Lords Sitting of 18 September 2003

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

Olympic Games 2012: London Bid
Lord Moynihanasked Her Majesty's Government:
Whether they will provide a progress report on London's bid to host the 2012 Olympic Games.
Lord Davies of Oldham: My Lords, London 2012 was incorporated on 19th August and will now take the bid forward. The chairman of London 2012, Barbara Cassani, has announced the appointment of an impressive board. including the noble Lord, Lord Coe. Key executives have also been appointed, including a chief operating officer and a director of marketing. London 2012 is also making good progress on developing the technical bid for submission to the IOC next year.
Lord Moynihan: My Lords, I thank the Minister for his answer and echo his remarks about my noble friend Lord Coe, with whom I leave tomorrow for Havana to review its 201:2 bid and seek support for London 2012 if Havana does not succeed.
In commending the work of our bid committee in exceptionally difficult circumstances, does the Minister recognise that, despite the 1997 Labour manifesto commitment to back a British bid, it is directly because of government prevarication until May this year that there is now widespread concern about progress with our bid? We have a part-time chairman, no chief executive, no website, no logo, no discussions with the individual Olympic and paralympic governing bodies of sport and a delay in Crossrail until 2013. Does he recognise that we face a deadline of 15th January to hand the IOC details of plans for venues, transport and security?
Lord Davies of Oldham: My Lords, I wish the noble Lord well in Havana and hope that he goes in a rather more cheerful spirit than he is attending here today. Of course we are aware that we have to hit the 15th January target date, and we intend to do so. As the noble Lord knows, the chairman made very clear to the Select Committee in another place earlier this week her confidence in the way in which matters were coming along.
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I emphasise that arrangements have been made for financial support of the bid. It is quite clear that we now have a very strong board to promote it and I have not the slightest doubt that, with the kind of support that I know we will offer, we will make rapid progress.
Lord Faulkner of Worcester: My Lords, on the appointment of the noble Lord, Lord Coe, as vice-chairman of the bid, perhaps it will now run a bit faster than it would otherwise have done.
I wish to impress on my noble friend the importance of improving transport links to the east of London. Mrs Cassani has rightly said that we are starting from behind, especially Paris. One thing that Paris will be able to demonstrate is excellent transport links to its Olympic village. I hope that the Government will be able to do something to accelerate the Crossrail proposal so that it does not finish the year after the games are over.
Lord Davies of Oldham: My Lords, I think that the House will recognise that Paris was bound to start ahead. After all, it submitted a prior bid, so has had practice in this art form. It is true that we are starting some way behind, but we intend to catch up.
On the transport links, my noble friend will know that proposals with regard to the siting of the games in east London greatly depend on the transport infrastructure for the area, and that certain features are already in place, not least the Eurostar extension and the development of Stratford as a major huh for international rail travel. The bid will not be dependent upon Crossrail for the success of transport arrangements. However, he is right: Crossrail would be an advantage.
Lord Rotherwick: My Lords, is the Minister considering whether the derelict Dome might he a venue for the Olympic bid?
Lord Davies of Oldham: My Lords, the Dome is on the wrong side of the Thames in relation to the proposed bid for east London, so I do not think that it enters into the equation. The other aspect that the noble Lord will recognise is that the strength of the bid will lie in the fact that we have the resources promised and allocated for the development of an Olympic village with new state of the art stadiums. We will not be dependent upon any structure except those in construction.
Lord Addington: My Lords, the Minister may be interested to know that the Dome is part of the plan. Will the Government guarantee that the utmost support will continue until the end of the bidding process in July 2005? Will they also ensure that our general sporting infrastructure in the wake of a successful bid will be integrated with that process of

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construction and will not simply mean a few stadiums in east London that may not have a long-term future? Improvement in the whole of Britain's sporting structure should be part of the games, should we win the bid.
Lord Davies of Oldham: My Lords, I am grateful to the noble Lord. I thought that the purport of his question was to suggest that the Dome should be the centrepiece of the development of the bid, which it clearly is not. We intend to develop the Olympic village in east London. As he rightly says, it has to relate to the development of sporting facilities across the range. The great advantage of the bid and, when we are successful, the great advantage of the development, is that an area that has sadly and badly needed it for a long time will get the investment to which the noble Lord referred—across a whole range of sporting opportunities.
Lord Waddington: My Lords, does the Minister agree that it would be a sad day if my noble friend Lord Moynihan, who brings such expertise and knowledge to this House, were excluded from this place as a result of the machinations of government?
Lord Davies of Oldham: My Lords, I have not the slightest doubt that the noble Lord, Lord Moynihan, will find a way to contribute to the venture, to which I know he is committed, irrespective of any position that he holds.
Lord Berkeley: My Lords, given the new transport link between Stratford and Paris, which will open in 2008, and to which my noble friend referred, have the Government considered making a joint bid with the French authorities to demonstrate cross-channel co-operation once more?
Lord Davies of Oldham: My Lords, every opportunity to co-operate with the French is seized eagerly, save in one obvious respect: my noble friend may have noticed that Paris is one of our chief competitors.
Lord Elton: My Lords, it was reported in the press that, if successful, the bid will cost council tax payers in Greater London £25 a year for 20 years. Is that speculation, rumour, spin or fact?
Lord Davies of Oldham: My Lords, the projected figure for London council tax payers, to which I can attest with accuracy, is 37 pence a week over that period. The mayor has promised that those funds will be supplementary to government investment in the games. The figure reflects the fact that, although the whole country will benefit from a successful bid, it is primarily London and Londoners who will receive the direct benefits of the huge investment necessary.

Iraq: Water and Electricity Supplies
11.15 a.m.
Lord Dubsasked Her Majesty's Government:
When they expect full electricity and water supplies to be available in Baghdad and Basra.
The Secretary of State for International Development (Baroness Amos): My Lords, the Coalition Provisional Authority aims to bring electricity generation up to pre-conflict levels by the end of this month. Water supply is improving with the repair of facilities and installation of emergency generators at pumping stations. The provision of full electricity and water supplies will require significant additional investment in the medium to long term. The coalition is also improving security to prevent sabotage and theft of public utility infrastructure.
Lord Dubs: My Lords, I am grateful to my noble friend for her Answer. Does she agree that it is essential that the quality of life for the people of Iraq should quickly represent an improvement on what it was under Saddam Hussein?
Perhaps she will say more about the sewerage system, given that it is affected by electricity supplies. Will she comment on the latest information that I have been able to find to the effect that, fairly recently, the sewerage system in Baghdad was operating at 17 per cent of its normal capacity? When can we expect a significant improvement for the people of Iraq in those essential services?
Baroness Amos: My Lords. I agree fully with my noble friend that it is important that we improve the quality of life for the people of Iraq, particularly in the south, where people were robbed over many years of investment in essential infrastructure.
I cannot endorse the percentage given by my noble friend with respect to the sewerage system. I shall write to him on that point. Emergency work is in hand to repair the Baghdad sewerage system. The CPA and the UN have each allocated 10 million dollars for the clean-up. My noble friend will know that water supplies more generally have been disrupted by sabotage and looting.
Baroness Northover: My Lords, is the noble Baroness aware that news organisations sending journalists to Iraq must now pay more for their insurance than they did at the height of the conflict? Is that not a barometer of how unstable things are in Iraq? Surely we will not see real improvements in services until Iraq is more secure. What are the Government doing to persuade the Americans to enable the international community to play a larger part in Iraq so that security will be improved?
Baroness Amos: My Lords, noble Lords will know that the security situation remains extremely fragile. We are doing all that we can to improve it. It is a combination of criminal activity with the involvement of terrorist elements.

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With respect to the wider involvement of the international community, the noble Baroness will be aware that other nations are already involved with the coalition in Iraq. I think that there are some 30 nations, but I shall happily write to the noble Baroness with the details. We are engaged in discussions in the Security Council for a further UN Security Council resolution, which, we hope, will mean that a more international force can come into play in Iraq.
Lord Crickhowell: My Lords, a close relation of my wife has been in Baghdad with the World Health Organisation. He had telephoned and e-mailed me regularly until he was evacuated temporarily to Amman because of the security situation. The last report that I received from him, about 10 days ago, was that electricity supplies in Baghdad are on for the general population for only about two hours a day, despite the fact that it has been an exceptionally hot summer. In the light of that information, how does the noble Baroness really think that we will get electricity—and, therefore, water and sewerage systems—working in the time-scale that I thought she indicated in her Answer?
Baroness Amos: My Lords, it is true that in Baghdad and other parts of Iraq there have been times when electricity supplies have operated for only three or four hours per day. Noble Lords can imagine how much electricity cable there is in a country the size of Iraq: the opportunity for sabotage is enormous. When infrastructure that has been starved of investment is repaired or improved, there is often sabotage on the cables overnight. Clearly, the security situation must improve, but we must also deal with overnight sabotage.
With respect to electricity more generally, we are planning to increase the supply of electricity by the end of September. Last week, a note from my department was placed in the Libraries of both Houses giving an update on the situation as regards electricity, water, food and health. The note will be updated on a regular basis, so that noble Lords are kept informed of any change.
Lord Swinfen: My Lords, can the noble Baroness tell the House whether these two cities had full electricity, water and sewage services before the recent conflict?
Baroness Amos: My Lords, the situation in Baghdad was different from that in Basra; for example, vital infrastructure in Basra had been starved of investment. While there was access to services in Basra, it was not available at the full levels found in Baghdad. We have been trying, particularly in the south, not only to bring services back to pre-conflict levels but also to improve on that. When I was in Iraq I saw the terrible state of some water treatment plants, for example. As I said,
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we are not only trying to bring those services back to pre-war levels; we are also trying to raise their availability beyond those levels.
Earl Attlee: My Lords, have we managed to halt the movement and export of copper scrap in the UK area of operations?
Baroness Amos: My Lords, I am unable to answer the noble Earl's question. I am aware that, immediately after the conflict, a great deal of copper scrap was leaving the country as a result of criminal activity. I know that we have made some improvement in the situation, but I do not know the extent to which we have been able to halt such activity. I shall therefore write to the noble Earl.
The Lord President of the Council (Lord Williams of Mostyn): My Lords, we are substantially over time.

Wind Turbines
11.23 a.m.
Lord Campbell of Croyasked Her Majesty's Government:
Whether it is still their intention that 10 per cent of the energy needed in England and Wales should be generated by wind turbines by the year 2010.
Lord Davies of Oldham: My Lords, the Government have not set a specific target for wind energy. They remain committed to the target of obtaining 10 per cent of the UK's electricity from all renewable sources eligible for the renewables obligation by 2010. Wind energy, from both on and offshore installations, is likely to be the largest contributor.
Lord Campbell of Croy: My Lords, I thank the noble Lord for his reply. While renewable sources should be exploited so far as is practicable, might not the Government have to create veritable forests of windmills, mostly around our coasts, if they continue with this intention?
Lord Davies of Oldham: My Lords, as I indicated in my initial reply, it is certainly the case that we are looking to wind energy to provide a substantial proportion of the 10 per cent target. We expect the majority of intensive wind farms to be on the coast, which raises important issues that this House will recognise. The Government are confident that, first, we have in place both the commitment to hit 10 per cent, and, secondly, a strategy which will ensure that we do.
Earl Peel: My Lords, is the noble Lord aware that many people in this country are becoming increasingly concerned at the encroachment of wind farms into some of the most sensitive parts of the British Isles? Could the Minister give a guarantee that at least areas

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of outstanding natural beauty and national parks will be preserved from these white aliens? Otherwise, what is the purpose of such designations?
Lord Davies of Oldham: My Lords, I recognise the point made by the noble Earl. We certainly need to give careful attention to planning permission with regard to wind farms. In the wrong place, they can obviously detract from the beauty of an area. Clearly, national parks will need special protection. As I indicated in my earlier reply, we are anticipating that the major concentration of wind farms will be a considerable distance from any national parks.
Lord Ezra: My Lords, does the noble Lord agree that even if the objectives for wind power were achieved, it would still be difficult to meet the emission reduction target of 2010 and even more difficult thereafter because of the withdrawal of nuclear power? In those circumstances, should not the Government mobilise other means of carbon reduction more effectively? For example, should more support he given to combined heat and power (CHP), which is presently in difficulty, including micro-CHP, in which I declare an interest, to tidal power, to bio-mass in its various forms, to clean coal technology processes, including carbon extraction, and to the recovery of methane from coal mines, all of which could make a big contribution in the future to carbon reduction?
Lord Davies of Oldham: My Lords, the House well recognises the expertise of the noble Lord in this area. I am grateful for his contribution. We recognise that the target for reduction of CO2 emissions is difficult to hit. The 10 per cent target is challenging for this form of energy. He is right. We need to invest in many other forms of energy generation in order to hit the targets. I assure the noble Lord that the Government are already investing in a number of these developments; namely, wind and wave power, and clean coal technologies, to which he referred in particular. They all play their part in hitting a target to which we are committed.
A noble Lord: My Lords, with regard to the potential of tidal—
Lord Williams of Mostyn: My Lords, it is the turn of the Cross- Benchers.
Lord Oxburgh: My Lords, my question is about the intermittency of wind, which does not matter very much when the total contribution of wind to the national energy supply is at the level of a few per cent. When the wind does not blow, the shortfall can be readily accommodated by the rest of the system. At higher levels, it is a different story. There must be standby capacity that can come in when the wind does not blow. That changes both the cash and the carbon economics of wind power significantly. Can the Minister explain how this is taken into account in the Government's policy?
Lord Davies of Oldham: My Lords, the noble Lord has identified a key point. It is clearly the case, given the obvious intermittent quality of wind production, that it will be necessary for proper research and investment into storage techniques to ensure that we have sufficient capacity to meet those occasions when immediate on-stream electricity is not so readily available.
The noble Lord will also recognise that when we hit our targets this form of technology will still be playing a small part of the overall provision of energy in this country.
Lord Harrison: My Lords, does my noble friend believe that those who criticise wind energy are simply tilting at windmills?
Baroness Sharples: My Lords, can the noble Lord tell us whether a public inquiry is held on every occasion when wind turbines are proposed in an area?
Lord Davies of Oldham: My Lords, not on every occasion, but certainly on all those occasions when it is clear that planning requirements ensure that that should be the case. That would apply to areas of outstanding natural beauty.
We are reviewing issues with regard to planning laws in relation to these developments. Obviously planning will play a major part in the consents required for such projects. However, as I indicated earlier, it is already the case that major projects for the future seem to be a considerable distance away from some of the more sensitive areas to which noble Lords have alluded.

Docklands Arms Fair: Arrests
11.30 a.m.
The Countess of Mar: My Lords, my noble friend Lord Hylton regrets that he cannot be present this morning. On his behalf, and at his request, I beg leave to ask the Government the following Question:
The Question was as follows:
To ask her Majesty's Government whether arrests were made at the arms fair in Docklands under Section 44 of the Terrorism Act 2000 or under other terrorism provisions; if so, how many persons were arrested and why; and how many were charged.
The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, no arrests were made under Section 44 of the Terrorism Act 2000. For clarification, Section 44 of the Terrorism Act is a stop and search power, not an arrest power. Two individuals were arrested under Section 41 of the Terrorism Act on 8th September, the eve of the arms exhibition. They were subsequently released from the Terrorism Act provisions.
The Countess of Mar: My Lords, I am sure my noble friend will be grateful for that reply. He has asked me to ask the Minister whether the use of the Section 44 stop

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and search powers were specifically authorised by the Home Office, or was there a blanket authorisation for London over that period. Does not the Minister regard the use of such powers on peaceful demonstrators a serious erosion of civil rights?
Baroness Scotland of Asthal: My Lords, as I explained, no arrests were made under Section 44. Two individuals were arrested under Section 41. I know that the difference between the two sections has caused difficulties in the past. As regards authorisation, my right honourable friend the Secretary of State for Home Affairs is responsible for designation, but operational issues are of course a matter for the Metropolitan Police.
Lord Dholakia: My Lords, is the Secretary of State responsible for authorisation? If such an authorisation was given to the police, did it apply to the whole of London or only Docklands, and is it still in force?
Baroness Scotland of Asthal: My Lords, any complaint alleging misuse of police powers will be investigated by the Metropolitan Police. There is a procedure under the Terrorism Act that allows an individual to request reasons. The Home Secretary has asked for a reply in relation to those matters.
The role of the Secretary of State is to confirm whether it is appropriate for Section 44 powers to be put in place. The Government's position is that those powers should be applied correctly during police operations in strict compliance with the legislation; that is, for counter-terrorism purposes only.
Earl Attlee: My Lords, does the Minister agree that, by its very nature, the defence exhibition was vulnerable to terrorist attack?
Baroness Scotland of Asthal: My Lords, I am sorry. I did not hear the last part of the question put to me by the noble Earl., Lord Attlee. Would he be kind enough to repeat it?
Earl Attlee: My Lords, does the Minister agree that, by its very nature, the exhibition was vulnerable to terrorist attack and that therefore precautions should have been taken?
Baroness Scotland of Asthal: My Lords, I wholeheartedly agree with the noble Earl that it is absolutely critical to take precautions in those circumstances. We believe that appropriate action was taken in order to keep safe all those who visited the site.
Lord Elton: My Lords, I did not quite understand the reply of the noble Baroness to the question put by the noble Lord, Lord Dholakia. His question was whether the powers used required the authorisation of the Secretary of State. If so, was that authorisation supplied and over how wide an area?
Baroness Scotland of Asthal: My Lords, all Section 44 applications are scrutinised. If there were any indication that a police force intended to use those powers in a way not compliant with the legislation, the Home Secretary would not confirm their use. The situation was that the powers were used properly.
I have tried to explain a number of times that there was no use of Section 44 on that occasion and that the arrests took place under Section 41. If it helps, I shall be happy to describe the difference between the two sections because I know that this matter seems to be causing a little confusion. However, I notice that noble Lords do not want me to do that. I am more than content.
Lord Hodgson of Astley Abbotts: My Lords, can the noble Baroness explain why counter-terrorism legislation was used rather than the wider public order legislation that is available in all cases?
Baroness Scotland of Asthal: My Lords, what is absolutely important is that appropriate action was taken to keep London safe. Noble Lords will know that since 1998 a number of incidents have taken place right across London. It is right that there should be reviews of whether the continuance of the relevant actions is proper, and those have taken place.
Lord Lloyd of Berwick: My Lords, does the Minister agree that the problem with Section 41 of the Terrorism Act 2000, under which the arrests were made, is that it enables the police to arrest someone even though he has not committed, or is not thought to be about to commit, any specific offence? That seems to illustrate the dangerously wide nature of Section 41, to which I have drawn attention before.
Baroness Scotland of Asthal: My Lords, of course, I hear what the noble and learned Lord says. The noble and learned Lord also well knows that we held quite intensive debates on the balance that must be borne in mind before the proper exercise of powers under Section 41. It was for that reason that the noble Lord, Lord Carlile of Berriew, was invited properly to keep under review the provisions, and that does work.
I do not think that I have yet said clearly that Section 44 was used in the generality, but in relation to the arrests—which was the purport of the Question—it was Section 41.

