities Act in the normal way. The noble Baroness is wrong to say that it applies only to minor pieces of legislation. There are some serious Euro-sceptics on both our Back Benches who complain about it, but huge parts of European regulation are used in that way. It is the way in which Parliament and successive governments have seen fit to transpose European regulation.
Lord Livsey of Talgarth: My Lords, I am sorry to interrupt the Minister when he is in full flow. Is he saying, in code, that there are some legal procedural difficulties with incorporating the EC directive into UK legislation in the way that is proposed in the amendment and that he is prevented from accepting it because of legal advice?
Lord Whitty: My Lords, I am not speaking in code. There is no hidden agenda here. Our way is better than the partial way proposed by the noble Baroness.
Baroness Miller of Chilthorne Domer:My Lords, I thank the noble Baroness, Lady Byford, particularly for her support. I can understand the Minister having difficulty hearing me, but there is a very good reason why the "normal way", as he puts it, of transposing environmental directives—as I said at the beginning of my speech—is not satisfactory. We have the worst record in Europe.
That said, I am surprised that the Minister has not heard the voices from the consultations that came to me and to the noble Baroness, Lady Byford, from the industry, the utility sector and the environment, which said that it was important that the directive was in primary legislation. If there have been three consultations, surely it cannot have escaped the Government's notice that that is what everyone on the outside concerned in any way with water has been saying.
That said—bearing in mind that I cannot continue to speak for much longer because my voice will give out and that there is one further amendment I wish to move today—it is with great regret that I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Motion agreed to.

COMMONS AMENDMENTS
3 Clause 3, Page 2, leave out lines 39 and 40 and insert—

"(i) transferring water to another source of supply; or

(ii) transferring water to the same source of supply, but at another point, in the course of dewatering activities in connection with mining, quarrying, engineering, building or other operations (whether underground or on the surface),

in either case without intervening use (a "transfer license");"

4 Clause 4, page 4, line 7, leave out " "relevant" and insert " "the relevant"
5 Clause 5, page 4, line 38, leave out paragraph (a)
6 Page 4, line 40, leave out "such notices" and insert "notices of appeal under subsection (4)"
7 Page 5, line 28, leave out "otherwise," and insert "in relation to England,"
Lord Whitty: My Lords, I beg to move that this House agrees with the Commons in their Amendments Nos. 3 to 7 In speaking to those amendments, I shall refer also to Amendments Nos. 8 to 35.
All but one of the amendments in this group are technical or drafting changes. I shall be happy to explain any of them if pressed to do so. They deal with issues such as tightening the wording of the Bill and do not introduce issues relating to any change of substance to the Bill when it left this House.
Amendment No. 3, however, amends the definition of a transfer licence to include movements of abstracted water from one part of a source of supply to another part of that source, as well as between sources of supply. The amendment arises from our discussions with the Quarry Products Association. It will ensure, for example, that a transfer licence rather than a full licence can be granted where water abstracted from one end of a quarry is reinjected into the aquifer at the other end and where there is no intervening use of the water. We have discussed this at some length.
The only other amendment not strictly related to technical or drafting issues is Amendment No. 8. This amendment removes the change to Section 29 of the Water Resources Act 1991 that was introduced by an amendment moved on Report in this House. I understand that the intention of that amendment was to ensure that in individual licensing decisions, the Environment Agency must consider how long irrigation has been practised and that applications are fully considered in that light. If that was the intention behind the amendment, we fully agree with it.
I am happy to make it clear to the House that when transitional regulations are made to bring irrigation under licensing control, the agency will be required, as a matter of law, to consider the history of the irrigation in question. Also, there will be a period of up to two years for licence applications to be made. Abstractions for existing operations will continue to be lawful during this period. It is government policy that the Environment Agency should not issue any other licence that might derogate a currently exempt

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abstraction for irrigation operations during the period. I can reassure noble Lords that the transitional regulations will include those provisions.
When considering a licence it will not, therefore, be a case of the Environment Agency putting applications for licences for irrigation to the bottom of the pile. The agency will be able to set aside some of its normal considerations when determining a licence, such as whether the licence will derogate on others' rights. Clause 103(5) provides for this.
These provisions are helpful to irrigators in just the situations which the original Amendment No. 15 tabled on Report in this House was intended to address. It is, in fact, dealt with in other ways.
I would also note that the Environment Agency will be discussing this with groups representing all abstractors being brought into the system; that will include irrigators. It has already issued a briefing note on trickle irrigation to clarify how the new regime will work.
I hope that noble Lords will agree that, with those provisions safeguarding the position of irrigators, the change originally agreed by this House to Section 29 of the Water Resources Act 1991 is not necessary and that the Commons amendment will be agreed.
Moved, That the House do agree with the Commons in their Amendments Nos. 3 to 7.—(Lord Whitty.)
On Question, Motion agreed to.

COMMONS AMENDMENT
8 Clause 9, page 10, leave out lines 36 to 39
Lord Whitty: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 8.
Moved, That the House do agree with the Commons in their Amendment No. 8.—(Lord Whitty.)
Baroness Byford Baroness Byford rose to move, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 8, leave out "agree" and insert "disagree".
The noble Baroness said: My Lords, I beg to move Amendment No. 8A as an amendment to Amendment No. 8. These amendments are very confusing and I hope that I am in the right place. The comments made by the noble Lord, Lord Whitty, have been quite helpful, but I should like to go over the ground again. I wish to speak to Amendment No. 8A with Amendment No. 3.I hope that that is in order.
The question of trickle irrigation was debated at length during the passage of the Bill through this House and I still have one or two observations that I should like to make. I should be grateful if the Minister could clarify a few points. We feel that existing users should be given priority over new applications. I have
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read carefully what was said in Standing Committee D by Mr Elliot Morley in response to our amendment on crop rotation. He said:
"We understand that the intention behind the amendment was to ensure that, when the agency takes individual licensing decisions, it must consider how trickle irrigation has been practised. If that was the intention, we have no problem—it is not an unreasonable position to take".
The Minister has slightly clarified the matter for me and I am grateful for that. He continued:
"When making transitional regulations that will bring trickle irrigation under licence control, we can include a requirement that the agency should consider the history of the irrigation scheme".—[Official Report, Commons Standing Committee D, 16/9/03; col. 76.]
I am grateful that that issue has been clarified but I am not clear whether in the overall scheme someone who had come in within, say, the last two years would take preference over someone who traditionally had been drawing water for a longer period in the past.
Obviously the Environment Agency will have to consider whether such people are using water efficiently and whether there is good practice. If they are not, that would be an extra reason for the Environment Agency not to renew their licence or, in this case, approve their licence.
We believe that extra consideration should be given to those who have had long practice. For example, it takes some 50 years to establish watercress beds and, although their water requirements are high, they would be very much at jeopardy if the amount of water allocated to them was withdrawn or not approved.
In moving the amendment to the amendment, I am seeking greater clarification on this issue. Why should someone who has had a licence since 2002—or has been in business; they have not needed a licence—take precedence over someone who has been using water without a licence because in the past the law did not require them to have one? Ministers at both ends of the Corridor have stated quite clearly that trickle irrigators did not require licences.
I am trying to clarify how the Environment Agency will go about its business. I accept the base premise that there must be good practice and efficient use of water but, other than that, I am not quite clear as to how people will be judged in the current situation. I seek greater clarification. That is the reason for bringing forward the amendment and I look forward to hearing what the Minister has to say.
Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 8, leave out "agree" and insert "disagree".—(Baroness Byford.)
Lord Whitty: My Lords, there is not a huge amount of contention between the noble Baroness and myself. The problem with keeping in the amendment which was carried here and is proposed to be deleted by the Commons is that it would appear to allow the Environment Agency to make a policy decision as to whether the current exempt irrigators would be subject to licensing. The noble Baroness is speaking in terms of preference but the wording seems to suggest that they

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would not be subject to the provisions of licensing at all—that they would be granted a licence— whereas the Act provides that they should be subject to licensing and, therefore, to the same conditions as any other licence.
I was trying to reassure the noble Baroness that the Environment Agency is bound to take into account the history and the length of time that irrigators have been using the abstraction in making that decision. That is not systematic preference. It will deal with matters on a case by case basis and take fully into account the amount of time that people have been using the abstraction. Therefore, in that sense, someone who has been using it for a long time in a sensible way would have some degree of preference over someone who had been taking it for a short period of time in an excessive way. So it is not absolute preference, but it reflects the history for those irrigators who have been operating an efficient irrigation system for some time. Keeping in the original amendment implies absolute preference in the sense that they would be exempt from the conditions of licensing entirely.
Baroness Byford: My Lords, I thank the Minister for that response. Am I to understand that the Environment Agency will not make policy decisions anyway? I am not quite clear about that.
Lord Whitty: My Lords, the implication of the wording of the original Lords amendment was that the Environment Agency was free to make a policy decision on whether irrigators should be in or out. In fact, the rest of the Bill has already made that policy decision. Irrigators are subject to the same licensing conditions as anyone else, but in making that assessment the agency has to take account of the history of the irrigator and others who have come in to the system of licensing for the first time. The Environment Agency will not make the policy decision—the legislation has done that. In the assessment, the history of the irrigator will be fully taken into account.
Baroness Byford: My Lords, I thank the Minister for that explanation. As he said, we are not poles apart. I sometimes wish that when that is the case, the Government would accept some of our amendments, but not tonight, I think. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Motion agreed to.

COMMONS AMENDMENTS
9 Clause 12, Page 14, line 26, leave out "be taken to continue" and insert "continue to be taken"
10 Clause 17, Page 19, line 38, at end insert "or a transfer licence"
11 Page 19, line 40, leave out "full licence" and insert "licence of the same type"
12 Clause 19, Page 21, line 13, leave out "is taken to continue" and insert "continues to be taken"
13 Page 21, line 16, leave out "(subject to subsection (11) of that section)"
14 page 21, line 18, leave out "is taken to continue" and insert "continues to be taken"
15 Page 21, line 21, leave out "is taken to continue" and insert "continues to be taken"
16 Page 21, line 29, leave out "that quantity or, if lower,"
17 Page 21, leave out lines 31 to 37 and insert—

"(3) The maximum quantity is the lower of the following—

(a) twenty cubic metres;

(b) if, by virtue of an order under section 27 A(1) above, section 27(1) above has, or has ever had, effect in relation to the source of supply and point of abstraction in question as if it referred to a quantity lower than twenty cubic metres, that lower quantity (or, if more than one, the lowest of them)."

18 Page 22, line 8, leave out "other provision mentioned in" and insert "provision mentioned in paragraph (a), (c), (d), (e) or (f) of"
19 Page 22, line 19, leave out "be taken to continue" and insert "continue to be taken"
20 Page 22, line 22, leave out "be taken to continue" and insert "continue to be taken"
21 Page 22, line 35, after "or", insert "abstractions"
22 Page 22, line 38, leave out "subsection (8)" and insert "subsections (8) and (9)"
23 Clause 21, page 24, line 4, leave out "(4)" and insert "(4A)"
24 Page 24, line 24, at end insert—
"(4A) In subsection (7), for "or by different means" there is substituted ", by different means or for different purposes"."
25 Clause 25, page 28, line 32, after "licence", insert "other than a temporary licence"
26 Page 29, line 8, leave out "it is proposed he be permitted" and insert "he proposes"
27 Page 29, line 11, leave out "it is proposed he be permitted" and insert "he proposes"
28 Page 29, line 12, leave out from "which" to "abstract" in line 13 and insert "those persons referred to in paragraph (a) above who would require a new licence granted under subsection (5) below would"
29 Page 29, line 17, leave out "those persons would be permitted to" and insert "that the persons referred to in paragraph (a) above would"
30 Page 30, line 23, leave out "of four years" and insert "mentioned in subsection (11A) below" "that the persons referred to in paragraph (a) above would"
31 Page 30, line 27, at end insert—

"(11A) The period referred to in subsection (1 l)(a) above is—

(a) four years; or

(b) if the abstractions authorised under the old licence were abstractions planned to be carried out at intervals of more than four years, or abstractions for emergency purposes only, such longer period as the Agency may determine on the application of the person in question."

32 Page 30, line 29, leave out from "treated" to end of line 32 and insert—

"(a) as if it had been granted at the time the old licence was granted; and

(b) as if it and any other new licence granted by virtue of the relevant apportionment notice had been granted in place of the old licence."

33 Clause 26, page 32, line 2, leave out second "loss or damage"
Page 32, line 3, after "and", insert "is loss or damage"
Clause 29, page 34, line 4, after "WRA", insert "(which provide for the Secretary of State to direct the Environment Agency to revoke or vary a licence in certain circumstances)"
Lord Whitty: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 9 to 35. I have spoken to these amendments with Amendment No. 3.
Moved, That the House do agree with the Commons in their Amendments Nos. 9 to 35.—(Lord Whitty.)
On Question, Motion agreed to.

