Lords Sitting of 17 November 2003

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

The Lord Chancellor: Leave of Absence
The Lord Chancellor (Lord Falconer of Thoroton): My Lords, before business begins, may I take the opportunity to inform the House that I will be attending a Cabinet meeting on Wednesday, 19th November? Accordingly, I trust that the House will grant me leave of absence.

RNIB: Right to Read Charter
2.36 p.m.
Baroness Gardner of Parkes Baroness Gardner of Parkes asked Her Majesty's Government:
Whether they support the aims of the Right to Read Charter championed by the Royal National Institute of the Blind.
The Parliamentary Under-Secretary of State, Department for Education and Skills (Baroness Ashton of Upholland): My Lords, we fully support the charter's aim of tackling discrimination against people with visual impairment. To that end, we have extended the Disability Discrimination Act 1995 to education and provided more than £600 million to improve access to education for disabled students.
We have worked with the Royal National Institute of the Blind and with copyright owners to reduce delays in gaining copyright clearance when making accessible copies of printed materials. We have supported the establishment of the Reveal database, which provides information about accessible resources.
Baroness Gardner of Parkes: My Lords, I thank the Minister for that encouraging reply. However, is she aware that two difficulties remain? One is that the problem seems to bridge several government departments—those dealing with disability, social care and education. For that reason, the people who want to improve those things cannot find a particular government person to deal with.
Is the Minister also aware that books with large print are expensive to produce and are not used very often by the children for whom they are developed, although older people use them as well? Would it be possible to develop some sort of central system? At the moment, the matter is devolved to education authorities. That does not work well, as those authorities do not work with one another. If there were a centralised way in which it could be made known that
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such books were available to children who needed them, it would bring a financial saving and a benefit to those children.
Baroness Ashton of Upholland: My Lords, the fact that the subject bridges different departments can be a strength, rather than a problem. In preparing for the Question, I talked to my colleagues in the Department for Culture, Media and Sport and the Department of Trade and Industry in particular. A great deal of work continues to be done through the library service and with publishers to support the initiative. I hope that, in future, the noble Baroness will see that as positive.
The noble Baroness suggested a central system giving access to information. Part of what, we hope, the Reveal database will do is enable educationists to find the information. This month, we go live with a link between our websites and the database. I will pursue the point made by the noble Baroness.
Lord Ashley of Stoke: My Lords, the Government have done well on the issue but not well enough. One striking figure is that no fewer than one in three blind and partially sighted pupils do not have books and exam papers in the preferred format. I find that utterly incomprehensible. Will my noble friend address that point? The Government have given out lots of money, and that should be appreciated, but we cannot have children hampered by having no books or exam papers. We need a guarantee from the Government that those children will get books and exam papers in the preferred format.
Baroness Ashton of Upholland: My Lords, I say to my noble friend that I am sorry that we have not yet done well enough. However, we have made available £220 million specifically for the School Access Initiative, which is designed to enable children and young people with disabilities to have access not only to premises but to the curriculum, as my noble friend pointed out.
All end of key stage test papers have been available in different formats for some time. All other national test papers are produced in different formats. It is for schools and LEAs to ensure that curriculum materials are available as appropriate and in good time for children with visual impairment. With good strategic planning, that can be achieved. I take my noble friend's point, and I will pursue it.
Lord Trefgarne: My Lords, given the noble Baroness's earlier Answer to my noble friend, does she offer it as a general proposition that the more departments that are responsible for a particular matter, the better it is managed?
Baroness Ashton of Upholland: No, my Lords. I offer the proposition that many of the issues that affect our people span the whole of government and that we need to work effectively together. The Government believe in being joined-up, and we are.
Lord Addington: My Lords, we are talking about joined-up government on this matter. Have the Government made any progress towards having VAT removed from audio books? I remind the Government that access to literature is an important aspect of our cultural life, not only of education. By not taking action, we are excluding a large number of people.
Baroness Ashton of Upholland: My Lords, I remind the noble Lord that there is no VAT on books, journals, newspapers or periodicals; nor is there VAT on equipment specifically designed to support those with visual impairment. There is VAT on audio tapes, which are available to the general population. Obviously, we listen to representations, but the noble Lord will know that, under EC law, that would be incompatible with the direction in which we are travelling.
Earl Howe: My Lords, do the Government have accurate statistics on the number of visually impaired and other disabled children throughout the country, so as better to establish what their information needs are and what sector they fall into? If they do—I do not believe that they do—it would be valuable information for planning purposes.
Baroness Ashton of Upholland: My Lords, it is true that, traditionally, governments have not collected information. However, I can say to the noble Earl that, in the next few months, we will, for the first time, have information about children with special educational needs throughout the school sector that will, as he suggested, enable us to plan more efficiently and effectively to support those children in schools.
Baroness Wilkins: My Lords, would the Minister agree to consider setting up a national repository of electronic versions of texts—which could be used as a source for the production of accessible information and to speed up the production of accessible texts for students—as quickly as possible?
Baroness Ashton of Upholland: My Lords, I am not entirely sure that it would be appropriate for the Government to do that. However, it is critical that we work closely with publishers to enable access to literature of all kinds to be made available as quickly as possible.

Disabled Students
2.43 p.m.
Baroness Sharp of Guildford Baroness Sharp of Guildford asked Her Majesty's Government:
Why students who become disabled during their period of study are denied access to disability benefits available to students who are disabled at the outset of their studies.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Hollis of Heigham): My Lords, it is not the case that students who become disabled during their period of study are treated differently from those who are disabled at the outset.
Baroness Sharp of Guildford: My Lords, I thank the Minister for that reply, but can she explain the catch-22 situation that arises for some students? For example, a student who gets a bad sports injury and is out of studies for a year, or perhaps a little longer, is not eligible to claim student benefit because he is not studying. Equally, he is not eligible to claim income support; he is still classed as a student because he wishes to return to study. He is not eligible to claim job seeker's allowance because he is not in a position to seek work; nor is he eligible to claim incapacity benefit because he has no contribution record. The student is eligible to claim disability living allowance but, due to the assessment process in such situations, it may take a year before he is assessed. Therefore, there is a real problem about on what the student should live in the mean time.
Baroness Hollis of Heigham: My Lords, the noble Baroness is right to say that the source of funding for students who become disabled while at university will change. Certainly, for the first 60 days of their temporary withdrawal from university, they would be eligible for their student support to continue to roll over. For the next 60 to 195 days, they would be eligible for discretionary or hardship funding from local authorities and may be able to tap disability living allowance. After six months, they are eligible for income support and housing benefit if they meet the qualifying means tests.
Lord Campbell of Croy: My Lords, would not the situation be improved or rectified if assessment for disabilities was made at the earliest opportunity after disablement occurs?
Baroness Hollis of Heigham: Yes, my Lords, there is no dispute about that. At present, a student who becomes disabled while at university can qualify for funding from disability living allowance, disabled student allowances and so forth. Perhaps one half of all disabled students are able to benefit from additional funding, which is about £20,000 a year beyond student educational loan support.
The difference between disability and sickness is that there is a longer period of dependency on forms of support, whether financial, physical or personal help. That is why, inevitably, there is—in my view, properly—a period of assessment in order to make that distinction.
Lord Skelmersdale: My Lords, as I understand the problem, disabled full-time students can claim income support only if they qualify for disability premium or severe disability premium when they have been incapable of working for 28 weeks, as the noble

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Baroness said; or—this is odd—they qualify for disabled student allowance because they are deaf. Why are the deaf especially singled out? I repeat, deaf.
Baroness Hollis of Heigham: My Lords, the noble Lord has made his point well. Students generally look to the educational system, not the social security system, for financial support while at university. However, in addition, there is a range of financial allowances for disabled students, which include DLA at £100 a week, disabled student allowances that can go up to £15,000 per year, as well as travel funds and additional hardship funds. The point about deafness is that an immediate assessment can be made, particularly if it is a permanent disability.
The problem remains that students meet the same criteria for assessment for disability as all other disabled people. Students are discriminated against neither positively nor negatively, whether before or after university, or within or outside university. All are asked to meet the same rules of eligibility for disability living allowance and income support.
Lord Addington: My Lords, is it true that students who are over the age of 25 who become disabled have no rights to incapacity benefit if they have not paid two full years of National Insurance contributions? That must be very difficult for those late entrants who move straight on from undergraduate to postgraduate studies.
Baroness Hollis of Heigham: My Lords, as the noble Lord will know, to be eligible for incapacity benefit, a person must have the appropriate National Insurance credits. When your Lordships discussed these issues a couple of years ago, we decided—encouraged by the noble Lord, Lord Rix—to ensure that people starting university with a long-standing disability would receive youth incapacity benefit rather than the old SDA; that is, if the disability was incurred before the ages of 16 or 18. That was regarded as very helpful for young people.
If someone has never qualified for incapacity benefit by virtue of having no National Insurance credits, he or she would be entitled to income support in the usual way.

Nuclear Energy
2.48 p.m.
Lord Peyton of Yeovil Lord Peyton of Yeovil asked Her Majesty's Government:
What they mean by "keeping the nuclear energy option open" and what is the cost of so doing.
Lord Davies of Oldham: My Lords, the Government recognise that nuclear power is an important source of carbon-free electricity. The possibility of new nuclear build at some point in the future is not ruled out. The costs of new nuclear generation were examined during the analysis for the energy White Paper.
Lord Peyton of Yeovil: My Lords, that Answer is a bit thin. On the next occasion that he visits the Department of Trade and Industry, will the noble Lord try to catch someone's attention and explain that time is not on their side, that it is a valuable commodity and that at present it is being wasted? If the words quoted in my Question, spoken in your Lordships' House by the noble Lord, Lord Sainsbury of Turville, are to mean anything, then both security of supply and the retention of skills which are fast disappearing require that plans should be made as a matter of urgency for building one or more nuclear power stations before the existing ones come to the end of their useful lives.
Lord Davies of Oldham: My Lords, it will be a considerable time before our current nuclear power stations come to the end of their useful lives. However, the noble Lord has a point: it is important that we pursue a strategy—as we are doing—which guarantees that skills continue to be developed in the nuclear industry. It is also important to support further research, and resources are being diverted towards that effort. Of course in the circumstance where the Government quite rightly say that the issue of new nuclear build is not ruled out, these kinds of support must be maintained and we intend to do that.
Lord Maclennan of Rogart: My Lords—
Lord Marsh: My Lords—
The Lord President of the Council (Baroness Amos): My Lords, there is sufficient time for both questions.
Lord Maclennan of Rogart: My Lords, since the influence of public opinion plays such an important part in determining the Government's approach to energy provision, in particular as regards concerns about the environmental impact of nuclear power, what steps are the Government taking to test public opinion and to inform it about the extent of the blanket coverage that would be required if we had to rely on windmills to supplant the energy currently being generated by nuclear power?
Lord Davies of Oldham: My Lords, the public are well informed on the question of wind farms because public inquiries preceding planning permission frequently take place when extensive farms are proposed. Of course there is lively debate both here and in the other place about the Government's energy policy and the way in which it is intended to meet the targets set out in the White Paper.
Lord Marsh: My Lords, does the Minister agree that the lead time before any new nuclear capacity could come on stream is very long indeed? We are talking of periods of 15 to 20 years. To hear the Government say that at some time in the future, if they think it really

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important, they will get down to thinking seriously about what will be done as a contingency does not engender confidence.
Lord Davies of Oldham: My Lords, the noble Lord is right to point out that the lead time for a new-build nuclear power station is long, but under the present proposals the last of our current nuclear power stations will not cease energy production until 2035, so we are still discussing these issues within a realistic time-frame.
Lord Tomlinson: My Lords, would my noble friend note that this is one of the rare occasions when I substantially agree with the noble Lord, Lord Peyton, who has spoken with great wisdom this afternoon? Can he inform the House how many windmills we would need to replace our nuclear industry? Further, does he agree that it is important that nothing is done to reduce our capacity for nuclear fuel unless and until the alternatives are actually producing the requisite amount of electricity, including that which is needed for economic growth?
Lord Davies of Oldham: My Lords, wise Ministers quake in the face of an alliance such as that between my noble friend and the noble Lord, Lord Peyton. I cannot give my noble friend a figure for the actual number of windmills, as he refers to them. However, I can indicate clearly that the Government have a target for the contribution of renewable energy resources to the National Grid, in which wind farms are to play their part. By the same token, the contribution of nuclear energy up to 2020 and beyond is also identified.
Baroness Oppenheim-Barnes: My Lords, will the noble Lord ask those responsible to inform themselves about what happened in the state of California when it completely ran out of power supplies because it had not in fact made any plans for new resources? The old sources were dying out and the state reached a crisis point. That situation came about because the planning that is being asked for had not been done.
Lord Davies of Oldham: My Lords, it is music to my ears to hear the other side advocate the merits of planning. Many noble Lords on this side of the House will have looked at the Californian situation and would agree that there were indeed issues to be learned from that experience. We have taken careful note of the crucial role that planning plays in guaranteeing our energy supplies. That is why the Government are identifying exactly the sources from which we expect to derive energy for the foreseeable future and why we have indicated that nuclear energy has its part to play.
Lord Stoddart of Swindon: My Lords—
Lord Ezra: My Lords—
Lord Craig of Radley: My Lords—
Noble Lords: The Cross Benches.
Lord Craig of Radley: My Lords, does the Minister agree that one aspect of keeping the nuclear option open is to have in place effective and reliable arrangements for the long-term storage and disposal of nuclear waste when power stations are decommissioned? What is the present position for the safe management and long-term storage of nuclear waste?
Lord Davies of Oldham: My Lords, those are very important considerations. Of course the noble and gallant Lord will recognise that the White Paper paid due regard to them. I reiterate a point I made earlier: we have no intention of allowing the skills which are necessary to guarantee that we can produce nuclear energy and process its waste products successfully to be lost. Our investment in skills and in the necessary research to ensure that this work can be carried out is guaranteed by the Government.
Lord Ezra: My Lords, if the Government should decide not to go ahead with further nuclear plant, how would the resultant electricity generation gap be filled, bearing in mind that, in addition to the progressive withdrawal of nuclear plant, some of the ageing coal-fired power stations might also have to be withdrawn? Do the Government have a Plan B?
Lord Davies of Oldham: My Lords, I should like to reassure the noble Lord that the Government plan well beyond Plan B on such an important issue. He will recognise that intensive efforts are being made to ensure that the supply and new development of gas resources guarantees more than just our present supplies. Further, the development of liquid nitrogen gas to ensure that our energy needs are met through fresh sources is being pursued. These issues are all being examined. However, the noble Lord is right to point out that it is important that we look at the energy needs of the country and to consider all the sources from which they will be derived. I shall reiterate an earlier point: for the foreseeable future, nuclear energy has its part to play in these plans.
Baroness O'Cathain: My Lords, can I gently draw the Minister's attention to the Question on the Order Paper and ask him if he realises that my noble friend Lord Peyton asked not only what the Government mean by,
"keeping the nuclear energy option open",
but also what is the cost of so doing? The Minister has made no mention of costs. He must have some idea of the cost of maintaining the skills base and the costs surrounding alternative sources. However, what are the long-term costs?
Lord Davies of Oldham: My Lords, the Government are making resources available to ensure that sector skills for the nuclear industry are developed. Turning to research costs, for example, we have made available £5 million towards research into sustainable energy sources, directed in particular towards the investigation of nuclear fission research. However,

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when the noble Baroness asks what are the costs of the whole training programme for the nuclear power industry, she will recognise that the Government are not in a position to put a precise figure on that. We are putting in place the structure and making available the resources to guarantee that structure in order that people can be trained in nuclear skills.
Baroness Miller of Hendon: My Lords, does the Minister accept the estimates set out in the current edition of The Engineer? Those estimates suggest that within the next six years, the safety cushion of excess energy capacity will drop to as low as 3 per cent. Is it not therefore essential for the Government finally to make up their mind and so ensure that we do not face a terrible catastrophe over energy supplies in this country?
Lord Davies of Oldham: My Lords, it is important that some aspects of the industry should call attention to the needs of the future. As the noble: Baroness will recognise, we are operating within the framework of a market where intelligence about the future is of the greatest significance, particularly where such intelligence is projected not only over years but over decades. When there is a narrowing of the gap between need and provision, that is a signal to the industry to bring more resources on stream. We have seen that during the course of the past few months in regard to electricity generation. We therefore welcome all informed sources to the general debate on our future energy needs.

Mutual Life Offices: FSA Proposals
3 p.m.
Lord Newby Lord Newby asked Her Majesty's Government:
Whether they support the Financial Services Authority's proposals to regulate the with-profits funds of mutual life offices.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey): My Lords, the Government support the work of the Financial Services Authority as the independent body that regulates the financial services industry in the United Kingdom. The FSA published a discussion paper in February of this year on the issues for with-profits business arising from the Sandier review. Responses were requested by 16th May. The FSA has not yet published its consultation paper on these issues and so it is not possible for me to comment further.
Lord Newby: My Lords, is the Minister aware that the FSA proposals appear designed exclusively for companies—plcs—not mutuals, and if carried into effect would have the effect of ending mutuality in the long-term savings industry? Therefore, will the Treasury ensure that revised proposals are made which
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will enable the financial services mutuals to continue to provide a very valuable alternative range of savings products?
Lord McIntosh of Haringey: My Lords, I should preface any further comment by saying that this is of course a matter for the regulator. I am aware of the concerns to which the noble Lord, Lord Newby, refers. They have been expressed to the FSA. The consultation paper that I mentioned will be published after the FSA board meeting on the 20th of this month. It is my understanding that the mutuals will be asked to set out what they are doing to achieve the Sandier objectives of transparency, with which I am sure the noble Lord, Lord Newby, agrees. It is recognised that the problem for mutuals, which have only a single fund, is different from that for other insurance companies.

Taxation (Information) Bill [H.L.]
Read a third time, and passed, and sent to the Commons.

Criminal Justice Bill
3.3 p.m.
Read a third time.
Clause 3 [Arrestable offences]:
The Minister of State, Home Office (Baroness Scotland of Asthal)The Minister of State, Home Office (Baroness Scotland of Asthal) moved Amendment No. 1:
Page 2, line 13, leave out "a Class C drug" and insert "cannabis or cannabis resin"
The noble Baroness said: My Lords, I have tabled Amendment No. 1 to fulfil the undertaking that I gave to the House on Report to table an amendment to Clause 3(3) at Third Reading. Its acceptance would mean that, following the reclassification of cannabis to class C under the Misuse of Drugs Act 1971, t he police would have a power of arrest under the Police and Criminal Evidence Act 1984 for the offence of possession of cannabis or cannabis resin but not for other class C drugs.
The amendment reflects the Government's consideration of the views expressed in this House and another place as to the scope of the provisions set out in subsection (3) and our decision to agree to amendment of the clause by applying the power of arrest in respect of class C drugs only to offences of possession of cannabis and cannabis resin following their proposed reclassification.
It also reflects the amendment tabled by the noble Lord, Lord Hodgson, and the noble Baroness, Lady Anelay, on Report in this House. Their amendment, which has the same purpose as this one, we accepted in principle. However, it sought to delete the words "within the meaning of that Act" which, from a drafting perspective, we would wish to retain. The amendment I am now moving addresses this point.
On Report I also undertook to bring forward appropriate amendments to Clause 7 which would clarify the position on keeping records of a detained person's property. Amendment No. 2 reflects the principle of Amendments Nos. 11Aand 11C, tabled by the noble Lord, Lord Dholakia, and the noble Baroness, Lady Harris. It would explicitly indicate the ability to record a detained person's property but that the officer has a discretion as to whether or not this should be carried out in every case. It would also enable the custody officer to determine if such a record should be kept as part of the custody record elsewhere. Amendment No. 124 would insert a new Schedule 35 which would amend Section 54(1) of PACE to effect the proposals in Clause 7.
I should like to put on record that during Report stage in your Lordships' House, when I said that the Government would accept Amendments Nos. 11A and 11B, I meant Amendments Nos. 11A and 11C. I hope that that was clear from the content of what I said because I was of course referring to the previous numbering allocated to those amendments. I have written to both the noble Baroness and the noble Lord to apologise for any confusion and to set the record straight. We resisted Amendment No. 11B because imposing an absolute requirement to record property when requested would open the door to deliberately obstructive requests.
With that rather lengthy explanation, I beg to move.
Baroness Anelay of St Johns: My Lords, I rise to put on record the first of what I hope will be a series of thanks to the Government for responding to points made at an earlier stage, particularly in regard to Amendment No. 1. We fully accept that there was a technical drafting deficiency in our amendment and we prefer the Government's amendment.
As regards Amendment No. 2—to which, no doubt, the noble Baroness, Lady Harris of Richmond, will speak in a moment—we also welcome the fact that it reflects very fairly the request made by my noble friend Lord Hunt of Wirral in Committee on 30th June.
Baroness Harris of Richmond: My Lords, as the Minister predicted, I rise to speak to Amendment No. 2. I thank her very warmly for her letter of explanation and for the amendments that she has accepted. She will, of course, understand that I am still rather disappointed that she has not been able to accept Amendment No. 11B, which sought to impose the absolute requirement, because she feels that,
"it may encourage deliberately obstructive requests".
So there will not be a requirement on police officers to record a person's property if they ask for that to be done.
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Can the Minister assure the House that any reasonable request from a person to have his or her property recorded will not be ignored? That is the real thrust of what I wanted to say and I hope that she can reassure me on that point.
Baroness Walmsley: My Lords, in rising to speak to Amendment No. 1, I hope that the Minister will forgive me for returning to some of the points that I made last Wednesday in the debate on the order. The noble Baroness, understandably, did not have time to address some of my concerns on that occasion.
I should like to ask four questions in regard to the amendment. First, on the advice of which expert body are the Government bringing forward the amendment? Is it the Advisory Council on the Misuse of Drugs; the House of Commons Home Affairs Select Committee; or the Runciman committee? I do not believe that any of those bodies, having looked in detail at all the latest evidence about the use of cannabis, advised that in reclassifying cannabis as class C the power of arrest should be newly introduced for a drug in that class. If the Government have committed themselves to basing their drugs policy on expert advice and evidence, can the Minister say on what evidence this measure needs to be taken? If in the move from class B to class C cannabis is treated on the street in roughly the same way as it is treated now, what difference do the Government believe the reclassification will make?
Secondly, is the Minister satisfied that the ACPO guidelines on the presumption in favour of arrest treat all citizens equally? She will be aware from my speech on the order to reclassify in the debate last Wednesday of my concern about people with mental disabilities being treated differently from other adults and inappropriately in my opinion.
Can she say how that can possibly be in the interests of their welfare? Are not the guidelines contradictory in that respect? Can she also say how the under-18s would be treated under this new power, as she did not have time to answer my questions on that matter last Wednesday? Is she convinced that it is appropriate to arrest and take to the police station for questioning young or vulnerable people in the terms of the ACPO guidelines for the simple offence of personal possession of cannabis, without any other aggravating factors?
Thirdly, how will the police treat someone who has been discovered growing a few cannabis plants for their own use when there is no suggestion that any of the aggravating factors are present that appear in the ACPO guidelines and that would give a presumption in favour of arrest? Finally, how is it expected that the powers introduced by the amendment will cut the link between those who choose to smoke cannabis and the organised criminals who sell hard drugs and whose main objective is to lure cannabis users into using drugs such as heroin and crack cocaine?
Baroness Scotland of Asthal: My Lords, I shall deal with the question asked by the noble Baroness, Lady Harris. I am relatively confident that, when