The Lord Chancellor: Leave of Absence
11.36 a.m.
The Lord Chancellor (Lord Falconer of Thoroton): My Lords, before public business begins, may I take the opportunity to inform the House that I shall be undertaking ministerial visits to Manchester and Bolton on Monday, 6th October and Thursday, 9th October respectively? Accordingly, I trust that the House will give me leave of absence.

Business
Lord Williams of Mostyn: My Lords, a little later this morning, the noble and learned Lord the Lord Chancellor and Secretary of State for Constitutional Affairs will make an announcement of interest to at least 93 of your Lordships. I wish to remind noble Lords of the procedure outlined in the Companion. The noble and learned Lord makes his Statement; there is then 20 minutes for Front-Bench interventions and a further 20 minutes for Back-Bench interventions.
On this occasion it seems that only 20 minutes for the Back Benches is somewhat restrictive. I propose, therefore, if noble Lords are content, to double the time to a maximum of 40 minutes, if that is wished for.

Human Fertilisation and Embryology (Deceased Fathers) Bill
11.37 a.m.
Read a third time, and passed.

Constitutional Reform
11.38 a.m.
The Lord Chancellor: My Lords, with the leave of the House, I should like to make a Statement about further reforms to your Lordships' House, and on the office of Lord Chancellor.
I am today publishing two consultation papers on the next steps on House of Lords reform and on the functions of the Lord Chancellor. Copies of both papers are available in the Printed Paper Office.
These papers form another significant part of the present phase of constitutional reform on which the Government embarked last summer, with the creation of a Department for Constitutional Affairs to take overall responsibility for these issues.
May I begin by apologising to the House because a report of the House of Lords proposals appeared in a Sunday newspaper? I can assure the House that no one in my department was authorised to speak to the press on this subject. It has always been the Government's intention to ensure that Parliament should hear first about these proposals.
I shall deal first with our proposals for further reform of your Lordships' House. Last February, this House and the other place voted on the range of options for the composition of our second Chamber proposed by the Joint Committee of both Houses. Your Lordships voted three to one in favour of an appointed House. In the other place, there was no majority for any of the options.
The Joint Committee, in its second report published on 9th May, reflected on the outcome of the parliamentary votes and concluded that,
"simply to maintain the status quo",
in respect of composition was undesirable. The Government agree.
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In these circumstances we intend to make progress where we can. So the Government are proposing further reforms to ensure that we have a stable and sustainable House of Lords. It was never our intention that the remaining hereditary Peers should remain Members of the House for ever. When this interim arrangement was reached, as well as the immediate benefit of the agreement, we accepted the argument that the presence of the remaining hereditary Peers would act as an incentive to further reform. That has not happened. There is clearly no consensus in Parliament on the way forward.
So the context for reform has clearly and significantly changed. The circumstances which gave rise to the original arrangement over the remaining hereditary Peers no longer apply. The solution which the remaining hereditary Peers were here to help is no longer available.
So the Government must act, and act decisively, to bring about stability and sustainability. It is for the Government to act but it is for Parliament to decide. It will be for Parliament as a whole to decide on the removal of the right to sit and vote of the remaining hereditary Peers.
Therefore the next step of our reform programme will be to introduce legislation, when parliamentary time allows, to remove the right of the remaining 92 hereditary Peers to sit and vote in your Lordships' House, thus completing that element of the reform process on which we embarked in 1997.
In moving on from the current arrangement, I want to pay tribute to the contribution which those 92 Peers make to your Lordships' House. Many of them are among our most active and effective Members. I hope that we shall continue to benefit from the contribution of at least some of them should they be nominated as life Peers in the future.
We shall set up a statutory commission to select and oversee appointments that are made to this House. This will build on the present non-statutory Appointments Commission, which itself represented a significant voluntary relinquishing by the Prime Minister of his powers of patronage. The statutory commission will be appointed by Her Majesty the Queen in response to an Address from Parliament. The three major parties in this House and the Cross-Bench Peers will be directly represented on it, together with a number of members selected in accordance with the principles of the Commissioner for Public Appointments in an open selection process. The Government will discuss with the opposition parties how they may best be involved in the selection process. The commission's funding and accountability arrangements will maximise its independence from the Government. The consultation document asks for views on various detailed aspects of these arrangements.
We propose that the functions of the commission will be threefold. First, it would decide on the number and timing of new appointments to the House. This will be a massive—and voluntary—diminution in the Prime Minister's influence over the membership of the House. In making its decisions in relation to political

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appointments the commission will be subject to two main guidelines. These are that the government of the day should not have an overall majority in the House and that appointments for the parties should have regard to the outcome of the previous general election. The commission will also be expected to provide that appointments to the Cross Benches should average 20 per cent of appointments over the lifetime of a Parliament. The commission's second function would be to nominate the non-party Peers. And, thirdly, it would vet the nominations for party Peers for propriety.
In the mean time, the existing non-statutory Appointments Commission will continue its work, of which the Prime Minister has already expressed the Government's appreciation. The Prime Minister will invite it to make recommendations for new non-party Peers until the new statutory commission is in place.
We also propose to bring the rules for disqualification for membership of this House in respect of detention following conviction for an offence into line with those for the House of Commons. We do not believe that this difference of treatment can any longer be justified. We therefore propose that in future such Peers will forfeit their membership of the House exactly as they would if they were MPs. In addition, they will deprived of their peerage. The provision will have retrospective effect. Parliament is a privilege, not a possession. Such Peers of course, be free to seek renewed membership of the House by applying to the Appointments Commission or their party, as relevant, for nomination, just as former Members of Parliament can seek re-election.
We propose that life Peers, like hereditary Peers before them, should in future be able to resign their peerages and membership of the House. This is a fairer and more reasonable arrangement which will allow those who feel they wish to move on and no longer sit in the second Chamber the opportunity to do so.
Nothing in these proposals relates to the powers of the House. We are not proposing any extension of the role of the second Chamber. For example, the traditional role of this House in relation to Finance Bills is clear and works well, its powers being constrained by the Parliament Act 1911 and Commons' financial privilege established in resolutions in the 17th century. I am sure that your Lordships would not seek to extend its powers, for example, in respect of supply. The House of Commons should and must remain pre-eminent in our constitutional arrangements.
On further reform of this House, we will continue to look for a way forward. We will discuss any possible next steps with the current Joint Committee and how it can contribute.
Taken together, these changes amount to a substantial set of reforms to the House. When added to our previously announced decisions to set up a separate supreme court and to remove the office of Lord Chancellor, thus leading to reform of the office of Speaker, they will create a House that is significantly different from that which presently exists.
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I am also publishing today a consultation paper on the reform of the office of Lord Chancellor. Work to bring an end to the multiple roles of the Lord Chancellor is already well advanced. I am formally inviting views on the Lord Chancellor's ecclesiastical patronage, his visitatorial responsibilities and other functions relating to specific charities, schools and other institutions.
The proposals I am announcing today are part of the programme of constitutional reform which the Government have been pursuing since 1997. They will contribute to the further strengthening of Parliament. Alongside our earlier reforms of devolution to Scotland and Wales, the Human Rights Act and freedom of information, they will take their place in the shaping of our nation, to make the institutions of the state fit and responsive to the demands of our citizens in the modern world.
My Lords, that concludes the Statement.
11.46 a.m.
Lord Strathclyde: My Lords, it is a good custom of the House to thank the Minister for making the Statement. I readily do that to the noble and learned Lord the Lord Chancellor.
But here we go again—days behind the Sunday Times. Is it not utterly extraordinary that this great House of Parliament is being told about the latest edict on its future six days after the media? Why such glaring discourtesy and contempt for this House? How much longer are we expected to tolerate this treatment?
Apologies are no longer enough. The Government need to clean up their act. They promise an end to spin just as they reach for the pager. They talk about looking for consensus, and then plunge into self-seeking, go-it-alone change. Time was when the Government boasted of governing for all the people. Now they behave as if the constitution were the private property of the Prime Minister and his friends.
This is a fundamentally dishonest Statement. It is pretending that the Government are still interested in long-term reform when they are pushing a short-term political fix. No one can believe what they say any more. No one can believe that they have the slightest intention of ever delivering genuine reform.
Why have they totally ignored the Royal Commission? Why have they pre-empted the Joint Committee of both Houses? Were the members of that committee consulted on this announcement? If not, how humiliating is that for them?
The issue at stake now is not the future of the hereditary Peers—that issue was done and dusted in 1999. No one any more has the right to sit by virtue of a hereditary peerage alone. The real question that Parliament has to face over the next few months is far bigger—what this House will be in the future and what authority it will have. No legislation affecting this House can be launched without opening up questions that go wider than the narrow compass of a Bill, and every one of us will be affected by it.

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Here and in another place we will all face a choice: to buy the Prime Minister's three-card trick and strengthen No. 10 even further at the expense of Parliament; or see this Statement for what it is—a blatant attempt to rig this House and to have a free hand to cook the constitution. It is a political statement of one party and for one party—the very opposite of what constitutional reform should be. Any principle—any pretence of principle—has been dumped. The ideals of the Cook-Maclennan talks have been betrayed, all the pledges of a more democratic House have been trashed. The legitimate expectations of this House in 1999, when so many of its Members surrendered their places, on the basis that 92 hereditary Peers would remain to guarantee genuine reform, have been gratuitously and deliberately dishonoured. It is a sorry and shabby tale, and I am not alone in believing that this ancient House deserves far, far better.
The noble and learned Lord, for all his honeyed words, cannot escape his role in this. Once we all saw him, with some affection, as the man who had to clear up the Prime Minister's messes—the Dome, the latest concessions to the IRA, even legalising sex in public lavatories. Name the problem and the noble and learned Lord would offer a solution. But now we can see that he was part of the problem. He was up to the hilt in bouncing this House over the removal of the Law Lords and now his fingerprints are all over this tacky little plan.
Can the noble and learned Lord tell us why more tinkering with this House is suddenly so critically urgent? Frankly, most people in this country, if they have a view, think this House works rather well, as indeed it does. What has changed since the noble and learned Lord, Lord Irvine of Lairg, was still talking of a search for consensus as recently as this summer? Can it be anything to do with the fact that this House has begun to show independence and win respect and authority? Can it be that we have questioned the Government over issues such as trial by jury, media ownership, the snoopers' charter and the fair conduct of justice in the courts? Could it be the issue of a referendum on the new EU constitution—a referendum this House might support and the Prime Minister so desperately wants to avoid? Is that why the noble and learned Lord wants to remove 20 per cent of the non-governmental Peers in this House, some of the most active and experienced Peers among us?
Let us look at who will lose: great campaigners like the noble Countess, Lady Mar, the noble Lord, Lord Freyberg, the noble Lord, Lord Northbourne. We would lose the wisdom of the noble Earl, Lord Russell, my noble friends Lord Denham, Lord Ferrers and Lord Elton, who have devoted years of their life to serve this House. At 88, the noble Lord, Lord Strabolgi, devotes more time to this House and contributes more than many new Labour Peers who come here, take their seat and are never seen again. Will the noble Lord have to present himself before an appointments commission? It is utterly contemptible. So why now, and why them?
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The Government talk of losing Divisions as if Parliament had no right to suggest alterations to their Bills. So let it be put on the record, before their spin doctors get to work, that in 40 per cent of the Divisions the Government have lost this year, fewer than half their own Peers supported them. The Government's policies have simply failed to convince this House.
The noble and learned Lord made great play of the statutory appointments commission. In principle, it is welcome. We have waited a long time for it, though, so can he say precisely when it will be enacted?
The House will note that the Government no longer talk of broad parity with the main opposition party. Instead, they now talk of not having an overall majority in the House. Does not that mean that the Government would have a majority over the two main opposition parties combined? Can he also confirm that the White Paper explores the further option of seats in this House reflecting the number of seats won in another place? There would not be much point in a statutory appointments commission if it had terms of reference to gerrymander. The House will wish to look very sceptically at these proposals.
The Statement also referred to the future of the office of the Lord Chancellor. We will have the opportunity to debate that more fully, as we have been promised a debate by the noble and learned Lord the Leader of the House.
The bottom line today is that the Government are in a hurry. Perhaps that is because there is an increasing sense of time running out for those in Downing Street. But surely this is the last moment to pile more constitutional change on the incoherent mess that we have already been given. It will be a major task for the next government to bring order from confusion and breathe back into Parliament the life that is steadily being squeezed from it.
We have known for a long time that the personal dream of the Prime Minister was not the democratic House he once talked about but an appointed House he could ignore. He has never dared to advocate that openly, but this proposal, taken together with the removal of the Law Lords, will now give it to him through the back door.
In some ways, this is a model new Labour policy—pre-spun, ill thought out, tactical, planned in the party interest not the national interest, sold on old-fashioned prejudice and calculated only to make a complex problem even worse. If this Bill is ever presented to this House, the noble and learned Lord and his colleagues can be assured that he can expect a major fight on his hands, and it will not be confined to this Bill. This House values its independence, and in the past four years it has found a voice that the country is increasingly willing to hear. We on this side of the House will not give that up lightly.
11.56 a.m.
Lord Goodhart: My Lords, the Statement delivered by the noble and learned Lord the Lord Chancellor refers to two papers. One of them concerns the reform

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of his office; that paper adds little to existing announcements except some detail on subsidiary functions, and that can be dealt with in due course.
The second paper on the future of the House of Lords is an entirely different matter. I have looked through that paper to find whether there was anything acceptable in it. I eventually found something in the last paragraph—the power to renounce a life peerage. It is a power that I doubt will be much used. I also welcome the power to disqualify Members after conviction leading to a prison sentence, although I wonder if retrospective disqualification is legitimate under Article 7 of the European Convention on Human Rights. But the overwhelming reaction I have is a feeling of contempt and betrayal.
In 1997, we and many others seeking reform of your Lordships' House believed that the Government meant what they said in their manifesto and would make your Lordships' House a wholly or mainly elected House. We believed that the Government meant what they said when the House of Lords Act was passed in 1999 and most hereditaries left. We believed that the Government meant what they said in their 2001 manifesto. Even last February, when both Houses voted on options, we believed that there was a real chance of reform.
The Government scuppered that chance by putting pressure on Labour MPs to reject the options on what was supposed to be a free vote. Without that pressure, there would clearly have been a majority for either 60 per cent or 80 per cent elected, or both. So the Government's use of the failure to reach agreement in the House of Commons is frankly like the boy who murdered his parents and then asked for mercy because he was an orphan.
The Government have now made it clear that they want no democratic reform at all. They have betrayed the trust of those who believed that they were truly committed to full constitutional reform. They have done so because your Lordships' House is a nuisance to them. We amend their Bills and we take up their time in debates. A proper reform would make things even worse for the Government, so they take the easy way out. Your Lordships' House will remain wholly appointed.
It is, and remains, the aim of my party to end the hereditary basis of membership. But the remaining hereditary Members should go when, and only when, they can be replaced by a mainly elected membership.
That is not the end of it as regards this report. In 1997, the Prime Minister said that, pending reform, the two largest parties should have equal membership in your Lordships' House and that the third party should have representation proportionate to its share of the vote. The Government now say only that the Government should not have an overall majority in your Lordships' House. But given that 20 per cent of your Lordships' House will plainly remain as Cross-Benchers—indeed, that is stated as the objective—the Government could end up with a massive majority over all other political parties, as the noble Lord, Lord Strathclyde, the Leader of the Opposition, said.
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Furthermore, the Government are reopening the question of whether party representation should be proportionate to the share of the vote or to the share of seats in the House of Commons. If representation were proportionate to the share of seats, we would end up with a clone of the House of Commons. That would mean, among other things, that since 1997 almost every single political appointment would have been an appointment of the Labour Party. So long as Members of the House of Commons are elected on first past the post, it is essential that appointments to your Lordships' House should be proportional to votes, not to seats.
Ninety-two years ago, it was said in the preamble to the Parliament Act 1911 that it was,
"intended to substitute for the House of Lords as it at present exists a Second Chamber constituted on a popular instead of a hereditary basis".
The aim of the Government is to ensure that the House of Lords will be constituted on neither of those bases. The aim of the Government is not only to remove the hereditary Members of your Lordships' House, but to castrate your Lordships' House.
12.1 p.m.
The Lord Chancellor: My Lords, both those interventions appeared not to take into account that this House voted overwhelmingly for an appointed-only Chamber. I am quite unable to understand the position taken by the noble Lord, Lord Strathclyde. He himself may have voted for an elected element, but more than 120 of those behind him voted for a wholly appointed House. We have to recognise that no consensus emerged within the other place and none emerged between the two Houses.
So what is it that the noble Lords, Lord Strathclyde and Lord Goodhart, would have us do? Both of them, as I understand it, would have us do nothing. That would have two consequences. First, the hereditaries would remain; I believe that everybody agrees that they have done sterling service but that they no longer have a place in the second Chamber. Secondly, it would lead to a non-statutory appointments commission, with the numbers and timing determined by somebody other than an independent commission.
Let us take the points made by the noble Lord, Lord Goodhart. He complains that the measure would allow the Prime Minister to determine the size of the House. It would not. One provision made in the consultation document is that the size of the House and the timing of when people go in is to be determined by the statutory appointments commission. Conveniently for those on the other side of the House who make their various arguments, that leads to the preservation of the hereditary Peers and to the position of the Prime Minister retaining his patronage.
We are in the business of making progress where we can. That is why we have proposed these things. One reason why we have proposed them is because this House, on the basis of how it reacted in February, would reject any elected element. We have to be practical and realistic and move where we can.
12.4 p.m.
Lord Craig of Radley: My Lords, I start by thanking the Lord Chancellor for his courtesy in informing me as Convenor on Monday about the Statement and its content. But that is the sum total of my gratitude. I was under the impression that there were to be no further changes in the make-up of the House until stage two was reached. We have not reached it.
Is there not a serious breach of faith at the heart of this Statement? Is this Statement today not just a hawkish position to ease the party conference problems that the Government are about to face? If it is, it is a gross discourtesy to this House.
Does the noble and learned Lord the Lord Chancellor acknowledge the immense contribution made to the Cross Benches by the 28 independent hereditary Peers? Does he accept that there is good reason to continue to draw on the experience and expertise of all hereditary Members for the benefit of the House, its legislation and the country? It is widely acknowledged that the House performs its scrutiny and other roles with a sure and constructive touch. The hereditaries' deep knowledge and experience is irreplaceable in one go. Must they be culled all at once? Do the Government really envisage a kind of reincarnation whereby all those removed may return as life Peers?
It would be perverse if this change, short of stage two, served only to debase the capability of the House to carry out its roles and functions. If a Bill comes to your Lordships' House, I hope that the House will support what I termed option 1A in my speech last January on Lords reform—that is, to retain existing hereditary Members for life, but without replacement, so ensuring that the country continues to benefit from the loyalty and commitment of the present hereditary Members to the House. Will the Government accept this option for inclusion in their Bill?
The noble and learned Lord the Lord Chancellor makes much of the relinquishing of the Prime Minister's patronage, but will the Prime Minister continue to recommend individuals such as archbishops, Cabinet Secretaries and chiefs of defence staff for a peerage, as an honour, without recourse to the Statutory Appointments Commission? Are future life peerages recommended by that commission to be treated as honours or merely as working Peers to replace departing Members of your Lordships' House?
The Lord Chancellor: My Lords, I of course acknowledge the contribution made to the House by Cross-Benchers and I hope that I made it clear in the Statement that I acknowledge the contribution made by hereditary Cross-Benchers. Indeed, I acknowledge the contribution made by all hereditary Peers to the proceedings of this House. However, I do not believe that it is right that the hereditary principle should determine who can take part in the second Chamber.
After the failure to reach consensus, the time has come for a change to be made. Because no consensus has been reached between the two Houses, it would be right to ensure, first, that the hereditary principle
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comes to an end as a basis of membership of this House and, secondly, that the patronage determining who becomes a Member of the House is put largely in the hands of an independent appointments commission.
The noble and gallant Lord, Lord Craig of Radley, referred to particular office holders—to Cabinet Secretaries and various others. We believe that they make a significant contribution to the House and that it is right that they should be offered life peerages at the point when their service to the nation has come to an end. We do not believe for one moment that that undermines the principles of this paper.
Lord Waddington: My Lords, does the noble and learned Lord the Lord Chancellor recognise that many of us feel that he must be fully aware that what he proposes is in clear breach of undertakings given by the noble and learned Lord, Lord Irvine of Lairg, his predecessor as Lord Chancellor? Will he go away and read in Hansard, col. 1092 of 11th May 1999, when the noble and learned Lord, Lord Irvine, said:
"The Government are absolutely committed to moving to stage two in the reform process"?
He said that when stage two reform took place,
"the hereditary Peers who remain, if the Weatherill amendment passes, will cease to be Members of this House‖ The 10 per cent will go when stage two has taken place and their presence is a guarantee that stage two will take place".—[Official Report, 11/5/1999; col. 1092.]
Is the noble and learned Lord seriously suggesting that the Bill will bring about stage two reform to which the former Lord Chancellor referred? Of course not. Stage two reform was the full-scale reform referred to by the noble Baroness, Lady Jay of Paddington, in her Statement of 20th January 1999, to which I also refer the noble and learned Lord.
After this mean little Bill becomes law, will we not be left with a House composed entirely of people who owe their presence here to present-day patronage—a House less independent of government and less effective as a check on the executive?
The Lord Chancellor: My Lords, of course I have read in detail the debates of 1999 and, of course, I am aware of what was said by representatives of the Government at the time. I am in absolutely no doubt that there is no breach of any of those undertakings whatever.
Noble Lords: Oh!
The Lord Chancellor: My Lords, in relation to those undertakings, the position is that attempts were made to reach a consensus. This House rejected any elected element and voted for an appointed-only Chamber.