COMMONS AMENDMENT
36 Clause 33, page 37, line 41, leave out Clause 33
Lord Whitty: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 36.I shall refer also to Amendments Nos. 37 and 49.
When we debated Clause 33, there was a bit of confusion about what it applied to at that point in the Bill. The objective of inserting Clause 33, which noble Lords opposite supported, was that it would apply to the Environment Agency. There was confusion about whether it applied to Ofwat or the Environment Agency. The part of the Bill to which it relates deals with the powers of Ofwat and not a right of appeal against decisions by the agency.
I believe that in practice this change does not alter the current provision in relation to Ofwat because the company can already appeal to Ofwat if it makes an order that is not within its powers. I think, therefore, the insertion at the earlier stage was due to a misunderstanding that this part of the Bill related to the Environment Agency where different arguments apply. As it stands, the clause was not necessary because there already is an appeal system in relation to Ofwat.
Moved, That the House do agree with the Commons in their Amendment No. 36.—(Lord Whitty.)
36A Baroness Byfordrose to move, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 36, leave out "agree" and insert "disagree".
The noble Baroness said: I thank the Minister for accepting that there was slight confusion in Committee. I accept that the clause before us relates to Ofwat and not the Environment Agency. The Minister was kind enough to write to me, saying:
"Clause 33 amends the Water Industry Act 1991 to include additional provision for appeals against enforcement orders proposed by the regulator. I should emphasise that those enforcement orders are the function of Ofwat, not the Environment Agency".
I am happy to accept that. He continued:
"The Act already contains considerable safeguards so that the regulator must consult the company and then consider any representations or objections. This procedure will ensure that errors are avoided".
I must say that I asked myself, "Why is he so confident?" I fear that errors still occur even with the best will in the world. He continued:
"The purpose of enforcement orders is to protect consumers or the environment against company shortcomings".
I accept all that the noble Lord wrote in his letter. However, unless I have misread it, it still leaves the regulator as judge and jury. We are concerned, because that is not an ideal situation. When we debated the matter earlier, we received support from my noble friend Lady O'Cathain, and the noble Lord, Lord Borrie, when the noble Baroness, Lady Miller, and I spoke to it. So I raise the issue again. The noble Lord, Lord Borrie, said:
"But let us suppose that the agency's exercise of a power is questionable. Can it be questioned at all? Under Section 21 of the Water Industry Act 1991, the only possible remedy that I can see for a company aggrieved by an enforcement notice is either unlawfulness or failure of the agency to comply with statutory procedures. However, as the power is expressed in very subjective terms, it is difficult, if not impossible, for any aggrieved company to cross the huge hurdle of demonstrating that the Environment Agency has acted unlawfully.
"The amendment would add two grounds: error of law or fact, and unreasonable use of power".—[Official Report, 24/6/03; cols. 156–7.]
When we continued to debate the matter, it was suggested that judicial review was the only option open to the company. That is unsatisfactory, which is why I move this amendment to the Motion moved by the Minister.
Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 36, leave out "agree" and insert "disagree".—(Baroness Byford.)
Lord Livsey of Talgarth: My Lords, I shall speak briefly to the amendment to reinforce what the noble Baroness, Lady Byford, said. Clearly, there must be redress if there are errors on orders; if orders are unreasonable, they must also be open to challenge and redress. If that cannot be done, that leaves those who want to appeal in a difficult situation, as the noble Baroness said.
Lord Whitty: My Lords, I fear that neither the noble Lord nor the noble Baroness have really heard what I said. There may well be queries about appeals against the Environment Agency; I think that the comments of my noble friend Lord Borrie in the Moses Room largely related to that.
I could go into a long riposte in defence of the protection that we have against inequitable decisions by the Environment Agency, but the point tonight is that reinserting the clause that the Commons want to remove would be of no benefit in relation to the Environment Agency. It relates to Ofwat, as I thought that the noble Baroness recognised in her remarks, and therefore does not meet any of the objections to which the noble Lord, Lord Livsey, or the noble Baroness, in the latter part of her remarks, referred. It is not logical for us to pursue the matter at this stage.
Baroness Byford: My Lords, I thank the Minister for that response, although I am not thrilled with it. If he says that that is factually correct and that I am under a misunderstanding, which I think he is suggesting, we have clarified that the provision does not refer to the Environment Agency. I am happy with that. Even if it

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is Ofwat, that body will still be the judge and jury, will it not? That is the point that I am trying to make. I have accepted that perhaps we were at cross purposes, because in Committee we were getting confused over whose responsibility it was—whether it was the Environment Agency's, or not. I have accepted that, and it does not worry me. What does worry me, however, is that Ofwat will still be the judge and jury unless the Minister is telling me otherwise. That is the point that I am trying to make.
Lord Whitty: My Lords, as the noble Lord, Lord Livsey, recognised, there are already grounds for appeal against Ofwat if it exceeds its powers, perhaps due to making a mistake, to the application of the law to the facts, or to administrative error. The noble Lord, Lord Livsey, says that those are restrictive powers, but they are substantial powers of appeal and they are already there. If the proposal applied literally to Ofwat, it would duplicate the powers that already exist in the existing legislation. However, most of the arguments in support of the noble Baroness, which were made at previous stages, related in fact to grievances with the Environment Agency's decisions, not with Ofwat's.
Baroness Byford: My Lords, perhaps it would be better at this stage of the Bill not to press the matter. I beg leave to withdraw the amendment.
Amendment No. 36A, as an amendment to Commons Amendment No. 36, by leave withdrawn.
On Question, Motion agreed to.

COMMONS AMENDMENTS
37 Clause 38, page 41, leave out lines 4 to 6 and insert—
"( ) The Council shall exercise and perform its powers and duties in the manner which it considers is best calculated to contribute to the achievement of sustainable development."
38 Page 41, line 13. after "or", insert "by"
39 Clause 42, page 47, line 5, after "or", insert "by"
40 Page 47, line 22, leave out "(3)" and insert "(4)"
41 Page 47, line 24, leave out "(3)" and insert "(4)"
42 Page 47, line 26, leave out "(3)" and insert "(4)"
43 Clause 47, page 57, line 36, leave out "such"
44 Clause 50, page 60, line 14, leave out "Office of Fair Trading" and insert "OFT"
45 Clause 57, page 71, line 8, leave out "14A and 14B" and insert "16A and 16B"
46 Clause 58, page 74, line 32, leave out "has been" and insert "is"
47 Page 74, line 35, leave out from "which" to "within" in line 36 and insert "such a direction may be given"
48 Clause 60, page 75, line 37, at end insert—
"( ) Any such proceedings by the Assembly may be instituted and carried on in the name of the Chief Inspector of Drinking Water for Wales, if there is one (or, if subsection (1B)(b) above applies, in the name of the Chief Inspector of Drinking Water)."
49 Page 76, leave out lines 3 to 5
Lord Whitty: My Lords, I beg to move that the House do agree with the Commons in their
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Amendments Nos. 37 to 49. Amendment No. 37 reshapes the sustainable development duty on the Consumer Council, bringing it into line with the duty imposed on the authority, and reconfirms our commitment to sustainable development, which all sides of the House welcomed as a feature throughout the passage of the Bill.
The remaining amendments, Amendments Nos. 38 to 49, are minor drafting amendments that tidy up and update the text of the Bill, and do not raise any substantive points.
Moved, That the House do agree with the Commons in their Amendments Nos. 37 to 49.—(Lord Whitty.)
On Question, Motion agreed to.

COMMONS AMENDMENT
50 Clause 61, page 76, line 28, leave out from "until" to end of line 30 and insert "an indemnity with respect to the arrangements has been given by virtue of section 90 below—

(a) to the water undertaker; and

(b) to any licensed water supplier which is entitled to one."

Lord Whitty: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 50. I shall speak also to Commons Amendments Nos. 51 to 79. Most of the amendments deal with the fluoridation issue.
Amendment No. 50 and the remaining amendments ensure that there are no disincentives to water suppliers bidding to supply water in a fluoridated area by providing for them, as well as for strategic health authorities, to be indemnified against liabilities arising from the fluoridation in the water supply that they provide. The remaining amendments in the group deal with various aspects of ensuring that the fluoridation consultation and operation are undertaken in line with what the Government intend. That meets some of the concerns that may lay behind Amendment No. 50A. We do not believe that they would be dealt with by that amendment, which would effectively put the power into the hands of the local authorities rather than the strategic health authority.
At a previous stage, the House supported the option of fluoridation for the strategic health authorities, and the amendments tidy up and protect that situation. With Amendment No. 50A, we would be moving into another direction entirely in relation to the fluoridation issue.
Moved, That the House do agree with the Commons in their Amendments Nos. 50 to 79.—(Lord Whitty.)

MOTION MOVED ON CONSIDERATION OF COMMONS AMENDMENT NO. 50
50A Clause 61, Line 2, at end insert "providing that the opinion referred to in section 89(1)(a) has been gained by the principal local authorities in the area in question"
Lord Livsey of Talgarth: My Lords, I beg to move, as an amendment to Commons Amendment No. 50, Amendment No. 50A.

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Amendment No. 50A states:
"Line 2, at end insert 'providing that the opinion referred to in section 89(1)(a) has been gained by the principal local authorities in the area in question'";
in other words, the local community must be questioned to establish its views on the fluoridation issue. The noble Baroness, Lady Miller of Chilthorne Domer, intended to move this amendment but she is unable to do so. I have done a fair amount of homework on the matter and I shall do my best in presenting it to the House.
I refer to the whole question of indemnity. Indemnity should be provided only when fluoridation is the clear wish of a community to be affected. Local authorities are clearly best placed to test that opinion. They have no axe to grind, unlike strategic health authorities which are promoters and judges of opinion.
I would not have returned to this subject except that the Commons had a big vote on this point. The result, 200 to 243, constituted possibly the smallest majority that the Government have had on anything since 1997. Honourable Members in another place clearly hoped that we would tackle this matter.
As my honourable friend the Member for Lewes, Norman Baker, said, local authorities might not be perfect but they are local, democratically elected and accountable, which is more than can be said of strategic health authorities. Indeed, Mr Wiggin MP stated that strategic health authorities are neither democratically elected nor accountable. Their accountability comes only through the Secretary of State, which is not a direct local mechanism. They do not match up with the Government's insistence on local consultation.
The situation that I am discussing allows for local referendums in the areas of local authorities. The indemnity will kick in only if local authorities have tested public opinion. It is extraordinary that the Government in the House of Commons would not accept the principle that local authorities could decide whether or not to add fluoride to a public water supply in their locality without first testing local opinion.
There is no doubt that fluoride has a beneficial effect on teeth, but no one truly knows what side-effects the addition of fluoride may have on a wide spectrum of aspects of human health. Indeed, this is a matter on which science is inconclusive. As we know, there are supporters of both sides of the argument.
The important point about the amendment is that it gives the residents of an area a vital element of choice on whether or not to have fluoride added to the local water supply. The Government ignore that principle at their peril.
Moved, That Amendment No. 50A, as an amendment to Commons Amendment No. 50, be agreed to.—(Lord Livsey of Talgarth.)
9 p.m.
Baroness Byford: My Lords, I support the noble Lord, Lord Livsey, on Amendment No. 50A. The noble Lord said that he considered that the responsibility for deciding whether fluoride should be added to a local water supply should lie with local authorities.
We debated this matter at length during the Bill's passage through this House. As it was suggested that the responsibility in this regard should lie with the strategic health authorities, I decided to table an amendment to the relevant health Bill to try to obtain greater clarification on that responsibility. In the end, we still do not know how they will achieve getting a public view. What came out of that is that there will not be a local referendum, as the noble Lord, Lord Livsey, may not be surprised to know. That is the one fact that has clearly come out of discussions both at earlier stages of this Bill and when I spoke on the health Bill.
Again, we were told that the decision would be made by regulation. I do not know how many times when we debate matters in this House, particularly when we have the opportunity to put something in a Bill, we are told that they will come through by regulation. To have to accept that again is yet another time that it is unacceptable, certainly to us on these Benches and I suspect to colleagues on the Liberal Benches as well.
Voting in the House of Commons was really quite close, and many questions are still unanswered. I hope that noble Lords will not mind if I take a minute or two to raise some of them again. Only recently it was claimed by Dr Dean Burk, who has worked with the National Cancer Institute in America for the past 35 years, that it is possible that fluoride is killing up to 2,000 people per year. He gave the All-Party Fluoridation Group a hearing in a House of Commons meeting, and said that the American evidence showed a significantly higher cancer death rate in fluoridated areas.
There was also evidence of higher incidence of breast, colon, rectum, kidney and thyroid cancers in Britain's fluoridated areas. Mr Lawrence said that many MPs were appalled at the complete refusal of Britain's medical hierarchy to recognise the evidence when challenged on fluoride's absolute safety. He went on to say:
"The arrogance of those who blundered in giving their endorsement to the safety of thalidomide, asbestos and other disasters"—
to which I might add BSE—"seems to be boundless".
This is really our last chance to try to persuade the Minister that the matter should not be left to strategic health authorities that are not elected. Instead, the role should be transferred to local government. People in local government are obviously elected in a proper manner. They are not there because they are asked to serve on the health authority. We feel very strongly that the Minister might consider that in the light of the evidence.