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considering the amendments that we have made to the Bill, reasonable requests made in relation to the retention of material will be honoured. I made it clear in resisting the amendment tabled by the noble Baroness that we saw an opportunity for a frivolous and vexatious use of those provisions. The other two amendments give ample scope for reasonable matters to be taken into account, not least because the police will be anxious to ensure that all proper evidence is before the court and to obviate a wrongful suggestion made by defendants that in some way they had been disadvantaged because of police behaviour. There will be nothing to prevent the defendant making the point that a request was made with propriety and not acceded to. In practical terms, I believe that will do.
The noble Baroness, Lady Walmslsy, asked four questions. First, she asked upon whose advice we based the provisions, and listed four agencies that she believed might be the source. For the crafting of the advice, the Government considered the assessment of the public order needs based on the advice of the police and on what the Government believe to be the right and proper response. Noble Lords will know that government policy does not only rely on the advice of others, but derives from the analysis of what the Government themselves see as most pertinent and relevant.
The noble Baroness asked what difference the measure would make, and how under-18-year-olds would be treated. We would have to consider the underlying circumstances, which can be done only with regard to matters undertaken at the police station. We are sending out a clear message to young people under 18 that cannabis misuse remains illegal. Police enforcement will be consistent with the more structured framework for early juvenile offending, established under the Crime and Disorder Act 1998, under which a young offender can receive a reprimand, a final warning or a charge, depending on the seriousness of the offence. Following one reprimand, any further offence will lead to a final warning or charge. Any further offence following a warning will normally result in a charge being brought. After a final warning, the young offender must be referred to the youth offending team to arrange a rehabilitation programme to prevent reoffending.
Those provisions are all within the framework in which we believe that young people should be dealt with. They are not being dealt with more strictly; they are likely to receive reprimands or warnings for a first offence of cannabis possession, but the process is more formal than for persons under 18. It is important that those cases should be dealt with at the police station so that any underlying problems with the young person can be identified. Young people under 18 who receive a final warning or who are reported to the court for possession of cannabis will be referred to the local youth offending team—YOT—and are likely to have their substance misuse assessed by the YOT drugs worker, who may arrange other support when it is needed.
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I have said those things on a number of occasions, although I may not have said them in direct response to the noble Baroness on the last occasion that I spoke. However, I pray in aid all that I have said before on innumerable occasions.
As for increasing class C penalties to 14 years, which will give a significant deterrent to class C dealing, I have tried to make it clear that there is a real distinction to be drawn from those who grow and/or distribute and seek to take adventitious advantage of the weakness in others by the use of cannabis. That distinction should be maintained. We have also said very clearly that we believe that a robust way of dealing with cannabis is important, because we accept that cannabis has pernicious side effects—something with which the noble Baroness may not entirely agree. We believe that our approach is a properly balanced one.
Growing cannabis is a dealing offence. Courts will have discretion in deciding what sentence to pass, depending on the circumstances. It would be quite improper for me to prescribe how the court within the framework would exercise that discretion. Of course, I take into account that mental disability is a real issue, and there are sufficient safeguards in the provisions to ensure that those who suffer from a mental disability are responded to in the most appropriate way.
I hope that I have answered the noble Baroness's questions.
On Question, amendment agreed to.
Clause 7 [Property of detained persons]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 2:
Page 6, line 8, leave out subsection (2) and insert—
"(2) For subsection (2) of that section (record of arrested person to be made as part of custody record) there is substituted—
"(2) The custody officer may record or cause to be recorded all or any of the things which he ascertains under subsection (1).
(2A) In the case of an arrested person, any such record may be made as part of his custody record.""
On Question, amendment agreed to.
Clause 33 [Defence disclosure]:
3.15 p.m.
Lord Ackner Lord Ackner had given notice of his intention to move Amendment No.3:
Leave out Clause 33.
The noble and learned Lord said: My Lords, I have heard it often said that time spent in reconnaissance is seldom wasted. Having inquired of the Conservative and Liberal Democrat Opposition, I understand there to be no support for my amendments, no doubt for good political reasons. Therefore, I do not propose to take up the time of the House and will not move the amendments.
[Amendment No. 3 not moved.]
Clause 34 [Notification of intention to call defence witnesses]:
[Amendment No. 4 not moved.]
Clause 35 [Notification of names of experts instructed by defendant]:
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 5:
Leave out Clause 35.
The noble Lord said: My Lords, although the noble and learned Lord, Lord Ackner, did not move his amendments relating to witnesses other than expert witnesses, we took the view on these Benches that the safeguards contained in the Bill deal with the problem. We are content that a defence statement should be rather fuller than it is at present, so long as it is not regarded as a pleading.
We have a different point of view about expert witnesses. If the Government's purpose is to find out whether the defence has instructed expert witnesses, there is really no problem, as in the generality of cases expert witnesses who are instructed by the defence have to co-operate with the expert witnesses of the prosecution. Generally speaking, the defence expert witnesses are examining material in the possession of the prosecution. For example, it will be necessary for a defence expert on fingerprints to have access to the fingerprints themselves, which will be in the possession of the police. Similarly, if an expert pathologist is called, he will without question consult the pathologist for the prosecution and will have access to his file and his findings. Very often, post mortems are carried out together. With DNA, too, it will be necessary for a DNA expert called by the defence to have access to material in the hands of the prosecution.
It is only in a rare case that an expert witness will not be known to the prosecution in any event. Therefore, I have no objection to the disclosure of the identity of expert witnesses to the prosecution, as it almost always happens anyway. I do, however, object to the possibility that the prosecution could in some way rely on a notice given under these provisions and should put before the jury the fact that the defence has consulted an expert whom it has not called. That would leave the jury completely open to speculation as to why the defence expert was not called. Perhaps he was not available on the day. Perhaps he agreed with the prosecution. He may not be called by the defence for all sorts of reasons. If it were possible for the prosecution in its final speech or the judge in summing up to say, "You know, members of the jury, that the defence has consulted experts, but you have not heard from them", that would be entirely wrong in principle. That is why I maintain my opposition to this clause. I beg to move.
Baroness Mallalieu: My Lords, I, too, am very concerned about this clause. One sometimes hears it said that the defence trawls around looking for an expert who will say what is wanted. That certainly is not my experience. Indeed, most defendants in criminal trials are legally aided and the legal aid authorities require considerable persuasion before they will grant legal aid for a second expert if one has already reported. I am concerned and should be grateful if the Minister could tell me what is proposed to be done with the details provided by these notices.
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Experts may be instructed for a variety of reasons, but not necessarily with a view to calling them. For example, counsel may want expert advice to deal with an aspect of the case that has not been raised by the defendant but which troubles counsel. Counsel may merely wish to be reassured that there is no possible line of defence in that avenue, or he may require further detailed examination of a prosecution expert's report in order to assist him with cross-examination. So there may be experts, perfectly properly instructed, who are not intended ultimately to be called at trial. Will the Minister please tell me what is proposed to be done with the details when they are handed to the prosecution?
Lord Renton: My Lords, I wish to support this amendment. I do so because in many cases the expert witness will be a medical man. I happen to be the son of a medical man, and I know what excessively hard and busy lives they lead. It is often difficult to get hold of a medical man who may have the necessary expert evidence to give until the last minute—from the point of view of the defence. It would be a travesty of justice if we prevented the accused relying on medical evidence that he finds late in the day simply because he is required by statute to give advance notice of the medical evidence by the expert which has to be given. I think that that would be unfair on the accused, so I support the amendment.
Lord Ackner: My Lords, I, too, should like to support the observations of the noble Lord. My recollection when summing up to a jury was to tell them not to speculate. This seems to me to invite speculation, and that surely must be wrong.
Lord Kingsland: My Lords, I rise to support the amendment moved by the noble Lord, Lord Thomas of Gresford. We have already spoken to it both in Committee and on Report; there is no difference between the noble Lord and ourselves on the issue that he raised. In our view, the crucial distinction is between, on the one hand, the provision of names in a notice and, on the other hand, the reference by a judge to those names in the course of the proceedings. I hope that the noble and learned Lord the Attorney-General will be able to reassure us on those grounds.
The Attorney-General (Lord Goldsmith): My Lords, as the noble Lord, Lord Kingsland, said, this clause has been debated extensively—on no fewer than three occasions, I think; indeed, we had a Division on it in Committee. I hope that in the light of the concerns previously expressed about this, and those that have been expressed today, it might help the House if I set out what the clause does and does not do.
Clause 35 will insert a new Section 60 into the Criminal Procedure and Investigations Act 1996. It requires the defence to notify the court and the prosecutor in advance of the trial of any expert consulted by the defence but whom the defence does not intend to call as a witness. There is no requirement

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to disclose any report completed by the expert for the defence. That may reassure the noble Lord, Lord Renton.
Clause 39, which introduces a revised Section 11 of the Criminal Procedure and Investigations Act 1996, deals with faults in defence disclosure generally. However, in the case of the notification of defence experts not called as witnesses, the prosecution will not be able to invite the jury to draw an adverse inference or otherwise comment to the jury on either the failure of the defence to comply with this provision or the fact that an expert has been consulted and not used as a witness.
I hope that that clear statement gives the reassurance for which noble Lords were looking as to the limits to which this clause could be put and particularly what it could not be used to do. I would add only this. We accept that the problem to which this is directed would affect only a small number of cases where the defence is self-funded. I have accepted that proposition before—that legal aid acts as an inhibitor. However, there will be some self-funded defendants who are well financed—which, sadly, includes some who have accrued that wealth from criminal activity. In those cases this will be a modest but helpful provision to add to the defence disclosures.
I hope, therefore, in the light of that assurance, that the noble Lord will not feel it necessary to press his amendment.
Lord Thomas of Gresford: My Lords, I am very grateful to the noble and learned Lord the Attorney-General for that clear statement which can leave no one in any doubt about what this provision means. I know that there have been anxious deliberations about this clause following our earlier debates. I thank the noble and learned Lord for participating in those discussions. Having regard to that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 36 [Further provisions about defence disclosure]:
[Amendment No. 6 not moved.]
Clause 39 [Faults in defence disclosure]:
[Amendment No. 7 not moved.]
Clause 49 [Further provision about right of appeal mentioned in section 50(l)]:
Lord Goldsmith Lord Goldsmith moved Amendment No. 8:
Leave out Clause 49.
The noble and learned Lord said: My Lords, this group of amendments refines the prosecution appeal rights already set out in the Bill. Before I go on to discuss the substance of this group, I should first like to thank the Opposition for allowing us to table these amendments again for the consideration of the House. That we are now doing so is the result of extensive discussions with the Opposition Front Bench. I am most grateful to them for their readiness to meet and go through these matters. I hope very much that in the intervening period we have been able to allay their concerns about the provisions.
While similar amendments were not approved by the House on Report I can confirm that it is entirely proper for the present amendments to be introduced at this stage. We do so on the basis that we discussed and addressed with the Opposition Front Bench their concerns about the overall scheme. They have confirmed that they did not have, and continue not to have, objections to these essentially refining amendments. The House authorities have confirmed that they also are content that we can proceed in these circumstances.
On the substance, I should note in passing that the rubric of Clauses 49 and 50 seems to have suffered an attack of the gremlins. I am assured by those responsible for these matters that the faulty wording will be rectified before the Bill progresses to its next stage.
Much of the substance of these amendments merely refines provisions that are already in the Bill. In a few instances substantive changes of detail are made, but I have already provided a full explanation of the changes in question in an earlier debate and I shall not detain your Lordships by tediously repeating explanations with which the House will already be familiar. My earlier comments still hold good. However, I shall draw your Lordships' attention to the new change in Amendment No. 44. The amendment specifies the conditions under which the Court of Appeal can overturn a judge's ruling under the Bill. The rule is a general one; it will apply whether the ruling is a formally terminating ruling, a de facto terminating ruling or an evidentiary ruling. It will prevent the Court of Appeal overturning a judge's ruling unless the ruling is wrong in law, involves an error of law or principle or is a ruling which it was not reasonable for the judge to have made.
Prior to this amendment the Bill was silent on the framework within which the Court of Appeal will operate—a feature of the provisions which attracted some criticism in Committee and on Report. We listened carefully to those concerns and this new clause now sets out a framework.
The vast majority of practitioners and commentators who have studied this area are firmly of the opinion that a prosecution appeal against the judge's terminating, or de facto terminating, ruling is just, equitable and long overdue. It is a matter of serious concern that defendants have had a right of appeal against their conviction for almost a century while the prosecution has had no right to challenge a judge-ordered acquittal, no matter how manifestly unjust such a ruling may be on rare occasions.
These provisions will significantly increase public confidence in the administration of justice. I am proud to have had the privilege of taking them through the House. I beg to move.
3.30 p.m.
Lord Kingsland: My Lords, I in turn should like to thank the noble and learned Lord for being prepared to engage in a number of discussions between Report and Third Reading, which I trust your Lordships will agree have led to a creative conclusion.
I accept the noble and learned Lord's view that in principle there is no difference between terminating rulings and evidentiary rulings and that, where appropriate, a right of prosecution appeal ought to be allowed. Our concerns about this were twofold: first, the likely volume of appeals that would ensue from such an initiative; and, secondly, the danger that some of those appeals would lead simply to the Court of Appeal second-guessing the proper exercise of discretion of the trial judge.
As the noble and learned Lord the Attorney-General rightly said, Amendment No. 44 resolves both those problems. It is a discipline on the volume of prosecution appeals to the Court of Appeal Criminal Division. At the same time, the defined circumstances which justify an appeal are wholly proper:
"that the ruling was wrong in law"
or,
"that the ruling involved an error of law or principle, or… that the ruling was a ruling that it was not reasonable for the judge to have made".
Those are plainly circumstances in which a prosecution appeal is appropriate. From these Opposition Benches I endorse the amendments proposed by the noble and learned Lord.
Lord Thomas of Gresford: My Lords, from these Benches I repeat that we are grateful to the noble and learned Lord for his discussions and for having listened to the concerns that we expressed in Committee and on Report. I think I said at the beginning that we were not opposed to prosecution appeals in principle; it was the practicalities that concerned us. Amendment No. 44 does a great deal to answer those concerns. It will limit the number of times that a prosecutor who has lost will, in a fit of pique, go to the Court of Appeal, and it will mean that the Court of Appeal will not have to read through reams and reams of material in order to second-guess the trial judge's decision. We welcome the provisions and endorse them.
Lord Goldsmith: My Lords, I am grateful for what both noble Lords have said. There is nothing more that I need to say at this stage. The noble Lord, Lord Thomas, may be holding out too rosy a promise to the Court of Appeal that there will not be occasions when it will have to read a lot of material, but now is not the occasion to go into that debate.
On Question, amendment agreed to.
Clause 50 [Further provision about right of appeal mentioned in section 50(3)]:
Lord Goldsmith Lord Goldsmith moved Amendments Nos. 9 to 11:
Page 34, line 5, leave out subsections (1) to (4) and insert—

"(1) In relation to a trial on indictment, the prosecution is to have the rights of appeal for which provision is made by this Part.

(2) But the prosecution is to have no right of appeal under this Part in respect of—

(a) a ruling that a jury be discharged, or

(b) a ruling from which an appeal lies to the Court of Appeal by virtue of any other enactment."

Page 34, line 23, leave out "who made the ruling"
Page 34, line 25, leave out subsections (7) and (8).
On Question, amendments agreed to.
Clause 51 [Appeals against terminating rulings]:
Lord Goldsmith Lord Goldsmith moved Amendments Nos. 12 to 19:
Page 34, line 35, leave out from "judge" to end of line 36 and insert "makes a ruling in relation to a trial on indictment at an applicable time and the ruling relates to one or more offences included in the indictment.
(1A) The prosecution may appeal in respect of the ruling in accordance with this section."
Page 35, line 1, leave out "it requests such an adjournment" and insert "such an adjournment is granted"
Page 35, line 4, leave out "must" and insert "may"
Page 35, line 9, at end insert— "

(5A) Where—

(a) the ruling is a ruling that there is no case to answer, and

(b) the prosecution, at the same time that it informs the court in accordance with subsection (3) that it intends to appeal, nominates one or more other rulings which have been made by a judge in relation to the trial on indictment at an applicable time and which relate to the offence or offences which are the subject of the appeal,

that other ruling, or those other rulings, are also to be treated as the subject of the appeal.

(5B) The prosecution may not inform the court in accordance with subsection (3) that it intends to appeal, unless, at or before that time, it informs the court that it agrees that, in respect of the offence or each offence which is the subject of the appeal, the defendant in relation to that offence should be acquitted of that offence if either of the conditions mentioned in subsection (5C) is fulfilled.

(5C) Those conditions are—

(a) that leave to appeal to the Court of Appeal is not obtained, and

(b) that the appeal is abandoned before it is determined by the Court of Appeal."

Page 35, line 11, after "ruling" insert "mentioned in subsection (1)"
Page 35, line 15, leave out "and"
Page 35, line 16, at end insert "and
(c) if he does so, any such steps are also to have no effect."
Page 35, line 16, at end insert—
"(8) Where the prosecution has informed the court of its agreement under subsection (5B) and either of the conditions mentioned in subsection (5C) is fulfilled, the judge or the Court of Appeal must order that the defendant in relation to the offence or each offence concerned be acquitted of that offence.
(9) In this section "applicable time", in relation to a trial on indictment, means any time (whether before or after the commencement of the trial) before the start of the judge's summing-up to the jury."
On Question, amendments agreed to.
Clause 52 [Appeals against certain other rulings]:
Lord Goldsmith Lord Goldsmith moved Amendment No. 20:
Leave out Clause 52.
On Question, amendment agreed to
Clause 53 [Expedited and non-expedited appeals]:
Lord Goldsmith Lord Goldsmith moved Amendments Nos. 21 and 22:
Page 36, line 2, leave out "or 52(2)"
Page 36, line 3, leave out "against a ruling"
On Question, amendments agreed to.
Clause 54 [Continuation of proceedings for offences not affected by ruling]:
Lord Goldsmith Lord Goldsmith moved Amendments Nos. 23 and 24:
Page 36, line 15, leave out "or 52(2)"
Page 36, line 15, leave out "against a ruling"
On Question, amendments agreed to.
Clause 55 [Determination of appeal by Court of Appeal]:
Lord Goldsmith Lord Goldsmith moved Amendments Nos. 25 to 38:
Page 36, line 19, leave out "this Part" and insert "section 51"
Page 36, leave out line 20 and insert "any ruling to which the appeal relates"
Page 36, line 20, at end insert—
"(1A) Subsections (2) to (4) apply where the appeal relates to a single ruling."
Page 36. line 21, leave out "a" and insert "the"
Page 36, line 23, leave out first "the" and insert "that"
Page 36, line 23, leave out second "the" and insert "that"
Page 36, line 24, leave out "a" and insert "the"
Page 36, line 27, leave out first "the" and insert "that"
Page 36, line 29, leave out "fresh proceedings may be instituted" and insert "a fresh trial may take place"
Page 36, line 30, leave out "the" and insert "that"
Page 36, line 31, leave out second "the" and insert "that"
Page 36, line 31, leave out third "the" and insert "that"
Page 36, line 35, at end insert—
"(4A) Subsections (4B) and (4C) apply where the appeal relates to a ruling that there is no case to answer and one or more other rulings.
(4B) Where the Court of Appeal confirms the ruling that there is no case to answer, it must, in respect of the offence or each offence which is the subject of the appeal, order that the defendant in relation to that offence be acquitted of that offence.
(4C) Where the Court of Appeal reverses or varies the ruling that there is no case to answer, it must in respect of the offence or each offence which is the subject of the appeal, make any of the orders mentioned in subsection (3)(a) to (c) (but subject to subsection (4)).
Page 36, line 36, leave out subsection (5).
On Question, amendments agreed to.
Lord Goldsmith Lord Goldsmith moved Amendment No. 39:
After Clause 55, insert the following new clause—
"APPEALS IN RESPECT OF EVIDENTIARY RULINGS

(1) The prosecution may, in accordance with this section and section (Condition that evidentiary ruling significantly weakens prosecution case), appeal in respect of—

(a) a single qualifying evidentiary ruling, or

(b) two or more qualifying evidentiary rulings.

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(2) A "qualifying evidentiary ruling" is an evidentiary ruling of a judge in relation to a trial on indictment which is made at any time (whether before or after the commencement of the trial) before the opening of the case for the defence.

(3) The prosecution may not appeal in respect of a single qualifying evidentiary ruling unless the ruling relates to one or more qualifying offences (whether or not it relates to any other offence).