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Because no consensus was reached, we must make progress where we can. There is no breach of the undertakings.
The Lord Bishop of Worcester: My Lords—
Lord Hughes of Woodside: My Lords—
Lord Williams of Mostyn: My Lords, shall we start with the right reverend Prelate and then go to my noble friend?
The Lord Bishop of Worcester: My Lords, this is not a moment for any of us on these Benches to express our personal opinions about these particular proposals, but only to ask that the noble and learned Lord the Lord Chancellor remain aware that the commitment of the Church of England throughout the process has been to ensure the best House for the service of the nation and to play its part in that. Although I note that the proposals make no change in the position of the Bishops in the House, I draw his attention to the fact that we have consistently said that the issue of the representation of the faith communities and of the Christian denominations as a whole in the House remains to be resolved. I do not believe that we have made any difficulties about proceeding with reform in that respect. I should therefore like some assurance that that aspect of the reform of the Lords, which I admit is perhaps not the one that engages most people's attention most of the time, will not be forgotten or kicked into the long grass for a long time.
The Lord Chancellor: My Lords, as the right reverend Prelate says, the proposals make no change in the position of the Bishops because there is no consensus on that. The points that he makes are important and need to be considered when we seek to build a consensus for a way forward beyond this Bill.
Lord Hughes of Woodside: My Lords, does my noble and learned friend accept that one of the problems about failing to have any consensus about the membership of the House is that there is in fact no consensus about what the House should be doing? Unless we resolve precisely the status of the House in relation to the other place, the argument about composition will go on for ever. In passing, I shall make a wry comment. The Front-Benchers for the Conservative Party and the Liberal Democrats have stated clearly that they wish to see a much stronger House of Lords. In fact, they wish to upset the balance that has existed for many years whereby the other place is pre-eminent and cannot be wholly challenged. The thirst of the Conservative Party and the Liberal Democrats for the accretion of power to this Chamber is in direct relation to their unrealistic prospects of ever having power in the other place.
The Lord Chancellor: My Lords, the relationship between this place and another place is obviously important. Although there are issues about the detail, I do not think that there is any fundamental
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disagreement between the parties that the House of Commons is pre-eminent, that we are primarily a revising Chamber, or that, ultimately, the other place should have its business. We can discuss the detail of that, but there is broad consensus that that is the position. As for the prospects of the other side in the next general election, it is probably best at this stage not to comment.
Lord Marsh: My Lords—
Lord Howe of Aberavon: My Lords—
Lord Renton: My Lords—
Lord Williams of Mostyn: My Lords, it is the turn of the Cross-Benchers. I respectfully remind your Lordships that the shorter the interventions, the more of your Lordships who can be heard.
Lord Marsh: My Lords, I declare an interest as one of those involved with the Weatherill amendment. Certainly in my case and that of the noble Lord, Lord Weatherill, the discussions took place in the clear belief that there was a need to find a basis whereby we could reach an agreement that would enable us to move on with the question of the future of the hereditary Peers. That has been the major issue throughout this long debate. We have all known that this was Labour Party policy since long before the 1997 general election, but we thought that we could now reach an agreement. These were off-record, Privy Council discussions.
The reality is that there has been no progress whatever since that time, and we are as divided now as we were then. In retrospect, I think that it was naïve to believe that it would he otherwise. For 18 years, the Opposition could have put through any change they wished, with a majority in both Houses. I had thought that we had got past that position, but we clearly have not. I now think that we have reached a stage where, although many of us will not like the decisions that are being reached, this has gone on for so long that we demean the status of the House. I think that it should now be a priority that we get on with a job that we should have been able to deal with some years ago.
The Lord Chancellor: My Lords, that intervention has particular force from someone who was involved with the Weatherill amendment.
Lord Howe of Aberavon: My Lords, I ask the noble and learned Lord the Lord Chancellor to approach the same central issue on a more practical basis. I would certainly welcome a decision in favour of a manifestly independent new commission by statute, if that is in line with the recommendations of the Joint Committee. Is he aware that the Joint Committee also expressed its view that there was no consensus about introducing any elected element? I welcome the Government's acceptance of that, not least because it represents the wishes of a huge majority in the House.

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Does the noble and learned Lord now recognise—this is the important point—that there has been a huge change in the circumstances surrounding the commitment to get rid of the hereditaries given in an election some years ago? Is that not implicit in what is stated in the Government's response to the last report of the Joint Committee, with their purpose being,
"establishing the present House of Lords in a stable state for the medium term"?
The lat sentence states:
"the Government will concentrate on making the House of Lords work as effectively as possible in fulfilment of its important role".
Against that practically important assertion and against the background of the noble and learned Lord's glowing tributes to the role played by the hereditary Peers, on which we all agree, and the difficult questions that would arise if they are removed and we suddenly have to fulfil the roles that they fulfil for us, would it not make complete sense to maintain their presence in the Chamber? It is not sufficient to thank them as they disappear into the mists of time. Would it not make sense—even if the Government are currently determined, for reasons which I think are misguided, to sweep them away—to ensure their continued presence here along the lines proposed, admittedly for different reasons, by the noble Lord, Lord Weatherill, and others? What on earth is the practically sensible point of getting rid of people who have played such a crucially important part here and also maintain a balance of the House that is about right by the standards recognised by the Royal Commission?
The Lord Chancellor: No, my Lords; it would not. The noble and learned Lord rightly accepts that circumstances have completely changed from 1999. As the noble Lord, Lord Marsh, made absolutely clear, my party made it clear time and time again that the hereditary principle should not be the basis upon which people sat in the House. It is no longer appropriate or sensible, if we are looking for a sustainable and acceptable House, that part of the membership is based on the hereditary principle. With no discourtesy to the hereditaries themselves and no diminution of our acceptance of the important role that they have played, surely the time has come to change the provisions. The hereditary principle should no longer play a part in deciding who sits in the second Chamber.
Lord Weatherill: My Lords—
Lord Elder: My Lords—
Lord Renton: My Lords—
Noble Lords: Weatherill.
Lord Williams of Mostyn: My Lords, if we hear first from the noble Lord, Lord Weatherill, it will then be the turn of the Labour Benches.
Lord Weatherill: Thank you, my Lords. As one who had some input into the legislation in 1999 that created the present membership of your Lordships' House, I share the concern and sadness expressed by others. However, I must say to the House—I would fail in my duty as a former Speaker not to remind the House—that a government with a majority have a right to get their business. That has to be measured against the equal right of an Opposition to criticise and improve. I hope that I did not hear an implied threat from the Front Benches opposite that the Opposition would persist in other areas as well. That would be irresponsible opposition.
Throughout the passage of the House of Lords Bill, I fully accept that the then Lord Chancellor, the noble and learned Lord, Lord Irvine, made it plain that the election of the 10 per cent who are with us now was a first stage of the reform of the House and that they would remain until stage two was completed. The noble Lord, Lord Waddington, cited Hansard. My reference from Hansard is to when the noble and learned Lord the Lord Chancellor said:
"But the 10 per cent. will go only when stage two has taken place".—[Official Report, 30/3/99; col. 207.]
As has been endlessly repeated, stage two has not taken place.
I recognise that the election of a noble Lord to sit on the Labour Benches with an electorate of three is an absolute nonsense and is possibly—almost certainly—the reason for today's Statement. In February, I introduced the House of Lords (Amendment) Bill, referred to by the Convenor of the Cross-Bench Peers as option IA. It was designed to overcome the further election of hereditary Peers to your Lordships' House. I did not proceed because there was some opposition from the Conservative Benches, but had I been able to do so with the support of the House, that would have overcome many of the problems that we face today.
I hope that that will be one of the considerations taken into account when consultations are taking place on further reform. In saying that, I salute the hereditary Peers, who have done such an excellent job in your Lordships' House. I should like to see them continue to do so.
The Lord Chancellor: My Lords, like the noble Lord, Lord Weatherill, I was not sure whether the noble Lord, Lord Strathclyde, was implicitly threatening to cause difficulties for the Government in getting our business. That would certainly be contrary to the way in which this House has always operated in the past. I see that the noble Earl, Lord Onslow, is nodding his head behind the noble Lord, Lord Strathclyde, so I take it that he is indicating on behalf of the noble Lord, Lord Strathclyde, that he intends to disrupt the business of the House.
As for the other points made by the noble Lord, Lord Weatherill, as I think that I made clear in response to the noble and learned Lord, Lord Howe, and the noble Lord, Lord Marsh, the position is now

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very different from that in 1999. We believe that the time has come for steps to be taken to remove the remaining hereditaries.
Lord Elder: My Lords—
Lord Renton: My Lords—
Lord Williams of Mostyn: My Lords, I think it is the turn of my noble friend Lord Elder.
Lord Elder: My Lords, in expressing my welcome for the Statement, may I assure my noble and learned friend that many on this side of the House will view it as a sensible next stage, in the circumstances where the other place has not shown any clear view on reform and this House has voted for precisely what it will now get? I find it slightly surprising that others should be so opposed to what this House voted for as the solution.
Can we have further clarification on whether the Opposition really intend to seek to use anger on this issue to try to deny the Government their right to legislation? On one minor but important point, my noble and learned friend said that finance and supply were of course matters for another place. Does that statement have any implications for the current trial whereby the Economic Affairs Committee of this House considers certain technical aspects of the Finance Bill and reports to this House on them?
The Lord Chancellor: My Lords, the first part of my noble friend's question is for the noble Lord, Lord Strathclyde, and those on his side of the House. I must leave it to him to answer it, but he appears to suggest that there will be disruption.
As for the second part, as I said in my Statement, the traditional role of this House during the course of the Finance Bill is an example of the system working well when it works in the traditional way. The House has an opportunity to consider the Bill on Second Reading, but its powers have been constrained by the Parliament Act 1911 and Commons financial privilege, established through resolutions passed in the 17th century. In answer to my noble friend's specific question, the Government would not want any extension of the role of the House or its Committees in that matter.
Lord Renton: My Lords—
Lord Oakeshott of Seagrove Bay: My Lords—
Lord Williams of Mostyn: My Lords, it is the turn of the Liberal Democrats.
Lord Oakeshott of Seagrove Bay: My Lords, my questions are about the effect of the proposed changes on the party balance in this House and thereby, inevitably, on its ability to act as an effective check on the government and a revising Chamber.
Several noble Lords have rightly said that the hereditaries are among our most active and effective Members. They are also by far our most active voting
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Members. For example, if we consider all votes in contested Divisions during the previous Session, on average the Government obtained 54 per cent of the vote and the Opposition 46. If the hereditaries had been removed, at a stroke that proportion of government votes would have risen from 54 to 60 per cent. That is the real significance of what the Government are trying to do; they are trying to neutralise the Opposition in the House of Lords.
Obviously, we on these Benches are in favour of a significant elected element to the House, but we are not in favour of flouting the will of the Commons. If I may say so, a lot of nonsense has been talked about there being no clear view from the Commons. One clear view from the Commons was that it was not in favour of an all-elected House.
On the question of party balance, I listened carefully, as I always do, to the noble and learned Lord. We heard some carefully phrased words about how the new statutory independent appointments commission will operate. We heard that it will recommend numbers and timing of appointments, but one key question remains: who will finally decide on the numbers of different party appointments to be made after the commission has suggested that it is time to nominate some more? For all the talk about having regard to this and that, unless the Prime Minister is prepared to give up that power, ultimately, his fingers are still firmly on the lever of power. What is the Government's intention on that point?
The Lord Chancellor: My Lords, the statutory appointments commission should decide the numbers as between the parties. As I understand the Liberal Democrat position, they would not want that to happen; they would want that power to remain with the Prime Minister. That is why they oppose the Bill. I understand that the Liberal Democrats are also opposing the removal of the hereditaries.
Those points are made clear in the Statement and the consultation document. That is why we say that we are making it a House in which the patronage of the Prime Minister is dramatically reduced; that is why we say that we shall make it a much more modern House in the way that it operates.
Lord Renton: My Lords, I venture to intervene because I think that I have had longer experience of service—continuous service—in both Houses than any other living person: 34 years in the House of Commons and 24 years with your Lordships. I have seen tremendous changes take place during that time.
There was a time when the membership of the House of Commons contained a vast array of people of distinction and with real talent and experience. Now, alas, it is not quite the same. To give but one example, in 1959, there were 30 Queen's Counsel in another place. The number did not decline much until about 15 years ago. But in your Lordships' House we now have a great array of talent. For example, for hundreds of years, the posts of Attorney-General and Solicitor-General were held by Members of the House of Commons, but during the past six years the present