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When we debated the issue earlier in this House, reference was made to the research undertaken at York. In fact, many have questioned that research as being inadequate. I press the Minister again tonight to tell us what research has been undertaken since the York experience. Is the matter something that the Government think of concern, or do they say that the claim made by that American is completely unfounded? We really do not know, and have no evidence at all in support of the Government's persistence that fluoride is the best way.
I accept and have accepted all along that fluoride can make a difference to people, and to children's teeth particularly. However, fluoride toothpaste makes a difference, too. Why have the Government not come forward with any facts to support their view that fluoride addition to the water has no side effects that support our concerns?
Tonight I am grateful to the noble Lord, Lord Livsey—the noble Baroness, Lady Miller, is quite right to be silent at the moment. I question the grounds on which the Government base their assumptions. I support the amendment.
Lord Whitty: My Lords, when the House debated the issue at earlier stages, there was acceptance that public health was a matter for the health authorities— that the strategic health authority would be the body that made the proposition, and that fluoride should be added to the water in those parts of the country where that was not already the case. That was to be subject to major consultation within each health authority's area, but of course that area will not be the same as a local authority area. Indeed, most strategic health authority areas will include several local authorities.
The reference in the amendment to putting the local authority in pole position, effectively, is not appropriate. It is important that local authorities play a major part in reaching the decisions on the proposition from the strategic health authority on whether an area should or should not fluoridate. I understand some of the anxieties about decisions that are taken solely by the strategic health authority. While the burden of science seems to be in favour of fluoridation, there are alternative arguments. In answer to the noble Baroness's specific question, the Government have commissioned two research studies by the MRC and the University of York and neither found any association with cancer. However, we are not complacent about that. Strategic health authorities must make a judgment on the latest science and on how it affects their particular areas, types of water and populations, but it is a public health decision and the strategic health authorities must make it.
However, because it is an issue about which there is uncertainty and some doubt, it is important that strategic health authorities engage in public consultation and that public opinion is assessed objectively. Local authorities must play a full part in the opinion-sounding process, be it by open debate or other forms of participation, but a single local authority within a strategic health area could not make
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or block the final decision. The decision must be taken across the strategic health area as a whole following area-wide public consultation.
On a technical point, the amendment is in the wrong place. It conflicts with Section 89(1) of the Bill, which would require the relevant strategic health authority to ascertain public opinion. That relates to indemnity issues. Even if the amendment were carried, it would not achieve what the noble Baroness apparently seeks, which would be to involve local authorities in the public opinion-gauging exercise, because strategic health authorities would be given that authority by Section 89 of the Bill.
Nevertheless, while the strategic health authority is responsible for assessing public opinion, it is right that local authorities should play a major role in that exercise and ascertain opinion within their own areas to feed into it. Ultimately, however, it is a public health issue and the strategic health authority is the body that should make the proposal and test opinion on it.
Baroness Byford: My Lords, before the noble Lord, Lord Livsey, responds, I must say that I am intrigued. The noble Lord said that several local authorities should be involved. It is true that there will be several different strategic health authorities in exactly the same place, so I do not accept the distinction between local authorities and strategic health authorities. The borders of strategic health authorities do not match those of water companies and different points of view will be expressed for one place.
The amendment is not my own, so I shall weigh in heavily. I am extremely disappointed that the Minister should leave it until the ninth minute of the ninth hour of the ninth day to tell us that the amendment is in the wrong place. That is amazing and very unlike the Minister, who is normally most helpful. His argument is not very good at all.
In response to my question, the Minister said that the research had been continued. He did not reveal what has happened since the research in York and how long it is since it was completed; in other words, has research been going on in the past six months while we have been debating the Water Bill? My understanding is that there has been no more up-to-date research. He certainly did not answer my question on what possible dangers there are. We would like to hear a little more from the Minister before the noble Lord, Lord Livsey, decides whether to proceed with the amendment.
Lord Whitty: My Lords, the most up-to-date research does not show any link with cancer. The noble Baroness referred to the American experience and that is the latest information that we have.
Lord Livsey of Talgarth: My Lords, the Minister has made a number of statements about local authorities and strategic health authorities, as though they did not talk to each other. Often, local authorities consult the strategic health authorities and I believe that the local authority is the right body to conduct a referendum on this issue. The noble Baroness, Lady Byford, is right in saying that there is no coterminousity between water

1695
companies, local authorities and strategic health authorities. None the less, it is possible to co-operate and for the local authority to be the vehicle through which a referendum is held. I see no problem with that.
In these circumstances, it must be right that the addition or not of fluoride must be tested by public opinion in the district and the amendment is the correct way of achieving that. It may not be in the right place, which I concede, but we saw this as a way of including the provision in the Bill in relation to indemnity. As the Minister has a little more legal fire power than we do, he may well be correct in saying that it ought to be in another place.
Reference has been made to research and America has been mentioned. Noble Lords have also said how good are the teeth of people in Birmingham because fluoride has been added to the water for the past 40 years. As far as I know, no tests have been undertaken in Birmingham as to the possible impact of that on other aspects of human health, nor has Birmingham been compared with somewhere else of similar population which does not add fluoride to its water. As the noble Baroness, Lady Byford, correctly said, scientists are not agreed on the situation in York, and I quoted that in detail in Committee.
In my opinion, it is important to test the opinion of the House because it is one of the most important amendments we are discussing today.
9.17 p.m.
On Question, Whether the said amendment (No. 50A as an amendment to Amendment No. 50) shall be agreed to?
Their Lordships divided: Contents, 26; Not-Contents, 57.

Division No.7

CONTENTS

Attlee, E.

Miller of Chilthorne Domer, B.

Barker, B.

[Teller]

Bridgeman.V.

Montrose, D. [Teller]

Brooke of Sutton Mandeville L.

O'Cathain, B.

Brougham and Vaux, L.

Palmer, L.

Byford B

Pearson of Rannoch, L.

Carlisle of Bucklow, L.

Phillips of Sudbury, L.

Rennard, L.

Cope of Berkeley, L.

Roper, L.

Craigavon,V.

Selborne, E.

Dixon-Smith, L.

Thomas of Walliswood, B.

Geddes, L.

Wallace of Saltaire, L.

Howell of Guildford, L.

Watson of Richmond, L.

Livsey of Talgarth, L.

Williams of Crosby, B.

NOT-CONTENTS

Acton, L.

Borrie,L.

Amos, B. (Lord President)]

Bragg, L.

Andrews, B.

Brett, L.

Archer of Sandwell, L.

Brooke of Alverthorpe, L.

Ashton of Upholland, B.

Brookman, L.

Bach, L.

Burlison, L.

Bassam of Brighton, L.

Carter, L.

Bernstein of Craigweil, L.

Chandos, V.

1696

Crawley. B.

Hunt of Chesterton, L.

Davies of Coity, L.

Lea of Crondall, L.

Davies of Oldham, L. [Teller]

Macdonald of Tradeston, L.

Donoughue, L.

McIntosh of Haringey, L.

Dubs, L.

McIntosh of Hudnall, B.

Evans of Parkside, L.

Mackenzie of Framwellgate, L.

Evans of Temple Guiting,L.

Massey of Darwen, B.

Farrington of Ribbleton, B.

Morgan, L.

Faulkner of Worcester, L.

Pitkeathley, B.

Gale, B.

Ramsay of Cartvale, B.

Gilbert, L.

Rendell of Babergh, B.

Golding, B.

Rogers of Riverside, L.

Goldsmith, L.

Scotland of Asthal, B.

Sewel, B.

Graham of Edmonton, L.

Simon V

Grocott, L. [Teller]

Stone of Blackheath, L.

Hannay of Chiswick, L.

Turnberg, L.

Hayman,B.

Warwick of Undercliffe, B.

Howells of St. Davids, B.

Whitaker, B.

Hoyle, L.

Whitty, L.

Hughes of Woodside, L.

Wilkins, B.

Resolved in the negative, and amendment disagreed to accordingly.
On Question, Motion agreed to.
9.27 p.m.

COMMONS AMENDMENTS
51 Clause 61, page 77, leave out lines 3 to 6
52 Page 77, line 10, leave out "The terms may, for example," and insert "Those terms shall"
53 Page 77, line 11, leave out from "requiring" to end of line 12 and insert "the relevant authority to meet the Amendmentable capital and operating costs incurred by the water undertaker in giving effect to the arrangements;"
54 Page 77, line 20, at end insert—

"(8A) If two or more relevant authorities request a particular water undertaker to enter into arrangements in respect of adjoining areas—

(a) the authorities shall co-operate with each other so as to secure that the arrangements (taken together) are operable and efficient; and

(b) if suitable terms are not agreed for all the arrangements, a combined reference may be made by the relevant authorities under section 87A below to enable the terms of each set of arrangements to be determined

so that they are consistent. (8B) If a relevant authority requests a water undertaker to vary arrangements, the authority shall co-operate with any relevant authority for an adjoining area which has entered into arrangements with the same water undertaker so as to secure that following the variation the arrangements (taken together) will be operable and efficient. (8C) If suitable terms are not agreed for a variation mentioned in subsection (8B), a combined reference may be made by the relevant authorities under section 87A below to enable the terms of the variation to be determined so that (following the variation) both sets of arrangements are consistent."

55 Page 77, line 20, at end insert—
"(8D) Before carrying out the consultation required by subsection (1) of section 89 below in relation to a step mentioned in paragraph (a), (b) or (c) of subsection (2) of that section, a relevant authority shall consult the water undertaker in question as to whether the arrangements which would result from taking that step would be operable and efficient (or, where it is proposed to terminate the arrangements, as to whether it would be Amendmentably practicable to do so)."
56 page 77, leave out lines 21 to 27
57 page 77, line 27, at end insert—
"87ZA Target concentration of fluoride

(1) Arrangements under section 87(1) above shall include provision for securing that, so far as Amendmentably practicable, the concentration of fluoride in the water supplied to premises in the specified area is maintained at the general target concentration of one milligram per litre.

(2) But the arrangements may provide for the concentration in the specified area (or any part of it) to be lower than that if the relevant authority considers that it is not Amendmentably practicable to achieve the general target concentration in the specified area (or that part of it).

(3) Any such lower concentration must still be as high as is Amendmentably practicable in the circumstances.

(4) If, in relation to any area ("area A"), an order under section 88A(1) below specifies a general target concentration lower than that for which any arrangements effective there provide (or, by the previous operation of this subsection, are taken to provide), the arrangements shall have effect from the coming into force of the order as if they provided for the general target concentration specified in the order (subject to the operation again of subsections (2) and (3) above).

(5) If the result of the operation of subsection (4) above in relation to arrangements in area A is that in an area adjoining area A ("area B") it is not Amendmentably practicable to maintain the concentration of fluoride in the water supplied by virtue of arrangements made in area B with the same water undertaker, the order shall be taken to extend also to area B so far as those arrangements are concerned, and subsection (4) above shall apply accordingly.

(6) An order under section 88A(1) below which in relation to any area specifies a general target concentration higher than that for which any arrangements effective there provide (or are taken to provide by virtue of subsection (4) or (5) above) does not have effect to increase the concentration for which the arrangements provide (or are taken to provide).

(7) In this section, "specified area" means the area specified in arrangements under section 87(1) above."

58 Page 77, line 30, leave out from "agree" to end of line 31 and insert "—

(a) the terms of arrangements requested by the relevant authority pursuant to subsection (1; of section 87 above; or

(b) a variation in the terms of those arrangements following a request by the relevant authority pursuant to subsection (7)(c) of that section."

59 Page 77, line 32, after "England", insert "(except where subsection (3A) below applies)"
60 Page 77, line 35, leave out from "State" to end of line 36 and insert "may—

(i) determine the terms of the arrangements as he sees fit; or

(ii) refer the matter for determination by such other person as he considers appropriate; and"

61 Page 77, line 37, after "State", insert "or, as the case may be, the other person"
62 Page 77, line 38, after "Wales", insert "(except where subsection (3A) below applies)"
63 Page 77, line 45, at end insert—

"(3A) Where the Assembly is one of the relevant authorities which has made a combined reference under section 87(8A)(b) or (8C) above—

(a) the terms of the arrangements shall be determined by a person appointed by the Secretary of State and the Assembly acting jointly; and

(b) the determination of that person shall be final."

64 Page 79, line 3, at end insert—
"( ) But (except where it is Amendmentably practicable to terminate the arrangements separately), arrangements to which section 87(8A)(a) or (b) applied may only be terminated by the relevant authorities acting jointly.""
65 Page 79, line 8, leave out "Secretary of State" and insert "appropriate authority"
65 Page 79, line 9, leave out "87(5)" and insert "87ZA(1)"
66 Page 79, line 15, after "made", insert "by the Secretary of State (or by the Secretary of State and the Assembly acting jointly)"
68 Page 79, line 16, at end insert—

"(4) In subsection (1) above "appropriate authority"—

(a) in relation to an area which is partly in England and partly in Wales, means the Secretary of State and the Assembly acting jointly;

(b) in relation to an area which is wholly in England, means the Secretary of State; and

(c) in relation to an area which is wholly in Wales, means the Assembly.

(5) An order amending or revoking an order under subsection (1) above made by virtue of subsection (4)(a) above must also be made by the Secretary of State and the Assembly acting jointly.""

69 Page 79, line 22, leave out "Secretary of State" and insert "appropriate authority"
70 Page 79, line 23, leave out "any prescribed requirements" and insert "the requirements set out in regulations made by the appropriate authority"
71 Page 79, line 33, leave out from beginning to "requirements" in line 36 and insert—
"( ) Regulations—

(a) under paragraph (a) of subsection (1) above shall include provision about the process which relevant authorities are to follow for the purposes of that paragraph;

(b) under paragraph (b) of that subsection shall include provision about the"

72 Page 79, line 41, leave out from beginning to end of line 2 on page 80 and insert "if the appropriate authority so directs by an instrument in writing (and such a direction may apply either generally or in relation to a particular proposal)."
73 pAge 80, line 2, at end insert—
"( ) In this section "appropriate authority"—

(a) in a case where two or more relevant authorities (one of which is the Assembly) propose to request a particular water undertaker to take a step mentioned in subsection (2)(a), (b) or (c) in respect of arrangements in adjoining areas, means the Secretary of State and the Assembly acting jointly;

(b) in relation to England (except in a case to which paragraph (a) applies), means the Secretary of State; and

(c) in relation to Wales (except in a case to which paragraph (a) applies), means the Assembly.""

74 Page 80, line 9, at end insert—

"(1A) The Secretary of State may also, with the consent of the Treasury, agree to indemnify any licensed water supplier in respect of liabilities which it may incur—

(a) in supplying water to which fluoride has been added by a water undertaker by virtue of any such arrangements;

(b) if the licensee is introducing water into the water undertaker's supply system) in complying with any obligation imposed on it by the undertaker in consequence of the arrangements."