(4) The prosecution may not appeal in respect of two or more qualifying evidentiary rulings unless each ruling relates to one or more qualifying offences (whether or not it relates to any other offence).

(5) If the prosecution intends to appeal under this section, it must before the opening of the case for the defence inform the court—

(a) of its intention to do so, and

(b) of the ruling or rulings to which the appeal relates

(6) In respect of the ruling, or each ruling, to which the appeal relates—

(a) the qualifying offence, or at least one of the qualifying offences, to which the ruling relates must be the subject of the appeal, and

(b) any other offence to which the ruling relates may, but need not, be the subject of the appeal.

(7) The prosecution must, at the same time that it informs the court in accordance with subsection (5), inform the court of the offence or offences which are the subject of the appeal.

(8) For the purposes of this section, the case for the defence opens when, after the conclusion of the prosecution evidence, the earliest of the following events occurs—

(a) evidence begins to be adduced by or on behalf of a defendant,

(b) it is indicated to the court that no evidence will be adduced by or on behalf of a defendant,

(c) a defendant's case is opened, as permitted by section 2 of the Criminal Procedure Act 1865 (c. 18).

(9) In this section—

"evidentiary ruling" means a ruling which relates to the admissibility or exclusion of any prosecution evidence,

"qualifying offence" means an offence described in Part I of Schedule (Qualifying offences for the purposes of section (Appeals in respect of evidentiary rulings)).

(10) The Secretary of State may by order amend that Part by doing any one or more of the following—

(a) adding a description of offence,

(b) removing a description of offence for the lime being included,

(c) modifying a description of offence for the time being included.

(11) Nothing in this section affects the right of the prosecution to appeal in respect of an evidentiary ruling under section 51."

The noble and learned Lord said: My Lords, this second group of government amendments is closely connected with those that the House has just accepted. This is the set of amendments that introduces a prosecution right of appeal against a non-terminating evidentiary ruling or series of evidentiary rulings. Once again I am grateful to the Opposition for agreeing to the amendments being brought forward at this stage. In the summer I signalled that we had it in mind to bring them forward. They were tabled on Report but not in the event moved. In fact, they have been under consideration for some time. We are bringing them forward now because we believe that this additional right of appeal is an important part of the prosecution appeals package as a whole.
The Bill gives the prosecution a right of appeal against a terminating ruling. This right of appeal will not always be enough. There are situations in criminal trials where an evidentiary ruling has a significant impact for the worse on a prosecution case but is not fatal to it. As the House may well recall, the lack of a right of appeal against rulings of this kind attracted some adverse comment in Bishop Sentamu's report on the Damilola Taylor case. In our view whether a case is high profile or not, there is a clear need for arrangements to have such rulings reviewed by the Court of Appeal. In the absence of such a right, a perception of injustice may arise which cannot properly be allayed. The amendments will allow rulings of this kind to be tested where they cannot be at present and are in the interests of justice.
I should make the following comment as I have never previously put this on the record. It may be helpful and for the convenience of the House to do so. So far as numbers of cases are concerned, we have introduced a range of measures here to limit the number of appeals that there may be. I wish to identify them. First, an appeal against an evidentiary ruling or rulings in a series will be allowed only where the ruling or rulings are made before the defence case opens. That timing is more restrictive than that now applicable to appeals against a single terminating ruling. Secondly, an appeal against an evidentiary ruling will be available only in relation to a qualifying offence as set out in the schedule. That schedule has intentionally been constructed so as to include only serious offences. Thirdly, the prosecution must obtain leave to appeal from either the judge or the Court of Appeal before it can appeal. Fourthly, that leave may be granted only if the relevant condition is met. That relevant condition is that the evidentiary ruling or rulings,
"significantly weakens the prosecution case".
Fifthly, I anticipate that the guidance which the Director of Public Prosecutions will issue to prosecutors on the operation of the prosecution appeals regime as a whole will include specific guidance on evidentiary appeals. Finally—this matter arises from detailed discussions with the senior judiciary in the Court of Appeal—the evidentiary appeal regime will be implemented later than, and separately from, the terminating rulings appeals. That will give an opportunity to see how the terminating appeal works in practice and give us advance warning of any unexpected resource implications of the evidentiary regime.
I hope that your Lordships will agree that, taken together, those amendments represent a formidable battery of safeguards. The detail of the appeals is well set out in the amendments. I am happy to answer any questions which noble Lords may have but, subject to those questions, I hope that these provisions will commend themselves to the House. I beg to move.
Lord Kingsland: My Lords, once again I am most grateful to the noble and learned Lord the Attorney-General for the way in which he has introduced the
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new provisions, which, as he rightly said, were not tabled until Report. I entirely agree that the precautionary measures that he has introduced to make sure that we learn from the development of the law on terminating rulings first, before we move on to implement evidential rulings, are prudent. I do not need to speak to Amendment No. 44, because it covers both terminating and evidential rulings. In those circumstances, I can complete my observations.
Lord Thomas of Gresford: My Lords, I entirely agree with the views expressed by the noble Lord, Lord Kingsland, and have nothing to add.
Lord Goldsmith: My Lords, I am grateful to noble Lords who have spoken.
On Question, amendment agreed to.
Lord Goldsmith Lord Goldsmith moved Amendments Nos. 40 to 44:
After Clause 55. insert the following new clause—
"CONDITION THAT EVIDENTIARY RULING SIGNIFICANTLY WEAKENS PROSECUTION CASE

(1) Leave to appeal may not be given in relation to an appeal under section (Appeals in respect of evidentiary rulings) unless the judge or, as the case may be, the Court of Appeal is satisfied that the relevant condition is fulfilled.

(2) In relation to an appeal in respect of a single qualifying evidentiary ruling, the relevant condition is that the ruling significantly weakens the prosecution's case in relation to the offence or offences which are the subject of the appeal.

(3) In relation to an appeal in respect of two or more qualifying evidentiary rulings, the relevant condition is that the rulings taken together significantly weaken the prosecution's case in relation to the offence or offences which are the subject of the appeal."

After Clause 55, insert the following new clause—
"EXPEDITED AND NON-EXPEDITED APPEALS

(1) Where the prosecution informs the court in accordance with section (Appeals in respect of evidentiary rulings)(5), the judge must decide whether or not the appeal should be expedited.

(2) If the judge decides that the appeal should be expedited, he may order an adjournment.

(3) If the judge decides that the appeal should not be expedited, he may—

(a) order an adjournment, or

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

(4) If he decides that the appeal should be expedited, he or the Court of Appeal may subsequently reverse that decision and. if it is reversed, the judge may act as mentioned in subsection (3)(a) or (b)."

After Clause 55, insert the following new clause—
"CONTINUATION OF PROCEEDINGS FOR OFFENCES NOT AFFECTED BY RULING

(1) This section applies where the prosecution informs the court in accordance with section (Appeals in respect of evidentiary rulings)(5).

(2) Proceedings may be continued in respect of any offence which is not the subject of the appeal."

After Clause 55, insert the following new clause—
"DETERMINATION OF APPEAL BY COURT OF APPEAL

(1) On an appeal under section (Appeals in respect of evidentiary rulings), the Court of Appeal may confirm, reverse or vary any ruling to which the appeal relates.

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(2) In addition, the Court of Appeal must, in respect of the offence or each offence which is the subject of the appeal, do any of the following—

(a) order that proceedings for that offence be resumed in the Crown Court,

(b) order that a fresh trial may take place in the Crown Court for that offence,

(c) order that the defendant in relation to that offence be acquitted of that offence.

(3) But no order may be made under subsection (2)(c) in respect of an offence unless the prosecution has indicated that it does not intend to continue with the prosecution of that offence."

After Clause 55, insert the following new clause—
"REVERSAL OF RULINGS
The Court of Appeal may not reverse a ruling on an appeal under this Part unless it is satisfied—

(a) that the ruling was wrong in law,

(b) that the ruling involved an error of law or principle, or

(c) that the ruling was a ruling that it was not reasonable for the judge to have made."

On Question, amendments agreed to.
Clause 59 [Restrictions on reporting]:
Lord Goldsmith Lord Goldsmith moved Amendments Nos. 45 to 57:
Page 37, line 29, leave out "52 or"
Page 37, line 29, at end insert "(Appeals in respect of evidentiary rulings), (Condition that evidentiary ruling significantly weakens prosecution case) or (Expedited and non-expedited appeals),"
Page 37, line 30, leave out "in relation to a ruling"
Page 37, line 30, leave out from first "Part" to end of line and insert—
"(ba) an appeal under Part 2 of the 1968 Act in relation to an appeal under this Part,"
Page 37, line 32, leave out from second "to" tc end of line 33 and insert "an appeal mentioned in paragraph (b) or (ba)"
Page 37, line 34, leave out "who made the ruling"
Page 37, line 36, leave out "52 or"
Page 37, line 36, after "53," insert "(Appeals in respect of evidentiary rulings), (Condition that evidentiary ruling significantly weakens prosecution case) or (Expedited and non-expedited appeals),"
Page 38, line 24, leave out "52 or"
Page 38, line 24, at end insert "(Appeals in respect of evidentiary rulings), (Condition that evidentiary ruling significantly weakens prosecution case) or (Expedited and non-expedited appeals),"
Page 38, line 25, leave out "in relation to a ruling"
Page 38, line 25, leave out from first "Part" to end of line and insert—
"(ba) an appeal under Part 2 of the 1968 Act in relation to an appeal under this Part,"
Page 38, line 27, leave out from second "to" to end of line 28 and insert "an appeal mentioned in paragraph (b) or (ba)"
On Question, amendments agreed to.
Clause 62 [Interpretation of Part 8]:
Lord Goldsmith Lord Goldsmith moved Amendments Nos. 58 to 61:
Page 40, line 26, at end insert—
""qualifying evidentiary ruling" is to be construed in accordance with section (Appeals in respect of evidentiary rulings)(2),
"the relevant condition" is to be construed in accordance with section (Condition that evidentiary ruling significantly weakens prosecution case)(2) and (3)."
Page 40, leave out line 28 and insert—
""ruling" includes a decision, determination, direction, finding, notice, order, refusal, rejection or requirement,"
Page 40, line 29, at end insert—
"(1A) Any reference in this Part (other than section (Rules of court)(2)(c)) to a judge is a reference to a judge of the Crown Court."
(1B) There is to be no right of appeal under this Part in respect of a ruling in relation to which the prosecution has previously informed the court of its intention to appeal under either section 51(3) or (Appeals in respect of evidentiary rulings)(5)."
Page 40, line 34, leave out subsection (3).
On Question, amendments agreed to.
Clause 72 [Retrial]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 62:
Page 47, line 22, at end insert—
"( ) all the parties to the trial agree otherwise,"
The noble Baroness said: My Lords, the purpose of the amendments is to enable a deposition or a trial transcript to be used as evidence in retrials when all the parties are agreed. They are small and technical amendments. I beg to move.
On Question, amendment agreed to.
Clause 84 [Application of Part 9 to Northern Ireland]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 63:
Page 56, line 14, leave out "the words from "unless" to the end" and insert "paragraphs (a) and (b)"
On Question, amendment agreed to.
Clause 86 [Evidence of bad character]:
Lord Kingsland Lord Kingsland moved Amendment No. 64:
Page 64, leave out line 44 and insert "82A of the Police and Criminal Evidence Act 1984 (c. 60)."
The noble Lord said: My Lords, this drafting amendment is consequential on the vote of your Lordships' House on Report upon the section of Part 10 that deals with bad character. I do not think that I need add anything further. It is a purely procedural matter. I beg to move.
Baroness Scotland of Asthal: My Lords, we have had extensive debates on the subject of bad character both in Committee and on Report, and it is obviously not the time to repeat those debates. I accept that the amendment is necessary to tidy up the scheme introduced by the House on Report and does not alter the substance of that scheme. On that basis, I do not intend to resist the amendment.
I would like to make it clear that the issue of bad character evidence will be considered further in another place when it considers the amendments made by this House. Our acceptance of this technical amendment does not mean that the Government are persuaded that the scheme adopted on Report is the appropriate scheme to regulate the admission of bad

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character evidence. However, as I have said, the debate will now be continued in another place, so I will not resist the amendment.
Lord Kingsland: My Lords, for once the noble Baroness's observations about bad character have not taken me by surprise.
On Question, amendment agreed to.
3.45 p.m.
Clause 93 [Multiple hearsay]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 65:
Leave out Clause 93 and insert the following new Clause—
"Additional requirement for admissibility of multiple hearsay

(1) A hearsay statement is not admissible to prove the fact that an earlier hearsay statement was made unless—

(a) either of the statements is admissible under section 89, 91 or 92,

(b) all parties to the proceedings so agree, or

(c) the court is satisfied that the value of the evidence in question, taking into account how reliable the statements appear to be, is so high that the interests of justice require the later statement to be admissible for that purpose.

(2) In this section "hearsay statement" means a statement, not made in oral evidence, that is relied on as evidence of a matter stated in it.".

The noble Baroness said: My Lords, we have debated the subject of multiple hearsay both in Committee and on Report, and a certain amount of concern has been raised about Clause 93, which regulates the admission of multiple hearsay. There was particular concern that the clause was not sufficiently clear about the circumstances in which multiple hearsay evidence should be admitted. On Report, I informed the House of our intention to bring an amended clause before the House at Third Reading, and that is what I now do.
We all agree that there are dangers in admitting multiple hearsay evidence generally and that it should be admitted only in certain limited circumstances. We are not advocating that rumour and so-called tittle-tattle should be admitted as evidence. However, we think it clear, as was acknowledged on Report by the noble Lord, Lord Hodgson, that there are circumstances where multiple hearsay should be admitted. We spoke on Report, for example, about how it is important that multiple hearsay contained in business documents should continue to be admissible, as is the case under the current law.
The new clause proposed in the amendment seeks to set out clearly the circumstances where multiple hearsay can be admitted. Its subsection (1)(a) provides for multiple hearsay to be admissible where one of the statements is admissible under Clauses 89, 91 or 92. That is where it includes a business statement and is therefore inherently reliable, and where it includes a previous statement of a witness who is giving evidence in court and can therefore be questioned about the statement. Subsection (1)(b) covers evidence where all
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parties agree that the evidence should be given. In those circumstances, there is of course no reason to think that the evidence should not properly be given.
However, there may also be cases not falling within those narrow circumstances where multiple hearsay should be admitted. In those circumstances where it is important for the evidence to be given, the hearsay rules should not preclude its admission. We therefore have retained a narrow discretion to admit multiple hearsay evidence that falls without proposed new subsection (l)(a) and (b) but should nevertheless be admissible.
Of course, such circumstances will be exceptional, and the test in proposed new subsection (l)(c) is therefore worded to reflect that a substantial threshold should be met before such evidence can be given. The test is worded so that such evidence can be given where the court is satisfied that the value of the evidence in question, taking into account how reliable the statement appears to be, is so high that the interests of justice require the later statement to be admissible.
It may assist the House if I outline an example of a situation where it may be appropriate to use the discretion to admit multiple hearsay evidence. Let us take the case involving rape of an 80 year-old lady who suffers a serious stroke shortly afterwards and cannot tell the police what has happened to her. However, let us say that before losing consciousness she told the doctor what happened to her, and that she could not identify her attacker. The doctor immediately writes that all down, but is working abroad by the time of the trial.
One key issue in the case is identity, on which the 80 year-old's evidence can shed no light. However, the prosecution has good independent evidence to establish identity, but no medical evidence showing injuries to establish that she was attacked. Her statement is, therefore, vital to establish another key issue—that she was raped. But it is multiple hearsay, being an out-of-court statement by the doctor of what she said. In such circumstances, it would be quite wrong for the rules of evidence to bar the courts from admitting that evidence.
That is not a far-fetched scenario, as the courts in New Zealand dealt with a similar situation involving an out-of-court statement in the case of Hovell. It highlights the need for some discretion to cover exceptional cases. One of the central criticisms of the hearsay rule under the current law is that it is inflexible and can in some circumstances prevent the court admitting evidence when it is clearly in the interests of justice to do so. The discretion will provide a degree of flexibility within the hearsay rules that is much needed and much called for.
In drawing up the revised clause, we have listened to concerns in the House on the subject that multiple hearsay should not generally be admissible. The revised clause will ensure that that is not the case. The proposed new clause strikes the right balance between admitting evidence where it is appropriate in exceptional cases to be given, and ensuring sufficient safeguards against the admission of unreliable

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evidence. The noble Lord, Lord Thomas of Gresford, and I have debated a number of other examples, but I hope that we will not have to entertain noble Lords with some of them from that discourse today. I have given one example to delight him.
In the light of my comments, I hope that the revised clause will be accepted by the House. I beg to move.
Baroness Anelay of St Johns: My Lords, it might be helpful if I make it clear that we support the amendment. The issue of multiple hearsay has a long history of debate in both Houses. When the Bill left another place, we made it clear that we thought that the clause had no place in the Bill. We have changed our position on the basis of very constructive work carried out over the past few weeks between those on the Government and Opposition Benches. I thank not only the Minister but the noble Lord, Lord Thomas of Gresford, and his colleagues for the work that they have put in on the matter.
It is now the case that we accept that although the drafting could be improved—when could it not because, for example, it is difficult to know what the value of the evidence might be—we shall not cavil at that. We accept the Minister's point that this is a narrow discretion in subsection (l)(c). We are trying to narrow down the circumstances to exceptional circumstances in which the provision should come into operation, when paragraphs (a) and (b) have not been operative. On this occasion, we are content with the amendment.
Lord Thomas of Gresford: My Lords, the Minister delighted me with the example that she gave in circumstances where I had challenged her to try to find any situation in which multiple hearsay could be used. It was a fairly good example, if I may respectfully say so. I am equally delighted with the way in which the clause has been changed. It has been the subject of considerable anguish on this side of the House, and in the many discussions among all three of us we made a great deal of progress. In the narrow discretion that is now given to admit hearsay evidence, we believe that we have arrived at the correct solution.
Lord Renton: My Lords, I somewhat reluctantly support the clause, but I am bound to point out that in years to come much will depend on the interpretation that the courts give to it. It may be valuable, but I suggest that the Government keep a close watch on how it is used in practice.
I must confess that when I was in practice and sitting judicially from time to time, hearsay evidence was ruled out completely. However, when a few years ago it was made admissible in certain circumstances, I accepted that. But now when we an: dealing with multiple hearsay—hearsay upon hearsay—we must be extremely careful. Although I have looked at the drafting of the new clause and hope that it will work in a sensible way, I believe that it could be abused. I hope that the Government will keep a careful watch on the way that it works.
Baroness Scotland of Asthal: My Lords, I thank the noble Baroness, Lady Anelay of St Johns, and the noble Lord, Lord Thomas of Gresford, for the extensive discussions we had on this issue. They are right in saying that we were all seeking to cure a mischief. We all identified that mischief and we wanted to find something which would be fit for purpose and could be used in the interests of justice on a. restricted basis.
I can reassure the noble Lord, Lord Renton, that the caution he asks us to exercise was evidenced throughout our discourse and we three believe that we have alighted upon a provision with which we are content, in as much as it will do justice.
On Question, amendment agreed to.
Clause 103 [Evidence at retrial]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 66:
Page 79, line 17, at end insert—
"( ) all the parties to the retrial agree otherwise;"
On Question, amendment agreed to.
Lord Lucas Lord Lucas moved Amendment No. 67:
After Clause 118, insert the following new clause—
"INCREASE IN SENTENCES FOR AGGRAVATION RELATED TO OCCUPATION

(1) This section applies where the court is considering the seriousness of an offence committed in any of the circumstances mentioned in subsection (2).

(2) Those circumstances are—

(a) that, at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on the legitimate occupation of the victim, or

(b) that the offence is motivated (wholly or partly)—

(i) by hostility towards persons who have a particular legitimate occupation, or

(ii) by hostility towards that occupation.

(3) The court—

(a) must treat the fact that the offence was committed in any of those circumstances as an aggravating factor, and

(b) must state in open court that the offence was committed in such circumstances.

(4) It is immaterial for the purposes of paragraph (a) or (b) of subsection (2) whether or not the offender's hostility is also based, to any extent, on any other factor not mentioned in that paragraph.

(5) In this section "legitimate occupation" includes any legal employment, trade or pastime."