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Government have been unable to find an Attorney-General there and we have had the advantage of an Attorney-General in your Lordships' House.
What is to be done? We must realise that democracy has its limitations. Do I not know? I have fought and won 10 general elections. I never thought that more than a third of those who voted really understood the issues. House of Commons membership is now a full-time job. That limits the number of people with experience and expertise who can be there. Therefore the future composition of your Lordships' House must fill the gaps which now exist in the House of Commons.
The Lord Chancellor: My Lords, looking around the House we can form a view on where all those QCs that used to be in the Commons went—to my right, to my left and across the way. We want a House with a strong independent element. We want a House whose Members have experience of other matters concurrent with taking part in the deliberations of the second Chamber. I do not think that any of us would disagree with that. I bow to the great experience of the noble Lord. Lord Renton, in indicating the importance of that.
Lord Graham of Edmonton: My Lords, in view of the fact that many speakers feel that the change is not acceptable. will my noble and learned friend the Lord Chancellor tell us whether any representations were made by them and how we get over the problem that in a House of 700 the Government cannot command the support of 200? These Benches represent 27 per cent of the House. I wonder whether, in the search for fairness and fair play, Members opposite have made any helpful suggestions on how that imbalance can be corrected.
The Lord Chancellor: My Lords, I have not heard any suggestions on how the imbalance can be corrected. Indeed, I have not heard any suggestions from the Benches opposite on how we move forward except to leave the position as it is with, for example, the Prime Minister deciding the size of the House, the numbers who can come in and the split between the parties. That, as I understand it, is the position of noble Lords opposite.
Viscount Bledisloe: My Lords, the noble and learned Lord has, or at least used to have, a decent grasp of the basic principles of contract law. I have to say that in those circumstances I find utterly unintelligible his assertion that the Statement is not a total renegation on the promises given by his predecessor on behalf of the Government. That was described as a compromise deal. In the passage cited by the noble Lord, Lord Waddington, the then Lord Chancellor said that the presence of the remaining hereditaries was,
"a guarantee that stage two will take place".—[Official Report, 11/5/99; col. 1092.]
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He did not say that it was an incentive, as the Statement now says, but a guarantee. It was a guarantee not that the House would vote the way the Government wanted but that the Government would press ahead and get some legislation through for stage two. If the Government can invoke the Parliament Act for trivial matters such as hunting, presumably, if they could only make up their mind what they wanted in this place, they could get on and invoke that Act. If the noble and learned Lord had been present during prayers, he would have heard sound words praising him who sweareth unto his neighbour and disappointeth him not. Does it surprise him that when the Government sweareth unto their neighbour and totally renege, those on whom they have reneged should perhaps consider how they can best inconvenience the Government that have reneged on their promises?
The Lord Chancellor: My Lords, first, I defer completely to the noble Viscount in relation to contract law, in which he is one of the world's leading experts. Secondly, we are not reneging on our promise. It has been made clear time and time again in the course of this short debate that the position has completely changed. I do not think that anyone understood the effect of the position in 1999—that the hereditaries could stay for ever and ever irrespective of what happened.
Lord Denham: My Lords—
Lord Skidelsky: My Lords—
Lord Williams of Mostyn: My Lords, could we hear from the noble Lord, Lord Denham?
Lord Denham: My Lords, I am most grateful to the noble and learned Lord the Leader of the House. The noble Lord, Lord Weatherill, quoted a predecessor of the noble and learned Lord the Lord Chancellor referring to what has subsequently become known as his amendment. But unfortunately he stopped a little too soon. The noble and learned Lord, Lord Irvine of Lairg, further stated:
"The amendment reflects a compromise negotiated between Privy Counsellors on Privy Council terms and binding in honour on all those who have come to give it their assent".—[Official Report, 30/3/99; col. 207.]
The Lord Chancellor: My Lords, as I have made clear time and time again, I do not think that there is one iota of dishonourable conduct in relation to the Government so far as this matter is concerned because the position was never understood to be that the hereditaries could stay until there was a satisfactory stage two, by which I mean satisfactory to this House.
Lord Strabolgi: My Lords—
Lord Skidelsky: My Lords—
Lord Forsyth of Drumlean: My Lords—
Lord Williams of Mostyn: My Lords, Lord Strabolgi.
Lord Strabolgi: My Lords, I am grateful to my noble and learned friend. May I ask my noble and learned

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friend one question please? When is it proposed that the Bill will be effective? Will it be effective on Royal Assent or at the end of the Session, or later? The reason I ask—and it is important—is that we are at present—I and two of my colleagues—engaged in an election of a hereditary Peer to replace Lord Milner of Leeds. It would be useful to know how long we are going to elect him for.
The Lord Chancellor: My Lords, not just in this House is that election very closely followed. Indeed, the possibility of a draw in the election is very much anticipated. A complete non-attendance at the election is also possible. It is an important issue. As I indicated in the Statement, all I can say in relation to the timing of the introduction of the Bill is that it will be when legislative time permits. I cannot confirm when it will be introduced. As regards at precisely what point it will become effective, I am afraid that I cannot say at the moment. In relation to the election to which my noble friend referred, the electorate will have to form their view, I am afraid, without knowing those details.
Baroness Sharples: My Lords—
The Earl of Onslow: My Lords—
Lord Skidelsky: My Lords—
Lord Forsyth of Drumlean: My Lords—
Lord Williams of Mostyn: My Lords, if we all have short interventions, we have another seven minutes to go. The noble Lord, Lord Skidelsky, first perhaps.
Lord Skidelsky: My Lords, I understand that it is the Government's intention to remove from our House Peers convicted of offences on the same basis as in the House of Commons. I think that is perfectly reasonable but I am rather alarmed at the principle of retrospection which was introduced, which seems designed to catch one person in particular. Will the noble and learned Lord reconsider that principle because we have a long-standing and justified prejudice in this country against the principle of retrospective legislation?
The Lord Chancellor: My Lords, the issue of retrospection must be looked at as a matter of principle, not by reference to any individual. So far as the principle is concerned, is it right that someone who has been convicted of a criminal offence and then sent to prison for more than 12 months should take part in the proceedings of this House? The principle that we think should apply is that that person should not do so. That is the principle that applies in the House of Commons. We think that the same principle should apply here.
Lord Forsyth of Drumlean: My Lords, why has the noble and learned Lord the Lord Chancellor chosen this moment to make this announcement? Yesterday I was summoned to a meeting of the Joint Committee
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that will take place on 28th October to discuss the Government's July Statement. Why has this moment been chosen to humiliate the Joint Committee and the undertakings to Parliament of the noble and learned Lord's predecessor? Why now? Will the noble and learned Lord the Lord Chancellor give an absolute guarantee that no legislation will be brought before this House to implement the European constitution until such time as this matter is resolved? Are we going to see the hereditaries removed from this House, gerrymandered out of this House, so that he can force through legislation which takes away powers from Parliament for ever? If so, this Government are a disgrace and the noble and learned Lord will have achieved what one of his predecessors described as the elective dictatorship.
The Lord Chancellor: My Lords, that question is nonsense. The noble Lord, Lord Forsyth, would have it that decisions about the numbers of Peers from each party should remain with the Prime Minister. What we propose is that that issue should be decided by the statutory appointments commission which has precisely the opposite effect to that which the noble Lord proposes. I am quite unable to understand why he wishes to preserve the status quo if he has the concerns which he has. I should be interested to know whether the Opposition are committed to reintroduce, first, the hereditary Peers' right to sit in this House and, secondly, whether it is their proposal that the statutory appointments commission should not have the kind of decision-making powers to which I referred.
Lord Tordoff: My Lords—
Lord Mackay of Clashfern: My Lords—
Lord Williams of Mostyn: My Lords, could we first have the noble Lord, Lord Tordoff, immediately followed by the noble and learned Lord, Lord Mackay of Clashfern?
Lord Tordoff: My Lords, can we tidy up the business of what the opposition parties want? What the noble and learned Lord has said certainly distorts the position of this party. I admit that I voted for an all-appointed House, but that is not the position of my party. My noble friend on the Front Bench and my noble friend Lord Oakeshott have made that clear. What the party wants is a fully elected House.
The noble and learned Lord seems to be saying that we are at stage two. This was certainly not the stage two that anyone envisaged for the final reform of this House. Albeit that there is to be a statutory appointments commission, as I am sure will be welcome in the case of a fully appointed House—the idea of taking away the patronage of the Prime Minister is very good—if the base will be the number of seats in the House of Commons and not the number

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of votes cast for the parties in the House of Commons, that is an even greater distortion than we have at the moment.
The Lord Chancellor: My Lords, I have two points. First, I fully understand the position that the noble Lord takes; he supports an appointed House. I fully understand as well the position so far as concerns the Liberal Democrats; they would support a fully elected House. The noble Lord is aware that this House decisively, by three to one, rejected the idea of an elected House, so there would be disagreement between this House and the House of Commons about whether there should be an elected element, let alone a fully elected element. In the light of that lack of consensus between the two Houses, we think that the right course is to make such changes as one can that improve the arrangements. That includes taking away from the Prime Minister the patronage on the make-up of the House.
Secondly, so far as how the previous general election is to be reflected in the activity of the statutory appointments commission, we have always said in the past that it should be on the basis of the votes cast. We say that in the document. The other alternative is seats. Do people agree that we should continue on the basis of votes in the previous general election?
I hope that that reassures the noble Lord and that, in the light of what I have said and the recognition of the fact that there is disagreement, he will feel able to vote for what we believe to be very sensible changes.
Lord Mackay of Clashfern: My Lords, the noble and learned Lord has referred to two papers. So far the discussion has pretty heavily concentrated on one of them but, from my point of view, the second is obviously rather important.
The noble and learned Lord the Leader of the House said that the Statement would be made by the noble and learned Lord the Lord Chancellor and Secretary of State for Constitutional Affairs. In the list of Cabinet offices in Hansard, the last member of the Cabinet is referred to as the Secretary of State for Constitutional Affairs and Lord Chancellor. Am I right in thinking that the noble and learned Lord the Lord Chancellor has taken the judicial oath, and that he will perform the responsibilities of Lord Chancellor as the president of the supreme court until statute relieves him of that responsibility?
It is extremely important that we know that in the interim. It may not be all that long, but it is bound to he some time before legislation can be introduced. I assume—correctly, I hope—that the noble and learned Lord will perform those functions and the others referred to in the paper until statute relieves him of them.
The Lord Chancellor: My Lords, I am as bewildered as the noble and learned Lord at the lack of interest in the detail of the other paper in relation to the Lord Chancellor's role, and disappointed that more questions were not asked of me about my visitorial
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office. I confirm, very willingly, that I will continue to perform loyally all the functions of the Lord Chancellor, including those referred to in the paper, until such time as formal change has been made in those roles.
The Earl of Onslow: My Lords—
Lord Williams of Mostyn: My Lords, we have come to the end. Your Lordships will have noticed that only four Labour questions were called, so the multi-faceted voice of the Opposition has been fairly heard.

Local Government Bill
12.44 p.m.
The Minister of State, Office of the Deputy Prime Minister (Lord Rooker): My Lords, I beg to move that the Commons reason be now considered.
Moved, That the Commons reason be now considered.—(Lord Rooker.)
On Question, Motion agreed to.

Local Government Bill
  COMMONS REASON FOR DISAGREEING TO A LORDS AMENDMENT IN LIEU OF AN AMENDMENT TO WHICH THE COMMONS HAVE DISAGREED
  [The page and line references are to HL Bill 43 as first printed for the Lords.]

  LORDS AMENDMENT
  3 Clause 11, page 5, line 32, leave out paragraph (b)
  The Commons disagree to this amendment for the following reason—
  3A Because it would alter the financial arrangements made by the Commons, and the Commons do not offer any further reason, trusting that this reason may he deemed sufficient. The Lords do not insist on their Amendment No. 3 to which the Commons have disagreed, but propose the following amendment in lieu thereof—

  LORDS AMENDMENT
  3B page 5, line 33, leave out from "receipt" to end and insert "to be used by the receiving authority in accordance with directions by the Secretary of State"
  The Commons disagree to this amendment for the following reason—
  3C Because it would alter the financial arrangements made by the Commons, and the Commons do not offer any further reason, trusting that this reason may be deemed sufficient.
  Lord Rooker: My Lords, I beg to move that the House do not insist on their Amendment No. 3B to which the Commons have disagreed for the reason numbered 3C.
  I do not need to repeat what I said yesterday, save for the fact that the Commons gave in its reason numbered 3C exactly the argument that it gave in its reason numbered 3A; namely, that the amendment would alter the financial arrangements made by the Commons. The Commons does not offer any further reason, trusting that that may be deemed sufficient.
  Moved, That the House do not insist on their Amendment No. 3B to which the Commons have disagreed for the reason numbered 3C.—(Lord Rooker.)
  Baroness Hanham: My Lords, I hear what the noble Lord says about the Commons' privilege, and I am bound to say that I find this an extraordinary reason. Our amendment does nothing about the revenue support grant for local authorities. It does nothing at all about any of the money that the Government are giving to local authorities.
  The argument that we have used all the way through is that the amendment marginally changes the Government's right to redistribute capital already in the ownership of the local authorities to other local authorities that the Government prefer. That was the argument that we made yesterday, and is the basis of the amendment. I had a query yesterday about the amendment on minimum reserves. We must bow to what the Commons puts forward, but I am bound to say that it is an odd argument to make to stop the amendment in its tracks.
  We had a disagreement yesterday about how much money was involved. The Minister eventually had to concede that my figure of £120 million was correct and that that was what we were talking about. We were also talking about the right of local authorities to have an idea of what their capital will be spent on, and to not have the money snaffled away from them if they are not in the Government's eyes, as authorities in need, to be able to make a decision that the money should be used for—most likely—housing requirements for key workers, affordable housing and repairs to housing within their own areas.
  We have made the point over and again during the passage of the Bill, and have been unable to move the Government, either in this or another place. We have been supported throughout by the Liberal Democrats, who have taken the same view. We will have been supported by local government across the country, and not only those who would be involved in the "set aside" or those who are debt-free. I hope that the Minister realises that the Government's position is not welcome. It is not one from which they will get any thanks at all from local government.
  I believe that I am right in saying that the Liberal Democrats also recognise that we are probably at the end of the road so far as the matter is concerned. Royal Assent is due this afternoon. Because we have this extraordinarily messy sitting of the House—we have had two weeks on, and now have two weeks off—it is
  1080
  impossible to continue a flow on the Bill. I do not propose to take the matter any further, but it is with a heavy heart that I say that the Government, on this as on one or two other measures, will not gain any kudos from what they have done. I believe that those who have been in opposition to it have had a moral and right argument all the way through.
  Baroness Maddock: My Lords, I support the noble Baroness. We have failed to convince the Government on the issue. It is disappointing that, during the progress of the Bill, the Minister tried to mollify us on one of our concerns, which was that local authorities that, we believed, had housing need, would have money taken away from them. The Minister said that if there really was housing need in those authorities, the money would go back to them. What a way to do it. If I read the figures correctly, some of those authorities from which the Government plan to take away a large amount of money will be giving quite small amounts of money back to the Government. If the Government then decide that they have housing need, they will send that money back again. That seems to take bureaucracy to an incredible level and to be really rather unnecessary.
  The Government certainly win accolades for setting up new bureaucracies, arid that scheme will end up being another example. I do not know whether the Minister will be able to reassure us on the issue or whether he will report back to us at any stage on what happens to that money.
  It is particularly sad to see that provision in the Bill. So many freedoms have been given to local authorities. We all agree that we want to see local authorities being able to operate freely to do what they think is right in their areas. However, so much bureaucracy has gone with some of those freedoms. That is incredibly disappointing, and we have another example before US.
  Nevertheless, I am not a lawyer, and I have to abide by what others say must happen in this place. We will have to accept the Commons amendment, but I hope that the situation that I fear will not happen. It would be a waste of central and local government's time.
  Lord Rooker: My Lords, I appreciate that the noble Baronesses are still annoyed and disagree with this part of the Bill but will not take their opposition any further. I shall make two brief points to set the record straight.
  First, I realise that we have argued about the amount of money involved, but as I said yesterday, the amendment sent by this place to another place and rejected would have removed the set-aside arrangements that already exist. The amount of money involved is £1.2 billion, not simply the £120 million for debt-free authorities.
  Secondly, we are told that we will receive no thanks from local government. We are not looking for thanks; we are looking for partnership and goodwill. Everybody is aware that the major and substantive changes that the Bill brings about in the financial arrangements for local government, which we all want

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  to see operating from the start of the next financial year in April, cannot take place unless the Bill receives Royal Assent today—not tomorrow nor next month. If it does not receive Royal Assent today, those changes, as was pointed out by the Minister last night, cannot come into force until April 2005, not 2004, which is what we all require. It is absolutely crucial that Royal Assent is given today.
  It is a free country; it is still a free House. Noble Lords can send the Bill back if they wish and the Commons can have another look at it. They have chosen not to do that, which is sensible in the circumstances. Their arguments have been put on record. The Government will be thoroughly accountable for the mechanism that we use in Clause 11. Parliamentary Questions and debates will elucidate exactly what happens with pooling and the way in which the money is distributed. It is not as though nobody will be able to find out what exactly the Government do in implementing the legislation.
  On Question, Motion agreed to.

Criminal Justice Bill
12.54 p.m.
Baroness Scotland of Asthal: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Elton) in the Chair.]
Clause 93 [Defendant's had character]:
[Amendments Nos. 143 to 143C not moved.]
Lord Kingslandmoved Amendment No. 144:
Page 62, line 29, at end insert "nor if the potential probative value of such evidence is so outweighed by its prejudicial effect"
The noble Lord said: We have already expressed our view about the importance of including a requirement of relevance in Clause 93. We have also expressed our support for a general rule excluding bad character evidence, subject of course to exceptions, rather than a general inclusionary rule, as favoured by the Government, subject to a discretion to exclude. Therefore, I shall not return to those topics in my remarks in support of Amendments Nos. 144 and 145.
On Amendment No. 144, which states,
"nor if the potential probative value of such evidence is so outweighed by its prejudicial effect",
I need do no more than remind the Minister of her speech in your Lordships' House, last Monday in Committee, at col. 752 of Hansard:
"As I said earlier, that drafting of Clause 93(3) is drawn directly from Section 78 of PACE. The drafting has already been considered and interpreted to include the test in the common law under which probative value and prejudicial effect are weighed
1082
against each other. We have adopted that drafting precisely because it has been interpreted in this way and will be clear, rather than adopting a new form of words which may cause confusion".—[Official Report, 15/6/03; col. 752.]
If that is so, can I take it that the Minister is quite content with the terms of Amendment No. 144? There could be no harm, but positive benefit, in including it in the Bill if that is the jurisprudence which has already been developed by the courts.
Amendment No. 145 would define the expressions "probative value" and "prejudicial effect". It is clearly set out in the Marshalled List. In the interests of brevity, I do not feel it necessary to express any further views about each item in that amendment at this stage. I beg to move.
Baroness Scotland of Asthal: I shall adopt the noble Lord's telegraphic style and say in answer to him on Amendment No. 144 that less is more. Our position is expressly set out. The statement to which the noble Lord referred set out the Government's position, and it was clearly expressed. We stand by that as our proper interpretation. Further amendment to the drafting of the Bill is therefore not necessary. The noble Lord will know that the comments that I have made, and, I hope, the clarity with which I have expressed our understanding, should be capable of being used for interpretative purposes, so as to avoid any difficulty arising on another occasion. Unless the noble Lord wishes me to elucidate further—I assure him that I have at least 20 minutes' worth of argument—I do not intend to respond further.
Lord Kingsland: I have only one observation to make on what the noble Baroness has said. I entirely accept that the courts have implied in the relevant section or paragraph of PACE that the probative, prejudicial test applies. However, PACE serves a different function in our criminal law from the function that Clause 93 is intended to serve.
It is conceivable, therefore, that despite the interpretation of PACE in the way the Minister suggests, there might still be a danger that a court would take a different view about the same expression in the context of Clause 93, in particular, and the Bill in general. I, therefore, see no reason why the Minister, if she is so confident of the interpretation she expressed last Monday, should not be prepared to put the expression on the face of the Bill.
1 p.m.
Baroness Scotland of Asthal: Perhaps I should add a few more words in the hope that that might satisfy the noble Lord. I shall try to reassure the Committee that the concerns behind the amendment are misplaced. That is because, as the noble Lord has demonstrated, there is little difference between us in terms of the substance. It is our intention that the test should consist of a balance between probative value and prejudicial effect and it may help if I make this point absolutely clear.
The test for the court to apply under Clause 93(3) as it stands is designed to reflect the existing position under the common law, as Section 78 of the Police and