75 Page 80, line 13, after "(1), insert "or (1 A)"
76 Page 80, line 15, at end insert—
"90A Review of fluoridation

(1) A relevant authority which has entered into arrangements under section 87(1) above shall—

(a) monitor the effects of the arrangements on the health of persons living in the area specified in the arrangements; and

(b) in accordance with subsections (3) to (5) below publish reports containing an analysis of those effects.

(2) The relevant authority shall make available—

(a) any information collected by it for the purposes of subsection (1) above; or

(b) summaries of that information.

(3) The relevant authority shall publish a report under subsection (l)(b) above within the period of four years beginning with the date on which the arrangements come into force (unless section 91(1) below applies in relation to the arrangements).

(4) Where section 91(1) below applies in relation to the arrangements, the relevant authority shall publish a report under subsection (l)(b) above within the period of four years beginning with the date on which section 61 of the Water Act 2003 came into force.

(5) The relevant authority shall publish a further report under subsection (l)(b) above within each period of four years beginning with the date on which their last such report was published.

(6) This section ceases to apply in relation to any arrangements under section 87(1) above if those arrangements are terminated.""

77 Page 80, line 16, leave out subsection (7) and insert—
"(7) For section 91 (pre-1985 fluoridation schemes) there is substituted—
"91 Pre-1985 fluoridation schemes

(1) With effect from the appointed day, relevant pre-1985 arrangements shall be treated for the purposes of this Chapter as if they were arrangements entered into by the water undertaker in question with the relevant authority under section 87(1) above.

(2) The relevant authority may request such modifications to the arrangements as it considers necessary in order to give effect to subsection (1) above, for example to insert the terms mentioned in section 87(7) above.

(3) If the relevant authority and the water undertaker fail to agree the modifications requested by the authority—

(a) subsection (2), (3) or, as the case may be, (3A) of section 87 A above shall apply as if the parties had failed to agree the terms of arrangements requested under section 87(1) above; and

(b) following determination of the modifications—

(i) the relevant authority shall give notice of the determination to the water undertaker; and

(ii) the arrangements shall be deemed to have been modified as so determined with effect from the day after the date of the notice.

(4) Sections 87(8D) and 89(1) above (which relate to consultation) shall not apply to the deemed entry into, and modification of, arrangements by virtue of this section.

(5) References in this Chapter to arrangements entered into under section 87(1) above shall include arrangements treated as entered into by a water undertaker by virtue of subsection (1) above.

(6) In this section—

"the appointed day" means the day on which section 61 of the Water Act 2003 comes into force; and

"relevant pre-1985 arrangements" means arrangements in pursuance of which a scheme for increasing the fluoride content of water was being operated by a water undertaker by virtue of paragraph 1 of Schedule 7 to this Act immediately before the appointed day.""

78 Page 80, line 16, at end insert—
"( ) In section 213 (powers to make regulations), after subsection (1) there is inserted—
"(1A) But on the occasion of the first exercise by the Secretary of State of the power to make regulations under each of sections 89 and 90 above, the instrument containing the regulations shall not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(1B) The power of the Assembly to make regulations under section 89 above shall be exercisable by statutory instrument.""
79 Page 80, line 18, at end insert—

"(9) In section 1(7) of the Water (Fluoridation) Act 1985 (c. 63) (water fluoridated outwith Scotland), for the words from "by a water undertaker" to the end there is substituted "pursuant to arrangements—

(a) entered into under section 87(1) of the Water Industry Act 1991; or

(b) treated, for the purposes of Chapter 4 of Part 3 of that Act, as if entered into under that section."

(10) With effect from the commencement day, any relevant application shall have effect for the purposes of subsection (1) of section 87 of the WIA as a request made by a relevant authority under that subsection.

(11) Any other application made before the commencement day ceases to have effect on that day.

(12) In subsections (10) and (11)— "commencement day" means the day when this section comes into force, and

"relevant application" means an application which—

(a) was made before the passing of this Act,

(b) has not been withdrawn, and

(c) has not been rejected in writing by the water undertaker to which it was made.

(13) In subsections (11) and (12) "application" means an application made under section 87 of the WIA as it was in force at the time when the application was made (and includes an application made under section 1 of the Water (Fluoridation) Act 1985 (c. 63) and having effect as if made under section 87 of the WIA)."

Lord Whitty: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 51 to 79. I spoke to these amendments in relation to Amendment No. 50.
Moved, That the House do agree with the Commons in their Amendments Nos. 51 to 79.—(Lord Whitty.)
On Question Motion agreed to.

COMMONS AMENDMENT
80 Clause 65, page 81, line 23, leave out "and in accordance with"
Lord Whitty: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 80.I shall speak also to Amendment No. 81 and Amendments Nos. 83 to 155. Most of these amendments are technical or drafting amendments, which do not have an effect on policy or any wider implications.
However, Amendment No. 90 presents a change of policy in response to a Back-Bench amendment in another place, which was widely supported. The government amendment also gained support from all parties in the other place. Noble Lords will recall that the issue of private sewers was also raised by the noble Lord, Lord Livsey, and the noble Baroness, Lady

1701
Miller, at earlier stages and their amendments were intended to address the problems caused by private sewers. It may be of reassurance to note that the new clause provides for regulations to be subject to affirmative procedure. While this is necessarily a broad enabling power, it will be subject to that procedure.
The reason that this power is necessary is that there is a growing concern about the very serious problems faced by householders whose properties are connected to a private sewer. It is estimated that about 50 per cent of domestic properties are connected to private sewers in one form or another. Many householders are often unaware that their property is connected to a private sewer or that they are responsible for its maintenance and repair—sometimes directly and sometimes jointly with others—and remain unaware until a problem occurs.
The difficulties include how to establish the ownership of and responsibility for the maintenance of private sewers; the unwillingness of some owners to accept their responsibilities and the costs involved; owners and occupiers being unable to afford the high cost of repairs; and sewer flooding in emergency situations from private sewers.
A consultation paper on private sewers was published on 1st July and set out these problems. As noble Lords will recall, the consultation process had not come to an end when the issue was last discussed in this House. It did come to an end, however, during Committee stage in another place. Although the responses are still being considered in detail, the initial indications are that around 85 per cent of respondents are in favour of a change of ownership of private sewers. Of that number, a vast majority feel that sewerage undertakers are best placed to take on that responsibility.
Therefore, although the Government have not come to any detailed conclusions on the best way forward, it would be a wasted opportunity if this Bill were not used to enable us to take action in regulations to tackle the misery caused by this problem. The Government are committed to finding the best solution to this problem. We will be producing regulations under Amendment No. 90 in order to do so. The clause gives the Secretary of State power to make regulations allowing for schemes for the adoption of private sewers. I emphasise that the amendment introduces an enabling power and does not imply the automatic transfer of all private sewers to sewerage undertakers. I hope that the House will recognise that that amendment is an important change which I think can be widely supported. As I said, the rest of the amendments in this group are technical.
Moved, That the House do agree with the Commons in their Amendment No. 80.—(Lord Whitty.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
81 Clause 81, page 96, line 40, leave out "in pursuance of" and insert "pursuant to"
82 Before Clause 84, Insert the following new Clause—
"Duty to encourage water conservation

(1) The relevant authority must, where appropriate, take steps to encourage the conservation of water.

(2) The relevant authority is—

(a) the Secretary of State, in relation to England,

(b) the Assembly, in relation to Wales.

(3) After the period of three years beginning with the date on which this section comes into force, and after each succeeding period of three years, the Secretary of State must prepare a report about the steps taken by him under this section, and about any such steps which he proposes to take.

(4) The Assembly may make an order requiring the preparation by it of corresponding reports, and such an order may make provision about when, or in relation to what periods, they are to be prepared.

(5) Each such report must—

(a) if prepared by the Secretary of State, be laid before Parliament,

(b) if prepared by the Assembly, be laid before, and published by, the Assembly."

83 Clause 85, page 98, line 23, at end insert "or to be supplied"
84 Page 98, line 38, after "is", insert "or is deemed to be"
85 Clause 91, page 106, line 20, leave out paragraph (b) and insert—
"(b) in subsection (6), at the end there is inserted "and "controlled waters" has the meaning given by section 104 of the Water Resources Act 1991"."
86 Clause 94, page 114, line 17, leave out "subsections (4) and (5)" and insert "subsection (4)"
87 page 114, line 27, leave out from "of" to "whether" in line 28.
88 page 114, line 31, at end insert—
"and in subsection (4) of that section, after "subsection (1)" there is inserted "or (1A)"."
89 Clause 98, page 121, line 8, leave out "sewerage" and insert "sewage"
Lord Whitty: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 81 to 89.
Moved, That the House do agree with the Commons in their Amendments Nos. 81 to 89.—(Lord Whitty.)
On Question, Motion agreed to. 9.30 p.m.

COMMONS AMENDMENT
90 After Clause 99, Insert the following new Clause—
"Schemes for the adoption of sewers, lateral drains and sewage disposal works
After section 105 of the WIA there is inserted—
"105A Schemes for the adoption of sewers, lateral drains and sewage disposal works

(1) The Secretary of State may by regulations provide for him to make schemes for the adoption by sewerage undertakers of sewers, lateral drains and sewage disposal works of the descriptions set out in paragraphs (a), (aa) and (b) of section 102(1) above.

(2) The regulations may require sewerage undertakers to prepare draft schemes and to submit them to the Secretary of State.

1703

(3) Each scheme shall relate to—

(a) the area of a sewerage undertaker, or part or parts of it; or

(b) the areas of more than one sewerage undertaker, or part or parts of them.

(4) It shall be the duty of a sewerage undertaker, in specified circumstances, to exercise its powers under section 102 above with a view to making the declaration referred to in subsection (1) of that section in relation to sewers, lateral drains or sewage disposal works which—

(a) fall within the area to which a scheme relates; and

(b) satisfy specified criteria.

(5) The circumstances and the criteria shall each be—

(a) specified in the regulations; or

(b) determined in accordance with the regulations and specified in the scheme.

(6) In relation to the exercise of those powers pursuant to that duty-

(a) section 102 above shall have effect—

(i) with the omission of subsections (2), (5) and (7);

(ii) as if in subsection (1) the words "sections 103, 105 and 146(3) below" read "section 105B below";

(iii) with the omission of the words "or application" in subsection (3);

(iv) as if for subsection (4)(a) there were substituted—

(a) shall give notice of its proposal to the owner or owners of the sewer, lateral drain or works in question unless, after diligent enquiry, he or they cannot be traced;

(aa) shall publish notice of its proposal in the prescribed manner; and";

(v) as if in subsection (4)(b) "two months" read "two months or, if longer, the period specified by virtue of section 105B(5) below" and "section 105 below" read "section 105B(4) or (5) below, or "; and

(vi) as if section 98(3) of the Water Act 2003 did not apply;

(b) sections 103 and 105 above shall not apply; and

(c) if the regulations so provide, section 146(3) below shall not apply in circumstances or cases specified in the regulations.

(7) A duty imposed on a sewerage undertaker under subsection (4) above shall be enforceable by the Secretary of State under section 18 above.

(8) A statutory instrument containing regulations under subsection (1) above shall not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

105B Adoption schemes: appeals

(1) Any person falling within subsection (2) below may appeal to the Authority if he is aggrieved by—

(a) the proposal of a sewerage undertaker to make a declaration under section 102 above in relation to a sewer, lateral drain or sewage disposal works, pursuant to the undertaker's duty to do so under section 105A(4) above (the "relevant duty"); or

(b) the failure of a sewerage undertaker to make such a proposal pursuant to that duty.

(2) The persons referred to are—

(a) an owner of a sewer, lateral drain or sewage disposal works;

(b) any other person affected by the proposal, or the failure, in question.

(3) The grounds upon which a person may appeal are—

(a) in a subsection (l)(a) case, that the relevant duty is not owed in relation to the sewer, lateral drain or sewage disposal works, or that the making of the proposed declaration would be seriously detrimental to him;

1704

(b) in a subsection (l)(b) case, that the relevant duty is owed in relation to the sewer, lateral drain or sewage disposal works; or

(c)any other prescribed ground.

(4) An appeal under subsection (l)(a) above shall be made within two months after notice of the proposal is—

(a) served on the owner of the sewer, lateral drain or sewage disposal works; or

(b) published in accordance with section 102(4) above as modified by section 105A(6) above,

(or, if both occur, within two months after whichever is the later).

(5) An appeal under subsection (l)(b) above shall be made within such period as is specified in the scheme (not being less than two months).

(6) On the hearing of an appeal under subsection (1) above,

(a) the Authority may— (a) in a subsection (l)(a) case, allow or disallow the proposal of the sewerage undertaker; or

(b) in a subsection (l)(b) case, determine that the undertaker was not under the relevant duty in relation to the sewer, lateral drain or sewage disposal works in question,

or, in either case, make any declaration that the sewerage undertaker might have made, unless the proposal is disallowed.

(7) If, in a subsection (l)(a) case, the Authority finds that the making of the proposed declaration would be seriously detrimental to the appellant, it shall disregard any duty on the part of the sewerage undertaker to make the proposal for the purpose of determining whether to allow or disallow the proposal.

(8) If, in a subsection (l)(a) case, the Authority disallows the proposal of the sewerage undertaker, the scheme pursuant to which it was made shall have effect as if there were no duty under section 105A(4) above on the sewerage undertaker in relation to the sewer, lateral drain or sewage disposal works in question. (9) Where the Authority makes a declaration under subsection (6) above, it may, if it thinks fit— (a) specify conditions, including conditions as to the payment of compensation by the sewerage undertaker; and (b) direct that its declaration shall not take effect unless any conditions so specified are accepted. (10) A declaration made under subsection (6) above shall have the same effect as if it had been made by the undertaker. (11) The Secretary of State may by regulations make further provision in connection with appeals under this section. (12) The regulations may, in particular, require the Authority to have regard to prescribed matters when determining an appeal under this section.