The noble Lord said: My Lords, this amendment follows from a discussion we had at the Report stage on what is now Clause 118. It relates to the introduction of an increase in sentences for crimes in which the disability or sexual orientation of the victims were the motivation. The principal argument then made was that there should not be an increase in sentences related to such specific circumstances, but that we should make it much more general, if not totally general, that where a crime is intended to cause

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fear to a class of people beyond the immediate victims, that fact should be taken into account in the sentencing.
The particular instance on which we concentrated was the many scientists, researchers and others, down to laboratory technicians, who are in daily fear for their safety and that of their families as a result of the activities of the animal rights activists. The Minister seemed to prefer limiting the provision to individual circumstances; to wish there to be a significant period and volume of suffering on behalf of some identifiable group in society, rather than making it a general crime. She preferred that there should be some established misery or mischief which then required to be dealt with.
I have cast this clause in the mould of Clause 118 with a view to tackling the particular mischief that is being done by the animal rights activists. As a member of the committee of inquiry into the legislation on scientific procedures on animals, I saw that such mischief was causing a damaging reaction among scientists as a whole. Few are prepared to speak out about what they are doing and few are prepared to admit public scrutiny into what they do. We lose a great deal of contact and understanding of science in that way and we lose the ability reasonably to criticise what people are doing on our behalf. That is all because of the activities of a small number of people who are determined to spread terror in the lives of ordinary people—those who, almost without exception, are intent on doing good for the rest of us and whose activities the vast majority of us support.
It is not acceptable that we do not remedy that ill when we are prepared to remedy the ill of crimes motivated by someone's disability. I have never come across that, although I have frequently come across people who are terrorised because they are involved with animals. It has been going on a long time and it is extremely painful. It is slowly doing the country a great deal of damage because this is becoming a difficult place in which to conduct pharmaceutical research. It is also doing a great deal of damage to society that it should be losing touch with an important moral aspect of the way we choose to treat animals. It is shrouded in secrecy because anything that comes out in the public domain is likely to result in attacks on individuals.
I would like to see the Government taking steps to remedy the situation. If the amendment offers them the opportunity to do so in their preferred manner, I would be delighted if they would take a step back and say that they want to look at it as a general circumstance in which sentences should be increased. However, it is tabled in response to what the Minister said on Report. I suspect that we have left it late in the day to succeed on this occasion, but if I fail I shall certainly return to the matter in the next criminal justice Bill—and I am confident that that will be quite soon. I beg to move.
Lord Dholakia: My Lords, I thank the noble Lord, Lord Lucas, who was kind enough to draw my attention to his amendment on this matter. It is in line
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with the amendment moved on Report, when the Minister was kind enough to incorporate our suggestion as part of the Government's amendment.
As one who succeeded in convincing the Government on the matter of aggravation based on race, gender or disability of any kind, it would follow logically that aggravation based on hostility to one's employment must merit some consideration. I am aware that aggravation based on race, gender or disability carries weight because one cannot change any one of those factors. That may not be the same in the case of employment.
However, the noble Lord, Lord Lucas, has identified an issue which merits consideration. It would be helpful to know whether the courts have adequate powers to deal with those who engage in activities, often involving violence, because of their occupation. There are many occupations with which we may disagree but, if they are legitimate, those undertaking them must receive the state's protection. How can we ensure that that is the case in relation to the activities mentioned by the noble Lord, Lord Lucas? Can the Minister tell us whether the existing law provides a higher tariff to deal with what we describe as some of the "drawbacks" for people involved in such activities?
4 p.m.
Baroness Anelay of St Johns: My Lords, I am grateful to my noble friend Lord Lucas for bringing forward this amendment. As he said, it is a natural progression from the amendments tabled by the Government on Report in response to points raised earlier in this House. I recall that at that time the Minister was very careful to point out that the amendments which she moved on that occasion might tend to be an "open sesame" to other people, who might find that other categories of persons should also properly be given the same protection. My noble friend was right to draw attention to that.
The noble Lord, Lord Dholakia, questioned whether those people were in the same category as those who cannot change what they are by way of their gender, sexuality or race. I believe he is right to say that we need a full debate on these matters. One could argue, too, that it would be completely wrong for someone to have to change his occupation because of an illegal activity against him. In the past, the Government have maintained a robust stance on the matter of intimidation of those who carry out a lawful occupation. I fully anticipate that the Minister will repeat that commitment today.
My noble friend has raised an important matter. I welcome the fact that, in moving this amendment, he will trigger a full debate over the coming months. Like him, I rather suspect that waiting in the wings may be a government Bill which will be a perfect vehicle for that debate.
Baroness Scotland of Asthal: My Lords, I hope that the noble Baroness and the noble Lord will be disappointed in that there will be no passing bus upon

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which they can leap. As your Lordships know, on Report in the Lords, the Government amended the Bill to extend the current statutory duty on sentencers to increase sentences for offences aggravated by the victim's race and religion so that offences aggravated by hostility towards the victim because of his or her sexual orientation or disability are also included.
In moving those amendments, I made it clear that we had been satisfied that there were data upon which we could operate which justified such a change. It was with pleasure that we were able to seek to address an ill which had been substantiated in such a clear way. The amendment of the noble Lord, Lord Lucas, would extend that duty to cases where the offence is motivated by hatred of the victim because of his occupation, legal employment, trade or pastime. I understand the anxiety in relation to those matters, as I understand the noble Lord's reasons for tabling his amendment.
However, we do not believe that this is the right way to go about addressing this issue. Our intention in introducing the provision for hate crimes on Report was to send a clear message that these very serious crimes, motivated by prejudice because of something fundamental and unchangeable about the victim, will not be tolerated. Crimes motivated because of the occupation of the victim do not fall into quite the same category.
Perhaps I may make it clear that the Government condemn extremists who seek to intimidate and harass those who carry out lawful businesses. However, there is a fundamental difference between this type of targeting and hate crimes. The former is not motivated by hatred of an individual because of a personal characteristic or fundamental belief but by a dislike of the job that he does or the pastimes in which he chooses to engage—that is, something external to the person which, at first blush, may not be immediately obvious in the same way as are colour, disability and the other issues.
We have made it plain that our minds will remain open to considering other situations in which similar provisions to those in Clauses 117 and 118 could be applied. However, we must be clear about the matter to which we are referring. As the noble Lord, Lord Lucas, will know, sentencers can, and will continue to be able to, take into account all the circumstances of an offence when considering its seriousness and increase the sentence accordingly. That might well include the type of hostility described in the amendment. It is important that the courts are aware of the problems of animal rights extremism, and we are working across government to raise awareness of the issues among the judiciary. Therefore, we believe that sufficient powers exist to deal appropriately with that type of crime and, in due course, I shall encourage the noble Lord to withdraw his amendment.
In order to encourage him even further, I want to respond to the questions raised by the noble Lord, Lord Dholakia. He asked whether we now have adequate powers to deal with such people and whether the tariff is high enough. We believe that the answer is
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"Yes". Under existing legislation, the police have a range of powers to deal with extremists. The Public Order Act 1986 gives the police powers to act in respect of a range of criminal offences relating to public disorder—for example, when threatening or abusive behaviour or harassment occurs.
We strengthened existing legislation to deal with animal rights extremists in the Criminal Justice and Police Act 2001 by amending the Protection from Harassment Act and the Malicious Communications Act, and we introduced the new power under Section 42 for the police to direct protestors away from residential premises. As noble Lords will be aware, we introduced amendments to the Anti-social Behaviour Bill, which is about to complete its passage through Parliament, to extend the offence of aggravated trespass to cover buildings and to amend the definition of the number of persons who constitute a public assembly from 20 or more to two or more. I believe that the noble Lord, Lord Lucas, participated in that debate. On that occasion, we explained that it was important to remove that limit because of the way in which it had been used so creatively and destructively by those who wish to cause mayhem in the manner described.
Those amendments will provide the police with additional powers to deal with protestors who occupy or invade buildings, and it will enable the police to impose conditions on smaller groups of protestors who conduct intimidatory protests outside targeted premises. It is a common tactic of animal rights protestors to demonstrate in numbers far fewer than 20. We are keen to ensure that the police have the right powers to do their job and we shall consider further measures as appropriate. But it is vital that changes in the law are translated into practical difference on the ground. That is why we are working across government to ensure an effective and consistent approach to enforcement of the law both between the police forces and across the whole criminal justice system.
We believe that the additional provisions that we have made in those Bills very much strengthen the hand of those who wish to enforce proper conduct and safety for those who are subjected to the extremist actions of animal rights protestors. The right bus was the Anti-social Behaviour Bill: we got on it; we paid our fare; and it has taken us to the right destination. Therefore, we suggest to the noble Lord, Lord Lucas, that he is right to say that this matter will wait for another day. I hope that that occasion will not be the next criminal justice Bill, whenever that occurs in the next millennium.
Lord Lucas: My Lords, I shall be very disappointed indeed if we do not have a criminal justice Bill in the next Session. We have had one every Session—if not several—and that is what keeps me alive and interested.
I congratulate the Government on what they have done in dealing with animal terrorism. They have supported Huntingdon Life Sciences Company in every way necessary when all others have deserted it. I

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believe that that is something for which we should all be profoundly thankful to the Government. I agree that the changes made in the Anti-social Behaviour Bill are looking extremely constructive. I am delighted that we are going down that road.
However, turning to this amendment and this subject, I believe that the Government have rather crossed that line already in what is now Clause 117 by making religion the subject of one of these hate-crime clauses. I entirely agree that that should be the case. Religion has caused more hate than possibly any other aggravating cause set down in these two clauses. None the less, people are capable of changing and often do. In the life of Christianity and Islam there have been periods when conversion by the sword has been a popular method of creating new recruits. There is nothing permanent about religion.
At the moment we are in a period of stability, but that does not mean that people who were born Muslim or born Christian stay Muslim or Christian. My former brother-in-law was born a Christian but is now a Muslim. I know of people who were born Muslims and who sustain their religion and I also know Muslims who have become Christians. There is quite a good commerce between religions. I am delighted that religion has been admitted to the cannon of hate crime, but it has opened the door to considering the possibility of hate crime in relation to other aspects of a person's life that are mutable rather than immutable and matters of choice rather than matters that people have thrust on them by circumstances or genetics. Clearly, this is not the time to press the issue. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 138 [Savings for powers to mitigate sentences and deal appropriately with mentally disordered offenders]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 68:
Page 96, line 28, after "with" insert "such".
The noble Baroness said: My Lords, in moving Amendment No. 68 I shall speak also to a very large group of amendments. Amendments Nos. 68 to 72, 75 to 79, 85 to 87,111,112 and 115 to 121 make a number of minor improvements to the sentencing provisions in the Bill. Amendments Nos. 68 to 72, 79, 111, 112 and 115 make a number of minor drafting improvements. Amendments Nos. 75 to 78 make a number of minor corrections to the interpretative definitions for the sentencing provisions. Amendment No. 85 delays the commencement of the Scottish powers of arrest provisions for the wildlife trafficking offences. Those will now be commenced by order at the same time as the equivalent provisions for England and Wales. Amendments Nos. 86 and 87 extend the timescale for the implementation of the mandatory life sentence provisions from two to four weeks after Royal Assent to make them practically implementable. Amendments Nos. 116, 117 and 119 to 121 make minor consequential amendments. Amendment No. 118 makes minor changes to existing provisions in the
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Crime (Sentences) Act 1997 to ensure that an offender serving a detention and training order may be transferred from England and Wales to Scotland. I beg to move.
Baroness Anelay of St Johns: My Lords, I refer briefly to Amendment No. 122 in my name which is grouped with the government amendments. I give notice that I shall move that amendment formally. It is a consequential amendment on Amendment No. 225 which I moved to a Division on Report and which the House approved.
On Question, amendment agreed to.
Clause 179 [Mental health treatment requirement]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 69:
Page 118, line 11, leave out "relevant" and insert "community order or suspended sentence".
On Question, amendment agreed to.
Clause 183 [Periodic review of drug rehabilitation requirement]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 70:
Page 121, line 44, leave out from "which" to end of line 45 and insert "he could have been dealt with for that offence by the court which made the order if the order had not been made".
On Question, amendment agreed to.
Clause 184 [Alcohol treatment requirement]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No.71:
Page 122, line 37, leave out "relevant" and insert "community order or suspended sentence".
On Question, amendment agreed to.
Clause 222 [Licence conditions]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 72:
Page 142. line 22, leave out "(2)(b)(ii) or".
On Question, amendment agreed to.
4.15 p.m.
Lord Ackner Lord Ackner moved Amendment No. 73:
Before Clause 241, insert the following new clause—
"AMENDMENT TO MURDER (ABOLITION OF DEATH PENALTY) ACT 1965
In section 1(1) of the Murder (Abolition of Death Penalty) Act 1965 (c. 71) (abolition of death penalty for murder), for the word "sentenced" there is substituted "liable"."
The noble and learned Lord said: My Lords, the amendment would achieve a simple matter: to make the sentence for murder no longer mandatory life, but at the discretion of the court. The crime of murder contains two features that are not always appreciated. The first relates to intent. The intent is not limited to an intent to kill; it applies to an intent to cause serious bodily harm. Accordingly, if there is a quarrel in a pub and one party to the quarrel breaks his bottle of beer and uses it as a weapon by thrusting it in the face of his companion, who dies as a result, that will be murder.
The second feature is that there are no categories of murder for which life imprisonment is reserved. The Homicide Act, which was enacted before capital murder was abolished, contained a number of categories in which capital murder was distinguished from murder that attracted life imprisonment. There were so many anomalies that it proved so unworkable that those provisions were withdrawn when the abolition of the death penalty came into force.
The result, as Lord Hailsham pointed out, is that the definition of murder now covers a vast spectrum of cases. I refer to what he said in the case of Regina v. Howe 1987, referred to at page 33 of the report of the Select Committee on Murder and Life Imprisonment, published in 1989, under the chairmanship of Lord Nathan—on which committee I had the privilege to serve. Lord Hailsham stated:
"Murder, as every practitioner of the law knows, though often described as one of the utmost heinousness, is not in fact necessarily so, but consists in a whole bundle cf offences of vastly differing degrees of culpability, ranging from brutal, cynical and repeated offences like the so called Moors murders to the most venial, if objectively immoral, 'mercy killing' of a beloved partner".
The other result, to which my noble and learned friend Lord Lloyd referred in the debate in Committee, is the case of Clegg. I refer to it for a different reason. As noble Lords may remember, Clegg was wholly and properly convicted of murder when he shot at a car that was being driven through a checkpoint in Ireland. There was much outcry about the case and subsequently he obtained an acquittal. Before that was obtained he was allowed out of prison, so that his sentence amounted in fact to no more than about four years.
My next point relates to the number of misapprehensions that have arisen on the subject that we are discussing. First, the noble Lord, Lord Clinton-Davis, in Committee particularly asked my noble and learned friend Lord Lloyd not to press the matter to a Division because, he said,
"the consequences are of enormous importance".—[Official Report, 14/10/03; col. 834.]
I suggest that that is not the case. The consequences are of significance, but there is no enormous importance.
Following the publication of the Nathan committee's report on murder and life imprisonment, a similar amendment to that which is before your Lordships was debated on the Criminal Justice Bill 1991. It succeeded by a majority of nearly 100 voters; the number was 177 in favour of the amendment and 79 against.
Secondly, it is quite wrong to say that Schedule 19— I think that it is still Schedule 19—would fall to the ground if this amendment was passed. Schedule 19 is self-contained and it would continue in existence if the sentence for murder became discretionary. The Home Secretary, by species of ministerial decree, has laid down the categories of murder and the kind of minimum sentences which they should attract.
Thirdly, it is suggested that we are "going soft on crime" if we allow the amendment. Again I refer to the Nathan report on the subject. It stated:
"The Committee recognise that the courts have, in recent years, been faced with crimes of the most extreme gravity. They believe that the form of life sentence which they recommend would provide the degree of protection which the public rightly demand and would provide a sufficiently severe sentence to deal with the most outrageous crimes. After the introduction of a discretionary sentence for murder, the Committee anticipate that the average length of time served under a life sentence would be considerably longer than it is now. The Committee expect that their proposals will lead to very lengthy penal sanctions being set in the most grave cases. In some cases, this may result in imprisonment for the rest of the prisoner's life".
Fourthly, on the subject of misapprehension, I refer to the observation made by the noble Baroness, Lady Scotland, that if this amendment was passed, it,
"would undermine public confidence in the criminal justice system".—[Official Report, 14/10/03; col. 837.]
I suggest that that is quite wrong. In Committee, the noble Lord, Lord Borrie, observed:
"The most powerful part of the speech of the noble and learned Lord, Lord Lloyd, was his indicating how false, how dishonest, how unreal and how unhelpful to the public is the mandatory life sentence, which in so many circumstances does not mean what it says and is not intended by the judge to mean what he has to say".—(Official Report, 14/10/03; col. 835.]
Fifthly, in the April 1991 debate that followed the report of the Nathan committee, my noble and learned friend Lord Lane said:
"No crime, however exceptional, requires the imposilion of a sentence which everyone knows will not be implemented".— [Official Report, 18/4/91; col. 1593.]
Sixthly, it is said that the public's reaction to deliberate taking of life is what makes the offence one of the utmost gravity. I refer again to the Nathan committee's report. It made reference to two cases in which life was intentionally taken. It stated:
"In the case of the Maw sisters, the sentence of three years' imprisonment on two young women who deliberately kilted their drunken father was harshly criticised for its severity, and in the case of one of them, reduced on appeal to six months; and the Thompson sisters, who shot their tyrannical father as he lay in bed having an epileptic fit and were given a two years suspended sentence seem to have attracted nothing but public sympathy. The public seem to be well able to recognise powerful mitigation, even in the case of deliberate killing. In the former case the defendants were found to be acting under provocation, in the latter to be under diminished responsibility; but there may well be similar cases where the jury is unable to find these defences to be made out. Moreover, individual judges do in practice, determine how long the life sentence is in reality".
Lastly, I turn to the suggestion that the imposition of the mandatory life sentence carries with it a deterrent effect. Again, I refer to the report of the Nathan committee. It stated that the fact that,
"the life sentence is mandatory actually reduces any deterrent value a life sentence may have. It dilutes what should be the awe-inspiring nature of the life sentence. Because many murderers receive unnecessary life sentences, the average time served is reduced, giving credence to the common belief that 'life' means nine years. If the life sentence became discretionary, the average time served by lifers would be substantially increased".
I now come to the coup de grace which arises from the fact that the Home Secretary, as a result of European human rights legislation, is no longer permitted to play any part in deciding how long a murderer can stay in prison. That must affect how one proceeds in future.
In discretionary life cases, the matter is argued out in front of the judge, with counsel producing the mitigation, calling any evidence he thinks appropriate, such as medical evidence, and urging upon the judge what he should do. The judge can there and then say, "The penal aspect of the sentence—the part that is appropriate for punishment and deterrence—is 'x' years", which would mean that once the "x" years expire, it is for the Parole Board to decide whether it is safe to allow him to be released. Alternatively, he may make no comment, save to say that he does not think that it is an appropriate case on which to make any recommendation. That means in substance that the person will go to prison for life.
In murder cases, there can be no alternative but to follow the same procedure. Provision has been made for the Attorney-General to have the right to apply to the Court of Appeal to say that a sentence is excessively lenient. There is no basis now for drawing any distinction. There is no situation in which the Home Secretary can say, "Wait a moment; I may wish to keep the person in prison longer than the judge may have in mind".
We have now reached a position where it is appropriate to make the two wholly comparable so far as concerns sentencing. I beg to move.
4.30 p.m.
Lord Lloyd of Berwick: My Lords, noble Lords may remember that in Committee, which seems a long time ago, my name stood first on the amendment and my noble and learned friend Lord Ackner's stood second. I would not like noble Lords to think that there was any significance in the reversal of the order; my noble and learned friend was simply quicker off the mark in getting to the Public Bill Office.
I do not intend to repeat any of the arguments that I advanced in Committee, as they are all well known, recorded in Hansard and have been fully covered by my noble and learned friend Lord Ackner today. I will content myself simply to say that I do not think that they have been answered, because I do not believe that they can be answered.
I wish to make a point that I did not mention in Committee. The Minister said that one must have regard to the families of murder victims and referred to the rage that they feel when a life taken is not mirrored by a life sentence—I think that I quote her correctly. Of course we must have regard to the families of victims of murder, as with every other crime; but I ask for evidence that they are comforted by the imposition of a life sentence that they know means nothing.
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I am a former member of the Advisory Committee on Victim Support—I was a rather bad member, but I am still in touch with the committee. I am told that the families of victims care not about the meaningless imposition of a life sentence, but how long the defendant will serve in prison and, when he has completed his sentence, the terms on which he will come out. That is what they want to hear, not mere repetition of words that they know do not mean what they appear to mean. I believe that my information is correct, so let us hear no more in this debate about the need to reassure the families of victims by imposing a mandatory life sentence in every case of murder. All that does is to bring the sentencing process into disrepute.
When capital punishment was first curtailed in 1957, under pressure from Mr Sidney Silverman, and finally abolished in 1965, I suspect that a great majority of the country was in favour of retaining it. A majority in the country may still favour that view; but, in 1957, and again in 1965, Parliament gave a lead, and my noble and learned friend and I ask it to do exactly the same again. Thus, I regard the present amendment as unfinished business left over from 1965.
At one end of the scale there are murders that deserve a whole life sentence; at the other end are murders where a life sentence was wholly and utterly inappropriate. I gave the example of Private Clegg, which my noble and learned friend mentioned again. That is why judges have always been against the mandatory life sentence. It is not that they mind being told what to do—or not much—but they dislike being made to say things that are clearly nonsense; for example, imposing a life sentence and saying, "You shall serve three years".
The list of the great judges who have opposed the mandatory life sentence is endless. My noble and learned friend has mentioned some names; I add only that of the noble and learned Lord, Lord Bingham of Cornhill, the senior Law Lord. His lecture on the mandatory life sentence, given in 1998, when he was Lord Chief Justice, is, as one would expect, a model of clarity, but it is also worth reading for some of the quotations that he uses. He quotes from a speech of the noble and learned Lord, Lord Irvine, in this House in 1989, who stated:
"I would suggest that it is beyond argument that murder embraces such a multitude of diverse sins that the single mandatory life sentence must"—
that is his emphasis, not mine, but I emphasise it, too—
"be inappropriate".
He then states:
"The mandatory life sentence does not underpin public abhorrence of murder because everyone knows that life does not mean life".—[Official Report, 6/11/89; col. 521.]
I quote those passages from the noble and learned Lord, Lord Irvine of Lairg, without his permission, but I agree with every word.