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Criminal Evidence Act 1984 does, under which the judge balances the probative value of the evidence against the prejudicial effect of admitting it and excludes the evidence where the prejudice exceeds the probative value.
The Government's intention is for the courts to apply the fairness test in this legislation in the same way and this is the intended effect of the clause. In applying the test to evidence admissible under Clause 93(1)(d), the court will balance the probative value of the convictions—that is, the extent to which they are relevant to the issues in the case—against any prejudicial effect of admitting them.
The question therefore is one of drafting. The current wording draws on that adopted in Section 78 of the Police and Criminal Evidence Act 1984 and is therefore a statutory formulation with which the courts are already familiar. Case law has clearly established that that section encompasses the common law power to exclude evidence whose probative value is outweighed by its prejudicial effect. We consider it desirable to have on the face of the legislation a familiar test that achieves our intention, rather than introducing new language.
On the other hand, the amendment would introduce a new statutory formulation. This would, no doubt, give rise to lengthy arguments as to what exactly the test is intended to be. Both the noble Lord and I know of the ingenuity of the Bar of England and Wales, and the delight which many have in testing and teasing out these differences.
To give one example, the wording of the amendment states that,
"the potential probative value of such evidence is so outweighed by its prejudicial effect"
that it ought not to be admitted. The words "so outweighed" would doubtless prompt a great deal of case law and uncertainty as to its meaning. Does it mean that the prejudicial effect simply outweighs the probative value? Or must it outweigh it to a certain degree? If so, by what degree is it acceptable for the prejudicial effect to outweigh the probative value before it is excluded? Such debates would be highly undesirable and we believe it is far better to pursue a well-established and well-understood test.
I hope that that explanation will suffice. If the noble Lord wishes me to go even further, I am happy to do so.
Lord Carlisle of Bucklow: The Minister implied that the test was to be as it is at present, but is that what is achieved by Clause 93? She will remember the remarks made by the noble and learned Lord, Lord Cooke, when we previously discussed the matter on the words "such an adverse effect". Do those words exist in the present test, or has the Minister, by Clause 93(3), changed the balance of proof?
Baroness Scotland of Asthal: In Clause 93(3), we have made it clear that:
"The court must not admit evidence under subsection (1)(d), (e) or (f) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it".
That is to preserve the ability of the court to weigh the difference between the probative and the prejudicial.
Clause 90 provides the definition of "had character" in order to put these matters on to a statutory basis. Prior to the amendments that we discussed on the last occasion the Government intended to cast that net very wide indeed because we were removing the common law rules which would have constrained. For that purpose, we wanted all those issues to be subject to the new statutory scheme on an inclusive basis, and then leave the issue to the judge who would be charged with balancing the issues of fairness to make the determination.
We appreciate—which is why we see Clause 93(3)—that the probative nature of the evidence will be of importance when determining whether and to what extent the defendant's bad character should be admitted into evidence. It is right that the judge, in exercising his role almost as "manager" of the judicial process so as to make sure that there is a fairness arid equality of arms, should have the opportunity in exercising discretion pursuant to Clause 93(3) to weigh the prejudicial and the probative, one against the other.
Lord Renton: The noble Baroness has made a valiant attempt to justify the use of the expression "bad character". In Clause 93, we are talking about the defendant's bad character. Under present law as I have always understood it, and I have had a lot of experience of it, previous convictions were the only evidence of had character that the prosecution could produce. There are many kinds of bad character, but they are indefinable. Chapter 1 and Part 11 of the Bill do not make a strong attempt to define "bad character".
Can the Minister help us on this issue? After all, it has an important effect on the meaning of Clause 93 and indeed of other clauses in the chapter.
Baroness Scotland of Asthal: On the previous occasion, we debated these issues in relation to Clause 90 at length. Indeed, we took some time together to look at the jurisprudence that currently exists and compare it to the various subsections of Clause 93, which are there enumerated.
It was suggested that issues of character are narrowly drawn, but perhaps I may invite the noble Lord to look at the debates we had on that occasion. We enjoyed a detailed discussion of the current jurisprudence, which showed the wider ambits that we now have. As I said, Clause 93(3) preserves the opportunity for the court to make that determination. I suppose that there is a change in emphasis because,

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in the past, the rules were designed to exclude evidence, except where there could be special conditions upon which it could be included. Now, the coin is the other way round. There is an ability to include evidence unless exclusion is merited.
However, whichever way the coin is turned, we say that one arrives mainly at the same place. The fairness of the proceedings will be the determining factor: the evidence should be admitted if its probative value outweighs its prejudicial effect and, conversely, it should be excluded if its prejudicial effect would outweigh its probative value.
Lord Cooke of Thorndon: The noble Baroness has just stated the existing law with perfect accuracy. However, it is not clear to me, and, if I may say so, it has become increasingly unclear as the debate has proceeded, what function Clause 93 is intended to serve. Is it intended to change the existing law or is it not? If the emphasis is still to be on the judge having a duty to weigh probative value against prejudicial effect, that is the existing law. One can talk about a change of emphasis, and so on, but ultimately, as the noble Baroness said, it will come to the same thing. It is not at all clear what purpose Clause 93—or, indeed, this whole chapter—will achieve. Why not leave it to the common law?
Baroness Scotland of Asthal: One difficulty is that there has been a great breadth of difference in the way these provisions have been interpreted. If one considers the argument that has ranged, on the one hand the Government have said, "We are changing the balance. It is a nuanced balance but, none the less, it is to encourage and enable the court to include evidence which should properly be included and put before the jury to determine". We have had an exclusionary approach in the past but we are changing that in terms of emphasis. However, we are retaining the core principle, which is necessary for fairness—namely, to balance the two. We are modernising the approach and bringing it together in one place.
Therefore, there is obviously opportunity to broaden the concept. But Clause 93 should be capable of bringing about greater clarity in relation to those rules. In its report, the Law Commission underscored very clearly that this was not only a very complex area but one which merited a new look and a statutory framework. One will see that theme running through its report. We have sought to bring about that statutory framework and to bring clarity in terms of how it should be operated.
Some say that there is a huge difference between the approach being inclusionary or exclusionary. We, the Government, do not say that that is so. We believe that it is an issue of emphasis, and we trust that the judiciary will be able to operate within the statutory framework in a way that will guarantee fairness and parity, as has been the case in the past.
Lord Lloyd of Berwick: I believe there is much to be said for the amendment as it seeks to introduce words with which we are all familiar. What I do not understand is whether the Minister is saying that it is unnecessary to introduce those words because they are included within subsection (3) by virtue of the meaning, that has been given to them in the Police and Criminal Evidence Act.
Baroness Scotland of Asthal: That is precisely what I am saying.
Lord Lloyd of Berwick: In that case, why not say so expressly? I can find no reference to the Police and Criminal Evidence Act here.
1.15 p.m.
Baroness Scotland of Asthal: I am so sorry. I beg your Lordships' pardon. I believe that I am over-tired and I almost forgot that I was standing up, which was a great discourtesy when the noble and learned Lord was standing. I beg his pardon.
As I have already said to the noble Lord, Lord Kingsland, the phraseology has been accepted as good law and it is well understood and well used. We are replicating that. I hear a noble Lord asking from a sedentary position, "Why change it?" I ask the same question of the noble Lord because those words are used in Section 78. We are not changing it. We are keeping the same phraseology, which is well understood and easily capable of being identified. We believe that that is perfectly fine.
Lord Kingsland: I am extremely pleased to hear from the noble Baroness that Amendment No. 144 is unnecessary because it will be implied into the jurisprudence under Clause 93(3) when, as undoubtedly it will be, it is considered by the courts in future.
However, I should not like the noble Baroness to believe that the Opposition accept that the changes made by Clause 93 are marginal. They seem to me to be radical in two respects: first, we now have a general inclusionary rule, rather than a general exclusionary rule; and, secondly, that inclusionary rule is subject to a discretion to exclude only in three of the eight cases—that is, in subsections (1)(d), (1)(e) or (1)(h) of Clause 93. That is a matter which we believe should be reconsidered on Report in the light of what the noble Baroness said today.
A number of commentators have referred to Clause 93 as the "round up the usual suspects" rule. That phrase was made famous—indeed, immortalized—by Captain Renault in the well-known film "Casablanca". I suppose that those who have seen the film several times might like to add somewhere in the Bill the first part of Captain Renault's sentence:
"Major Strasser has been shot".
Perhaps that should be the title of Chapter 11. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 93 shall stand part of the Bill?
Lord Ackner: I have only this comment to make. I believe that this clause requires such drafting that it will be far more convenient to start from the beginning. I have one particular problem. Clause 93(3) states:
"The court must not admit evidence under",
and it then sets out the method of deciding whether it should admit it. But that is confined to paragraphs (d), (e) or (h). I do not understand why paragraphs (b), (c), (f) or (g) should not require the same test to be applied. Why has the limitation been restricted to paragraphs (d), (e) or (h)? If I knew the reason for that I would be able better to reflect on the merits or demerits of Clause 93 stand part. Perhaps the Minister could provide that explanation.
Lord Thomas of Gresford: I support the observations of the noble and learned Lord, Lord Ackner. We find the whole of this clause objectionable for the reasons mentioned also by the noble Lord, Lord Kingsland; that is, it is now inclusive rather than exclusive. We also feel that had it not been for the alarums of this morning, we would have been in a position to move Amendments Nos. 143A to C, which deal with some of the points raised by the noble and learned Lord. The whole of the drafting of this clause is objectionable in principle. Accordingly, in due course we on these Benches shall carefully consider it on Report.
Lord Renton: I too support the views of the noble and learned Lord, Lord Ackner, and the noble Lord, Lord Thomas of Gresford. The Government should seriously reconsider the whole of Chapter 1 in Part 11. Clause 93 has been criticised so much and is so difficult that I believe the Government should consider replacing it or leaving it out altogether.
The expression "bad character" is not defined in the Bill. It is a very vague, wide expression. Opinions differ as to what is bad character. Some people condemn natural behaviour, which is not very serious, as bad character. In any event, we should bear in mind that this clause will apply not only to deciding whether or not the accused is guilty; if he is found guilty, it will also be relevant to sentence. Therefore, vast prejudice could result. I hope that the Government will, as has been suggested, reconsider this clause and either replace it or do away with it altogether.
Baroness Scotland of Asthal: I shall come straight to the questions asked by the noble and learned Lord, Lord Ackner, in terms of understanding why we differentiate between the specific subsections outlined in Clause 93(3). Clause 93(1)(a) and (b) both concern instances where the defendant seeks to adduce evidence in pursuance of his or her own defence. We have taken it that it would be proper for that evidence to be so admitted.
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Clause 93(1)(c) covers important explanatory evidence. As noble Lords will know only too well, the common law already recognises that evidence of bad character can be admitted outside the similar fact rule as background evidence. We touched on that in an earlier debate. It is quite difficult to describe this evidence as probative because, strictly speaking, it does not prove an issue relating to guilt but sets other evidence in context. Therefore, seeking to admit this evidence—
Lord Thomas of Gresford: Does the Minister not agree that although it may be admissible explanatory material as she has explained—she has previously led us to the case law on that—there is still a discretion for the court to exclude evidence on the basis that its probative value is less than its prejudicial effect? Why is there the change here?
Baroness Scotland of Asthal: We believe that if we are setting up a statutory new scheme we have to have a certain precision with language. One of the main criticisms of our past rule was that it lacked precision and clarity. We are seeking to imbue the Bill with precision and clarity. In arguing to not include such evidence, we are really saying that we are seeking to admit this evidence under Clause 93(1)(c) in a separate category. Historically, there has never been a disaggregation between evidence which is included as background and that which is included as bad character. In this section we are seeking to disagreggate those two elements, which have hitherto been conjoined.
Therefore, because of that difficulty, we are seeking to admit this evidence under Clause 93(1)(c). Seeking to admit the background evidence under Clause 93(1)(e) would perpetuate difficulties that the common law has encountered. Instead, we believe that that evidence should be separately recognised and admissible. So Clause 93(1)(c) therefore makes clear provision for evidence to be admitted where its value to the case is in helping the jury to understand the other evidence that is being presented.
Clause 93(1)(d) is subject to Clause (93)(3). I give way to the noble Lord, Lord Kingsland.
Lord Kingsland: I apologise to the noble Baroness. As usual, she is extremely courteous in giving way. Before she leaves (c) perhaps I may make an observation about the relationship between precision and discretion in legislation. The noble Baroness lamented the lack of precision in this branch of the law. I suggest that the reason why it may appear to lack precision is because this is an area which has pre-eminently fallen within the discretionary power of criminal judges. They have had to consider a long line of issues on the facts and draw conclusions from them.
The noble Baroness now seeks to give more precision; but in doing so is removing the discretion that the judges used to have. As the noble Lord rightly said, under subsection 1(c) the judge will no longer have the discretion to exclude. So of course the legislation will have more precision in that respect.

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However, with the greatest possible respect to the noble Baroness, I suggest that that is a substantial reduction in the rights of a defendant in a criminal trial. In a country which has always prided itself on those rights, I view that as a serious threat to what has been guaranteed over many decades, and in some cases centuries, by the common law.
Lord Thomas of Gresford: To avoid the Minister replying straight away, perhaps I may add to that. We are referring to evidence of bad character. Subsection (1) starts by referring to admission of evidence of bad character. It may be that such evidence is admitted because bad character is explanatory material, but there is a clear discretion at present for the judge to exclude that if its prejudicial effect exceeds its probative value.
The result of the way in which this clause is drafted—the Minister's reply suggests that this has not been thought through—is that there could be evidence of bad character, which is only background material but is admissible even though its prejudicial effect is much greater than its probative value as explanatory material. That cannot be right or fair. Unless this is amended and reconsidered, it must be excluded under Article 6.1
1.30 p.m.
Baroness Scotland of Asthal: I do not agree. Clause 94 sets out what falls within the category "important explanatory evidence". A judge hearing and dealing with the case will be able to determine whether the evidence on which the prosecution seeks to rely can properly fall within the definition of "explanatory". Clause 94 states:
"For the purposes of section 93(1)(c) evidence is important explanatory evidence if—

(a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and

(b) its value for understanding the case as a whole is substantial".

It is perfectly possible for defending counsel, exercising his duty—as he must—to say about an application by the prosecution for the submission of evidence that falls within this category—Clause 93(1)(c)—that the evidence upon which the prosecution seek to rely falls outwith the definition in Clause 94(a) or (b). That is a proper argument that can be made on behalf of the defence. If the court feels that the evidence cannot be included and that Clause 94(a) and/or (b) is not satisfied, of course it is still open to the judge to exclude it.
In pursuance of the suggestion made by the Law Commission, we have tried to get some clarity, some certainty about the way with which these matters are dealt. That is the rationale behind the disaggregation that I have just outlined.
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The judge's responsibility—be he lay or professional—to manage the case in accordance with those rules and in accordance with fairness and justice is absolutely plain and contained and referred to in the provisions.
Lord Thomas of Gresford: I—
Baroness Scotland of Asthal: Perhaps I may continue. I hope I have answered the questions raised by the noble Lords, Lord Thomas of Gresford and Lord Kingsland. We have gone through the matter on several occasions. I should be most grateful if I could continue this section and finish answering the noble and learned Lord, Lord Ackner. Then of course I shall give way and answer any questions that noble Lords may wish to ask. It would be a courtesy to me if I could just conclude this part.
Clause 93(1)(f) states that the evidence is admissible if,
"it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant".
There is the direct reference to probative value. One therefore does not need the refutation upon which one subsequently has to rely in Clause 93(3).
The other issue is on Clause 93(1)(g). Evidence under paragraph (g) would be rebuttal evidence to be called in order to disprove, or to set in the right context, evidence put in by the defence, which the prosecution seeks to rebut.
Lord Carlisle of Bucklow: In dealing with Clause 93(1)(c)—the words "important explanatory evidence"—the Minister said that it would be the duty of defence counsel to object when an application was made by the prosecution to introduce such evidence. There is no longer a requirement on the prosecution to apply to put in such evidence. Clauses 93 and 94 do not require the leave of the courts, as I understand it, for the introduction of that evidence. So when the noble Baroness says that it is the duty of defence counsel to object, when the prosecution makes an application, she is, I say with great respect, mistaken on the effect of the clauses.
Baroness Scotland of Asthal: It was a laxity of language or an imprecision on my part. The noble Lord will know that the defence is served with all evidence upon which the prosecution intends to rely, whether by way of used or unused material. If the prosecution serves that evidence, it is always open to the defence to say, "This evidence should be properly excluded because it falls outwith any of the rules of admissibility of evidence before the court". Therefore, if the defence has been served with evidence under Clause 93(1)(c), which it feels falls outside the terms of Clause 94(a) and (b), and that the prosecution is not entitled to adduce it under the other provisions of Clause 93, it could say to the judge, "The prosecution seek to suggest that this can properly be included under Clause 93(1)(c). We disagree because we believe