105C Adoption schemes: supplementary

(1) The Secretary of State may vary any scheme, or revoke it.

(2) Before making regulations or any scheme under section 105A above, and before amending or revoking the regulations or varying or revoking a scheme, the Secretary of State shall consult—

(a) each sewerage undertaker which would be affected;

(b) the Authority;

(c) the Council;

(d) such other persons as the Secretary of State considers appropriate.

(3) The Secretary of State shall publish each scheme he makes, and any such scheme as varied, in the way he considers best for the purpose of bringing it to the attention of those likely to be affected by it.""

Lord Whitty: My Lords, I have already spoken to this amendment. I beg to move that the House do agree with the Commons in their Amendment No. 90.
Moved, That the House do agree with the Commons in their Amendment No. 90.—(Lord Whitty.)
90A Lord Dixon-Smith rose to move, as an amendment to the Motion that the House do agree wit:h the Commons in their Amendment No. 90, leave out "agree" and insert '"disagree".
The noble Lord said: My Lords, my objection to Amendment No. 90 is not so much its content as the procedure that has led to it. I supported the noble Lord, Lord Livsey of Talgarth, on this issue. In summarising the position I shall start at Report stage; I will not bother to take the House back to Grand Committee. I will also not bother with the debate. I shall concentrate only on what the Government said in response. On Report, the Government said:
"'The next stage of the work is to look at existing private sewers. We will shortly produce a consultation paper engaging with everyone concerned about solutions for dealing with existing private sewers in England and Wales. I am not sure of the outcome of the consultation. However, it will not be the same sort of protocol to which I referred in Committee".
The noble Lord, Lord Livsey, had proposed a protocol to deal with this problem. The Government went on:
"Therefore, it is premature, and probably inappropriate, to stipulate a protocol in this part of the Bill. I must therefore resist the noble Lord's amendment".—[Official Report, 24/6/03; col. 266.]
So that is what happened on Report.
On Third Reading, when the noble Lord, Lord Livsey of Talgarth, again returned to the subject, the noble Lord, Lord Whitty, said:
"My Lords, I recognise the noble Lord's views. It is one of the main options on which we are proposing to consult, but he is doing what he said that he would not do: trying to pre-empt the consultation by inserting the amendment in the Bill. Indeed, there would be a number of consequentials in terms of funding and responsibilities that would have to be faced, were we so to do. I cannot accept his amendment".—[Official Report, 9/7/03; col. 423.]
So far, so good. The consultation document Review of Existing Private Sewers and Drains in England and Wales was then produced. It was published in July, with the consultation date running out on 26th September. That was immaculately in the middle of everyone's major holiday period of the year, when most of the interested parties would probably not be able to consider that kind of an issue. so be it. I do not think that there was anything underhand in that, it was just the unfortunate way it worked out.
Seeking further enlightenment I went to the report of Standing Committee D, which was the Standing Committee in the other place dealing with the Water Bill. It was its eighth sitting. Just before lunch Mr Morley, on behalf of the Government, said this:
"We are trying to address the situation. We commissioned a study by W.S. Atkins to ascertain the scale of the problem and to give us some options for tackling it. The results of that consultation are being analysed and will probably not be known until the beginning of next year. One problem with the parliamentary question tabled by my hon. Friend the Member for Sherwood is that the results are still coming in, but I can tell him that so far we have received 150 responses from individuals and organisations. He might also like to know that 86 per cent"—
which is the figure the Minister has just given—
"of respondents are in favour of a change of ownership of private sewers. Of that 86 per cent., 92 per cent, consider that sewerage undertakers are best placed to take on that responsibility".— [Official Report, Commons Standing Committee D, 21/10/03; col. 344.]
So, at the end of the Committee stage there was still nothing. I then turned to the Hansard debate of the Report stage in the other place. After a great deal of debate on the Water Bill, this is what I found
"MR. DEPUTY SPEAKER then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour, pursuant to Order [5 November]."
And under that:
"Remaining government amendments agreed to".—[Official Report, Commons, 10/11/03; col. 131.]
Amendment No. 90 has not been debated in either House. That is not to say that there has not been debate around the subject of private sewers, but this amendment has not been discussed. I think it is not unreasonable to call that an abuse of parliamentary privilege. That is the reason I object to it.
There are many detailed points which other Members may wish to raise. I have read the amendment with some considerable care. It depends on the drafting of regulations. We do not have those regulations. We have no chance of seeing them. There is nothing said about the financial arrangements, which everyone has acknowledged will be a problem. We are talking of up to 300,000 kilometres of private sewers. That is a huge quantum. The Minister has indicated that a vast number of houses have this problem.
This is no way to deal with a problem of this nature. It is for that reason that I have tabled the amendment.
Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 90. leave out "agree" and insert "disagree".—(Lord Dixon-Smith.)
Lord Livsey of Talgarth: My Lords, I shall speak to Amendments Nos. 90 and 90A. I thank the noble Lord, Lord Dixon-Smith, for his forensic research in discovering what has been going on. We have spent so much time on the issue that we have covered much of this ground. There are many unsatisfactory matters outstanding. To shorten my contribution, I shall ask the Minister three questions. It would be better to include the amendment in the Bill than to have nothing at all. There are many loose ends.
The Minister may have answered my first question, but I shall recap: is the legislation on the adoption of private sewers mandatory or optional for undertakers? Secondly, who is to bear the capital cost of the schemes? The noble Lord, Lord Dixon-Smith, has just referred to that. Thirdly, are any timescales enforced for completing schemes? In the first amendment that I tabled in Committee, I included a timescale of 12 or 15 years—I cannot remember which—for all schemes to be completed.
Perhaps the Minister can answer those three questions, because they are pertinent to our attitude to Amendment No. 90A and Amendment No. 90, which acknowledges that there is a problem and that there are ways of dealing with it. The questions of capital and the enforcement procedures for private sewers to be adopted are important, as hundreds of thousands of

1707
people are suffering through inadequate sewers. They are being asked to pay extortionate prices into schemes that they cannot afford.
Baroness O'Cathain: My Lords, I support my noble friend's amendment and wish to say what a great job the noble Lord, Lord Dixon-Smith, has done. The noble Lord, Lord Livsey, referred to his forensic skills. My noble friend and the noble Lord, Lord Livsey, referred briefly to the cost of the schemes. The cost will fall on the water companies, but, as I said at several previous stages, they already contend with the rising cost of household customer debt and debt recovery. The latest figures from Ofwat show that the total outstanding household revenue up to four years old is £781 million, an increase of £115 million since 1998–99. That figure is significant, because 1988–89 is when the prohibition of disconnection for non-payment came into force.
Since then, the cost to water companies recovering debt has increased by 28 per cent to £56 million. Revenue written off on the year to March 2003 was £93 million. Those are just bald figures, about which people ask "So what?". How can water and sewerage companies be expected to carry that additional burden? Has the Minister any estimate of the cost of going through with Amendment No. 90?
There is another cost issue, but I shall not go into it in further detail because it is on the record of previous debates on the Bill. However, other utilities share information about people who do not pay debts; for example, council tax officials can give information to other utilities. The water companies are hit by the Data Protection Act. That effectively prevents the bodies that have the information about where people are and where they have moved to from supplying water companies with that information.
The real issue is that this is the only opportunity that we have to bring this matter to the fore again. The water and sewerage companies are in a serious situation and there is no doubt that in the long term it is a strategic nonsense to allow this to continue.
Lord Whitty: My Lords, I was surprised when the noble Lord, Lord Dixon-Smith, complained about procedure and said that this was an abuse of parliamentary power. After all, we have discussed very similar amendments to this in Committee in this House. The noble Lord, Lord Livsey, proposed a protocol and we are proposing regulations, but they are designed to do the same thing. The noble Lord, Lord Dixon-Smith, supported that. At that time, we had not had the results of the consultation. It was therefore premature then but not premature now that we have the outline results.
As for business in another place, I have never been clear about how much in order it is for us to discuss such details in this House, but a Back-Bench amendment was put forward in Committee in another place and debated at length. The Minister indicated that he would take those arguments on board, and he came forward with this amendment, which was
1708
discussed on 10th November. The Minister explained how he had taken up Paddy Tipping's Bill and that this amendment had the same substance as Paddy Tipping's amendment, which tidied up the legal side. All of that was debated at some length on 10th November, so I am not entirely sure what the noble Lord is complaining about. In any case, it is probably out of order for him to do so or for me to comment.
In response to the other questions, we have a broad result of the consultation. Almost everybody out there recognises that there is a problem—85 per cent of people said that something needs to be done. It is too early for us to say precisely what we will do about it, but rather than going for a protocol, which would not be subject to further parliamentary procedure, we have chosen affirmative action. Of course, there are some outstanding questions, which mainly relate to costs and who bears those costs, and whether the measure is mandatory and in what circumstances it would be mandatory. All that would have to be laid down in legislation. Issues about whether a timescale could be applied in certain circumstances would also have to be laid down in regulation.
The point of introducing this amendment now is that it is in recognition of the consultation. The inclinations of the noble Lords, Lord Livesey and Lord Dixon-Smith, were clearly correct. They were reflecting broad public opinion—also reflected in another place—that we need to do something about this problem. This measure gives us a permissive power to do so. If the regulations coming forward do not meet the case, no doubt that could also be discussed in the House.
I cannot yet go into any greater detail about what those regulations will contain, but the fact that we need to be able to make such regulations seems widely accepted. Indeed, it was the purport of the discussion that we had in Grand Committee several months ago, which has now been confirmed by the consultation. I would therefore hope that the noble Lord, despite his misgivings about procedure, would be prepared to accept that this provision is actually doing what we all wanted.
Lord Dixon-Smith: My Lords, I certainly did not claim that there had been no discussion. The fact that I had to quote the Minister himself on two occasions in this House must have indicated that there had been debate. However, there has been no discussion on the amendment before us. That is the problem, because we have not had time to study it. That is my objection to the process. Yes, there was discussion in Committee in another place and I have no complaints about that, but the amendment was passed under the nine o'clock rule as far as I can establish. If I am incorrect I can only apologise. That is how it seemed to me.
However, we are still left with a dilemma. The fact is that this is almost a paving amendment. We have no knowledge in any way, shape or detail of how it would work. There is no financial information that would enable us to judge whether or not it is in the interests of householders connected to existing private sewers. There is nothing but what is before us; that is, a few

1709
lines on two or three sheets of paper. That is not sufficient process for me. I should like to test the opinion of the House.
9.51 p.m.
On Question, Whether the said amendment (No. 90A), as an amendment to the Motion, shall be agreed to?
Their Lordships divided: Contents, 14; Not-Contents, 61.

Division No.8

CONTENTS

Attlee, E.

Howell of Guddford, L.

Brougham and Vaux, L.

Montrose, D. [Teller]

Byford, B.

Northesk, E.

Carlisle of Bucklow, L.

O'Cathain, B.

Cope of Berkeley, L. [ Teller]

Palmer, L.

Dixon-Smith, L.

Selborne, E.

Geddes, L.

Skelmersdale, L.

NOT-CONTENTS

Acton, L.

Hannay of Chiswick, L.

Amos, B. (Lord President)

Harris of Richmond, B.

Andrews, B.

Hayman, B.

Archer of Sandwell, L.

Howells of St. Davids, B.

Ashton of Upholland. B.

Hoyle, L.

Bach, L.

Hughes of Woodside, L.

Bassam of Brighton, L.

Hunt of Chesterton, L.

Bernstein of Craigweil, L.

Lea of Crondall, L.

Borrie. L.

Macdonald of Tradeston, L.

Bragg, L.

McIntosh of Haringey, L.

Brett, L.

McIntosh of Hudnall, B.

Brooke of Alverthorpe, L.

Massey of Darwen, B.

Brookman. L.

Methuen, L.

Burlison L

Miller of Chilthorne Domer, B.

Carter, L.

Morgan, L.

Chandos, V.

Pitkeathley B.

Crawley, V.

Ramsay of Cartvale, B.

Davies of Coity. L.

Rendell of Babergh, B.

Davies of Oldham. L. [Teller]

Rogers of Riverside, L.

Dubs, L.

Roper, L.

Sainsbury of Turville, L.

Evans of Parkside, L.

Scotland of Asthal, B.

Evans of Temple Guiting, L.

Sewel L

Farrington of Ribbleton, B.

Simon V

Faulkner of Worcester, L.

slynn of Hadley, L.

Gale, B.

Stone of Blackheath, L.

Gilbert, L.

Turnberg, L.

Golding, B.

Wallace of Saliaire, L.

Goldsmith, L.

Warwick of Undercliffe, B.

Graham of Edmonton, L.

Whitty. L.

Grocott, L. [Teller]

Wilkins, B.

Resolved in the negative, and amendment disagreed to accordingly.
On Question, Motion agreed to.