1805
The noble and learned Lord, Lord Bingham, also quoted the noble Lord, Lord Richard, as saying:
"The argument in favour of change is based upon one simple proposition—that murders vary greatly".
In the course of that lecture, the noble and learned Lord, Lord Bingham, said that his views were representative of and had the overwhelming support of all the Queen's Bench judges. The lecture ends with this sentence, with which I will also end:
"I very much hope that a new, open-minded administration will be willing to re-examine the merits of this important question".
I share that hope and I am happy to support the amendment.
Earl Russell: My Lords, I do not know how many of your Lordships read the small print in The Times in the depths of mid-August. I admit that I do not very regularly do so myself, but on this occasion, I needed to brief a candidate in the Brent by-election. I discovered that, in Norway, so many people are sentenced to prison that they have had to introduce a waiting list for prison places. I understand that it is approximately two years long. That illustrates that a policy of severe sentencing may in the end turn out to be self-defeating.
I will leave the House with a quotation from Lord Williams of Mostyn, speaking on the Crime (Sentences) Bill, in which the mandatory sentence was extended. He asked whether the judge would be expected to tell the prisoner:
"I am sentencing you to life imprisonment. By the way, you can expect to serve 18 months".—[Official Report, 27/1/97; col. 1063.]
Lord Thomas of Gresford: My Lords, the mandatory life sentence is a dishonest fiction, which gives no comfort to victims' families, for all the reasons already stated. It also distorts the criminal law in a significant way. It is a mandatory sentence, therefore defendants plead not guilty and there are defences of provocation, lack of intent, self-defence and so forth, all of which cause considerable difficulties. The public would understand if the mandatory life sentence were abolished and the judge could pass what he considered to be the appropriate sentence for what has been done—whether whole life for a sadistic killing or a matter of months or a year for a mercy killing. It would satisfy the need for justice that the victims' families feel and it would be a great advance on the present situation.
4.45 p.m.
Lord Borrie: My Lords, if someone is convicted of murder, he should be liable to be sentenced to life. However, we have an opportunity to change the present law and it is surely not worthy of this Parliament to allow the present rule to continue—that a person convicted of murder must be given a life sentence. That is not worthy of Parliament because it is so remote from reality. We know that many convicted murderers will not in fact serve life—that much is known at the time, by the judge who is currently required to say certain false things.
1806
The only arguments on the matter that we heard from my noble friend the Minister in Committee were adequately answered by the noble and learned Lords who proposed the amendment. Nearly 40 years after the abolition of the death penalty, it is surely not necessary to have this provision to satisfy a public that perhaps still wishes to have a death sentence for murder. After all this time, surely it is not necessary to continue with the fiction that the substitute for a death sentence is always and invariably life imprisonment.
Lord Hylton: My Lords, I venture to support this amendment, speaking purely as a layman. I do so because I have given considerable thought to cases such as that of Private Clegg, which has already been mentioned. There have been others in Northern Ireland—that of Guardsman Fisher among others. A person manning a checkpoint is put in the extremely difficult position of deciding, in probably less than a second, whether to shoot, which may cause innocent death, or whether not to shoot which may allow a car bomb to go through and kill dozens or hundreds of other people. Such things have arisen in Northern Ireland and could arise in Iraq.
In Australia, there is a crime of causing death by using excessive force. We do not have that and Schedule 20 says nothing about causing death by excessive force. It does however provide for a minimum tariff of 15 years. Those are the reasons for which I believe the amendment is necessary.
Baroness Anelay of St Johns: My Lords, I do not support the amendment. When we on these Benches were in government we did not support discretionary sentences for murder and we do not do so now. That position is wholly consistent with a Division that I invited noble Lords to join me in last week, when we removed minors under the age of 18 from the operation of Schedule 19. However, within that amendment, I ensured that the mandatory life sentence remained.
I will not repeat the arguments that have come from these Benches in the past, because Third Reading is not the time for that. However, I was interested—as always—in the arguments put forward by the noble and learned Lords, Lord Ackner and Lord Lloyd of Berwick. They are always beguiling in the way in which they adduce their arguments, but I am not going down their line today and I cannot foresee that I will go down their line in the future.
I was especially intrigued by the points made by the noble and learned Lord, Lord Ackner, when he said that there may be a misapprehension about lengths of sentences. The noble and learned Lord read out some comments, the purport of which was to say that we need not be too alarmed about having a discretionary life sentence. We could persuade the public by saying, "Don't worry, life sentences won't be any shorter than they are now". Even if I were prepared to argue on that basis—which I am not, I will stick to my principles on this—my next point would be that those comments were made before the provisions of this Bill were

1807
introduced. It would be even more difficult for judges in the future to pass a life sentence if it were discretionary, in terms of this Bill.
As we have debated at length in Committee and on Report, we on these Benches think that there is a lot of smoke and mirrors about the sentencing in this Bill. Release after serving half the term of a sentence would not bring the honesty in sentencing that the noble and learned Lords are quite right to want to achieve. I agree that there is no general understanding about what a life sentence means. However, unlike them I do not think that the solution is to go for a discretionary sentence. The solution is that all of us have a duty to ensure that the explanation is more properly given to the public. It is only fair to say that, if there were a Division, I would, in my capacity as a spokesman and for myself, support the Government.
Baroness Scotland of Asthal: My Lords, I thank the noble Baroness for her support. I hope not to speak too long. I do not want to re-tread the ground that we have already covered so comprehensively in Committee and on other occasions. However, there are a few things that I must say in response to the arguments so fully set out by the noble and learned Lords, Lord Ackner and Lord Lloyd of Berwick.
First, I agree with the noble and learned Lords that Parliament has had several opportunities to abolish the mandatory life sentence. I also agree that on no occasion were both Houses in agreement that it should be done. On the previous occasion and today, the noble and learned Lord, Lord Ackner, referred to the Nathan Select Committee, which, I believe, reported on the desirability of mandatory life sentences in 1989. The noble and learned Lord is right to say that the Committee held the view that the mandatory life sentence should be replaced with a maximum sentence of discretionary life. The government of the day did not accept that recommendation, and neither do we.
Several noble Lords said that the life sentence was a fiction. The noble Lord, Lord Thomas of Gresford, went so far as to say that it was a dishonest fiction. The noble Earl, Lord Russell, referred to the example given by Lord Williams of Mostyn. My noble friend Lord Borrie asked why we would not change it, and he was supported by the noble Lord, Lord Hylton.
It is not a dishonest fiction. There is a misunderstanding of what "life" means. A "life sentence" means just that: it extends to the whole of the defendant's life. There is a misunderstanding about the fact that part of the life sentence will be spent in custody and the remainder in the community. It is possible for a person, for the duration of their life, until the day on which they die, to be recalled to prison, if they breach the undertakings or conditions on which they remain in the community on licence.
We have made it clear in the Bill that we intend the licence to have meaning. It is sad that many of those who deal with the issue of life sentences wrongly believe that the sentence ends on the person's discharge from prison, when it does not. When the
1808
noble and learned Lord, Lord Lloyd of Berwick, says that a life sentence does not mean life and that, in some way, it means nothing, I must, with the greatest respect, wholeheartedly disagree with him. Many of those who are subject to a life sentence say that, for the rest of their days and notwithstanding the fact that they are no longer within the four walls of a prison, they are conscious of being imprisoned by the knowledge that, if they transgress in any way, they may be recalled to prison to continue their sentence in incarceration. For them, that has great meaning. Your Lordships will find that few prisoners who have been thus released will say, as the noble and learned Lord said, that it means nothing. It impinges on the quality of the liberty that is given them. There are those who say, for that reason, that someone who has served their time in prison should no longer be subject to such restraint. We disagree. I hope that your Lordships will understand why we do not see it as a fiction and do not agree with the comments made by the noble Lord, Lord Thomas of Gresford.
Nor do we agree with the comments made by my noble friend Lord Borrie, although I understand why he made them. It is 40 years since the abolition of the death penalty, and it is because we wish to maintain the present position and not have it reintroduced that we maintain that it is important to keep the idea of release on licence. We must make it mean something.
Lord Ackner: My Lords, the noble Baroness said that the Government wanted the position to remain as it is. Now that the Home Secretary no longer has any part to play in determining the time that an individual prisoner spends in prison, how will the procedure in court relating to what the judge says and does differ between murder and discretionary life sentences?
Baroness Scotland of Asthal: My Lords, if a person is convicted of murder and the life sentence imposed, that person will, whatever tariff the judge alights on, remain on licence for the remainder of their life, once the tariff has been served and the person released into the community. With a discretionary sentence, the sentence imposed in terms of years would, unless the court determined that that person should be subject to a life sentence, be the total period served by the defendant. Such a person would not, I imagine, thereafter be on licence.
Lord Ackner: My Lords—
Lord Renton: My Lords—
Baroness Scotland of Asthal: My Lords, I remind the House that we are on Report—
Noble Lords: Third Reading.
Baroness Scotland of Asthal: Third Reading—even worse. At Third Reading, the constraints on your Lordships are even more rigorous, and the scope for questions more limited.
Lord Ackner: My Lords, I am entitled to ask a question. I have not had an answer to my question. How will the procedure in court differ, now that the Home Secretary has no part to play? Does the judge say, "The period that I consider that you should serve by way of the penal part is X. After that, you will be subject to the Parole Board"? Or, will he say, "I make no recommendation, because life should mean life". How will the position differ, if at all?
Baroness Scotland of Asthal: My Lords, at the moment, we do not have the rules that will apply to such matters. With regard to the procedure for murder and discretionary life sentences, we believe that the murder tariff will be set by the court with reference to the principles that we outlined, while, with discretionary life sentences, the court will set the tariff but not on those principles.
I anticipate that the court, in one sitting or two, will, first, give the nature of the sentence—life imprisonment. Secondly, it will say what the tariff should be. Thirdly, it should describe to the defendant what the proposals are for the role of the Parole Board. Fourthly, it should say that a life sentence, if imposed, will be life on licence for the remainder of the person's life. I cannot tell your Lordships the precise details. The rules relating to how the system will work in practice have not been set. However, it will certainly be for the court to set the tariff.
That will not impinge in any way on the fact that, if a life sentence is imposed, all that the judge will be doing is indicating the part of the sentence that must be spent in custody. Whatever remains, after the custodial sentence is served, will be on licence. The defendant will remain on licence, whether released by the Parole Board on conditions or otherwise, for the remainder of his life.
It is a matter of concern. I join the noble Baroness, Lady Anelay of St Johns, in saying that we must do better in helping people to understand that life means life. It may be that the whole of the life sentence will be served in prison or that part of the sentence will be served in prison and part will be served in the community.
The document produced by the Law Commission is very helpful. I should like to take the opportunity to thank the Law Commission for its valuable work and analysis in this area. The paper refers to the relationship between the partial defences to murder and the mandatory penalty. It argues that were the mandatory penalty to be abolished, there would be less need for the partial defences, which is an issue that will be looked at.
The document is an initial consultation paper that sets out options for reform. In due course, the Government will consider the final report. However, I must make it clear that we have absolutely no intention to abolish the mandatory life sentence. That is our firm policy and an understanding of our position is reflected throughout the Law Commission report. It is clear from the consultation document that the Law
1810
Commission would not claim that these matters are simple or that the abolition of partial defences and mandatory life is the only option.
I hope that I have made clear why the Government consider this an appropriate matter to retain and why it would not be right to accept the amendment. I invite the noble Lord to withdraw. I make it plain that if the amendment is pressed, the Government will resist it.
Lord Renton: My Lords, before the noble Baroness sits down, for the sake of the record, would she tell us the present position with regard to the Royal prerogative of mercy?
Baroness Scotland of Asthal: My Lords, the Home Secretary had, until the Anderson case, an ability to set the tariffs. The Parole Board exercised the judgment on behalf of the public in relation to when it is safe and satisfactory to release those persons. The noble Lord will remember that the Royal prerogative of mercy was of particular importance when we still had the death penalty. I know that the new shadow Home Secretary would like to reintroduce lethal injection as a means of dealing with murderers, but it is not a view with which we concur.
Lord Ackner: My Lords, my noble and learned friend Lord Lloyd is a very busy person. I anticipated that there could be a possibility of his not being available when the amendment was called. It was not out of any desire to put the position on the basis of alphabetical merit, but in order to know where I stood. In fact, when the amendment was called on Report, he was not there.
Lord Lloyd of Berwick: My Lords, nor were you.
Lord Ackner: My Lords, I was. My noble and learned friend was not there to protest about the situation. I accordingly managed to get it stood over; I did not know how it would be today.
I should like to make two points. First, the noble Baroness spoke as if the discretionary life sentence does not involve imposing a life sentence when it is appropriate. One imposes, at one's discretion, a life sentence. Subsequently, all the questions about remaining on licence for the rest of one's life come into being. The only difference is that, under my amendment, the prisoner gets his "just deserts". It is a fair sentence.
Secondly, I want to refer to what happened in 1991 when there was a ping-pong arising out of the success in this House of a majority vote of nearly 100. The noble Lord, Lord Waddington, Leader of the House and former Home Secretary, according to The Times dated 4th July 1991, said to the House:
"I am certainly not saying baldly to you that the Commons has spoken and you must agree. I am very well aware of how often you have shaped public opinion and attitudes and I would not be surprised if, at some future date, policy on this matter does change as a result of a change in public opinion which you have influenced".
I say that that date has arrived.

1811
Finally, I refer to what Lord Hailsham said when he described the reasons given in the Commons for insisting as,
"frankly and intellectually ridiculous".
He continued:
"One day people will see sense, even in the House of Commons, and the hairy heel of populism which they have followed will ultimately disappear".
I think that we should have the opportunity of showing that is the case today.
5.6 p.m.
Question, Whether the said amendment (No. 73) shall be agreed to?
Their Lordships divided: Contents, 92; Not-Contents, 116.

Division No. 1

CONTENTS

Ackner, L.

Maddock, B.

Addington, L.

Mallalieu, B.

Alexander of Weedon, L.

Mar, C.

Ampthill, L.

Mar and Kellie, E.

Avebury, L.

Masham of Ilton, B.

Bagri, L.

Michie of Gallanach, B.

Baker of Dorking, L.

Miller of Chilthorne Domer, B.

Barker, B

Monson, L.

Beaumont of Whitley, L.

Morris of Aberavon, L.

Biffen, L.

Mowbray and Stourton, L.

Bledisloe, V.

Murton of Lindisfarne, L.

Borrie, L.

Newby, L.

Brennan, L.

Northover, B.

Brittan of Spennithorne, L.

Palmer, L.

Campbell of Alloway, L.

Peyton of Yeovil, L.

Chalfont, L.

Phillips of Sudbury, L.

Chan, L.

Prashar, B.

Colville of Culross, V.

Quinton, L.

Craig of Radley, L.

Rawlinson of Ewell, L.

Craigavon, V.

Rennard, L.

Dahrendorf, L.

Renton, L.

Dholakia, L.

Rodgers of Quarry Bank, L.

Donaldson of Lymington, L.

Roll of Ipsden, L.

Eden of Winton, L.

Roper, L.

Elles, B,

Russell, E.

Elton, L.

Russell-Johnston, L.

Fearn, L.

Saltoun of Abernethy, Ly.

Geraint, L

Sandberg, L.

Goodhart, L.

Scott of Needham Market, B.

Hamwee, B.

Sharp of Guildford, B.

Harris of Richmond, B.

Shutt of Greetland, L.

Holme of Cheltenham, L.

Simon of Glaisdale, L.

Hooson, L.

Smith of Clifton, L.

Howe of Aberavon, L.

Steel of Aikwood, L.

Howe of Idlicote, B

Stern, B.

Hurd of Westwell, L.

Stoddart of Swindon, L.

Hussey of North Bradley, L.

Strange, B.

Hylton, L. [Teller]

Swinfen, L.

Kennedy of The Shaws, B.

Thomas of Gresford, L.

Laird, L.

Tordoff, L.

Lamont of Lerwick.L.

Walmsley, B.

Lawson of Blaby, L.

Weatherill, L.

Lester of Herne Hill, L.

Wedderburn of Charlton, L.

Listowel, E.

Williams of Crosby, B.

Livsey of Talgarth, L.

Wilson of Dinton, L.

Lloyd of Berwick, L. [Teller]

Wright of Richmond, L.

1812

NOT-CONTENTS

Acton, L.

Howells of St. Davids, B.

Allenby of Megiddo,V.

Howie of Troon, L.

Alli, L.

Hoyle, L.

Amos, B. (Lord President)

Hunt of Chesterton, L.

Andrews, B.

Hunt of Kings Heath, L.

Anelay of St Johns, B.

Irvine of Lairg, L.

Archer of Sandwell, L.

Janner of Braunstone, L.

Ashton of Upholland, B.

Jay of Paddington, B.

Bach, L

Jones, L.

Bassam of Brighton, L.

Jordan. L.

Bernstein of Craigweil, L

Judd, L.

Blackstone, B.

King of West Bromwich, L.

Bragg, L.

Kirkhill, L.

Brooke of Alverthorpe, L.

Layard, L.

Brookman, L.

Lea of Crondall, L.

Burlison, L.

Lofthouse of Pontefract, L.

Campbell-Savours, L.

Macdonald of Tradeston, L.

Carter, L.

McIntosh of Haringey.L.

Christopher, L.

McIntosh of Hudnall, B.

Clarke of Hampstead.L.

MacKenzie of Culkein, L.

Cohen of Pimlico, B.

Marsh, L.

Corbett of Castle Vale, L.

Manson of Barnsley, L.

Crawley B

Massey of Darwen, B.

Davies of Coity,L.

Merlyn-Rees, L.

Davies of Oldham, L. [Teller]

Mishcon, L.

Dean of Thornton-le-Fylde,B.

Mitchell, L.

Desai, L.

Nicol, B.

Dixon, L.

Orme, L

Donoughue, L.

Patel of Blackburn, L.

Dormand of Easington, L

Paul, L.

Dubs, L.

Pendry, L.

Elder, L.

Pitkeathley, B.

Evans of Parkside, L.

Plant of Highfield, L.

Evans of Temple Guiting L.

Radice, L.

Ramsay of Cartvale, B.

Falconer of Thoroton, L. (Lord

Randall of St. Budeaux, L.

Chancellor)

Rendell of Babergh, B.

Farrington of Ribbleton, B.

Rooker, L

Faulkner of Worcester, L.

Sawyer, L.

Filkin, L.

Scotland of Asthal, B.

Fitt, L.

Sheldon. L.

Fowler, L.

Simon, V.

Gale, B.

Skelmersdale, L.

Gibson of Market Rasen, B.

Stewartby, L.

Golding, B.

Stone of Blackheath, L.

Goldsmith, L.

Symons of Vernham Dean, B.

Gordon of Strathblane, L.

Taylor of Blackburn, L.

Goudie, B.

Temple-Morris, L.

Gould of Potternewton, B.

Tenby, V.

Graham of Edmonton, L.

Thornton, B.

Gregson, L.

Tomlinson, L.

Grocott, L.[Teller]

Turnberg, L.

Harris of Haringey, L.

Turner of Camden, B.

Harrison, L.

Warner. L.

Haskel, L.

Whitaker, B.

Haskins, L.

Whitty, L.

Hodgson of Astley Abbotts, L.

Wilkins, B.

Hogg of Cumbernauld, L.

Williams of Elvel, L.

Hollis of Heigham, B.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
5.16 p.m.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 74:
After Clause 270, insert the following new clause—
"DISQUALIFICATION FROM WORKING WITH CHILDREN
Schedule (Disqualification from working with children) (which contains amendments of Part 2 of the Criminal Justice and Court Services Act 2000 (c. 43) relating to disqualification orders under that Part) shall have effect."
The noble Baroness said: My Lords, I am pleased to move government Amendment No. 74 I shall speak to all the government amendments in this extensive group; that is, Amendments Nos. 80, 81, 92, 113 and 123. The amendments have been tabled in response to concerns raised previously in debate. I must again thank the noble Baroness, Lady Blatch, and other noble Lords for raising these important issues with the Government.
Disqualification orders are provided for under Part 2 of the Criminal Justice and Court Services Act 2000 so that offenders convicted of a specified violent or sexual offence involving a child and receiving a sentence of imprisonment of 12 months or more can be disqualified from working with children in the future. These are important safeguards and it is essential that they work effectively to protect children.
New Clause 29A provides senior courts with a discretionary power to make a disqualification order on an offender, whether an adult or a child, convicted of one of the specified offences against a child, but whose sentence does not meet the sentence threshold of 12 months. The court will need to be satisfied that the offender is likely to commit a further offence against a child. This will enable the court to disqualify someone who poses a continuing risk to children from working with them, regardless of the sentence passed. This amendment builds on one proposed on Report by the noble Baroness, Lady Blatch, and I believe it strengthens the raft of measures to safeguard children. I hope that the noble Baroness will be pleased to see that the seed of her idea has flourished into so robust a plant.
New Clause 29B will provide a means of making applications for disqualification orders at any time after sentencing on individuals who meet the qualifying criteria, but in relation to whom the court appears not to have considered the question of an order. Noble Lords will recall that, currently, such matters have to be brought back before the court within 28 days. We believe that a better formula is that which is now being proposed, enabling the matter to be brought back at any time.
It will apply solely to cases in which the court was under a duty to consider the issue of a disqualification order but appeared not to do so—that is, where the individual committed one of the offences specified in Schedule 4 of the Criminal Justice and Court Services Act 2000 and the sentence threshold specified in the Act is met. The amendment has the effect that the prosecution will have a discretion to go back at any time to the court and apply for a disqualification order to be made.
Amendment No. 114 would provide that proposed new Section 29B applied to cases sentenced after the disqualification order provision came into force on 11th January 2001, as well as to any cases that might occur in future. Because the consideration of the order is one which should have taken place at the time of sentencing, and because disqualification orders are preventive measures rather than being punitive in
1814
nature, proposed new Section 29B as drafted already means that the provisions apply to such cases and there is no need to make this explicit.
Amendments Nos. 74, 80, 81, 92 and 123 are consequential amendments.
The noble Baroness, Lady Blatch, drew the House's attention to some examples of cases where it appeared that the court had failed to consider disqualification orders when it was under a duty to do so. It is extremely regrettable that consideration was not apparently given by the sentencing court at the time of originally sentencing those offenders, but proposed new Section 29B would provide a potential means of remedying such cases. Whether an application under proposed new Section 29B is made in a particular case will be a question for the Crown Prosecution Service. The additional advice to be issued by the Judicial Studies Board and the Crown Prosecution Service to sentencers and prosecutors, to which I alluded on Report, should also be of great assistance in ensuring that the occurrence of such cases is minimised.
The noble Baroness, Lady Blatch, also raised previously the question of monitoring the operation and impact of these orders and we are actively considering how best to do this.
I trust that your Lordships will agree that these government amendments serve to strengthen the raft of provisions in place to deter those who have already offended against children from posing a risk to them through work. I invite the House to accept these amendments and, because it is unnecessary, to reject Amendment No. 114. I hope that the noble Baroness, Lady Blatch, will feel that the comprehensive amendments brought forward by the Government have fully dealt with the mischief she sought to cure.
Baroness Blatch: My Lords, I am enormously grateful to the Minister for introducing these amendments today. Three years is a long time. I know it has been difficult to get the clauses right but they are now pretty well where I want them to be. I personally thank the noble Baroness because she and her colleague, the noble and learned Lord the Attorney-General, have both been sympathetic to the points raised. Indeed, the noble Lord, Lord Bassam, at an earlier stage expressed sympathy with the points we raised. It is good that these very important points are being addressed.
I seek clarification from the noble Baroness on two points. First, am I correct in thinking that where the Crown Prosecution Service takes the view from the outset of a case that there is a probability of a disqualification order being awarded, the case can be allocated to a senior court from the start? Will it be free to deal with a case in that way?
However, it is not always possible at the outset to make such a judgment. A case could go to the magistrates' court and it could subsequently transpire,