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that Clause 94(a) and (b) have not been so satisfied, and you should exercise your discretion and exclude it"
I apologise for saying "on application". It would not he an application, but it would be possible for the defence properly to make those submissions on behalf of the defendant and for the judge to so determine.
Lord Thomas of Gresford: That is absolutely right. If the defence knows that the prosecution intends to adduce evidence, they can have an argument as to whether it comes within Clause 93(1)(c)—whether it is "important explanatory material". That can happen now. But, if the judge decides that it does, that is the end of it. The judge cannot say, "Yes, it is important explanatory material, but it has huge prejudicial effect". That is the point.
At the moment there are two decisions to be made: first, is it explanatory material and, secondly, weighing in the balance the prejudicial effect against the probative value, is it fair to allow the prosecution to adduce it? The Government are just getting rid of that second test altogether. The judge may be sitting there, thinking, "I am presiding over an unfair trial. It is important explanatory material, but if I were allowed to carry out the test that I can at the moment, I would most certainly exclude it: it is leading to unfairness". The Minister may not have appreciated that, and certainly those who drafted the clause have not appreciated it.
Baroness Scotland of Asthal: I invite the noble Lord to look at the wording of Clause 94(a). It states:
"without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case".
That is a high threshold. I repeat:
"would find it impossible or difficult … and"—
not "or"—
"its value for understanding the case as a whole is substantial".
So, a fairly high watermark must be satisfied before the judge would be satisfied that the evidence falls within that which could properly be described as "explanatory evidence". We have other provisions under Clause 93(1)(d) and particularly (e). There is an argument that one should simply put them both in (e):
"it is relevant to an important matter in issue between the defendant and the prosecution".
We say that there is a difference between evidence that does not go to proof of guilt but goes to explanation and evidence that goes to guilt. That disaggregation is helpful in the interests of justice in order to get a proper balanced trial.
Therefore, I understand the nature of the comment made about probative value. In response, the Government say that the appropriate test on admissibility and evidential worth is to be found in Clause 94(a) and (b). That is the test that will apply to Clause 93(1)(c).
Lord Thomas of Gresford: For the record, in order to assist judges who may have to interpret this clause if it passes, will the Minister confirm that Clause 94
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demands a very high probative value before explanatory material can be adduced—rather more than at the moment, where the balance is being struck?
Baroness Scotland of Asthal: I hope that I have tried to express myself with a modicum of precision. I have already said that it is very difficult to describe the explanatory evidence as probative, because strictly speaking it does not prove an issue relating to guilt. It sets other evidence in context. The appropriate threshold for that contextual evidence is to be found in Clause 94.
Lord Kingsland: I am grateful to the noble Baroness. The evidence may not be probative in the sense that she describes, but it can certainly be prejudicial. We could take the example of two people who are alleged to have committed a crime. One pleads guilty and is not in the dock; and the other pleads not guilty but is in the dock. It is extremely difficult to explain the background to the crime without talking about the second participant. That is an example of a situation in which the prosecution may press very hard to exercise Clause 93(1)(c).
The judge may conclude that the prejudicial effect of allowing that evidence in—the fact that the second party had already pleaded guilty—far outweighed its probative value. Yet, under this subsection, there is nothing whatsoever that the judge could do to stop the inclusion of the evidence; because in this particular set of circumstances it might be very difficult for a jury to understand other evidence unless they knew that a second party had participated in the alleged crime.
Lord Dubs: I have been following the discussion very carefully and intervene to ask my noble friend a question. What difference would it make if Clause 93(3) were widened to include Clause 93(1)(c)—if the second test mentioned by the noble Lord, Lord Thomas, were also to apply? It seems to me that that would not weaken in any way what the Government seek to do.
Baroness Scotland of Asthal: In response to my noble friend, the whole point of creating a new statutory arrangement in this area is to bring together jurisprudence, which has developed over a very long time, and the way in which common law rules have interacted with the various statutory provisions over a period of time. This is our opportunity to bring all the provisions into one quite succinct place and express it with as great a clarity as we can to make sure that the ways in which these rules are applied are comprehensive across the piece. That is the Government's intent.
Of course, I hear the strong views expressed by others who would like to construct things differently. I have sought to explain why, in answer to the noble and learned Lord, Lord Ackner, the Government have fashioned things in this way. I hope that I have succeeded in doing so. We are not complacent about the issues that will be engaged by the nature of Clause 93. However, the test is only one of a number of ways in which the safety and fairness of trials are protected.

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The scheme includes other safeguards that I shall outline in due course to ensure that defendants' interests are given appropriate consideration. Therefore, we have not applied the exclusionary test to circumstances when defendants' interests are properly safeguarded in some other way and there would be no proper role for that test to play. That is the rationale behind what we have done.
I can accept that noble Lords may not agree, but I hope that I have explained with a modicum of clarity why the Government are doing what they are currently minded to do.
1.45 p.m.
Lord Lloyd of Berwick: The Minister explained the Government's position very clearly, but would she bear it in mind that this is one of the very points to which the Lord Chief Justice drew attention in his paper? A problem will arise because it is said that the provision will not allow the general discretion of the judge to exclude prejudicial evidence in these circumstances. That is one of the things that is worrying the judiciary. I do hope that the Minister will bear that in mind.
Baroness Scotland of Asthal: We have very much taken into account what the noble and learned Lord says; and, indeed, what the noble and learned Lord the Lord Chief Justice said in relation to these concerns. That is why we have tried to explain it as fully as possible. We have also tried to reassure noble Lords. The noble and learned Lord knows well that we have been able to rely on the sagacity of our judges and on the faithful discharge of their duties to ensure that that which is in accordance with fairness and justice is actually done in relation to the admission of evidence.
Noble Lords also know that this category of inclusion of evidence has been well established for some time. The judges of England and Wales are very experienced in determining whether evidence falls within the specific category of being necessary for the explanation. We therefore expect that judges exercising their discretion pursuant to Clause 93(1)(c) in conjunction with Clause 94 will be able to discharge their duty and ensure that there is a fair trial, without doing violence to the necessity to have before the jury the sort of evidence needed to make an informed judgment.
It is sometimes difficult because one has to treat juries with respect. They need the tools to make informed judgments. They will judge the facts. We know that this evidence has been of assistance in the past because that is why new approaches have developed in jurisprudence—inclusionary information that has hitherto been excluded can now be admitted in evidence so that juries can make sense of the whole package presented to them.
The Lord Bishop of Worcester: I have listened very carefully to the noble Baroness's explanations in the past few minutes, which were given with great precision and clarity. However, as one of the noble
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Lords present who is not a lawyer, there is one thing that I cannot get out of my mind. We have been repeatedly told, not only in this House, but also in the public launch of the Bill, that one of its purposes is to shift the balance of the criminal justice system—in favour of the victim, by implication—against the alleged criminal. That means that every time the Minister says that the purpose of a particular clause is to bring the established principles of jurisprudence together with statute law and common law, I am left with the question whether part of its purpose is not also to play its part in shifting the balance in the way that it was proposed the Bill would do.
It would help me greatly if, on each clause, the Minister could say, for example, "This is introduced purely for organising legal inheritance purposes and plays no part in the shifting of the balance". Otherwise, in common with other Members of the Committee, I shall continue to suspect, however clear the explanation, that any clause forms part of the equipment for shifting the balance, which is the fundamental aspect of the Bill. I hope that I make myself clear.
Baroness Scotland of Asthal: I understand the right reverend Prelate's remarks about what the media have said and how they have presented it outside the House. Regrettably, I have no control over how anyone other than me expresses the provisions. The Government seek parity, fairness and justice, and the delivery of justice in a clear, understandable, recognised way to those who participate in, and rely on, the justice system.
It is right that there is a perception that the balance has been put far too much in favour of the defendant, and not properly in favour of the victim. Our jurisprudence has developed in a sound way. The Bill seeks to set out the position clearly so that we all have the same starting point, giving scope for further development. But the fundamental principles of what Clause 93 does are in our jurisprudence already.
We hope that we will now have the clarity and precision to enable us to say, "In one place, you will be able to see what we have said for the defendant and for the prosecution. That legislation provides the balance and the clear exposition of the position". We know that the jurisprudence will continue to develop in accordance with our common law. The best way of saying with clarity, not only to those responsible for administering the justice system, but to those affected by it, is that we have the balance right and it is here in one place. The legislation will provide in one place the answer to the arguments and debates about whether victims are getting a proper, fair deal, whether defendants are properly protected, whether the system works and whether it is balanced. I do not know whether that will silence those who continue to rage about the issues. All I can say is that the Government are doing their best.
Lord Cooke of Thorndon: Perhaps it will assist the noble Baroness if I suggest that, when the measure reaches Third Reading, instead of having the abstract discussion that has occurred today, in which she has

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acquitted herself brilliantly, she could introduce an element of what one might call brass tacks on the matter of balance. Either the Bill makes a significant change to the balance between the prosecution and the defence in a criminal trial or it does not.
There may or may not be justification in some cases for moving the balance towards the prosecution. To cope with the question, one needs specific examples. To test the merit of Clause 93 and so forth, we need a specific example of a case. We need, for example, a case concerned with allegedly important explanatory evidence that would probably be ruled out by the judge as inadmissible at common law, but that would go in under the Bill, and where it is desirable that it should do. With such a concrete example, one would be in a far better position to form a view of whether the provisions had any merit.
Baroness Scotland of Asthal: I understand what the noble and learned Lord says in that regard. I shall see whether I can return with some case studies as he describes. One of our difficulties, not in the debate in this Chamber, but elsewhere, has been that every time one side of the debate says, "We want this to be included in Clause 93", the other side says, "But it is already possible" and the Government say, "Yes, it is". That debate is happening now. We have put everything in one place to enable concision.
I am happy that we should continue that debate. I will see what can be done, but I think that the debate will continue on Report, not in Committee. I hope, therefore, that Members of the Committee will take into account the expansive nature of today's debate so that we can hone any further debate on Report to only that which is absolutely necessary.
Lord Kingsland: I admire the perspicacity of the intervention by the noble and learned Lord, Lord Cooke. It is notable that, although the explanatory memorandum devotes quite a lot of illustrative space to other clauses, its contribution to the explanation of what Clause 94 means is especially spare. It consists, in paragraph 335, of two lines:
"Clause 94 defines what is meant by important explanatory evidence. The definition mirrors that used in the context of non-defendants".
It would be extremely helpful if, on Report, when we will undoubtedly return to Clause 94, the Government provided greater detail about the factual situations in which the provision applies.
Lord Ackner: The extensive interrogation of the noble Baroness over the past 40 minutes seems to give great weight to the observation by the Lord Chief Justice on evidence of bad character, at paragraph 13 in his supplementary note. He expressed his own view and that of the Court of Appeal Criminal Division as follows:
"The provisions as a whole are extremely confusing and will prove very difficult to interpret. They will result in lengthy arguments in court, more appeals and more scope for technical errors on the part of the trial judge that could give rise to
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convictions being overturned. Evidence that would previously have been considered neither admissible nor relevant will apparently be treated as both admissible and relevant".
In regard to the noble Baroness's specific answers to the problems which confronted me, I do not understand yet why the other paragraphs, to which I have drawn attention, should not come within subsection (3). I never drew attention to paragraph (a) for obvious reasons—the parties have agreed. In paragraph (b), the evidence can be adduced by virtue of cross-examination, which could be cross-examination that would not now be permitted. No restriction is placed on the cross-examination. Apparently, we will have the possibility of situations in which, hitherto, the judge would say, "No, Mr Brown, I don't think I should follow that course", seeking to protect the defendant from excessive prejudice. It may be a case in which the judge himself would warn the defendant, and not proceed further with a line because it lets in cross-examination or the defendant's record.
Clause 93(1)(c) states,
"it is important explanatory evidence".
So it could be, but the test of probative value and prejudice is perfectly appropriate to that. The same applies to paragraphs (f) and (g). We should have further material by the time we come to Report stage. Therefore, I do not seek to divide the Committee.
Clause 93 agreed to.
Clause 94 agreed to.
Clause 95 [Offences "of the same description" or "of the Sallie category"]:
2 p.m.
Lord Kingslandmoved Amendment No. 146:
Page 63, line 4, leave out paragraph (b)
The noble Lord said: We have already debated the—
Lord Ackner: Perhaps I may inquire which piece of information is right: that is, that we will not go on this Bill beyond 4 p.m. or that we could go on until 6 p.m.? I am in the unhappy position of having a wife who cannot he left alone. I have certainly covered the position until 4.30 p.m. Should I cover the position beyond that?
Lord Davies of Oldham: Through the usual channels, it is the intention, and it has been agreed, that we should go until 6 p.m. on this Bill.
Lord Kingsland: The substance of Amendment No. 146, as it relates to Clause 93(1)(d), has already been discussed as a consequence of earlier amendments. The noble Baroness will be aware that the observations made from this side of the House were that Clause 95(1)(b) would allow offences that had nothing whatever to do with the offence with which a person is charged to be brought in evidence against them.
The noble Baroness has, most courteously, already given Members of the Committee the benefit of her views on that aspect. Therefore, I do not propose to

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provoke her again in that respect today. The only point that remains is to ask about the way in which subsection (1) is intended to be implemented by the Secretary of State.
I am extremely concerned that the category of offences stipulated in Clause 95(1)(b) is a matter not for the Bill, but for an order made by the Secretary of State. My concern deepens when I look to the way in which "category" is defined in Clause 95(2), which states:
"A category prescribed by an order under this section must consist of offences of the same type".
On turning to the Explanatory Notes to seek a definition of "the same type", I find that it is exceedingly wide.
In my submission, the discretion given to the Secretary of State in these circumstances is a discretion that the Committee should not permit. I beg to move.
Lord Carlisle of Bucklow: I support my noble friend Lord Kingsland. It seems extraordinary that in Clause 95 the Secretary of State is given the power to categorise offences in any way he wishes for the purpose of that clause. It goes on to say that the offences must be,
"offences of the same type",
which invites the question: what are offences "of the same type"?
Following on from what the noble and learned Lord, Lord Cooke, said, I ask: is an offence of theft "of the same type" as an offence of robbery? Is it or is it not? The only difference is that there is an additional requirement in an offence of robbery that may not be present in an offence of theft from the person. Is theft an offence of a similar nature to an offence of burglary if the intention is to steal money? If I take money from someone's pocket, am I committing an offence of the same type as if I walk into his house and take it off a kitchen table? What do the words "same type" mean? How wide do they go?
It could be argued that many offences are of the same type if their intention is similar. In some ways, it is the intention of the person carrying out the offence that makes it an offence of a similar type to one which he may commit with the same intention but by a different means. Therefore, does it mean that if a man in his mid-40s commits on one occasion an offence of burglary, or he is charged with an offence of burglary, that the prosecution would be entitled to introduce evidence that at the age of 16 he had had a conviction for theft against him?
Baroness Scotland of Asthal: I thank the noble Lord, Lord Kingsland, for indicating that he has had quite enough of me on Clause 93. I thank him for his charity. I hope that I shall be able to clarify, to the satisfaction of the noble Lord, Lord Carlisle, how we currently see Clause 95(1)(b) and what will be included in an order.
Amendment No. 146 has been tabled as a consequence of Clause 95(1)(b), but it is important to make it clear that the paragraph does not confer
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admissibility. That is governed by Clause 93. Its sole function is to define an offence of the same category. Without this provision, it would leave an offence of the same category entirely undefined, which I know that noble Lords would find undesirable.
Clause 95(1)(b) is therefore a paving provision, as noble Lords have indicated. The intention is that the presumption created by Clause 93(1)(d) should apply to convictions for offences that are similar to the one with which the defendant is charged, as to previous convictions for the same offence.
We consider that the most straightforward way of achieving this is to make provision for categories which can be drawn up and considered in more detail in that context. By virtue of Clause 299(5), an order prescribing a category or categories of offences will be subject to the affirmative resolution procedure and therefore to active parliamentary scrutiny. We shall have an opportunity to look more specifically at these issues.
Our current view is that an offence is of the same description as another if the statement of the offence in an information or indictment would be the same. In plain language, this covers convictions for the same offence. Thus where a person is charged with theft or rape, only a conviction for those same offences would be covered by this provision.
It is worth noting that the statement of the offence in an information or indictment relates to the particular law that has been broken as opposed to the circumstances of the offence. Therefore there need not be a specific coincidence in the circumstances of the offence, although clearly the extent to which any dissimilarity affects the probative value of the evidence will need to be taken into account when assessing that probative value against its prejudicial effect under Clause 93(3). An offence is in the same category as another if they both come within a category which has been prescribed for this purpose by the Secretary of State. When we have the prescribed schedule, we shall be able, using the affirmative resolution procedure, to consider and debate what should or should not be included therein.
Lord Kingsland: I am most grateful to the noble Baroness for her clear response. I hope she will forgive me if I say that I derive little comfort from her reassurances about the affirmative procedure. As the noble Baroness will be well aware, your Lordships' House will not have the opportunity to amend the contents of a draft affirmative document. It must be either completely accepted or completely rejected; and the precedents for rejecting such documents laid before your Lordships are extremely rare.
By contrast, if the categories appeared on the face of the Bill, your Lordships' House would have the opportunity to amend the list presented. We would be, therefore, in a much more powerful position to deal with the matter during the course of the Bill than we will thereafter.
It is often the custom for the Government, while a Bill is being considered, to place before your Lordships' House a draft of some of the statutory

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instruments that they intend to make under the Bill. I should like to invite the noble Baroness to place such a draft before your Lordships' House on Report so that we can see clearly what the Government have in mind in making future rules under this subsection. I wonder whether the noble Baroness wishes to respond to that suggestion?
Baroness Scotland of Asthal: I wished to make sure that my initial reaction would accord with my instructions. I am happy to say that it does. Noble Lords will understand that time may be short, but we shall use our best endeavours to meet the noble Lord's request.
Lord Kingsland: I greatly appreciate the helpfulness of the noble Baroness in this respect. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 95 agreed to.
Clauses 96 to 100 agreed to.
2.15 p.m.
Clause 101 [Offences committed by defendant when a child]:
Baroness Seccombemoved Amendment No. 146A:
Page 65, line 47, at end insert "in the following circumstances, namely—

(a) the prosecution can show continuous or persistent commission of similar offences by the defendant since the time that he first committed them, or

(b) the defence has introduced evidence of the defendant's experiences before the age of 14"

The noble Baroness said: The amendment relates to Clause 101, which is entitled:
"Offences committed by a defendant when a child".
It repeals Sections 16(2) and (3) of the Children and Young Persons Act 1963. Subsections (2) and (3) concern offences committed by children and ensure that over-21 year-olds do not have convictions from when they were under 14 years of age brought up in later trials.
I believe that the clause as it stands would place an unfair burden on those who may have made mistakes in the past. Fourteen years old and under is a very young age to commit an offence on which you can be judged into adulthood. There are many reasons why juveniles commit crimes at such an early age: a bad home life, having fallen in with the wrong crowd or simply not having been taught any better and thus not developing the rational and more normal behaviour which comes with age and experience.
We have heard arguments regarding why it is not desirable for a jury to hear about former convictions, given the prejudice that a criminal record can bring, and I feel that these provisions are particularly hard. On hearing of a previous conviction, a jury is likely to attach more weight than it should to a criminal record and may convict on that evidence alone, especially when the current crime is the same or of a similar nature.
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This amendment would ensure fairness by narrowing the instances in which evidence of a criminal record can be adduced to two specific categories. The first category is that only those who continually commit crimes throughout their youth would have their record put before the jury. It would exclude those who made one mistake and learnt their lesson. I believe strongly that they should not have to continue to be punished by reference to something in their past.
All noble Lords in the Chamber were 14 years old at one time. I am sure that we can recall our own misdemeanours, along with those of others. Furthermore, most of us have been fortunate enough to be parents and live in fear and trepidation that our children may not stick to the straight and narrow. This provision creates an intolerable burden for a young person who may grow up to be a very responsible citizen. It will haunt them all their life.
The second category is if the defence has introduced evidence of the defendant's experiences before the age of 14. This would create a similar category to the current law on similar fact evidence, where a defendant adduces evidence of his good behaviour and thus loses his "shield" to past convictions.
I feel very strongly about this. The wide drafting of Clause 101 will cause grave injustice if it is passed unamended. I beg to move.
Baroness Walmsley: I rise to oppose the Question that Clause 101 stand part of the Bill. I am encouraged in doing so by the Children's Society, Barnardo's, NCH, NCB, NAYJ, Liberty and NACRO, all of which are urging the Government to reconsider these proposals on the basis that they are likely to have a damaging effect on children and young people.
The current situation is such that the law makes a special provision restricting the admissibility of evidence for crimes committed during childhood if a person is charged with offences in adulthood. We want to see those special provisions retained.
I have four major areas of concern. My first concern is about the proposal to widen the type of activity that can be admitted to the court. The admissibility of evidence of a defendant's previous convictions is currently restricted, but provisions in other clauses seek to widen that admissibility. With its wide definition of "bad character" in Clause 90, the Bill goes further than previous convictions to include previous allegations, acquittals and general behaviour, the kind of things that the noble Baroness, Lady Seccombe, so eloquently described.
The wider range of circumstances would lead to the court's consideration of the defendant's inclination to commit crime rather than evidence that he or she has actually committed the specific crime of which he or she is accused. Surely the purpose of a trial is to determine whether a particular defendant committed a particular crime, and not to make general judgments about the defendant's previous behaviour.