COMMONS AMENDMENTS
91 Clause 100. page 124, line 13, leave out", 114"
100 Clause 101. page 125, line 17. after "86(1 A),", insert "87B, 88A, 89,"
93 Page 125, line 31, at end insert—
"( ) for "94 to 96," there is substituted "94, 95, 96,",
( ) after "104," there is inserted "105A to 105C,","
94 Clause 102, page 128, line 15, after first "amendments". insert "(including the repeal of certain spent enactments)"
95 Clause 103, page 128, line 36, leave out "be taken to continue" and insert "continue to be taken"
96 Page 128, line 38, leave out "be taken to continue" and insert "continue to be taken"
97 Page 128, line 43, after "or'", insert "abstractions"
98 Page 129, line 11, leave out second "(6)" and insert "(5)"
99 Clause 104, page 129, line 21, at end insert "(including in particular any instrument appointing a company to be a water or sewerage undertaker)"
100 Clause 106, page 131, line 39, leave out "Secretary of State" and insert "appropriate authority"
101 Page 131, line 41, at end insert
"(4A) Except as stated in subsection (4B), the appropriate authority for the purposes of subsection (3) is the Secretary of State after consulting the Assembly.
(4B) In relation to the sections and Schedules listed in the first column of this table, the appropriate authority is as listed in the second column—

Section or Schedule

Appropriate authority

Section 76

The Secretary of State.

Section 70

The Assembly after consulting the Secretary of State.

Sections 61, 72, 78, 80, 81, 83, (Duty to encourage water conservation) and 88

The Secretary of State, in relation to England; the Assembly, in relation to Wales.

Section 102 and Schedules 7, 8 and 9

As respects any amendment or repeal consequential on a provision referred to above in this table, the same appropriate authority as listed in respect of the provision in question; otherwise, the Secretary of State after consulting the Assembly."

102 Page 131, line 43, at end insert—
"( ) Section 39 and Schedule 3 extend also to Scotland and Northern Ireland."
103 Page 131, line 44, at end insert—
"( ) section 56(1) and (2),"
104 Page 132, line 1, at end insert—
"( ) section 76,"
105 Page 132, line 3, at end insert—
"( ) section 87(3),
( ) section 104(1), (2). (7) and (8),
( ) section 105."
106 Page 132, line 3, at end insert—
"( ) Section 61(9) extends to Scotland only.
( ) Any amendment or repeal of a provision of the WRA made by this Act has the same extent as the provision being amended or repealed.
( ) Sections 5, 6, 12 and 29 have the same extent as they would have if they were contained in the WRA, and section 224 of the WRA (application to Isles of Scilly) applies in relation to those sections as it applies to the WRA."
107 age 132, line 4, leave out "7, 8 or 9" and insert "7 or 8"
108 age 132, line 5, at end insert—
"( ) Any repeal contained in Schedule 9 has the same extent as the provision elsewhere in this Act which provides for the repeal."
109 age 132, line 6, leave out subsection (8)
110 chedule 4, page 159, line 48, leave out "and" and insert "or"
111 age 162, line 43, leave out "and" and insert "or"
112 age 164, line 34, leave out "Office of Fair Trading" and insert "OFT"
113 Page 169, line 30, after "primary", insert "water"
114 170, line 1, after "primary", insert "water"
115 170, line 8, after "primary", insert "water"
116 170, line 11, after "primary", insert "water"
117 172, line 4, leave out "Office of Fair Trading" and insert "OFT"
118 173, line 28, after "secondary", insert "water"
119 177, line 7. leave out "section 66J" and insert "sections 66J and 66L"
120 schedule 6, page 183, line 10, leave out "4B" and insert "4C"
121 Page 183, line 18, leave out "4B" and insert "4C"
122 Page 183, line 27, leave out "4B" and insert "4C"
123 Page 185, line 9, leave out "4B" and insert "4C"
124 Schedule 7, page 186, line 16, after "access;", insert "or"
125 Page 187, line 5, leave out "date" and insert "notice"
126 Page 190, line 14, at end insert—
"( ) The Environment Act 1995 is amended as follows."
127 Page 190, line 15, leave out "of the Environment Act 1995" and insert "(general provisions with respect to water)"
128 Page 190, line 22, at end insert—
"( ) In Schedule 22 (amendment of enactments), paragraph 181 is omitted."
129 Schedule 7, page 192, line 43, at end insert—
"( ) In Schedule 3 (Director General of Water Services), paragraphs 6 and 7 are omitted.
( ) In Schedule 4 (customer service committees), paragraph 6 is omitted.
( ) In Schedule 25 (amendment of enactments), paragraphs 68(2)(a) and 76(a) are omitted."
130 Page 194, line 37, leave out from "Director" to "there" in line 38 and insert "General of Water Services under section 29(6)""
131 Page 194, line 39, leave out "above or"
132 Page 195, line 8, after "1991)", insert "; or" Page 195, line 16, at end insert— "( ) The Water Consolidation (Consequential Provisions) Act 1991 is amended as follows.
( ) In Schedule 1 (amendment of enactments), paragraphs 10, 28(a) and 29(a) are omitted."
134 Page 195, line 17, leave out from "Schedule 2" to "(transitional" in line 18 135 Page 195, line 28, leave out from "paragraph" to "the" in line 29 and insert "(o) there is inserted— "(P) " 136 Page 195, line 36, at end insert—
"( ) In Schedule 10 (regulators), the following are omitted—

(a) paragraph 5(3),

(b) paragraph 13(2) and (3)."

137 age 196, line 6, leave out from "paragraph" to "the" in line 7 and insert "(gh) there is inserted—
"(gi) "
138 age 196, line 20, leave out from "paragraph" to "the" in line 21 and insert "(ra) there is inserted—
"(rb) "
139 Page 197, line 5, at end insert—
"Reservoirs Act 1975 (c. 23) In Schedule 1 to the Reservoirs Act 1975 (index of general definitions), the entry for "Local authority " is omitted. "
140 Page 197, line 6, at end insert—
" ( ) The WIA is amended as follows."
141 Page 197, line 7, leave out "of the WIA"
142 Page 197, line 11, at end insert—
" ( ) In section 213(1) (powers to make regulations), after "or 17D(8)" (which is inserted by paragraph 49(2) of Schedule 8) there is inserted "or 105A"."
143 Schedule 7, page 197, line 20, at end insert—
"Health Authorities Act 1995 (c. 17) In Schedule I to the Health Authorities Act 1995 (amendment of enactments), paragraph 120 is omitted. "
144 Schedule 7, page 197, line 20, at end insert—
"Environment Act 1995 (c. 25) In section 101 of the Environment Act 1995 (grants in connection with drainage works), subsection (1) is omitted. "
145 Schedule 8, page 202, line 15, after "licences", insert "(within the meanings of Chapter 1A of this Part)"
146 Page 205, line 8, leave out "(7)" and insert "(8)"
147 Page 213, line 17, after "after "", insert "by"
148 Schedule 9, page 222, line 25, column 2, leave out" "in" and insert" "and in"
149 Page 223, line 30, column 2, at end insert—

"In Schedule 1, the entry for "Local authority"."

150 Page 223, line 41, column 2, at end insert—

"In Schedule 3, paragraphs 6 and 7.

In Schedule 4, paragraph 6.

In Schedule 25, paragraphs 68(2)(a) and 76(a)."

151 Page 224, line 37, at end insert—

"Water Consolidation (Consequential Provisions) 28(a) and 29(a)." Act 1991 (c. 60)

In Schedule 1, paragraphs 10,

152 Page 224, line 39, at end insert—

"Health Authorities Act 1995 (c. 17)

In Schedule 1, paragraph 120."

153 Page 224, line 40, column 2, at beginning insert—

"Section 101(1)."

154 Page 224, line 43, column 2, at end insert—

"In Schedule 22, paragraph 181."

155 Page 224, line 44, column 2, at end insert—

"In Schedule 10, paragraphs 5(3) and 13(2) and (3)."

Lord Whitty: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 91 to 155.
Moved, That the House do agree with the Commons in their Amendments Nos. 91 to 155.—(Lord Whitty.)
On Question, Motion agreed to.

Iran
10.2p.m.
Lord Hannay of Chiswick Lord Hannay of Chiswick rose to ask Her Majesty's Government how they see the prospects for Iran's relationship with the rest of the world in the light of the recent visit by the Foreign Secretary.
The noble Lord said: My Lords, I feel some shame at taking the time of the House at this rather late hour but the subject on which I have tabled an Unstarred Question is a topical and important one. It is probably one which we shall have to debate on a number of future occasions because it is not a subject that is going to go away.
Iran's relationship with its neighbours and the rest of the world has, since the Islamic revolution which saw the fall of the Shah in 1979, been a troubled and turbulent one. Soon after that revolution Iran was attacked by its neighbour Iraq and a long and bloody war then ensued. During that struggle Iran received little comfort or support from the international community, despite the clear evidence of Iraq's aggression and despite its use of chemical weapons. At the same time, a long-running confrontation with the United States following the holding of the US Embassy staff as hostages resulted in isolation and economic sanctions.
Even before that revolution, Iran's 20th-century history was one of constant intervention by outside forces—by tsarist Russia, by Britain, by the Soviet Union and by the United States. I have no intention of going into the rights and wrongs of those events—that is for the historians to judge—but it is important to understand some of that background if the mistakes of the past are not to be repeated and if there is to be a genuinely constructive dialogue and engagement with Iran in the future.
Now Iran is again in the headlines as a result of perfectly legitimate concerns about its nuclear programme, and we seem to be approaching a time when its relationship with the rest of "he world could either steadily improve or take a dangerous turn for the worse. Last month's visit to Tehran by our own Foreign Secretary, together with his French and German colleagues, and even more the indications given to them that Iran would sign the additional IAEA protocol and would make a full accounting to the IAEA of all its nuclear activities, was a very welcome development, as was the more recent news that Iran had indeed provided substantial new information. Obviously, that is only the beginning of what could be an improving trend, not the end of it. Actions from now on will speak louder than words. It would be of great value if the Minister could say a bit about the next steps and the way ahead.
In handling Iran's nuclear programme, and in pressing the view—in my view, the correct one—that Iran should not develop further its capacity to enrich uranium or to separate plutonium from its spent fuel, I hope it will be possible to ensure that Iran's concern to be able to develop and operate a civil nuclear programme will be taken fully into account.
However, we surely need to look well beyond Iran's nuclear programme if we are to avoid slipping into one of those zero-sum games which so seldom end satisfactorily. Iran, like any country, has concerns about its own security. It lives in an unstable neighbourhood; some part of those concerns has been addressed by the removal of the Taliban from Afghanistan and of Saddam Hussein's regime from Iraq. But that could be only a temporary relief, unless steps are taken to ensure medium and long-term stability in the region.
It used to be said that nothing meaningful could be done about Gulf security so long as Saddam Hussein ruled in Baghdad. Well, that is no longer the case. Has not the time now come to look again at the whole question of security in the Gulf, to consider whether, and if so how, the three key countries involved—Iran, Saudi Arabia and a new democratic Iraq—could work together in co-operation with the other states in the region? I should be interested to hear what the Minister has to say on the prospects for that.
Quite apart from the regional aspects of security, there is a concern felt by many Iranians that there still exists in the West the old hidden agenda of regime change. In that context, the very clear statement made three weeks ago in a Congressional hearing by the US Deputy Secretary of State that regime change was not part of the US agenda was very welcome. Is it not right to recognise that Iran does already possess elements of democracy, that elections are held there and that they are capable of bringing about policy changes, albeit very slowly? If so, it is surely then for the Iranians to determine their own political future without interference from outside. It may be necessary to find some way of saying that more formally than has been done hitherto.
If we are to address Iran's security concerns, as I suggest we should, it is reasonable that it should be asked to address some of ours. Foremost among those is the war against terrorism. Iran is evidently a key player in this respect. Its wholehearted participation in the efforts to deny a safe haven or funds or material to Al'Qaeda and other such groups would be of great value. Anything less than that leaves the collective effort that we and our allies are supporting seriously weakened. So far, the jury seems still to be out on this matter. Perhaps the Minister can say something about that.
Then there is Iran's attitude towards efforts to achieve a peaceful settlement in Palestine. In the past, that has been aggressively negative. So long as events on the ground continue to deteriorate, so long as the peace process lacks genuine credibility, I suspect we are not likely to have much success in influencing Iran on this matter. But if the quartet of the UN, the US, the European Union and Russia can move things back to the negotiating table and, even more, if a serious negotiation can be got under way on the final status issues, it will be important to engage Iran, too, in a serious dialogue, to seek to enlist its support and to press on it the case for so doing.
Even this rather cursory analysis shows, I think, just how complex but also how necessary constructive engagement with Iran is likely to be. It is good that three of the main members of the European Union are back in harness after the disagreements over Iraq and are working together to achieve agreed objectives. That is a necessary, if not a sufficient, condition for a successful common foreign and security policy in this area. It is good, too, that those objectives are shared, trans-Atlantic ones and that there, too, some of the disagreements that arose over Iraq are diminishing. Indirect US support for what the Europeans are doing with Iran is welcome but one day, direct US involvement will surely be needed as well. It would be good to hear what the Minister considers may be the prospects for that.
One further point is relevant to any consideration of the relationship between Iran and the non-Islamic world. That is the need to avoid any suggestion of that clash of civilisations that could have such disastrous consequences if it ever came to pass. It was President Khatami of Iran who proposed some years ago that we should be thinking rather in terms of a dialogue of civilisations. He was surely right. But that dialogue cannot be a purely cultural manifestation; it must be situated within a framework of civility and co-operation between states if it is to flourish. I argue that that is yet another reason to work hard to improve the relationship between ourselves and our allies on the one hand and Iran on the other.
In all that consideration of geo-strategic issues, we clearly cannot and should not lose sight of problems over human rights in Iran. Those persist, whether it is a matter of the role of women or the persecution of religious minorities. But the recent award of the Nobel Peace Prize to an Iranian who lives in Iran and works on human rights issues should be an encouragement to us to sustain a dialogue rather than simply to resort to the language of condemnation.
No Briton who has lived in Iran, as I did rather more than 40 years ago, can be ignorant of the legacy of suspicion and distrust that hangs over a historical relationship that has always been close but has not always been happy. Is it too much to hope that, in the very different circumstances of the 21st century, we can get off to a new start? I know that the Foreign Secretary has devoted much thought and effort to achieving that. I would like to encourage him to continue on that course and to play a leading role within the European Union and within the trans-Atlantic alliance to define a more satisfactory and equal relationship with Iran than has existed in the past.
10.12 p.m.
Lord Phillips of Sudbury: My Lords, I thank the noble Lord, Lord Hannay, for having introduced the debate. It is no fault of his that we are conducting it at this anti-social hour. I should briefly declare two interests: the first is as secretary of the British-Iranian Parliamentary Group; the second is as president of the British-Iranian Chamber of Commerce.
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I should also declare a particular affection and admiration for Iran. I have been visiting the country since I was an undergraduate. It is a greatly misunderstood country. It has an ancient culture and a tradition of crafts skills, arts, science and poetry. If they were better understood in the West, that would, I sense, avoid some of the rather ludicrous caricaturing of Iran that occurs, such as suggesting that it is a collection of fanatical peasants. It has a passionate, proud and particular people. Too little is understood of the progress it has made in the past 20 years in moving towards a more modern and democratic state, as the noble Lord, Lord Hannay, mentioned. It is worth remembering that the past two presidential elections saw a turnout that we in this country can only envy. The election to the Majlis and more recently to local councils were firsts in Iranian history and should be given more recognition and support. As the noble Lord deftly outlined, its history with us and other great world powers, including, in particular, the United States, has been far from happy. It is no surprise that it has a dual approach to the British—part admiration and part considerable suspicion.
I turn to the way forward—there is no point in having this debate unless one concentrates on that. I do not disagree with a single remark made by the noble Lord, Lord Hannay, but there are optimistic signs towards a multi-faceted opening up of the relationship between Iran and the world at large.
I am sure that continued engagement and dialogue and constructive criticism, which has been the policy of Her Majesty's Government, must be the right way forward. I take my hat off to Jack Straw for his five or six visits to the country since he became Foreign Secretary. That has been hugely important and has created a bond and degree of trust, which will stand both countries—and the world—in good stead.
I am encouraged by the engagement of the European Union with Iran in recent times, and the various agreements with regard to trade and human rights that are now making an impression. Noble Lords should not forget that the United Nations also has a growing involvement with Iran, which represents a lowering of the suspicions of the Iranians towards outside involvement. In February, WGAD—the Working Group on Arbitrary Arrest—made a visit to Iran. That would have been unthinkable until recent times. So, too, in this month, the UN special rapporteur on freedom of expression and association has been in Iran, preparing a report. Again, that was unthinkable until very recently.
There have been several bilateral exchanges between our two countries in the past two years. There have been parliamentary visits both ways, and I was lucky to be part of the first parliamentary delegation to go out there. A group of British parliamentary women went out to Iran, and came back pleasantly surprised at the state of Iranian women and the progress that they are making. This year, we have had visits of judges and human rights lawyers, both of whom I had the good fortune to meet. A great deal is happening.