1815
after all the evidence has been considered, that a disqualification order is indeed appropriate. Proposed new paragraph 2(1)(b) in Amendment No. 113 states:
"the individual is sentenced by a senior court".
Would it be possible at the point of sentencing for the magistrates' court to refer the sentencing to the senior court so that the original sentence could be dealt with on the basis of what had happened in the magistrates' court and in addition, if appropriate, a disqualification order could be awarded? If not, if the magistrates award the sentence, then sentence would not have been dealt with in the senior court. It would be helpful if that point could be clarified.
As for the issue of retrospection, I listened very carefully to what the noble Baroness said. My understanding is that I should not worry about retrospection because legislation for that is in place. However, there remains the vexed case of Sadowski. I still do not know whether a disqualification order was even considered or, if it had been considered, whether one would been awarded. From all that we know about the Sadowski case it would appear that a disqualification order would have been appropriate.
Do I understand correctly that, from here on, if a court omits to consider and/or award a disqualification order where appropriate, such an omission can be dealt with retrospectively at any time? Do I further understand correctly that if it transpires that a disqualification order should have been considered in Sadowski but was not considered, that cannot be dealt with under the amendment?
I shall not be churlish and refuse to support the amendments—they go a huge way towards achieving what I want—but there would be an important lacuna if a case as serious as that of Sadowski, where there would be a danger if such an offender was allowed to work with children in the future, could not be dealt with. I do not argue that we should go back through all the cases considered in a senior court where it would not have been appropriate to either consider or award a disqualification order, but where a sentence has been passed and one should have been automatically applied, there is a case for considering that person unfit to work with children.
Having said that—I understand that a reply is winging its way to the Minister as I speak—I again thank the Minister and her officials for the enormous amount of work that has been carried out on these amendments. I am deeply grateful.
Baroness Scotland of Asthal: My Lords, I reiterate our gratitude for the way in which the noble Baroness has pressed the issue. She is absolutely right— enormous effort has been put in by our officials and others to produce this provision rapidly. We had to grapple with quite complex legal issues in order to introduce a robust provision which would not transgress against any of the proper restraints imposed by the Human Rights Act and other initiatives.
Let me make it plain that where a relevant case is determined by a magistrates' court it can be referred to the Crown Court for sentencing, including a
1816
disqualification order, under the dangerousness provisions of the Bill. If it appears to the Crown Prosecution Service that a case could attract disqualification, that would be a reason for it to go to the Crown Court. If, because of the way in which a case develops in the magistrates' court, it subsequently becomes clear that it falls into that category, it could then go to the Crown Court. If there was some mistake, some misunderstanding, and a disqualification was not made, then when the mistake was identified it would be possible to utilise the Bill's provisions to cure that mistake. That is how we see the provisions working. That is why we considered it appropriate that we could go back at any time.
The noble Baroness knows that the previous Bill refers to bringing back a case within 28 days. We believe that there may be difficulties in future about that and so we have crafted the provision in a more open way so that the mischief may be addressed. Any case involving sentence and disqualification can be caught by the provisions of the clause.
I turn to the noble Baroness's second question, about Sadowski. I hope that she understands that, after the general remarks I have made on proposed Section 29B, it would be quite inappropriate for me to comment on whether an application should be made under that section in relation to any particular case. That would be a matter for the independent prosecution authorities to consider. From the Dispatch Box, I would not like to say anything at all that might be construed subsequently as improperly impinging on the exercise of a prosecutor's discretion.
However, the noble Baroness asked for a response on the question of Sadowski, and I should like to say what happened in that case. Previously, she asked me why Luke Sadowski was not subject to a disqualification order although he appeared to meet the qualifying criteria. I understand that the question of the disqualification order was overlooked at the time of sentencing, but that was realised the following day. Urgent attempts were made to bring the matter back before the court under Section 155 of the Powers of Criminal Courts (Sentencing) Act 2000, but the legislation requires that the application be heard by the sentencing judge within 28 days of the sentence being passed. That was not possible, for various reasons, so Sadowski is not therefore currently subject to a disqualification order.
I hope that I have said enough to give the noble Baroness comfort that situations such as these can be cured, although I reiterate that I say nothing about the particular case, as to do so would be improper. I hope that 1 have given her the real relief that she sought.
5.30 p.m.
Baroness Blatch: My Lords, do I understand correctly that the provision of proposed Section 29B would allow the courts to revisit the Sadowski case? My understanding of what the Minister said at the beginning was that, from hereon, in the case of anyone sentenced where the courts omitted to consider and/or to award in appropriate cases a disqualification order,

1817
the courts could return at any time subsequently and put that right. My understanding was that retrospection did not go quite as far as the case of Luke Sadowski. I understand and totally accept that the Minister cannot talk about individual cases. However, if the retrospection catches that sort of person, in cases that happened prior to the Bill going on the statute book, I am a very happy bunny indeed.
Baroness Scotland of Asthal: My Lords, I could not possibly comment, but I would not be surprised if the noble Baroness's description was an accurate one of what we have just done.
On Question, amendment agreed to.
Clause 276 [Interpretation of Part 11]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendments Nos. 75 to 78:
Page 168, line 8, leave out from beginning to "or".
Page 168, line 32, leave out from beginning to "or".
Page 168, line 47, leave out from beginning to "or".
Page 169. line 7, leave out from "order" to "or" in line 8.
On Question, amendments agreed to.
Clause 299 [Section 297: interpretation]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendments Nos. 79 to 81:
Page 182, line 39, leave out "such".
Page 183. line 1, after "if insert "(a)"
Page 183, line 3, at end insert "or
(b) an order under section 29A of that Act has been made in respect of him."
On Question, amendments agreed to.
Clause 301 [Civil proceedings for trespass to the person brought by offender]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 82:
Page 183, line 15, after "convicted" insert "in the United Kingdom".
The noble Baroness said: My Lords, these are minor technical amendments to Clause 301. I beg to move.
On Question, amendment agreed to.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 83:
Page 184, line 1, at end insert—

"(6A) Where—

(a) in service disciplinary proceedings, as defined by section 276(1), a person has been found guilty of an offence under section 70 of the Army Act 1955 (3 & 4 Eliz. 2 c. 18), section 70 of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or section 42 of the Naval Discipline Act 1957 (c. 53). and

(b) the corresponding civil offence (within the meaning of that Act) was an imprisonable offence,

he is to be treated for the purposes of this section as having been convicted in the United Kingdom of the corresponding civil offence."

On Question, amendment agreed to.
Clause 302 [Orders and rules]:
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 84:
Page 184, line 20, leave out from "power" to second "is"
The noble Lord said: My Lords, the amendment relates to the powers of the parole board under the Bill. Under Clause 211(2), it is the duty—
Baroness Scotland of Asthal: My Lords, I do not like to interrupt the noble Lord, but may I indicate that I intend to give him the pleasure of accepting the amendment, so perhaps he could shorten what he wishes to say in its support?
Lord Thomas of Gresford: My Lords, I am so disappointed that I cannot explain the amendment to your Lordships. What is a victory without your understanding? I am most grateful. I beg to move.
On Question, amendment agreed to.
Clause 308 [Commencement]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendments Nos. 85 to 87:
Page 187, line 6, leave out "279" and insert "279(1) to (3), (5) and (6)".
Page 187, line 17, leave out "two" and insert "four".
Page 187, line 18, at end insert "(and Schedules 20 and 21)".
On Question, amendments agreed to.
Clause 309 [Extent]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 88:
Page 188, line 27, at end insert " (except as mentioned in subsection (7A))".
The noble Baroness said: Amendments Nos. 88 to 91, 93 to 106 and 125 to 146 are all consequential amendments. Amendments Nos. 93 to 106 are additions to the consequential amendments listed in Part 2 of Schedule 3 for allocation and sending. Amendments Nos. 125 to 146 make corresponding additions where necessary to the repeals Schedule 35. Amendments Nos. 88 to 91 amend Clause 309, which deals with extent, so as to preserve the amended or repealed provisions, where necessary, in Northern Ireland. I beg to move.
On Question, amendment agreed to.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendments Nos. 89 to 92:
Page 188, line 32, leave out "to 3" and insert "to 4"
Page 188, line 32, at end insert "(except as mentioned in subsection (7B))"
Page 188, line 34, at end insert—

"(7A) Paragraphs 29, 30,31, 37, 38,46,49 and 58A of Schedule 3 do not extend to Northern Ireland.

(7B) The repeals in Part 4 of Schedule 35 relating to-—

(a) the Bankers' Books Evidence Act 1879 (c. 11),

(b) the Explosive Substances Act 1883 (c. 3),

(c) the Backing of Warrants (Republic of Ireland) Act 1965 (c. 45),

(d) the Customs and Excise Management Act 1979 (C. 2), and

(e) the Contempt of Court Act 1981 (c. 49),

do not extend to Northern Ireland."

Page 188, line 42, at end insert "or
(b) the extent of section (Disqualification from working with children) and Schedule (Disqualification from working with children) so far as relating to the making of orders by, or orders made by, courts-martial or the Courts-Martial Appeal Court".
On Question, amendments agreed to.
Schedule 3 [Allocation of cases triable either way, and sending cases to the Crown Court etc]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendments Nos. 93 to 106:
Page 212, line 11, leave out from "1956," to end of line 14 and insert "the Protection of Children Act 1978 or the Sexual Offences Act 2003;"
Page 226, line 7, at end insert—
"Army Act 1955 (3&4 Eliz. 2 c. 18)
In section 187 of the Army Act 1955 (proceedings before a civil court where persons suspected of illegal absence), at the end of subsection (4) there is inserted—
"The references in this subsection to provisions of the Magistrates' Courts Act 1980 and to corresponding enactments are to be taken to refer to those provisions and enactments as if no amendment to them had been made by the Criminal Justice Act 2003."
Air Force Act 1955 (3 & 4 Eliz. 2 c. 19)
In section 187 of the Air Force Act 1955 (proceedings before a civil court where persons suspected of illegal absence), at the end of subsection (4) there is inserted—
"The references in this subsection to provisions of the Magistrates' Courts Act 1980 and to corresponding enactments are to be taken to refer to those provisions and enactments as if no amendment to them had been made by the Criminal Justice Act 2003." "
Page 226, line 14, at end insert—
"Naval Discipline Act 1957 (c. 53)
In section 109 of the Naval Discipline Act 1957 (proceedings before summary courts), at the end of subsection (4) there is inserted—
"The references in this subsection to provisions are to be taken to refer to those provisions as if no amendment to them had been made by the Criminal Justice Act 2003." "
Page 227, line 7, at end insert—
"Firearms Act 1968 (c. 27)
In Schedule 6 to the Firearms Act 1968 (prosecution and punishment of offences), in Part 2, paragraph 3 is omitted."
Page 227, leave out line 29 and insert—
"( ) after "under" there is inserted "section 52(5) of the Crime and Disorder Act 1998,","
Page 227, line 30, at end insert—
"( ) after sub-paragraph (ii) there is inserted—
"(iia) section 17C (intention as to plea: adjournment);", and
( ) at the end of sub-paragraph (iii) there is inserted "or
"(iv) section 24C (intention as to plea by child or young person: adjournment),"."
Page 228, line 9, leave out sub-paragraph (2) and insert—
"( ) In section 2, as substituted by the Courts Act 2003 (trial of summary offences), in subsection (2), for "as examining justices over" there is substituted "under sections 51 and 51A of the Crime and Disorder Act 1998 in respect of."
Page 228, line 18, at end insert—
"( ) In section 8B, as inserted by the Courts Act 2003 (effect of rulings at pre-trial hearing), in subsection (6), the words "commits or" are omitted."
Page 230, line 30, at end insert—
"( ) In section 43 (power of magistrates' court to commit for restriction order), for subsection (4) there is substituted—
"(4) The powers of a magistrates' court under section 3 or 3B of the Powers of Criminal Courts (Sentencing) Act 2000 (which enable such a court to commit an offender to the Crown Court where the court is of the opinion, or it appears to the court, as mentioned in the section in question) shall also be exercisable by a magistrates' court where it is of that opinion (or it so appears to it) unless a hospital order is made in the offender's case with a restriction order.""
Page 230, line 35, at end insert ", and
( ) in subsection (7), for the words from "inquire" to "1980" there is substituted "send him to the Crown Court for trial under section 51 or 51A of the Crime and Disorder Act 1998", and in paragraph (b) of that subsection, the words "where the court proceeds under subsection (1) of that section" are omitted."
Page 233, line 14, at end insert—
"Sexual Offences (Amendment) Act 1992 (c. 34)
58A In section 6 of the Sexual Offences (Amendment) Act 1992 (interpretation), in subsection (3)(c), for "commits him" there is substituted "sends him to the Crown Court"."
Page 233, line 31, at end insert—
"Reserve Forces Act 1996 (c. 14)
In Schedule 2 to the Reserve Forces Act 1996 (deserters and absentees without leave), in paragraph 3, after sub-paragraph (2) there is inserted—
"(2A) The reference in sub-paragraph (2) to provisions of the Magistrates' Courts Act 1980 is to be taken to refer to those provisions as if no amendment to them had been made by the Criminal Justice Act 2003.""
Page 234, line 16, at end insert—
"Sexual Offences (Protected Material) Act 1997 (c. 39)
In section 9 of the Sexual Offences (Protected Material) Act 1997 (modification and amendment of certain enactments), subsection (1) is omitted."
Page 236, line 7, at end insert—
"Proceeds of Crime Act 2002 (c. 29)
( ) The Proceeds of Crime Act 2002 is amended as follows.
( ) In section 6 (making of confiscation order), in subsection (2)(b), for "section 3, 4 or 6" there is substituted "section 3, 3A, 3B, 3C, 4, 4A or 6".
( ) In section 27 (defendant absconds after being convicted or committed), in subsection (2)(b), for "section 3, 4 or 6" there is substituted "section 3, 3A, 3B, 3C, 4, 4A or 6".
( ) In section 70 (committal by magistrates' court), in subsection (5), after "way)" there is inserted "or under section 3B(2) of that Act (committal of child or young person)"."
Question, amendments agreed to.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 107:
Before Schedule 4, insert the following new schedule—

OFFENCES AGAINST THE PERSON
Murder
1 Murder.
Attempted murder
2 An offence under section 1 of the Criminal Attempts Act 1981 (c. 47) of attempting to commit murder.
Soliciting murder
3 An offence under section 4 of the Offences against the Person Act 1861 (c. 100).
Manslaughter
4 Manslaughter.
Wounding or causing grievous bodily harm with intent
5 An offence under section 18 of the Offences against the Person Act 1861 (c. 100).
Kidnapping
6 Kidnapping.

SEXUAL OFFENCES
Rape
7 An offence under section 1 of the Sexual Offences Act 1956 (c. 69) or section 1 of the Sexual Offences Act 2003.
Attempted Rape
8 An offence under section 1 of the Criminal Attempts Act 1981 (c. 47) of attempting to commit sin offence under section 1 of the Sexual Offences Act 1956 (c. 69) or section 1 of the Sexual Offences Act 2003.
Intercourse with a girl under thirteen
9 An offence under section 5 of the Sexual Offences Act 1956 (c. 69).
Incest by a man with a girl under thirteen
10 An offence under section 10 of the Sexual Offences Act 1956 (c. 69) alleged to have been committed with a girl under thirteen.
Assault by penetration
11 An offence under section 2 of the Sexual Offences Act 2003.
Causing a person to engage in sexual activity w ithout consent
12 An offence under section 4 of the Sexual Offences Act 2003 where it is alleged that the activity caused involved penetration within subsection (4)(a) to (d) of that section.
Rape of a child under thirteen
13 An offence under section 5 of the Sexual Offences Act 2003.
Attempted rape of a child under thirteen
14 An offence under section 1 of the Criminal Attempts Act 1981 (c. 47) of attempting to commit an offence under section 5 of the Sexual Offences Act 2003.
Assault of a child under thirteen by penetration
15 An offence under section 6 of the Sexual Offences Act 2003.
Causing or inciting a child under thirteen to engage in sexual activity
16 An offence under section 8 of the Sexual Offences Act 2003 where it is alleged that an activity involving penetration within subsection (3)(a) to (d) of that section was caused.
Sexual activity with a person with a mental disorder
17 An offence under section 31 of the Sexual Offences Act 2003 where it is alleged that the touching involved penetration within subsection (4)(a) to (d) of that section.
Causing or inciting a person with a mental disorder to engage in sexual activity
18 An offence under section 32 of the Sexual Offences Act 2003 where it is alleged that an activity involving penetration within subsection (4)(a) to (d) of that section was caused.

DRUGS OFFENCES
Unlawful importation of Class A drug
19 An offence under section 50(2) of the Customs and Excise Management Act 1979 (c. 2) alleged to have been committed in respect of a Class A drug (as defined by section 2 of the Misuse of Drugs Act 1971 (c. 38)).
Unlawful exportation of Class A drug
20 An offence under section 68(2) of the Customs and Excise Management Act 1979 (c. 2) alleged to have been committed in respect of a Class A drug (as defined by section 2 of the Misuse of Drugs Act 1971 (c. 38))
Fraudulent evasion in respect of Class A drug
21 An offence under section 170(1) or (2) of the Customs and Excise Management Act 1979 (c. 2) alleged to have been committed in respect of a Class A drug (as defined by section 2 of the Misuse of Drugs Act 1971 (c. 38)).
Producing or being concerned in production of Class A drug
22 An offence under section 4(2) of the Misuse of Drugs Act 1971 (c. 38) alleged to have been committed in relation to a Class A drug (as defined by section 2 of that Act).
Supplying or offering to supply Class A drug
23 An offence under section 4(3) of the Misuse of Drugs Act 1971 (c. 38) alleged to have been committed in relation to a Class A drug (as defined by section 2 of that Act).

THEFT OFFENCES
Robbery
24 An offence under section 8(1) of the Theft Act 1968 (c. 60) where it is alleged that, at some time during the commission of the offence, the defendant had in his possession a firearm or imitation firearm (as defined by section 57 of the Firearms Act 1968 (c. 27)).

CRIMINAL DAMAGE OFFENCES
Arson endangering life
25 An offence under section 1(2) of the Criminal Damage Act 1971 (c. 48) alleged to have been committed by destroying or damaging property by fire.
Causing explosion likely to endanger life or property
26 An offence under section 2 of the Explosive Substances Act 1883 (c. 3).
Intent or conspiracy to cause explosion likely to endanger life or property
27 An offence under section 3(1)(a) of the Explosive Substances Act 1883 (c. 3).

WAR CRIMES AND TERRORISM
Genocide, crimes against humanity and war crimes
28 An offence under section 51 or 52 of the International Criminal Court Act 2001 (c. 17).
Grave breaches of the Geneva Conventions
29 An offence under section 1 of the Geneva Conventions Act 957 (c. 52).
Directing terrorist organisation
30 An offence under section 56 of the Terrorism Act 2000 (c. 11).
Hostage-taking
31 An offence under section 1 of the Taking of Hostages Act1982 (c. 28).

HIJACKING AND OTHER OFFENCES RELATING TO AVIATION, MARITIME AND RAIL SECURITY
Hijacking of aircraft
32 An offence under section 1 of the Aviation Security Act 1982 (c. 36).
Destroying, damaging or endangering the safety of an aircraft
33 An offence under section 2 of the Aviation Security Act 1982 (c. 36).
Hijacking of ships
34 An offence under section 9 of the Aviation and Maritime Security Act 1990 (c. 31).
Seizing or exercising control of fixed platforms
35 An offence under section 10 of the Aviation and Maritime Security Act 1990 (c. 31).
Destroying ships or fixed platforms or endangering their safety
36 An offence under section 11 of the Aviation and Maritime Security Act 1990 (c. 31).
Hijacking of Channel Tunnel trains
37 An offence under article 4 of the Channel Tunnel (Security) Order 1994 (S.I. 1994/570).
Seizing or exercising control of the Channel Tunnel system
38 An offence under article 5 of the Channel Tunnel (Security) Order 1994 (S.I. 1994/570).

CONSPIRAC
Conspiracy
39 An offence under section 1 of the Criminal Law Act 1977 (c. 45) of conspiracy to commit an offence listed in this Part of this Schedule.

SUPPLEMENTARY
40 A reference in Part 1 of this Schedule to an offence includes a reference to an offence of aiding, abetting, counselling or procuring the commission of the offence.
41 A reference in Part 1 of this Schedule to an enactment includes a reference to the enactment as enacted and as amended from time to time."
On Question, amendment agreed to.
Schedule 6 [Hearsay evidence: armed forces]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendments Nos. 108 to 110:
Page 245, line 4, at end insert—
"( ) all the parties to the retrial agree otherwise;"
Page 245, line 16, at end insert—
"( ) all the parties to the retrial agree otherwise;"
Page 245, line 28, at end insert—
"( ) all the parties to the retrial agree otherwise;"
On Question, amendments agreed to.
Schedule 7 [Breach, revocation or amendment of community order]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 111:
Page 246. line 20, leave out "182(4)" and insert "182(2)"
On Question, amendment agreed to.
Schedule 19 [Prisoners liable to removal from United Kingdom: modifications of Criminal Justice Act 1991]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 112:
Page 311, line 27, leave out "repeal or"
On Question, amendment agreed to.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 113:
Before Schedule 29, insert the following new schedule—

DISQUALIFICATION FROM WORKING WITH CHILDREN
1 The Criminal Justice and Court Services Act 2000 (c. 43) is amended as follows.