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My second concern is that neither the White Paper, Justice for All, nor the Law Commission's 2001 report, Evidence of Bad Character in Criminal Proceedings, nor the Auld report, made any specific reference to the effects on young people, nor identified particular problems with the current situation in relation to offences committed before the age of 14. Consequently there has been no meaningful consultation in this area.
The Children and Young Persons Act 1963 established an exception to the admissibility of evidence rules contained within the Criminal Evidence Act in recognition of the particular circumstances and experiences of children in relation to the rule of doli incapax. Under this principle, children between the ages of 10 and 13 were presumed to be incapable of criminal intent, and this presumption had to be rebutted by the prosecution before they could be convicted.
The Government's rationale for making a change in this area is not clear. I therefore particularly question the inclusion of offences committed as a child into the proposed scheme. Current criminal justice legislation in this area makes the distinction between the definition of a "child", defined as a person under 14, and a "young person" as between the ages of 14 and 18. While I would in no way want to endorse this distinction as I remain committed to the definition of a child as under the age of 18 within both the Children Act 1989 and the UN Convention on the Rights of the Child, it is difficult to understand why the Government seek to remove this distinction through Clause 101.
My third concern is about the relevance of offences committed as a child to criminal proceedings for offences over the age of 21. It is questionable whether any of us would consider it reasonable or relevant to be held to account for actions and behaviours during childhood after a potential gap of up to 11 years. Surely we could consider that a person may very well have changed during that time into someone almost unrecognisable from the little tearaway of 11 years old.
My final concern is about rehabilitation and policy consistency. The Government's proposals are particularly puzzling in the light of the recent Home Office report, Breaking the Circle: A Report of the Review of the Rehabilitation of Offenders Act (July 2002). The report contains a proposal for a "clean sheet" at 18 in respect of disclosures to employers for all but the most sensitive posts. In recognition of the particular vulnerability of young offenders, the review also considered whether a similar framework should be applied in respect of the admissibility of those previous convictions in court. The report concludes a preference for the current reliance on the general rules of relevance and the provisions of the 1963 Act. However, the Bill proposes to overturn the current situation on which the recommendations in the report were based and is potentially introducing contradictory policy in this area. This is extraordinary strabismus. The Government are looking both ways at once.
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To summarise our objections to the clause, the important legal safeguard of the principle of doli incapax has been eroded by Section 34 of the Crime and Disorder Act 1998 so that a 10 year-old child is now presumed to be as criminally responsible as a fully mature adult, a situation that would shock many of our European neighbours. The further erosion through the Bill of any safeguards for children and young people in relation to a recognition of their age and capacity for change and development, coupled with the widening of the definition of "bad character" and the circumstances in which evidence is admissible in court, is both significant and very alarming. I urge the Government to reconsider their proposals both in respect of allowing young people to move on in their lives and an assessment of the continued relevance of their behaviour at a very young age to their future position in society.
Lord Carlile of Berriew: I support the principle underlying the noble Baroness's amendment. I declare an interest as the very recently outgoing chairman of NACRO'S committee on children and crime.
NACRO has carried out a great deal of work researching the causes of children's crime and the effect of criminal findings upon children and their futures. My first observation is that there is overwhelming evidence that most children under 14 who commit crime are socially excluded in some way or another and are far more likely to commit crime because of that social exclusion. That finding has meant that NACRO has welcomed the work carried out by the Cabinet Office and the Prime Minister in trying to ensure that there is less social exclusion of children and disadvantaged families. The result of reducing social exclusion will be less crime committed by children.
The NACRO committee also found that increasingly criminalising children leads to further crime by children at an older age. If they come before courts at a young age and are sentenced to custodial terms of one kind or another when they are young, they are far more likely to commit crime later. There is some evidence that children who are regarded as "bad" because they have committed crime are more likely to be stigmatised later by those who live around them.
Can the Minister explain the rationale behind the clause? The Notes on Clauses do not make this clear. There is a risk that the clause will lead to precisely that further criminalisation of children which the research carried out by NACRO and the committee that I chaired found would he counter-productive.
Can the Minister confirm that the provisions of Clause 93(3) and 93(4)—the provisions that leave the court with the discretion on certain grounds not to admit evidence—as intended by the Government would, in the Government's view, be applicable to questions arising in a court under Clause 101? There should be at least the same level of discretion to exclude findings of guilt and other evidence of bad character which apply to children under the age of 14 as to activities of those same people when they are adults.

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I support the noble Baroness's amendment in principle. I hope that the Government will be able to persuade us either that they have covered these concerns or that they will revisit these very important issues.
Lord Hylton: I support the amendment moved by the noble Baroness, Lady Seccombe, although it would give the Government a better chance to have second thoughts if the whole of Clause 101 were to be removed from the Bill. The Government might like to reflect on the old saying that every dog is allowed one bite. The noble Baroness, Lady Walmsley, was right to mention the Rehabilitation of Offenders Act 1974. Perhaps we could have an assurance that spent convictions under that Act will not be allowed to be quoted against defendants.
I conclude by suggesting to the Minister that the age of criminal responsibility in England and Wales is far too low and should be considerably raised.
2.30 p.m.
Baroness Anelay of St Johns: I rise briefly to support Amendment No. 146A in the name of my noble friend Lady Seccombe. I should make it clear that there has been a printing error in the Marshalled List. Those who study them assiduously as their bedtime reading will notice that, on the original version, my name and that of my noble friend Lord Hodgson of Astley Abbotts appeared below that of my noble friend Lady Seccombe. Those names have now slipped, by some chance, to give our support to the noble Baroness, Lady Walmsley. It was a fortuitous printing error because I can now give my support to the noble Baroness, having heard the arguments that she has adduced today and the arguments put forward by the noble Lord, Lord Carlile of Berriew.
I, too, have received most helpful briefings from the various organisations representing the interests of children. They make strong points, and the Minister will have a tough job to persuade us that the arguments put forward should not carry the day.
Baroness Scotland of Asthal: I thank all those who have spoken on the same theme. I will try to answer the issues raised by the noble Baronesses, Lady Seccombe and Lady Walmsley, the noble Lord, Lord Carlile, and, more latterly, by the noble Lord, Lord Hylton, and the noble Baroness, Lady Anelay.
Clause 101 is intended to remove the absolute barrier to admitting evidence of certain juvenile convictions in trials of offences committed as an adult. Our aim is to simplify the plethora of rules governing the use of previous convictions and other misconduct as evidence and enable that material to be admitted and assessed on its evidential merits. We therefore believe that the sort of convictions covered by Section 16(2) of the Children and Young Persons Act 1963 should fall under the general scheme for admissibility set out in the Bill. Such convictions may well he relevant to the case, and where they are, it should be possible to introduce them as evidence, provided—I emphasise this—it is safe to do so.
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The amendment in the name of the noble Baroness, Lady Seccombe, would add an unnecessarily complex series of restrictions to the admission of such evidence. May I explain why? With the amendment, it would be necessary either for the prosecution to show that there was a "continuous or persistent" commission of offences or for the defence to have introduced evidence of the defendant's experiences before the age of 14 years. It would then also he necessary to show that those convictions met the conditions of admissibility set out earlier in the Bill. We spent some time looking at those provisions in Clause 93.
The introduction of new, specific criteria would lead to complex legal arguments on whether conditions such as continuous or persistent commission of similar offences had been satisfied and would move away from considering the probative value of the evidence as the key to its admissibility.
The considerations suggested by the amendment may, in the circumstances of an individual case, be important. However, that is already reflected in the general scheme of admissibility set out in the Bill. For example, where persistent offending of a similar kind lends weight to the probative value of evidence, it will be taken into account by the court when applying the exclusionary test under Clause 93(3), as that involves assessing the probative value of the evidence against any prejudicial effect. That takes up the point made by the noble Lord, Lord Carlile, that that test will be able to bite upon any such evidence. Equally, where a defendant has introduced evidence of his experiences under the age of 14 so as to create a false impression about himself, evidence of his convictions at that age will be admissible to rebut that false impression, but it will be directed at a specific issue that has been raised during the trial.
However, it is wrong to impose such factors as prerequisites to the admissibility of the evidence, as it would mean that such convictions could never be used in other circumstances, no matter how relevant. We do not agree that that is the correct approach. I shall develop our argument on Section 16(2) and 16(3) of the Children and Young Persons Act 1963 in the context of the stand part debate that we are to have. The amendment raises the question of whether such convictions should be admissible only in certain predefined circumstances. For the reasons I have just given, we do not agree. For example, a conviction for an offence that had close similarities to the one now charged may well be highly relevant, even if committed at a young age, without any element of persistence.
There are problems, too, with the requirement that the defendant has introduced evidence of his experiences below the age of 14. What of the defendant who gives a misleading impression to the jury by claiming to be of generally good character or admits only to minor offending in his later teens? His convictions for younger offending may well be relevant to correcting the picture he has given to the jury. We talked about that earlier under Clause 93.
The amendment represents an attempt to limit the circumstances in which that sort of evidence is admissible to those in which its probative value might

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be thought to be most significant. We are not unsympathetic to that concern. However, we consider that the most appropriate way of ensuring that evidence of that nature is admitted only where its relevance is clearly established is not by having an arbitrary rule that risks excluding cogent evidence but by subjecting the evidence to the general scheme set out in the Bill, in particular the test to ensure that probative value outweigh prejudicial effect. In the light of the sort of anomalies I have referred to, we oppose a strict rule in this area.
The noble Lord, Lord Carlile, asked for a number of broad assurances, which I hope I have covered. Perhaps I should say a word or two more about Clause 101. Although they very much dovetail with the comments I made in answer to the noble Baroness, Lady Seccombe, I know that the noble Baroness, Lady Walmsley, wanted a slightly more generic debate on the import of Clause 101
As I said, Clause 101 repeals subsections (2) and (3) of Section 16 of the Children and Young Persons Act. That provision precludes the use in adult proceedings of certain convictions received as a juvenile. Specifically where a person aged 21 or over has committed an offence, their convictions for offences committed under the age of 14 cannot be given in evidence. Clause 101 removes that arbitrary restriction and ensures that such evidence will instead fall under the general scheme for admitting it.
It is important that we bear in mind the overall purpose of this part of the Bill—to create a new and single statutory scheme for admitting bad character evidence that operates on a coherent basis. The intention, therefore, is to enable courts to admit evidence where it will assist in determining a case, but subject to suitable safeguards, which we have just explored. Clauses 93(3) will suffice to provide a safeguard, as will Clause 93(4), which we discussed earlier. The right balance is struck to ensure that relevant and only relevant convictions, including the sort with which Section 16(2) is concerned, can be put before the court; but that those with little value, especially because of their age, are excluded without creating an arbitrary exclusionary rule encompassing potentially relevant evidence.
I hope that I have been able to explain to noble Lords why we seek that extension.
Lord Williams of Elvel: Before the noble Baroness, Lady Seccombe, responds, would the noble Baroness, Lady Anelay, like to reflect on her assertion that there was a printing error? My experience, which goes back quite a long way in this House, is that the Public Bill Office does not make printing errors. If there was an error between the various noble Baronesses, that is their problem; it is not that of the Public Bill Office.
Baroness Anelay of St Johns: I hate to disagree with the noble Lord, but there have indeed been several problems in printing during the course of the Bill, as the Minister is also aware. The Public Bill Office has been under tremendous strain. It has been most
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apologetic when errors have occurred; as we always are when we cause errors. On this occasion, during the recess, when I tabled 180 amendments, I took the precaution of typing, faxing and keeping copies of them myself, so I am aware exactly what was tabled, which has been accepted. So I can assure the noble Lord that there was a printing error on this occasion, and there have been errors on this Bill on previous occasions. But they are so rare that I can perfectly well understand why he found that so surprising.
Baroness Scotland of Asthal: Prescience must have prevailed.
Baroness Seccombe: I thank those noble Lords who supported the amendment and the Minister for her detailed reply. There is much to read and digest in what she said. I wonder whether it is Clause 93 that needs redrafting. I shall take further advice and discuss the matter. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 101 agreed to.
Clause 101 [Assumption of truth in assessment of relevance or probative value]:
On Question, Whether Clause 102 shall stand part of the Bill?
Lord Ackner: I can be brief, because I have the advantage of the views of the judges. They refer to the unnecessary verbiage in the Bill and in particular to Clause 102. They state that Clause 102,
"contains nothing more than a statement of the obvious".
If that is the case, why are we adding even further to this excessively long Bill?
Baroness Scotland of Asthal: Clause 102 deals with the approach that the court is to take towards assessing the truth of bad character evidence when considering its probative value. Of course, I take seriously what the noble and learned Lord says about the concern expressed by the judges. It would be a little unjust to describe it as verbiage, if for no other reason than that that term lacks elegance.
For those purposes, the court is required to assume that the evidence is true. That follows the recommendation of the Law Commission in its report, Evidence of Bad Character in Criminal Proceedings, Law Commission Document No. 273, and codifies the current common law.
The issue is this: probative value is a combination of the extent to which the evidence proves a matter in question and the extent to which it can be relied on. Assessing probative force is an important issue in admitting bad character evidence, as it can be excluded where its prejudicial effect outweighs its probative value. The question therefore arises: to what extent should the judge assess the credibility of a witness when considering the admissibility of their testimony of a defendant's bad character?
As the noble and learned Lord will, I am sure, know, the point was considered in the House of Lords in 1995 in the case of R v H, which involved allegations of

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collusion between two witnesses whose accounts were sought to be admitted in support of each other under the similar fact rule. The House took the view that the assessment of a witness's credibility should be left to the jury and the trial judge should accordingly make no inquiry into the quality of evidence when considering its admissibility. That maintains the important distinction between the roles of the judge and the jury: the jury being asked to decide matters of fact, such as the reliability of evidence; and the judge ruling on matters of law.
In its 2001 report, the Law Commission recommended that the law be codified along those lines. It considered that issues of contamination and collusion ought to be decided by juries and that there were undesirable consequences to judges being asked to examine the reliability of evidence when deciding admissibility. It pointed out that that would frequently require the prosecution to prove a negative—that there had been no collusion or contamination—which would often be impossible, and it much relied on the noble and learned Lord, Lord Mustill, in the case of H who said:
"This is more than I am willing to accept. The possibility of innocent infection is one amongst many factors which the jury will have to take into account; but to treat it as a unique 'threshold issue' loads the scales unfairly against the prosecution, and hence the interests of those who cannot protect themselves".
The Law Commission therefore concluded that the law should remain as it is—in other words that the court should assume that evidence of bad character is true when considering its admissibility. We agree, and Clause 102 adopts the proposal in the Law Commission's draft Bill to put that on a statutory footing.
Lord Ackner: I am most grateful to the noble Baroness for her explanation. I should like to consider it at length, but at this stage I shall not press the proposition that the clause be removed.
Clause 102 agreed to.
Clauses 103 and 104 agreed to.
Clause 105 [Interpretation of Chapter 1]:
2.45 p.m.
Lord Acknermoved Amendment No. 147:
Page 67, line 41, leave out subsection (2).
The noble and learned Lord said: Again, the Committee will be pleased, if not surprised, to learn that I can deal with this succinctly. The question that the judges raise is: how can a judge properly decide what evidence should be admitted without considering all the offences on which the accused is being tried? What is the answer to that question? I beg to move.
Lord Davies of Oldham: As the noble and learned Lord will appreciate, Clause 105(2) derives from the Law Commission's report on the subject and its draft Bill. It ensures that offences are treated in isolation when considering the question of admissibility. Thus evidence might be admissible on charge A but not on charge B. The fact that it is not relevant on charge B
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would not mean that it was inadmissible in the trial. Equally, admitting the evidence in relation to charge A would not make it admitted on charge B. The problem with the amendment is that it would remove this provision.
Clause 105(2) is required to make the position clear as I outlined it. We would not want evidence to be ruled inadmissible because, although relevant to charge A, it was not relevant in respect of charge B. Nor would we want evidence to be admissible across all charges because relevant to one of them. However, we recognise the concern, raised in the Lord Chief Justice's paper on the Bill, that when considering whether evidence should actually be admitted, the effect of the evidence on the proceedings as a whole should be taken into account. In other words, when applying the exclusionary test set out in Clause 93(3), the court should consider the prejudicial impact of the evidence on the trial as a whole, and not simply in relation to the charge to which it is relevant, That has always been our intention. We are happy to consider whether an amendment is necessary to put that position beyond doubt and will table one on Report if it proves to be so.
I hope that on the basis of that response, the noble and learned Lord feels able to withdraw his amendment.
Lord Ackner: I am most grateful to the Minister for his co-operative approach. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 105 agreed to.
Clause 106 agreed to.
Schedule 5 agreed to.
Clause 107 [Admissibility of hearsay evidence]:
Lord Thomas of Gresfordmoved Amendment No. 149:
Page 68, line 15, leave out paragraph (d).
The noble Lord said: So we reach another watershed in the Bill. We now turn to the problem of hearsay evidence, which always relates to the difficulty of challenging it. When a person says that he has been told some information by a third party, two questions arise. First, did the third party actually say what the witness says that he said? Secondly, if he did say what the witness says that he said, is it true?
The difficulties can be illustrated through the unfortunate circumstances of yesterday, when Mr Andrew Gilligan told the Hutton inquiry what he had been told by Dr Kelly, who unfortunately died. The issue was whether Mr Gilligan was actually told what he said he was told and whether it was true. That is a basic problem with hearsay evidence, and one approaches the clause with that in mind.
We on these Benches find the whole clause objectionable, which is why the clause stand part debate is grouped with the amendment to which I am speaking. Even if one were to keep the clause in some