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I have to say—perhaps with a good deal less diplomacy than the noble Lord, Lord Hannay—that the role of America in all that is parlous and, I believe, counter-productive. It is not in the interests of the United States and certainly not in the interests of Iran. It is not in the interests of the American policy towards pacification of terrorism and the Middle East.
One must acknowledge and be frank about the fact, not only that Iran was involved a devastating eight-year war, but that that war was supported to the hilt by the United States and, to a lesser extent, by our own country and France, in supplying Saddam with arms. The Iranians then had to put up with the constant American warning that they should not meddle in Iraq, when Iraq is their neighbour and was their assailant and when only Iran supported the Iraqi Shias during a time when the West ignored their awful plight.
The axis of evil and the placement of Iran within that was an historic error, and the sooner that the Americans can withdraw from that, just as they have withdrawn from the ludicrous notion of effecting regime change, the better. In the past two days, we have seen the United States rejecting the clearance given by the IAEA vis-a-vis Iran's nuclear energy programme. That has a rather unhappy resonance with American attitudes towards the reports by Mr Blix and their view of weapons of mass destruction in Iraq.
I sincerely hope that Her Majesty's Government will, in a much more effective and influential way than the approach that 1 am taking tonight bring pressure to bear as far as they can on the United States to drop the trade embargo that has now existed for 22 years. That embargo has been extended to non-US companies if they have the temerity to invest more than 10 million dollars in the Iranian oil industry. That is entirely counter-productive, because the one thing that would support moves towards democracy, greater regard for human rights and modernisation, would be to allow the Iranian economy to grow and expand and take up some of the damaging level of unemployment—particularly among young graduates, where there is more than 15 per cent unemployment. As I say, the Americans, by dropping that embargo and engaging with Iran in a way that I have no doubt at all the Iranians would want to reciprocate, would, I believe, bring about the goals of American policy which are, of course, admirable but which are impeded by the present approach.
I should like before finishing to say a few brief words about the constitution of Iran. It is certainly not our role to tell the Iranians how to run their affairs. We have done that for far too long and too often vis-a-vis Iran. They are independent, intelligent people who must find their own destiny in their own way within their own cultural context. That will be different from our own. We need to be far more patient and a good deal more humble, frankly, in the way we view their affairs.
However, one also cannot help acknowledging— this is something that some Iranians are very vocal about—that the Iranians have a Byzantine
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constitution. The checks and balances which are built into it are to my knowledge by far the most complex of any nation on earth. Those checks and balances have led to immobilism and deep frustration, particularly as regards the relationship between the Parliament, the Majlis, and the Guardian Council, which has the role of approving legislation but which is not itself elected. Anything we can do—it would need to be done with the greatest delicacy—towards assisting the Iranians to evolve their own constitution in a peaceable way would be of the greatest possible assistance. I refer to the kind of help that we are giving in terms of their judiciary and legal profession, which are certainly highly developed as regards the region of which Iran is the linchpin. There we are perhaps setting a model of what might be done.
On the human rights front, Iran is constantly frustrating. It is a case of two steps forward, one back, occasionally even two back, but little by little the Iranians are making progress although not as fast as many of them want and not as fast as we would like. From time to time some terrible things go on but I think that what Maurice Copithorne, special representative of the UN Commission on Human Rights, said to the Economic and Social Council of the UN in 2001 still holds true. It struck me as being a very wise statement. He said:
"Iran is going through a period of critical turmoil, the struggle for the soul of lranian society, for certain values such as justice, one of the oldest political values going back, scholars say, to the Achaemenian period, and for the more modern ones of accountable governance and a welfare and dignity of all citizens".
Mr Copithorne went on to say that he,
"believes that change is clearly underway and that given certain foundational improvements that have taken place in areas such as women's education, democracy and health, the trend is now irreversible".
It is, and I sincerely hope that we shall continue to support, wherever we can—at governmental level, business level and NGO level—the emergence of this great country into a destiny that it deserves.
10.23 p.m.
Lord Wallace of Saltaire: My Lords, it is a very late hour to discuss an important but complex topic and we have been asked to be relatively brief. I congratulate the noble Lord, Lord Hannay, on the high topicality of this debate particularly in the light of the IAEA report just published.
I should like to start by saying that we on these Benches are often very critical of the conduct of British foreign policy but this is an area in which we strongly support what the Government have been doing. They have exactly the right approach. We trust that Her Majesty's Government will continue along their constructive line.
We all recognise that relations with Iran have been extremely difficult since the revolution and continue to be difficult. There is divided authority within the country—partly democratic, partly clerical. However, one of the more positive developments is that a number of Shia authorities are beginning to say openly that the claim for clerical authority in the temporal

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order is against the entire tradition of the Shia branch of Islam. There is a large younger generation that is much more open to the West. All that makes Iran not a state comparable to Saddam Hussein's Iraq or Kim Il-sung's North Korea. That is why the linking together of Iran with Iraq and North Korea into a single "axis of evil" was very much a mistake.
However, the IAEA report is very serious and damning in many ways. It confirms what many had feared—that Iran has had and still has a nuclear development programme, although the programme appears far less advanced than that in North Korea. The emergence of Iran as a nuclear power would have contributed further to tension in the region, but I agree strongly again with what the noble Lord, Lord Hannay, said about the insecurity of the region. If I were in the Iranian Government, I would have been very concerned about being surrounded by the levels of threat, and the response has to be to try to build a regional security order.
It is also a concern that there is evidence of active help from a number of unnamed outside states in the Iranian nuclear programme, which raises some large questions about the nuclear non-proliferation treaty. It is clear that Pakistan was very much part of the external assistance for Iran.
The noble Lord, Lord Hannay, also talked about Iran and the war on terrorism, the Israel-Palestine link, and of course the Iraqi link. My understanding is that the Iranian Government have been fairly helpful in our dealings with the Taliban. Again, I regret that the Americans have not done more to encourage closer co-operation with the Iranians on that. We need Iranian assistance, and we need to reward what they have done so far in order to build on that and encourage closer collaboration. So far as Israel and Iraq are concerned, that has to be part of a western policy towards the Middle East as a whole. One cannot deal with Iraq, Iran and Israel separately.
The best way to deal with that important, large, unstable and potentially threatening state seems to be the British and European approach of diplomacy backed by the threat of sanctions, but nevertheless offering potential rewards and keeping the doors open. We welcome the visit of the three Foreign Ministers together as a positive move towards closer European co-operation. We also welcome the way in which smaller states within the European Union have not attacked that initiative on behalf of the European Union by its three most active international states.
The American approach has been damaging and confused. I welcome what Richard Armitage said, but if the deputy Secretary of State has been constructive, the assistant Secretary of State for arms control has been extremely destructive all the way through. I have met John Bolton on a number of occasions, and I regard him as an actively destructive force in international diplomacy. That is deeply unfortunate. Again, if I were watching the United States from Tehran and hearing the highly confused and contradictory messages that come from different elements within the divided Bush administration, I
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would be confused and worried. There are still calls from think-tanks to which President Bush gives major foreign policy speeches for regime change in Iran. The issue has not yet entirely gone away.
The Americans still have deep hang-ups over the humiliation of 1979 and 1980. That is not forgotten. They identify Iran as a threat to regional order, partly because they see it as a threat above all to Israel, and see Israel as the centre of any future regional order in the Middle East. They attack Iran's support for Hezbollah and therefore identify it as a terrorist state without recognising that the Shias in the Lebanon are a legitimate concern for any Iranian government.
We welcome the British approach. We all have to admit, I am afraid, that the soft cop European approach has actually been eased because of the toughness of the American hard cop behind it. That may be partly why we have made progress and why the Iranian Government have made their recent concessions to the IAEA and the admissions that they had previously resisted.
Where do we go from here? We clearly need to have as closely co-ordinated a European approach as possible. I repeat that we welcome what the Foreign Secretary has achieved with his French and German opposite numbers and we hope that that will be maintained.
We recognise that the European approach must be co-ordinated as closely as possible with that of America, even though that will continue to be difficult for so long as Washington's approach to the Middle East is as confused and internally contradictory as it is. We have to take a regional approach; we cannot deal with Iran as a whole. American troops are on its border, guarding Iraq. There are now American bases to its north. The question of Israel cannot be ignored given that it comes within the entire American approach to Iran and the Iranian approach to the United States and to the western part of the Middle East.
We have to keep the door open. We have to provide incentives as well as penalties. After all, we have seen China emerge in the past 25 years from a radical revolutionary situation, involving intense nationalism and its shutting itself off from the outside world, to a state which has reintegrated itself into the world economy and the multilateral international system. We should all hope that that is the path that the Iranians will take in moving from a revolutionary state to a more open society, a more open economy and a more peaceful relationship with its neighbours. We encourage Her Majesty's Government to do everything they can to lead the Iranians down that path.
10.32 p.m.
Lord Howell of Guildford: My Lords, like others, I thank the noble Lord, Lord Hannay, for initiating our debate. I should tell my few colleagues and friends here tonight that, by the old standards of another place, this is not a late hour at all. Most of the business of the other place used to be conducted in the early hours of