2 After section 29 there is inserted—

"29A Disqualification at discretion of court: adults and juveniles

(1) This section applies where—

(a) an individual is convicted of an offence against a child (whether or not committed when he was aged 18 or over).

(b) the individual is sentenced by a senior court, and

(c) no qualifying sentence is imposed in respect of the conviction.

(2) If the court is satisfied, having regard to all the circumstances, that it is likely that the individual will commit a further offence against a child, it may order the individual to be disqualified from working with children.

(3) If the court makes an order under this section, it must statev its reasons for doing so and cause those reasons to be included in the record of the proceedings.

29B Subsequent application for order under section 28 or 29

(1) Where—

(a) section 28 applies but the court has neither made an order under that section nor complied with subsection (6) of that section, or

(b) section 29 applies but the court has not made an order under that section, and it appears to the prosecutor that the court has not considered the making of an order under that section,

30 the prosecutor may at any time apply to that court for an order under section 28 or 29.

(2) Subject to subsection (3). on an application under subsection (1)—

(a) in a case falling within subsection (1)(a), the court—

(i) must make an order under section 28 unless it is satisfied as mentioned in subsection (5) of that section, and

(ii) if it does not make an order under that section, must comply with subsection (6) of that section,

(b) in a case falling within subsection (1)(b), the court—

(i) must make an order under section 29 if it is satisfied as mentioned in subsection (4) of that section, and

1825

(ii) if it does so, must comply with subsection (5) of that section.

(3) Subsection (2) does not enable or require an order under section 28 or 29 to be made where the court is satisfied that it had considered the making of an order under that section at the time when it imposed the qualifying sentence or made the relevant order."

3

(1) Section 30 (supplemental provisions) is amended as follows.

(2) In the heading for "and 29" there is substituted "to 29B".

(3) In subsection (1)—

(a) for "and 29" there is substituted "to 29B", and

(b) in the definition of "qualifying sentence", after paragraph (d) there is inserted—

"(dd) a sentence of detention under section 198or200of the Criminal Justice Act 2003,".

(4) In subsection (5)—

(a) in paragraph (a), for "or 29" there is substituted ", 29 or 29A",

(b) after paragraph (b) there is inserted—

"(c) in relation to an individual to whom section 29A applies and on whom a sentence has been passed, references to his sentence are to that sentence."

4 In section 31 (appeals), in subsection (1), after paragraph (b) there is inserted—

"(c) where an order is made under section 29A, as if the order were a sentence passed on him for the offence of which he has been convicted."

5

(1) Section 33 (conditions for application under section 32) is amended as follows.

(2) In subsection (6), after paragraph (d) there is inserted—

"(e) in relation to an individual not falling within any of paragraphs (a) to (d), the day on which the disqualification order is made.".

(3) For subsection (8) there is substituted—

"(8) In subsection (7) "detention" means detention (or detention and training)—

(a) under any sentence or order falling within paragraphs (b) to (f) of the definition of "qualifying sentence" in section 30(1), or

(b) under any sentence or order which would fall within those paragraphs if it were for a term or period of 12 months or more."."

On Question, amendment agreed to.
[Amendment No. 114 not moved.]
Schedule 29 [Default orders: modification of provisions relating to community orders]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 115:
Page 352, line 7, leave out from "to" to "deal" in line 9 and insert "revoke the community order and deal with the offender for the offence is to be taken to be a power to revoke the default order and"
On Question, amendment agreed to.
Schedule 30 [Amendments relating to sentencing]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendments Nos. 116 to 121:
Page 368, line 8, leave out "release on licence of"
Page 368, line 26, leave out "duration and conditions of licences for"
Page 368, line 47, at end insert—

"(5A) Any provision of sections 102 to 104 of the Powers of Criminal Courts (Sentencing) Act 2000 which is applied by sub-paragraph (2) or (4) above shall have effect (as so applied) as if—

(a) any reference to secure accommodation were a reference to secure accommodation within the meaning of Part 2 of the Children (Scotland) Act 1995 or a young offenders institution provided under section 19(1)(b) of the Prisons (Scotland) Act 1989,

(b) except in section 103(2), any reference to the Secretary of State were a reference to the Scottish Ministers,

(c) any reference to an officer of a local probation board were a reference to a relevant officer as defined by section 27(1) of the Prisoners and Criminal Proceedings (Scotland) Act 1993,

(d) any reference to a youth court were a reference to a sheriff court,

(e) in section 103, any reference to a petty sessions area were a reference to a local government area within the meaning of the Local Government etc. (Scotland) Act 1994,

(f) in section 103(3), for paragraphs (b) and (c) there were substituted a reference to an officer of a local authority constituted under that Act for the local government area in which the offender resides for the time being,

(g) section 103(5) were omitted,

(h) in section 104, for subsection (1) there were substituted—

"(1) Where a detention and training order is in force in respect of an offender and it appears on information to a sheriff court having jurisdiction in the locality in which the offender resides that the offender has failed to comply with requirements under section 103(6)(b), the court may—

(a) issue a citation requiring the offender to appear before it at the time specified in the citation, or

(b) issue a warrant for the offender's arrest."

(i) section 104(2) were omitted, and

(j) in section 104(6), the reference to the Crown Court were a reference to the High Court of Justiciary."

Page 369, line 3, leave out "release on licence of"
Page 369, line 22, leave out "duration and conditions of licences for"
Page 372, line 32, at end insert—
" In section 76 (meaning of custodial sentence), in subsection (1) after paragraph (b) there is inserted—
"(bb) a sentence of detention for public protection under section 198 of the Criminal Justice Act 2003;
(bc) a sentence of detention under section 200 of that Act;"."
On Question, amendments agreed to.
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 122:
Page 372, line 34, leave out sub-paragraph (2).
On Question, amendment agreed to.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 123:
Page 386, line 34, at end insert—
"( ) In section 42 (interpretation of Part 2), in subsection (2)(a), for "section 119 of the Powers of Criminal Court (Sentencing) Act 2000" there is substituted "paragraph 8(2)(a) or (b) of Schedule 11 of the Criminal Justice Act 2003".
On Question, amendment agreed to.
Schedule 35 [Repeals]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendments Nos. 124 to 146:
Page 418, column 2, leave out lines 8 to 11 and insert—

"In section 54(1), the words "and record or cause to be recorded"."

Page 420, line 19, at end insert—

"Firearms Act 1968 (c. 27)

In Schedule 6, in Part 2, paragraph 3."

Page 420, line 26, at end insert—

"Criminal Law Act 1977 (c. 45)

In Schedule 12, the entry relating to the Firearms Act 1968 (c. 27)."

Page 420, line 32, column 2, at end insert—

"In section 8B(6)(a), the words "commits or"."

Page 421, line 14, column 2, at end insert—

"In Schedule 7, paragraph 73."

Page 421, line 14, at end insert—

"Criminal Justice (Amendment) Act 1981 (c. 27)

The whole Act."

Page 421, line 16, at end insert—

"Contempt of Court Act 1981(c.49)

Section 4(4).

Page 421, line 26, at end insert—

"Criminal Justice Act 1982 (c 48)

Section 61,

In Schedule 9, paragraph l(a).

Mental Health Act 1983 (c. 20)

In section 52(7)(b), the words "where the court proceeds under subsection (1) of that section,"."

Page 421, line 34, column 2, at end insert—

"In Schedule 1, paragraphs 2 and 3."

Page 421, line 43, column 2, at end insert—

"In Schedule 2, paragraphs 1, 9 and 14."

Page 422, line 8, column 2, at end insert—

"Section 33."

Page 422, line 12, column 2, at end insert—

"Section 144.

In Schedule 15, paragraphs 10, 66 and 104."

Page 422, line 16, at end insert—

"Courts and Legal Services Act 1990(c.41)

In Schedule 18, paragraph 1990 25(5).

Broadcasting Act 1990 (c. 42)

In Schedule 20, paragraph 29(1)."

Page 422, line 17, column 2, at end insert—

"Section 55(1)."

Page 422, line 18, column 2, at end insert—

"In Schedule 11, paragraph 25."

Page 422, line 21, column 2, at end insert—

"In Schedule 9, paragraphs 12, 17(c), 18(d), 25, 27, 29 and 49.

In Schedule 10, paragraphs 40 and 71."

Page 422, line 28, column 2, at end insert—

"Section 44(3).

Section 45.

Section 49(4)."

Page 422, line 29, column 2, at end insert—

"In Schedule 1, paragraphs 2 to 5, 8, 10, 12, 13, 15 to 19, 22(3), 24 to 26, 28 to 32, and 34 to 38."

Page 422, line 30, at end insert—

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

Section 9(1).

Page 422, line 31, column 2, at beginning insert—

"Section 47(6)."

Page 422, line 35, column 2, at end insert—

"In Schedule 8, paragraphs 8, 37, 40, 65 and 93."

Page 422, line 35, at end insert—

"Access to Justice Act 1999 (c. 22)

Section 67(3).

In Schedule 4, paragraphs 16, 39 and 47.

In Schedule 13, paragraphs 96, 111 and 137."

Page 422, line 41, column 2, at end insert—

"In Schedule 9, paragraphs 62, 63, 64(2), 65, 91 and 201."

On Question, amendments agreed to.
Baroness Scotland of Asthal: My Lords, I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(Baroness Scotland of Asthal.)
Lord Renton: My Lords, I feel bound to say to begin with that we all much admire the ability, the patience and the fortitude of the noble Baroness, Lady Scotland. She has had a tremendous task. I am going to have to comment, I am afraid, on the results of all the efforts that have been made on this colossal Bill. I should also like, although he is not with us at the moment, to pay my tribute to the noble and learned Lord the Attorney-General, who has also been diligent and helpful. However, I find it hard to believe that two such diligent and able Ministers had to use their initiative in creating such a chaotic and long Bill as this has become.
I confess, if I may, that I have been in Parliament 58 years and taken part in pretty well every Bill dealing with criminal law and procedure during that time, since 1945. Never in all those years has there been such a long and detailed Criminal Justice Bill as this, which amends lots of previous legislation and adds many clauses to what is to be on the statute book. When it came to us, the Bill was 374 pages long. By the time we had dealt with it in Committee for 11 days and on Report for five days, it became 440 pages long. Even on Third Reading the Government have had to move so many amendments that it will become another 20 pages long. I find it a bit worrying that Members of the House of Commons will have only one day in this Session, which is nearing its end, to consider this vast range of amendments. They are not merely drafting amendments of previous legislation, although there are scores of those, they are nearly all government amendments, most of them amending previous legislation, and some of them are, as we know from our discussions, very controversial.

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For centuries it has been the fundamental principle of our criminal cases that ignorance of the law is no defence. But now we have reached a stage where knowledge of the criminal law, even for a person of enormous ability, is impossible without referring to the previous statutes and seeing how they are amended and added to. The Government have created this situation. I say that it is vital that the Government, as soon as possible, early in the next Session, get started on the formation of a consolidation Bill; otherwise our criminal law will simply be a mystery, a mass of important Bills that have been amended by other Bills and amended by this Bill. That is not the way in which a parliamentary democracy such as ours should legislate. We have to make the legislation, especially in criminal law, understood by the people at large. Otherwise, the courts will no longer be able to say that ignorance of the law is no defence.
So I implore the Government to take note of what I have said and to get on with it as soon as they can in the next Session.
Baroness Scotland of Asthal: My Lords, I take this opportunity not only to thank the noble Lord for his kind words—of course I note everything that he said— but to commend the sterling efforts of the noble Baroness, Lady Anelay, and all those who led for the Liberal Democrats, who have been more in number; nevertheless the noble Lords, Lord Thomas of Gresford and Lord Dholakia, and others should all be named in dispatches. I thank each and every one of them for the comradely way in which they have addressed some very difficult and technical issues.
On Question, Bill passed, and returned to the Commons with amendments.

Wild Mammals (Protection) (Amendment) (No. 2) Bill [H.L.]
Read a third time, and passed, and sent to the Commons.

Access to the Countryside (Exclusions and Restrictions) (England) Regulations 2003
5.47 p.m.
Earl Peel Earl Peel rose to move, that an humble Address be presented to Her Majesty, praying that the order, laid before the House on 24th October, be annulled (S.I. 2003/2713).
The noble Earl said: My Lords, the exclusions and restrictions which I wish to draw to your Lordships' attention this evening refer to the closure mechanisms available to the owner of land in England under the Countryside and Rights of Way Act and were laid before the House on 24th October. Broadly speaking, these closure provisions are open to the owners of access land, under the Act, in order to safeguard the public from management activities that might cause a threat to their safety and to enable the owner to conduct his or her business in an unencumbered
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fashion in cases where the presence of people is likely to cause difficulties. I start by declaring an interest as an owner of access land which will be directly affected by the Act.
As such, these regulations have very considerable significance to both parties. It is, I would suggest, vital that they are implemented in a quick and efficient fashion, allowing for flexibility and practicality. Many owners will regard such closure orders as an essential means of carrying out their business. I remind your Lordships of the firm commitment given by the then Minister, Michael Meacher, that it is not the Government's intention for the right of access to impede the economic well-being of those who live and work in these areas or that the right of access would incur costs on owners. I believe that unless the Minister is prepared to make concessions, then both those commitments are likely to be undermined.
Under Section 22 of the CROW Act, entitled persons are allowed either to close access areas or to restrict their use for up to 28 days per year, although there are considerable limitations on when the 28 days can be taken. National holidays and certain weekend closures are precluded under the Act. Whereas there is no need for the relevant access authority to give permission for such closures, the owner has to give notice to the access authority for such a closure to be legitimate.
However, under the Act, if the land in question is subject to an agricultural tenancy, the tenant becomes the owner and is the only person qualified to apply for closure under the 28-day rule. Therefore, the situation will arise, particularly in cases where the actual owner of the land may manage that land for, say, sporting purposes, when he will have no right to the 28-day closure, even though the tenant, who would have the right under the Act, may simply graze the land and would not be involved in the principal management activities of the land such as bracken spraying, heather burning or predator control, which are carried out by the landlord. I suggest to your Lordships that we have a considerable muddle in that respect.
Furthermore, in such circumstances the owner will wish to close the area on shooting days, not simply to ensure that the shoot is not disturbed by walkers but, more importantly, to ensure that the public's safety is not compromised. It is worth remembering the very substantial income that is generated by shooting, particularly on grouse moors, most of which will be subject to the new rights of access. That income is ploughed back into the management of these areas and benefits all, not just those who live and work there but the public who enjoy those areas. In reality, as regards much of the access land, the owner will need to close the land more than the tenant, who is the only person under an agricultural tenancy who has the right to do so under the Act.
To make matters more complicated, there is the question of sporting rights, and with them much of the management of the land to which I have referred. These could be let to a third party who will be in an even more precarious position concerning applying for

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closure under Section 22. The Minister will be aware that under that section in the Act, provisions can be made through regulations for all such people to be added as interested persons. I urge the Minister to consider this option most seriously and to amend the regulations accordingly; otherwise, I suggest that we shall have considerable muddle, confusion and at times bad feeling, which is the one thing I should have thought we want to try to avoid.
On Regulation 4, which applies to the 28-day closure, the Government have not left much room for manoeuvre. Apart from the difficulties regarding the owner of the land that is subject to a tenancy, which I have already described, the regulations state that five days' notice must be given before a closure or restriction is permitted. I appreciate that the regulations allow for two hours' notice for closures of four hours or less, and for five-day closures for up to five hectares of land. I acknowledge that that is useful. However, many activities such as bracken spraying or heather burning involve large areas of land to be tackled at very short notice. I suggest that five days' notice is a nonsense as, of course, the weather is an all-important factor.
All I ask is for the Minister to emulate the regulations that have been produced in Wales which offer a much more flexible alternative. There, the owner can pre-register the relevant information and then just give notice of the date and the time of the closure the day before by telephone. There is no restriction on area or period of closure or registration. The access authorities can waive the notice period where they are satisfied that it was not reasonably practical for the entitled person to comply with the notice requirements. I suggest to the Minister that if it is good enough for the Welsh, it is good enough for the English.
I now turn to the regulations affecting Sections 24 and 25 of the Act. The Act allows anyone with an interest in the land to apply to the relevant access authority for a closure or restriction outside the 28 days when it is deemed necessary for either land management purposes—Section 24—or to avoid the risk of fire or danger to the public—Section 25. However, in contrast to Section 22—the 28-day rule— the owner has no right to such closures and permission rests entirely at the discretion of the relevant access authority.
Regulation 10 deals with such closures by providing the access authority with a determination period of up to six weeks, or four months for long-term closures of six months and more. I suggest to the Minister that these regulations are wholly unrealistic, particularly when one considers that in many cases those who are prevented from applying for closures under Section 22—the 28-day rule—have recourse only to these two sections in order to close land for management purposes and, indeed, to protect the general public. In such cases the owner of the land subject to a tenancy— where the tenant is the owner under the Act—the
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sporting tenant and, say, a commoner with grazing rights have no rights under Section 22—their only recourse is through Sections 24 and 25.
Management of stock, heather burning, spraying and predator control all require fairly instant decisions. To have to wait for up to six weeks for an approval is, frankly, nonsense. It seems inconceivable that these provisions will not be widely used and, as such, if the Government are to take a pragmatic and practical stance, these regulations will need radical revision.
However, there is an additional and major concern with the draft guidance issued by the agency on how it will exercise its discretion about closures under Sections 24 and 25. It is suggested that it will not generally grant closures unless informal management techniques have been tried first. I am curious to know what informal management techniques mean. Who will pay for these informal management techniques? What happens if they fail? Who will pay for the failures? We should not move into the realms of experimentation. We are talking about people's livelihoods and, indeed, the protection of the public. Will the Minister at least give an assurance that the fanner or landowner will not be out of pocket if such a potentially reckless approach fails and that proper closure mechanisms will be enforced in the absence of success?
I would like to make reference to another difficulty, of which I am sure that the Minister is well aware as it has been flagged up by the CLA on a number of occasions. Under the Animals Act 1971, an owner of livestock is liable for injury caused to a member of the public. As I understand it, even if the owner has taken all reasonable precautions and an injury occurs, he can still be liable under the Act. However, if a closure is in place, that Act does not apply, because anyone who ignores the closure becomes a trespasser and the owner is then not liable under that Act. My legal skills do not run to whether he or she will be liable under another Act, but under the Animals Act liability would cease if a closure order were in place.
It is essential when an owner applies for a closure, based on dangerous livestock, that the agency grants the request. Let us not forget that dangerous livestock could well cover cows with calves at foot, or a bunch of young and rather over-excitable livestock in the presence of a dog. I simply raise that point as it is something that the regulations should cover, as it will present genuine difficulties for farmers and walkers alike unless properly addressed.
I shall move on to my final point, and the one to which I attach the greatest importance. For the sake of good land management, for the sake of those who live and work in access land, and for the sake of the public who wish for enjoyment in the knowledge that they can walk safely, there has to be in place under the Act the most effective means of informing the public when the land is open and when it is closed. I should have thought that that was the one clear overriding objective that would unify all parties. I am bound to say, therefore, that it comes as rather a rude awakening

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to many, myself included, to find in the regulations that the Countryside Agency merely has to place a notice on a website informing the public of any closure orders that might be in place. Website information may be used by some, but the majority of walkers, particularly the casual and those on holiday, are highly unlikely to be carrying their laptops in their rucksacks.
We tried—goodness, we tried—to persuade the Government to introduce statutory access points when we were discussing the then Bill but, sadly, without success. In my view, that is the biggest failure of the Act, as it was always going to be the most effective means of informing the general public about what was going on on access land. However, under the CROW Act, there are powers for the local authority to erect signs, but sadly no duty.
Surely the Minister can see the merit in having some common signage system that alerts the general public when access areas are closed, in conjunction with suitable signs in appropriate positions informing the public of what is happening. I always felt that one of the great advantages of statutory access points would be the ability of the access authorities to explain to people what was happening on the land, which would have been a more interesting experience for them.
The noble Lord knows that certain suggestions have been put forward about how a more comprehensive signage system could be worked out. If there is no guidance for such an objective in the regulations, the access authorities are likely to ignore the option, and it will fall on those who own or manage the land to pick up the pieces and the cost of informing the public. That goes against all the assurances made during the passage of the then Bill. I ask the Minister to give a commitment that the regulations will allow for access authorities to help with provision of signs and that the necessary finance will be made available.
The regulations reflect the total lack of resources that the Government are prepared to commit to making the Act work. That is the root cause of the difficulties that we have through the ineffectiveness and paucity, if I may use that word, of the regulations. Unless the public can enjoy the countryside in the knowledge that they are safe, and have confidence in where they go and what they can do, the Act will fail. Equally, land managers must be able to manage without fear of interference or worry. That means proper sympathy and understanding by the access authorities, with the necessary resources to carry out their full responsibility.
Failure to meet those two objectives will lead only to conflict and, as I have already said, that is the one thing that we must all endeavour to avoid. The regulations must reflect a greater sense of reality and urgency, and they need considerable reappraisal. I hope that the Minister will accept that. He knows that I have great concerns about the Act, but I think that he also knows that, above all, I want it to work. I beg to move.
Moved, That an Humble Address be presented to Her Majesty, praying that the order, laid before the House on 24th October, be annulled (S.I. 2003/ 2713).—(Earl Peel.)
Lord Livsey of Talgarth: My Lords, I shall speak only briefly, because the Bill affects England and I am a Welsh Peer. I do not wish to speak about areas where legislation is frankly rather different, as we have been told by the noble Earl. The regulations have been applied somewhat differently by the Countryside Council for Wales in relation to certain measures of access.
I have been a farm manager where there was a grouse moor. I have also been a farm manager in situations where heather burning took place regularly at certain times of year. Trying to speak objectively, no doubt there is a need for notice when such activities take place. In the management of grouse moors, for example, in the situation in which I was involved—it was in Scotland—we deliberately had a very much lower stocking rate to enable the heather to grow. That was to ensure sufficient cover for the young birds. We also produced some fantastic lambs as a result of that low stocking rate.
Flexibility is clearly required, but I support the CROW Act and its access provisions, which are in the process of creating much better access for the public. I understand the noble Earl's plea for management. I have some doubt whether it is necessary to pray against all the regulations. I should have thought that common sense and compromise would prevail where certain situations demanded it.
I know that the younger generation of the farming community is into computers in quite a big way. However, I recently attended a meeting of commoners where 86 commoners turned up. A national park officer said that the information had been put on their website. I stopped the officer from saying any more and asked the audience how many of them had computers and could access the Internet. The answer was that only six out of 80 could do that, so we must be very careful about putting information on the Internet. We live in a twin technology society—the haves and the have nots.
Mention was made of statutory entries on to land, which is foreign to me. For many years in Scotland and in Wales, open hills have had access. I cannot comment on the situation in England, except to say that often there is a point where people gain access on to land and notices are placed there. I make a plea for flexibility in accommodating management, which is important, and the needs of commoners in particular must be taken into account.
There is a balance to be achieved between sporting activities and sporting rights and access to such land. Surely, there is room for a sensible compromise in these matters.
Baroness Byford: My Lords, I support my noble friend Lord Peel and I thank him for his clear introduction of his reasons for raising the issue today.

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I, too, carefully went through the statutory instrument, as I am sure did the Minister. We spent hours on the CROW Bill as it went through this House. All of us wanted to ensure that it was workable and practical and that moneys were allocated for the successful implementation of the Act. On reading the statutory instrument, I have several questions for the Minister.
I shall not go into the full details—my noble friend has done so and has spelt them out clearly—but I want to highlight one or two issues. First, my noble friend rightly said that a balance must be struck between the management of the land and the safety of the public. When we took the CROW Bill through the House, we fought hard at all stages to ensure that the public would be safe. My noble friend spoke of the Animals Act and the fact that if a closure is in place the farmer is not liable. The closure relates not only to dangerous animals, and my noble friend mentioned calves at heel with cattle.
Perhaps I may share an experience with the House. Earlier this year, my niece, Julia, was walking through a field of cattle—there were no young at heel—and she had a dog. For whatever reason, the cattle were startled and I am afraid she was trampled underfoot. She managed to get up again, but her hand was broken and her shoulder badly damaged. They were not dangerous animals, but something had obviously upset them. Unfortunately, she made the mistake of hanging on to the dog rather than letting him go, in which case the cattle would have chased the dog. As it was, she was badly trampled. Fortunately she is now all right. My noble friend raises a real problem.
I want to return to some of the discussions we had in the House. My noble friend raised the issue of cost, and I understood from days of debate that the relevant authorities would have money provided for signaging in order to inform the public when land was open and closed. I have looked through the statutory instrument and I am still not clear about the matter.
When we debated the matter in October 2000, the noble Lord, Lord Whitty, clearly said that the duty of the access authority to provide visitor management facilities would be established, but I have not seen that happen. We are talking about closures, not day-to-day management. We could not persuade the Government that it would be helpful to have a central telephone point so that people could ring in order to find out where access land started and finished. But we are not talking about that today; we are talking about closures and how people will know where they are.
The Minister accepted the arguments on that and said:
"We all agree there should be no obligation on landowners to provide the facilities he is talking about. The Bill already allows for such facilities to be provided by the access authority at taxpayers' expense. For example, Clause 19 provides for notices to be erected informing the public of the boundaries of access land. Clause 33 refers to access authorities entering into agreements for the provision of means of access to land. All that is clearly the responsibility of access authorities. They have to make a judgment on their priorities as to where they provide such facilities".— [Official Report, 3/10/2000; col. 1505.]
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Has that intention been bypassed or lost in the passing of time?
On 9th October, my noble friend Lord Marlesford referred to costs, saying in relation to Amendment No. 302 on compensation:
"My impression from last week's proceedings is that the Government have largely accepted this. We have already had undertakings that they will pay for signing, for the additional fencing that may be necessary, for the collection of litter and for other items of additional cost".—[Official Report, 9/10/2000; col. 22.]
Where has that intention gone to in the mean time? During the same debate, we dealt with damages and liability. The issue was referred to on many occasions, therefore.
In that same debate, the Minister said:
"However, even in its present form, the Bill contains a significant number of measures that will restrict any cost likely to fall upon the landlord and ensure that other authorities meet the major costs rather than the landowner. Indeed, as we have gone through provisions at some length, I indicated a number of areas that would increase yet further the protection of the landowner in this respect".—[Official Report, 9/10/2000; col. 27.]
I need quote no further—I hope that I am making my point in questioning the validity of the additional costs that this statutory instrument places on landowners.
Furthermore, why had England decided to go down a route different from that taken by Wales? It seems illogical. It appears that exemptions are given to the owners or the tenants, and that people who have sporting or grazing rights do not have any say. I should be grateful if the Minister could clarify that.
In relation to Section 25 and fire and danger to the public, what will happen on defence land? If there has to be an exercise on defence land where access is normally available, how are the public notified? I understood that there were to be red flags at certain points around the area. That is fine if people are accessing the land on walks or at normal points, but the right to roam means that there are no such places. People can access from any point. Are there any lessons we can learn from what happens on MoD land and was that considered when the statutory instrument was raised?
Regulation 4 of the statutory instrument concerns exclusions and restrictions. Paragraph (1) of the regulation refers to:
"Notice given by an entitled person".
Can the Minister tell me exactly who is meant by the "entitled person"? I also ask the Minister whether the Government will do more than simply place notices or information for the public on the web. The recent legislation that we have dealt with in this House has referred only to the web. I should be glad to receive clarification on that point.
I believe that I have covered most points and I shall not repeat what my noble friend said. If I remember correctly, in discussing signage or a central access point where people could obtain information, we talked about a telephone helpline. Can the Minister say what has come of that? It was discussed during the passage of the Bill but has it since been ignored?

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Finally, will the Minister confirm that access is likely to kick in at the end of 2004? That is slightly earlier than we had expected as I believe that the date was brought forward. If that is the case, there is a great need to get the statutory instrument right. I believe we all agree that it is vital that the statutory instrument should be workable for land managers and tenants and, more importantly, so that protection is afforded to the public, who should be able to enjoy the countryside safely and with full security.
Baroness Miller of Chilthorne Domer: My Lords, I want to raise one or two points but, first, I apologise to the noble Earl, Lord Peel, for missing the first 30 seconds of his speech. I was taken slightly unawares by the speed at which the previous business was taken.
I welcome the publication of the regulations as yet another progress step towards open access becoming a reality. The points that I want to raise cover an area that the noble Earl, Lord Peel, said we would be likely to have in common, and he is absolutely right.
One issue on which I am not clear and about which I should like to hear from the Minister is that of informing the public. We spent a long time on that subject in Committee and we stressed the importance of using websites. But I believe that we imagined that the use of websites would be in addition to use of the local press and leaflets and so on. However, in the regulations it seems that the website will rule and that use might be made of other means if, at its discretion, the access authority sees fit to do so. That will be all well and good where access authorities are conscientious, as I believe they will want to be, but I wish that the regulations had referred to all means.
Part I of the regulations is entitled "Preliminary" and refers to the use of electronic communications. It lays out some of the parameters of using only electronic communications. I ask the Minister whether that is now a tried and tested method or whether Regulation 3 is the first example of such communications being used.
I may be approaching this matter in a different way from the noble Earl, but I believe it is important that the regulations work well. The public will need to know what is open or closed. It will be hugely frustrating for them if they walk a long way to reach a spot only to find that the final part of the walk is closed. They might, for example, have walked to the crest of a hill or have trudged 10 or 12 miles to a spot and it will be very frustrating for them to find that the final part is closed. That would be unacceptable.
The second area that I want to highlight is that of closures for purposes of defence. I am sure the Secretary of State for Defence will be sensitive to that matter. However, the regulations make provision for areas of land to be closed in the long term for purposes of defence, and I believe that sometimes that can be done without any written explanation being given to the public.
On the face of it, I can understand that that may seem reasonable where issues of national security, and so on, arise. However, earlier in the year, I submitted
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a number of Written Questions to the Ministry of Defence on the subject of the increasing use of the Defence Act 1842 to close footpaths. I do not intend to list those now because I am aware that the House will not want to spend long on this matter. The Act requires that closed footpaths are replaced by similar footpaths in the same area. However, since 1997 that has not happened in one case. I do not consider the reply given by the Ministry of Defence—that it was not necessary to follow Section 17 of the Defence Act 1842—was adequate.
It would be unacceptable if the Ministry of Defence chose to close without explanation, and chose to leave closed, large areas of open access land. I can understand that at present it is a matter of trust and I hope that the Government will get it right. But it is an issue on which I certainly intend to keep an eye, particularly in view of the attitude over footpath closures. That said, I wish the Countryside and Rights of Way Act good speed, and I look forward to hearing the Minister's reply.
6.30 p.m.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty): My Lords, it is a great delight to return to this subject with many veterans of the Countryside and Rights of Way Act. It was one of the most interesting and extensive pieces of legislation that I have taken through this House, and many exchanges took place, some of which have been recalled today. Although I would not say that we reached consensus on everything, I believe that, by the end, we agreed that we wanted a balanced operation between the great enjoyment and benefit brought to the walking public as a result of the Act and the needs of land management and the rights of landowners to enjoy their land. I hope that that has been the spirit in which we have pursued the regulations. They were developed after a full period of public consultation and after consideration of all the views expressed during that consultation.
The regulations before us today deal only with restrictions and exclusions. Some of the issues raised about more permanent arrangements—particularly some of the questions from the noble Baroness, Lady Byford—are outside the remit of the regulations. The focus of our discussions today is how to deal with temporary closures. The details of much of the system on the ground will not appear in regulations; they will be in statutory guidance. They will be worked out locally between the access authority, landowners and ramblers' associations and the Countryside Agency at national level in consultation with all interested parties. Therefore, some other areas will be covered in regulations but the bulk of them may well come within understandings locally.
I shall focus on the subject of formal exclusions and restrictions. The Act was framed in such a way as to allow rather more flexibility than I believe has been acknowledged this evening. At the simplest level, Section 22 of the Act allows owners of land 28 days, which they can use at their own discretion, to exclude

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or restrict access. They do not have to seek the agreement of the relevant authority but the regulations specify that they need to give five days' notice to the relevant authority—that is, the Countryside Agency, the national park authority or Forestry Commission. I can understand why the noble Earl said that, in certain circumstances, that is too long a period. However, in order to allow yet more flexibility, the regulations reduce that notice period to two hours in the case of closures for up to four hours, as the noble Earl acknowledged, or up to five days for closures in relation to smaller areas.
In addition to that, under Section 24, which allows for longer closures of land—there is an interplay between the two situations—the application must be made for a direction to the relevant authority. However, that application can be made by anyone with an interest in the land, including, for example, shooting tenants. In that case, the regulations set out a maximum period of six weeks within which decisions must be made. That has been regarded as too lengthy, but I stress that during the initial set-up period such time may be necessary on an ongoing basis. The guidance will make it clear that the relevant authority should aim to make decisions on straightforward cases well within the statutory time limits.
To address the issue of flexibility and a speedy response, the Act introduced the system of outline directions, which was not mentioned by the noble Earl. Under the directions, those with an interest in the land—this is under Section 24 so it could be a shooting tenant—can approach the relevant authority for an exclusion or a restriction, but the exact time that a restriction will be put in place on a particular piece of land, or indeed on the whole of the land, can be notified, by telephone, at a later date. Once one has the outline restriction, there is great flexibility up to the point when the restriction is activated.
In that case the regulations set the framework for how such notifications will be made and set a maximum of five days, but they allow for a different notice period to be specified in the outline direction. Again, the relevant authority would aim to agree a shorter period in the majority of cases. A provision to allow outline directions was specifically included in the Act and in the regulations to introduce maximum flexibility for the system and to allow the legitimate needs of landowners and of others with an interest in the land to be respected.
Under Sections 22 and 24 there are references to an "entitled person". Under Section 22 an entitled person is either the landowner or a farm tenant, where there is a farm tenant for a farm business tenancy. Clearly, the landowner or the agricultural tenant—as mentioned by the noble Earl—would be able to seek the closure, although the actual triggering of it could be achieved by someone acting on behalf of the landowner or by someone designated by the landowner. It could be someone with shooting rights who specified the precise time in which the provisions of an outline restriction or exclusion could be notified.
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Incidentally, that is the Welsh position in relation to Section 22. The difference between the Welsh and the English regulations is not as wide as was suggested, certainly in this respect. However, there is the problem of avoiding a situation—particularly with Section 22 exemptions—where a number of different people could claim to have the authority to decide on a closure. Therefore, it is necessary to determine whether only a limited number of people are entitled to seek a short-term closure, although once they are entitled, they can trigger it.
The wider definition under Section 24 allows for people acting on behalf of individuals to be those with an interest in the land, other than the landowner or the farm business tenant. People with a sporting interest, together with anyone else with a legal interest, would be able to apply to the relevant authority under Section 24, either for the original outline permission or under that outline permission.
The noble Earl referred to informal management techniques as an alternative to closure. They are not quite as he implied. We expect that informal management techniques will often be the simplest way, but there is no requirement for them to be tried before applying for exclusions. There are many examples of other informal management techniques that do not involve total closure, but one does not have to experiment with and pilot them before one can acquire an exclusion order.
There was much concern about publicity and signage. I believe that there is some confusion between what the noble Baroness, Lady Byford, said about the commitments during the debate that relate to general responsibilities for signage and the signage during short-term closures. All the bodies involved in the rollout of the new right of access, and certainly all the access authorities, will undertake the necessary publicity to ensure that people understand the new right and the responsibility that accompanies it. In particular, the Countryside Agency is developing a communications plan that will incorporate regional commencement, guidance on the new right of access to land managers and to the public and their policy on signage, including the new open access symbol.
A request was made during the course of the Bill to limit access to specific access points. The legislation does not provide for that, nor is that implied in the regulations in relation to temporary closures. We have issued guidance to access authorities on the use of their powers under the Act and further guidance will be issued. It will be the responsibility of those who apply for closures—rather than the responsibility of the access authority—to ensure that there is information about and enforcement of the closures.
There may be other means of communicating the closure regime, particularly through the website, but that is the limit of the statutory responsibility for the access authority. Thereafter there may be informal arrangements, through local access forums and through other means, to ensure that temporary closures can be more clearly signed, but the ultimate responsibility for that will be with the landowner.

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We shall not rely on the website only; the guidance will provide for wider provision of information, but not on every individual short-term closure.
Baroness Byford: My Lords, perhaps the Minister could clarify one point. Will noble Lords be able to ask questions once he has finished his response or should we seek clarification before then? He says that the responsibility will be on the landowner to ensure that people know whether there is access or not. How are they supposed to do that if there is no particular access point? I apologise to the Minister but I am in a dilemma on the procedure. Perhaps I should look to the Clerk.
Lord Whitty: My Lords, the normal rules will apply. Questions will not be taken after I have sat down. If the noble Baroness wishes to interrupt, she may do so.
Baroness Byford: My Lords, therefore I ask the noble Lord to respond to my question, which I had thought I would ask later.
Lord Whitty: My Lords, I am not saying that the landowner will be required to put up signs all over the place, but there is no responsibility on the access authority to provide signage for temporary closure. Therefore, if the landowner feels that there is a need for further information, that is the responsibility of the landowner or other entitled person who has requested the closure and not the responsibility of the access authority.
Clearly, we wish the procedure to work not in a regulated way, but in an informal and partnership manner between the access authority, the local landowners, the Ramblers' Association and others through local access forums and through local arrangements. There may be ways established locally that will give better guidance and, in addition to the website, there may be an individual point in an area where people can consult. We were talking about such matters for a more permanent scheme but they could also apply to temporary closures. The agency intends to establish a central restrictions unit, so there will be different ways in which members of the public can obtain details of restrictions and exclusions. That is not provided for in the regulations, but it is part of the invention of the Countryside Agency, which—to answer another of the questions of the noble Baroness—may well include in its final form a telephone hotline.
It is true that in certain circumstances the access authority may well decide that it should issue notices. But that is not an obligation on the access authority for every closure. Clearly, the authorities have the power under the Act to issue notices. That is slightly different from just putting up notices, and there is a slightly different situation, for example, where for a conservancy reason the closure is being sought on behalf of the authority itself. That is not at the landowner's initiative but at the authority's. So there are different situations.
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The noble Baroness also referred to defence land. Under present arrangements the Ministry of Defence can of course make restrictions for defence purposes on what is otherwise accessible land. The Act and the regulations do not change that. Although a great deal of defence land is fenced—and that is clear as there are only a few access points and red flags—much defence land is normally open access—for example, Salisbury Plain—and the Ministry of Defence when carrying out exercises has to sign to the public that access is not available. That applied before the Act and will apply after it.
The question of footpaths is slightly different. It relates to rights of way rather than access, but clearly the Ministry of Defence has responsibilities there as well.
The final point relates to finances. We need to ensure that the access authorities and others involved have adequate finances so that they can manage the scheme as a whole—closures and so forth. We have made generous settlements to the national park authorities in the past two financial years. Those settlements take account of the need to prepare for the new right of access in national park areas. We are also considering the authorities' bids for funds in 2004-05, so that they do not lack the resources to meet these challenges.
On local authorities, the Countryside Agency has produced outline proposals for a grant scheme. The agency has been asked to spell out how its ideas would work in practice. We await its proposals, so that it can assist local authorities in carrying out their powers under the Act.
So funds are available to the national park authorities, the Countryside Agency itself and of course to the local authorities via the Countryside Agency to ensure that we have adequate provision for implementation.
Baroness Miller of Chilthorne Domer: My Lords, will the funds given to local authorities be in proportion to the amount of open access land they have; in proportion to the amount of people using that open access land; or just on the normal funding formula? An answer in writing would be fine.
Lord Whitty: My Lords, I may be able to give the answer to the noble Baroness in writing, but not now. Clearly, the Countryside Agency is considering how the grants should operate. They will be grants and not part of the general settlement, except in so far as general provision has been made. So they will not be based on some other formulae. I am at this point unable to specify the precise formula. The Countryside Agency is still working on the matter.
I hope that that has dealt with most of the points raised. I shall check Hansard to see whether I need to write to noble Lords about any other points.
Baroness Carnegy of Lour: My Lords, before the noble Lord sits down, I hope he does not mind my popping up because I did not involve myself with the

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Bill. I am not clear about what he said about what my noble friend Lord Peel said. What happens if part of a landowner's business is a rough shoot syndicate of, say, local tradesmen—the local butcher, baker and so on—who come together in a syndicate for which the local landowner arranges? The landowner asks the tenant farmer if he will apply for a closure of the land for this purpose. The tenant farmer, who perhaps is not particularly friendly with the local butcher, says that he will not. The shoot goes ahead. There has been no closure. Who is liable if there is an accident?
6.45 p.m.
Lord Whitty: My Lords, I do not think that I should get into the last part of that question of relative liability. It is clear that the entitled person is either the landowner or, in certain circumstances, the agricultural tenant. If the landowner should say in either his outline restriction or more generally that for shooting purposes someone acts on his behalf, provided that is made clear in the outline arrangements, the shoot might in certain circumstances be the person to trigger the closure— although "trigger" is probably not the right word in this respect. But in most circumstances the agricultural tenant, if it is a farm business tenancy—so not any old agricultural tenant—would be the appropriate person. If he had not sought the closure it would not be a legal closure under these restrictions, as I understand it. However, I am getting close to the liability question, so I think that I had better shut up at this point, and, if necessary, write to the noble Baroness.
Earl Peel: My Lords, I am grateful to all noble Lords who have taken part in this little debate on the regulations. The noble Lord, Lord Livsey, quite rightly referred to the situation in Wales as being somewhat more pragmatic than that which the Minister and his officials have come up with in this country.
My noble friend Lady Byford was so right when she said: "We want the Act to work". She went on to say that resources must be made available. The Minister spoke about resources at the end of his winding-up speech. I am bound to say that—if I can use this term— the word on the street is that resources are somewhat scarce. I am far from convinced that the access
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authorities, or indeed the Countryside Agency, will actually have the necessary resources to be able to carry out their responsibilities effectively.
The noble Baroness, Lady Miller, talked about the importance of informing the public. She was absolutely right when she said—and I understood it to be so—that the website is a secondary mechanism. The prime objective is to inform people on the ground what is actually happening. I maintain that this is the only effective way to let the public know what is happening and to safeguard the interests of those who have to look after and manage the land. I am bound to say that the Minister's reply did not exactly fill me with confidence.
My noble friend Lady Carnegy raised a very interesting point. It was right at the nub of the whole difficulty of the interpretation of who can apply for a closure order under Section 22. I think that the technical answer to her question is that if it was tenanted land, the tenant was an owner under the Act and the tenant did not wish for the shooting syndicate to have any of the available 28 days, the syndicate would have to apply under Section 24. That of course is at the discretion of the local access authority, which could turn it down. So we have a very real problem here. My noble friend was absolutely right to raise the matter as she did. It was a very succinct way to demonstrate the real problems and difficulties that we have in the Act—and indeed through the regulations.
I hear what the Minister says about partnerships. "Partnership" is a great word, and it can work if there is genuine desire by all parties to make it work. But it comes down to the fundamental question of whether the resources will be made available—it is there that I fear the Government will let us down. I will read the Minister's remarks with great interest. Equally, I hope that he will read with great interest what I and other noble Lords have said, in the hope that he might consider that some of the issues that we have raised point towards future difficulties.
I repeat the most important point of all: if the legislation is to work, we must avoid conflict. That is the key. Unless the regulations are considered much more seriously, conflict will occur and the legislation will be deemed a failure. I hope that that does not happen. In the mean time, I beg leave to withdraw the Motion.
Motion, by leave, withdrawn.
House adjourned at nine minutes before seven o'clock.