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the morning. Nowadays, they all go home at 7 p.m. and the late hours seem to have moved to this House instead. Perhaps my own move from that place to this was not a good career change. I seem to have brought the late hours with me.
We are faced with the enigma that is the amazing country of Iran. On the one hand, as all noble Lords have indicated, it is a brilliant, cultivated, clever nation of highly creative people with a dazzling history that stretches back to the Sassanids and to many generations before them—our own history seems modest by comparison. On the other hand, it is today, and has been for the past two decades, a country of evasions, cruelties, human rights abuses, mass executions—not so very long ago—and shocking persecution of religious minorities, particularly the revolting treatment of the Baha 'is, both adults and children.
Until recently, the country believed—and its leaders still believe it—in exporting Islamic revolution and preaching Islamic world dominance as an inevitability. That is the classic language of 20th-century religious ideology of the kind which cost millions of lives and which we do not want to see survive into the 21st century or prosper on this planet during the next 100 years.
Furthermore, as other noble Lords have mentioned, there is clear evidence that Iran has succoured not only the Hezbollah, but also organisations such as Hamas, and that it is therefore a supporter, directly or indirectly, of the ultimate barbarism of deliberately targeting innocent women and children for slaughter. That is the bad side of it and one cannot just shut one's eyes and brush it aside.
Although it is true that long ago Iran signed the nuclear non-proliferation treaty, it turns out in the IAEA report that for many years it has not been conforming to the treaty and has not been reporting its activities and developments. In other words, not to put too fine a point on it, it has been cheating for the past 18 years. Some years ago it developed uranium enrichment processes with the help of Pakistan. It is also in the business of plutonium reprocessing, which is said to be for civil use. However, when the Americans say, perhaps with a little hyperbole, that they find it impossible to believe it is for civil use and that it must lead straight to nuclear weapons, the Iranians have to make a case in response. The fact is that plutonium, in the Iranian context, is needed only for weapons. They do not need it for their civil nuclear power development—whether for their older Russian station at Bushier or any other development. There may be some justification, but it is not there yet. It certainly is not in the IAEA report.
Having put the black side—and I agree that I have done so—Iran is a major nation. It is centrally positioned in our concerns about global security. It is next door to Afghanistan and has been helpful and sensible over dealing with the reverberations of the Taliban affair and the Afghanistan war. Clearly, it goes without saying that we must work with this nation. It may even be possible to recognise that it feels
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surrounded and isolated. Nuclear powers all around may cause some justification for that. Perhaps we would think like that if we were in Tehran.
As for the recent visit by the French, German and British Foreign Ministers on 21st October, like the noble Lords, Lord Wallace and Lord Hannay, I believe that it was an excellent affair. To me, it was a perfect model of the right form of flexible, agile, European foreign policy co-operation. Perhaps I may not resist the temptation to remark that it seemed far better than the over-elaborate common foreign security policy machinery, which certain enthusiasts are always pressing us to adopt and which is not task-specific. This was task-specific; Foreign Ministers got together, just as they should, and it was an excellent example of the way things should work in European foreign policy co-operation.
It is also true that Iran is central to the Iraqi problem. It is essential that the border is not porous and that Iran stays out of Iraqi affairs, as it seems to be doing. That is encouraging. Furthermore, as we were reminded by the noble Lord, Lord Phillips of Sudbury, Iran is one of the world's major oil producers. However, I disagree with the noble Lord and those who seem to believe that more oil production and oil investment are the best way forward for that kind of nation. The truth is that over-dependence on oil is a curse and not a blessing. If one looks around the world, one sees that wherever there is over-dependence it is far from promoting enterprise, the opening up of markets and liberal governance; it has held back the societies which are often swamped in gigantic oil revenues. Therefore, in wishing the future of Iran well, I hope that it does not remain solely and overly dependent on oil development.
As to nuclear developments, I have made some comments. The whole saga of Iran's apparent cheating but now readiness to comply, and the question of whether it is developing weapons-grade uranium and plutonium for any purpose other than civil nuclear power, prompts us to rethink generally on the nuclear non-proliferation treaty. Frankly, I do not believe that that is sustainable in its present form or, indeed, enforceable. I would urge that we all applied minds to better ways of shoring up the non-proliferation process because the NPT is clearly not working. When we do shore it up, that will have implications not only for the countries that are not supposed to be existing nuclear powers but are, or the countries that are moving in that direction, as Iran may or may not be doing, but also for the five existing nuclear states as well. That includes our own country. If we want non-proliferation to work, we all have a duty to think how better to minimise our own holdings and involvement in nuclear weaponry.
Therefore, in this brief debate, my conclusion is perhaps the obvious one: we must engage with this nation and do so with our eyes wide open, without false enthusiasm but in a practical spirit. I agree with the noble Lord, Lord Wallace, that Iran is not a rogue

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state. That is an absurd label and part of the sillier neo-conservative rhetoric, which does not seem to be a very good guide to judgment in Washington policy-making.
However, we must be realistic: Iran is not yet a state that can be fully trusted. I, like others, hope that reform is under way but I believe that far more needs to be done before Iran can return to the status that it once enjoyed as a noble people and which it could enjoy again if liberalisation and reform were to go ahead in a genuine spirit of co-operation with the rest of the world community.
Lord Phillips of Sudbury: My Lords, before the noble Lord sits down, it was not my intention to say— I do not believe that I did say it—that Iran needed more oil investment. I absolutely agree with the point that the noble Lord made about over-dependence—90 per cent of Iran's GDP is in that one element. Therefore, to set the record straight, that was not my proposition.
Lord Howell of Guildford: My Lords, I fully accept that. I am glad that the noble Lord was urging not more but less oil dependence to achieve some balanced development. I accept that.
10.42 p.m.
Baroness Crawley: My Lords, tonight we have had a short but very expert and useful debate about a key aspect of our foreign policy. I thank noble Lords for their encouragement for Her Majesty's Government's approach to Iran.
The noble Lord, Lord Hannay, raises an important and timely Question. This is certainly the right moment to debate Iran, and who better to open that debate than the noble Lord with all his experience in these matters?
Iran's decisions about how it deals with the rest of the world have an impact that goes far beyond its borders. As noble Lords have said, Iran sits at the centre of one of the most volatile regions of the world. Its size alone—its population is larger than Iraq, Saudi Arabia and the Gulf countries combined—gives it a leading role and influence. How Iran chooses to use that influence—in Iraq and Afghanistan, for example—can affect the security of countries well beyond the Middle East and South Asia.
As the noble Lord, Lord Wallace of Saltaire, said, the UK's own relations with Iran have not always been straightforward. That has not been by our choice: the past few months have been made difficult by extradition proceedings against Mr Hadi Soleimanpour, a former Iranian ambassador in Buenos Aires now resident in the UK. I understand that the case against Mr Soleimanpour has today been discharged. I hope that any difficulties resulting from that may now be behind us.
The Government's overall approach towards Iran is one of constructive, but critical and conditional, engagement. In answer to the noble Lords, Lord
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Phillips and Lord Hannay, we recognise and welcome President Khatami's vision of a democratic, Islamic civil society, based on the rule of law. We seek to support reform in Iran. We co-operate successfully with Iran in a number of areas. We are, for example, the largest supporter of assistance to Iran to counter the drugs trade, and we have worked well together on the reconstruction of Afghanistan.
At the same time we fully share the view of our European Union partners that the development of relations with Iran, which we want to see, must be on the basis of Iranian willingness to address areas of political concern. Those include Iran's nuclear programme and approach to terrorism, human rights and, as the noble Lord, Lord Howell, mentioned, the Middle East peace process.
The noble Lord, Lord Hannay, asked how the Government see the first of those, Iran's nuclear programme. We start from a simple premise. We do not question the right of any country to generate electricity by nuclear power, provided—this is an important condition—that it complies fully with its international obligations on the subject. The joint statement in Tehran last month by the Foreign Secretary and his French and German counterparts, to which the noble Lord referred, stated that clearly.
However, under the non-proliferation treaty it is unacceptable for non-nuclear weapon states to seek to acquire nuclear weapons. In the Middle East it could seriously destabilise international peace and security. Recent reports by the International Atomic Energy Agency (IAEA) have given reasons to suspect that Iran has not been fully transparent with the agency or fully compliant with its safeguards obligations under the non-proliferation treaty.
Those suspicions cannot be dismissed as part of a western scheme against the Islamic Republic. They are shared by the entire international community, as the noble Lord, Lord Howell, stated. We saw that clearly in September when the IAEA board of governors passed its resolution by consensus. That resolution is intended to exercise a constructive influence. It requires Iran to take measures that would enable it to resolve the outstanding issues of concern identified by the IAEA in its reports.
As the House is aware, the Foreign Secretary and his French and German counterparts visited Tehran last month. The aim was to bring home to Iran the seriousness and urgency of international concerns and the need to act decisively to address them. Following that visit, Iran has undertaken to sign, ratify and implement an additional protocol to its safeguards agreement. That will allow for short-notice visits by IAEA inspectors to a wider variety of nuclear sites. Iran has also undertaken to act right away as if such a protocol were already in force. It has said it will co-operate in full with the IAEA and be fully transparent with the agency about its nuclear activity. It has undertaken to suspend all uranium enrichment and reprocessing activity as defined by the agency. Those are welcome promises and reflect the main points in the IAEA board resolution. They are, indeed, a step in the right direction.

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The key is Iran's willingness to turn them into reality. In our view Iran could create an atmosphere of increased trust quickly and easily. The onus is on Iran to take action. Iran has already taken some welcome steps in the past three weeks. It has supplied the agency with further details of past nuclear activity. It has sent the IAEA a formal letter signalling its intention to sign an additional protocol and announced a halt to enrichment and reprocessing activities. We recognise that those have been significant steps. We also believe that they are in Iran's interest.
The next step will be discussion at the IAEA board of governors' meeting on 20th November and although noble Lords have referred to it, I hope that they will understand that it would be imprudent of me to speculate today on the outcome of that meeting. The agency's director-general, Dr Mohammed El-Baradei, submitted his latest report on Monday. It needs careful reading and analysis.
The Government's view is that the board should work to maintain the credibility of the IAEA and of the non-proliferation regime. It would be damaging if the agency were to accept less than full co-operation and transparency from a member state or, having set out the requirements in its September resolution, were now to accept less than full compliance.
I am confident that the agency will likewise be clear in reporting Iran's past failures to disclose information or breaches of its safeguards obligations. Iran should not see this as a negative step. It is one that can be used to build trust and help address the long-running challenge, which is to establish international confidence that the intentions of Iran's nuclear programme are solely peaceful.
The nuclear programme is not, of course, the only security question on which we are now engaging Iranian leaders. We have regular exchanges with them on efforts to reconstruct two countries on Iran's borders, Iraq and Afghanistan. We recognise that Iran has legitimate interests in the future of both. In recent years, for instance, Iran has played host to more than 2.5 million refugees from the conflict in those two countries. As the noble Lord, Lord Wallace, said, we should recognise, and we do recognise, the concerns felt by many in Iran towards the Shia population in Iraq, and the wish of Iranian pilgrims to have easier access to holy sites in Karbala and Najaf.
Like noble Lords, we welcome Iranian support for the Iraqi Governing Council and the formation of a broad-based government in Afghanistan. In the case of both Iraq and Afghanistan, we hope that Iran will see that its interest lies in promoting the most rapid transition possible to stable and functioning democracy. As the noble Lord, Lord Hannay, described, the defeat of Saddam Hussein has also created new opportunities for regional security structures. To be effective, those probably need to originate with initiatives from players within the region. However, any structures that can deliver greater peace and stability would be warmly welcomed and certainly have our support.
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Sunday's bombing of an Arab residential compound in Riyadh brought home once again that security challenges in the region do not originate only from states but also from terrorists. President Khatami has stated Iran's principled condemnation of all terrorism, and his government were quick to condemn the latest attack. As the noble Lord, Lord Hannay, rightly states, Iran is an important potential partner in the fight against terrorism. We have called on Iran to exert all possible efforts and to ensure that terrorists receive no refuge or assistance from within its borders. As the EU has made clear, positive action against terrorism is a precondition for further developing relations.
As noble Lords have said, another area that Iran must address if relations with the EU are to develop is human rights. We indeed recognise that there has been some progress since the election of President Khatami in 1997, but we and other EU partners continue to have many concerns in areas such as freedom of expression, torture and the rights of religious and ethnic minorities, as the noble Lord, Lord Howell of Guildford, reminded us.
Noble Lords asked one or two specific questions. Several noble Lords—the noble Lords, Lord Hannay, Lord Phillips and Lord Wallace of Saltaire—referred to the issue of US contact with Iran. I would say to noble Lords that renewed contact between the US and Iran is a matter for those two countries. However, our US partners are very aware of our own position. I would add that, on 28th October, deputy US Secretary of State Richard Armitage told the Senate Foreign Relations Committee:
"We are prepared to engage in limited discussions with the government of Iran about areas of mutual interest as appropriate. We have not, however, entered into any broad dialogue with the aim of normalising relations".
The noble Lord, Lord Howell, talked about the Baha 'is and about religious persecution. The Government fully share his concern about religious persecution in Iran, including that of the Baha 'is. We raise these concerns regularly with Iran's leaders, including through the EU-Iran Human Rights Dialogue.
I began by saying that Iran's choices about its relations with the rest of the world have an impact well beyond its borders. On all these issues, with our partners in the EU, we are involved in the process of political dialogue with Iran. As the Foreign Secretary's recent visit shows—and again I thank noble Lords for their encouragement for the Foreign Secretary—we are committed to this policy of engagement. In any dialogue, and any international relationship, there will be points of difference. But I think that his visit showed that the strategy of engagement enables us to resolve those differences and encourage Iran to make choices that will contribute positively to the peace and security in the region.
Baroness Farrington of Ribbleton: My Lords, I beg to move that the House do now adjourn. In doing so, I am sure that noble Lords will forgive me if I take the opportunity on behalf of us all to apologise to our staff

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who were not expecting to be sitting this late, and not forgetting the Hansard reporters who were expecting to finish much earlier.
Moved accordingly, and, on Question, Motion agreed to.

Mersey Tunnels Bill
A message was brought from the Commons that they have considered the Lords Message of 11th November and have made the following orders:
That the promoters of the Mersey Tunnels Bill shall have leave to suspend proceedings thereon in order to proceed with it, if they think fit, in the next Session of Parliament, provided that notice of their intention to do so is lodged in the Private Bill Office not later than the day before the close of the present Session and that all fees due up to that date have been paid;
That on the fifth sitting day in the next Session the Bill shall be presented to the House by deposit in the Private Bill Office;
That a declaration signed by the agent shall be annexed to the Bill, stating that it is the same in every respect as the Bill at the last stage of its proceedings in this House in the present Session;
That on the next sitting day following presentation, the Clerk in the Private Bill Office shall lay the Bill on the Table of the House and, when so laid, the Bill shall be read the first, second and third time and shall be recorded in the Journal of the House as having been so read;
That no further fees shall be charged to such stages.

Extradition Bill
Returned from the Commons with certain amendments agreed to with amendments; certain other amendments disagreed to but with amendments proposed in lieu thereof; one of the amendments disagreed to with a reason for such disagreement; and with the remaining amendments agreed to; it was ordered that the Commons amendments and reason be printed. (HL Bill 122)
House adjourned at four minutes before eleven o'clock.