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form, it is highly objectionable as it is framed. In subsection (1), we object to paragraph (d), which says that in,
"criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if…the court is satisfied that, despite the difficulties there may be in challenging the statement, it would not be contrary to the interests of justice for it to be admissible".
The noble Baroness, Lady Scotland, told us all morning that she was looking for clarification and certainty in the law, and to that degree was prepared in some circumstances to dispense with the discretion that a judge may have in deciding, for example, the balance between probative value and prejudicial effect. Here the discretion is handed over entirely to the court as to whether the hearsay evidence should be admitted, subject only to subsection (2), where there are certain factors for the judge to bear in mind. Members of the Committee may feel that they are fairly obvious matters, but the provisions are extremely vague and broad and introduce into the law of evidence in criminal cases hearsay evidence wholesale. It can never be certain for a defendant that he will not face evidence of this sort; whether a judge admits it or not, it will be a matter for applications, either pre-trial or during the trial. We object in principle to the introduction of hearsay evidence of that type.
Coupled with the amendment is Amendment No. 150, which is not very helpful because subsection (2) is in truth concerned with subsection (1)(d), and if subsection (1)(d) were struck out as we wish it to be, subsection (2) would not apply.
I do not propose to address noble Lords at any length on those matters, but I want to hear why it is necessary to introduce such an unsafe and uncertain principle of the law of evidence into criminal trials. I am not going to repeat the speech that I made so many times that noble Lords must be weary of it, relating to the problems of miscarriages of justice and the impact that they have on the public's confidence in the criminal justice system. This is just another example in the Bill of attempting to obtain more convictions and thereby risking more unjust convictions and more miscarriages of justice. I beg to move.
3 p.m.
Lord Cooke of Thorndon: I offer qualified support for this chapter, chiefly because it contains Clause 107(1)(d), which I see as its great merit. I cannot therefore support Amendment No. 149, and I hope that the noble Lord, Lord Thomas of Gresford, will give the matter further consideration.
The reason for my qualified support of the chapter is that, to one's regret, there has been a failure by the English courts to redress a mischief of their own creation. The rule excluding hearsay evidence and some of the exceptions to it are entirely a creation of the courts over the centuries. Parliament never enacted such a rule. It might have been thought that, just as a rule was developed, so the courts would have accepted responsibility to modify it in the direction favoured by virtually all who have examined the subject in any
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depth—namely, by placing more weight on reliability rather than technicality. Instead, there has been in England and Wales much ossification—largely, I regret to say, achieved by the Appellate Committee of your Lordships' House, which has insisted on a strict bar even on hearsay of unquestionably high reliability, subject only to a list of exceptions now declared closed.
Notorious examples of that approach are well known to all criminal lawyers and may be found in all criminal textbooks. It is enough for me to give but one. In 1992, in the case of Kearley, the Appellate Committee held that, on a charge of drug dealing, police evidence was inadmissible that, within a few hours, some 20 customers or would-be customers had called at or telephoned the accused's flat seeking supplies, some of them asking for him personally. That decision was by a majority of three to two, with powerful dissenting speeches. However, the weight of the majority will be apparent when I mention that one of its members was the noble and learned Lord, Lord Ackner.
At least in part, some such decisions have invoked not only the hearsay rule, but a perhaps equally odd view that the rejected evidence was irrelevant. However, the Law Commission, on whose report this chapter of the Bill is based, appears to have accepted that some third party confessions, for example, previously inadmissible, would be admissible under their proposals. It is to be hoped that the reform now proposed, although it sorely needs simplification, will encourage the courts to a less austere view of relevance and more confidence in the common sense of juries, magistrates and trial judges.
In other common law countries, particularly Canada and New Zealand, the courts have moulded the judge-made law so as to accept broadly a general residual discretion to admit hearsay evidence of sufficient apparent reliability. The English courts have scarcely budged, however, and the time is clearly more than ripe for Parliament to step in, as has been recommended by many authoritative reports.
Unfortunately, though, the Law Commission, after a meticulous review of the field, produced a highly elaborate set of proposed new rules in a pattern reflected in the present Bill. In complexity, it far outdoes the existing law. I would respectfully urge the Government to heed the advice of the noble and learned Lord, Lord Woolf, the Lord Chief Justice. In his background paper lodged in the Library, he puts it thus:
"What is needed is a simple rule putting the judge in charge of what evidence is admissible and giving him the responsibility of ensuring that the jury use the evidence in an appropriate manner".
It seems to me that a similar rule should apply in summary proceedings, bearing in mind that any misapplication of it could be corrected on appeal or otherwise—by review, for instance.
Indeed—and this is the point at which I come to Amendment No. 149—just such a clause is already in the Bill. Clause 107(1)(d) makes hearsay admissible in criminal proceedings if, as the noble Lord, Lord Thomas, said,

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"the court is satisfied that, despite the difficulties there may be in challenging the statement, it would not be contrary to the interests of justice for it to be admissible".
The genesis of that provision is in a clause rather tucked away in the Law Commission's draft and somewhat less strongly worded by the commission. The drafters of the Bill have moved this provision to a more prominent and more logical place and have improved the wording. The provision is intended to override all the detailed ones, even the complicated ones in the Bill, about multiple hearsay. That accords with the Law Commission's intention which regarded its clause, tucked away as it was, as an overriding provision. The commission suggested that the power would be used only exceptionally. However, neither in its draft nor in the Bill before the House is there that limitation.
So the Bill contains this general provision, giving the courts a flexible weapon to achieve justice in criminal law. The other elaborate, intricate provisions of the chapter are not essential and indeed distract from the real issue. In so saying, I venture to speak from more than 30 years experience as a judge, largely in New Zealand, but in various other countries also, including some five years as a Lord of Appeal in this House. I am not involved in politics in the slightest way nor even interested in tactical manoeuvres. With deference, but with a conviction born, I claim, of impartiality, I would suggest to the Minister and his colleagues that they might demonstrate open-mindedness, think again and move towards a more simple approach, a change in the present Bill which would, in importance and radicalness, be nothing by comparison with their proposed constitutional changes.
Lord Carlile of Berriew: It is with trepidation that I follow the noble and learned Lord, Lord Cooke. My father always taught me of the importance of bewaring of the mythical Greeks bearing gifts. When one sees the Lords of Appeal in Ordinary shouldering blame, one should guard carefully. He need take no blame having played such a distinguished part himself in whatever reform of the law is possible within the judicial process in this House.
I follow with trepidation because to an extent I agree with the noble and learned Lord, Lord Cooke, and to an extent I disagree with him in supporting my noble friend Lord Thomas. I agree with the noble and learned Lord in what I understand to be a fundamental question in his speech as to what this provision really amounts to. I ask the Minister to tell the Committee whether Clause 107 and the following clauses are codification or change.
If those clauses are intended to be codification, they fail. I give an example of what is not included in the Bill. It is the inclusion of the regime—which will be familiar to the noble Baroness—set out in Sections 23 to 26 of the Criminal Justice Act 1988 dealing with the admissibility of statements contained in documents—a matter which is litigated daily in many courts, and usually these days without much difficulty in the light of useful guidance given by higher courts.
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I perused the list of proposed amendments to the Bill and I see no attempt to create a single regime for hearsay evidence. I believe that the noble and learned Lord, Lord Cooke, and I would agree that it is desirable that there should be a single body of legislation that deals with hearsay evidence, whether it be of an oral or written kind, so that judges can make that decision of which the noble and learned Lord, Lord Woolf, spoke when devising his proposed rule. I ask the Government why they have not gone down the road recommended by the noble and learned Lord, Lord Woolf, of trying to produce a simple, single body of law to deal with hearsay evidence?
I also ask the Minister to explain to the House what difference the Government expect these provisions to make in practical terms. Although I agree with my noble friend Lord Thomas as regards the possible effect of the provisions, I have a suspicion that in reality they will have very little effect. Is that the Government's intention? If the expectation and intention of the Government is that there should be far more hearsay evidence admitted, it presents the risk of real dangers of miscarriage of justice, as outlined by my noble friend Lord Thomas of Gresford. I think, for example, of a range of cases of which I, my noble friend and, indeed, the Minister have great experience; that is, allegations of historic child abuse in which there are always protestations that those who would be called to give evidence are unfit so to do. There are many cases in which parts of indictments are dropped because potential witnesses are judged by the prosecution to be unable to give evidence because of reasons connected with their mental health.
If it is the intention or expectation of the Government that people falling into that category should have their statements read as part of the prosecution case on a regular basis, I for one, with many years of experience of those cases, would have grave misgivings. There would arise from those circumstances real risks of improper convictions based on evidence that stands no chance of being tested. If that is not an example of the range of evidence which the Government have in mind, I should like to know what is within their expected range. Regarding this clause and what follows, my feeling is that the Government owe us more of an explanation than is contained in the Notes on Clauses to the Bill as regards what they expect to happen in real courts and in real cases.
At the end of the day one is driven back to the reminder which the noble and learned Lord gave us of the view of the noble and learned Lord, Lord Woolf. Why do we not set out some very basic and far simpler rules and leave it to the judges to decide not what would be contrary to the interests of justice, as is set out in Clause 107(1)(d), but what is in the interests of justice—a positive test which is well understood by the courts?
3.15 p.m.
Lord Campbell of Alloway: Being interested in the hearsay rule I wholly support the idea that has just been canvassed that there should be a single regime.

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May I ask one question about this? If you look at Clause 107, you have to ask whether it substantially alters extant law and, if so, in what relevant effect. The other question is this: if it does in any relevant respect, is the position that somebody could be acquitted under extant law and convicted on other and different evidence admitted under Clause 107? I am afraid that I put it very simply but I hope that the point has been made.
Lord Davies of Oldham: In responding to the amendment with an absolute dearth of legal expertise, I was already quaking before the noble Lord, Lord Thomas, suggested that we might learn lessons from the Hutton Inquiry. I assure him that I have absolutely no intention whatever of following him down that particular track. We have quite enough to deal with regarding the Bill without being diverted into other significant and challenging issues.
I wrestled with the issue of how the Government should respond. The noble and learned Lord, Lord Cooke, rode to my assistance like a knight on a white charger when he accurately identified—rather more precisely than I am able to do—just why the Government intend to follow the course of action proposed with regard to the clause that we are discussing and why we consider that the amendments to it should be withdrawn.
I emphasise that the issue of the admissibility of hearsay evidence in criminal trials is a very important one. This chapter provides a comprehensive statutory scheme to replace the current complicated and inconsistent rules. The noble Lords, Lord Carlile of Berriew and Lord Campbell of Alloway, asked what was happening in this regard. We are repealing certain provisions and implementing in Clauses 109 and 110 improvements recommended by the Law Commission. The intention of this part of the Bill is to implement a scheme which is based very closely—as the noble and learned Lord, Lord Cooke, identified—on the recommendations of the Law Commission which gave these issues very careful consideration.
The commission spent three years examining how the law operates in practice and in developing and consulting upon its recommendations for change. The core of the commission's proposed scheme is that there should be some rules which allow for automatic admissibility of evidence (where judicial discretion plays no part) as well as an inclusionary discretion to ensure that the interests of justice are served. The scheme set out in the Bill adopts this approach.
The noble and learned Lord, Lord Cooke, elegantly indicated that we might take guidance from the comments of the noble and learned Lord, Lord Woolf, with regard to a simple approach to the matter. Therefore, it may be a challenge to this part of the Bill that total simplicity has not been achieved. However, it is certainly the intention to give effect to the Law Commission's proposals. There is no doubt at all that the amount contained in the Bill is very limited and is not, I would contend, unduly complex.
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Let me also say at the outset—
Lord Campbell of Alloway: Could I ask the noble Lord to get right down to the nitty-gritty of this? The Law Commission's proposals seek to alter extant law. If you accept that, you get the position—of which I have a horror—of a man who is acquitted under extant law and then under a new law where the evidence is admitted is convicted on retrial. That is the situation which arises. Ought not some safeguard to be inserted for that?
Lord Davies of Oldham: I think that there are safeguards against the position that arises from the noble Lord's anxieties. He will recognise that we seek to introduce a Bill that, in future, will create broad rules that are as straightforward as we can make them for the admissibility of the evidence. In doing so, we are following as closely as we can the recommendations of the Law Commission.
The group includes several amendments tabled by the noble Lord, Lord Dholakia, and spoken to by the noble Lord, Lord Thomas of Gresford, that require the court to satisfy itself that the interests of justice are met before any out-of-court statement can be admitted as evidence under this chapter or any other statutory provision. Amendment No. 154 is consequential and would bring admissibility of statements involving frightened witnesses within the same discretion. That is an important practical issue as well as one of principle, because we must achieve the right balance between consistency and discretion.
There are two broad categories where statements would be automatically admissible in Chapter 2. The first is where the maker of the statement is unavailable for a legitimate reason—for example, where the witness is has died, gone abroad or disappeared, providing that reasonable steps have been taken to find them—and, secondly, business documents will be automatically admissible, unless their reliability is doubtful.
The Criminal Justice Act 1988 already makes those various categories potentially admissible, subject to leave and discretion provisions, but the appearance of certainty is illusory. In practice, most applications must be judged. That is a cause of concern, as the Law Commission found a lack of consistency in the way in which judges exercise their discretion under the Act. Some—perhaps those with a traditional hostility to hearsay—regularly exercise their discretion to prevent hearsay statements being admitted.
The amendments would emasculate this part of the Bill. They would undermine one of the most important benefits in reforming hearsay in criminal cases, namely that there should be much greater certainty that out-of-court statements will be admitted as evidence. Practitioners are calling for more certainty in the majority of cases, not less.
It is also important that the rules of evidence should lead to consistent and fair outcomes. The Law Commission has found that they do not in the case of

1115
hearsay. Different judges reach different conclusions about whether statements should go in. As the commission said in its consultation paper on the issue,
"the problem of discretion and arbitrary justice is not an imaginary one. Whether a prosecution is pursued may depend on the admissibility of evidence, and the question of admissibility may depend on the judge's discretion".
In the light of those findings, the Law Commission concluded that, for the relevant categories, the need to obtain leave is a lengthy and unnecessary procedural safeguard. We agree. If the rules of admissibility are reliant entirely on judicial discretion, as the amendments propose, there can be no certainty for the parties concerned. That is of particular concern given the commission's worrying findings that judges were being inconsistent in the exercise of their discretion under the Act.
Lord Carlile of Berriew: I ask the noble Lord to consider his words carefully when he talks about inconsistency and discretion. In the past few minutes, he has talked about certain categories of evidence being automatically admissible. Does he really mean that? As I understand this chapter, although it is stated in a negative rather than a positive form, exactly the same kind of judicial discretion will exist as has existed before. If that is a correct interpretation of the Bill, with great respect to the Minister, what he said cannot he quite right. Can he clarify that?
Will the Minister give us some examples of the difference that will be made in cases? The lawyers will always earn their money trying to interpret evidence in different ways and persuading judges. However, those who collect evidence—the police, health authorities and others who carry out investigations—should know what kind of hearsay evidence the Government think is likely to be admissible in future.
Lord Davies of Oldham: I recognise the noble Lord's anxiety. Of course discretion will still be exercised. We seek to make clearer and define more effectively the area within which that discretion should be exercised, against the background of the Law Commission's anxieties, which are clearly reflected in its evidence on the point.
The anxiety that I was trying to identify on the amendments is that, effectively, they would take away the move that we seek to make in the Bill. They would return us to the previous position, in which we would not effect what we regard as the beneficial changes contained in the legislation, which were spoken to so accurately by the noble and learned Lord, Lord Cooke. I had hoped that his considered contribution would absolve me from having to present the case to quite the extent that I have done, but I recognise the appropriate challenges made.
The next issue is the extent to which the court should be able to consider other out-of-court statements falling outside the recognised categories of admissibility. Under Clause 107(1)(d), reliable statements not falling within one of the recognised categories, or a preserved common law rule, will remain potentially admissible. Amendment No. 149 would again remove that discretion.
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One of the most forceful criticisms of the operation of the current hearsay rule is that reliable evidence can be excluded because it does not fall within any of the pre-existing categories. That can sometimes make it impossible for the defendant to put before the court credible evidence which points to his or her innocence, thus rendering a fair trial impossible.
As the human rights organisation Justice has commented,
"it is a powerful argument against a strict exclusionary rule that miscarriages of justice can be avoided only if the appellant is lucky enough to find a court prepared to decide his case otherwise than according to the law".
If the present inflexible rule can cause injustice for the defendant, there is likewise a risk of injustice when the prosecution is prevented from leading highly probative evidence. The Law Commission was strongly influenced by the need to prevent future injustice. It concluded that an inclusionary discretion was essential and should be available to both the prosecution and the defence. The vast majority of those consulted agreed. In the light of those strong concerns, I am hound to ask the noble Lord to withdraw the amendment.
Amendment No. 151 seeks to replace Clause 107(2)(h) and (i), and would require the court to take particular account of any unfairness to the parties when hearsay is being admitted, as well as any other relevant factor. Those concerns are already covered by the list of factors to be considered under subsection (2), in particular paragraphs (h) and (i), as already drafted. They would require the court to take account of any difficulty in challenging the statement and the extent to which that difficulty would prejudice the opposing party.
That test is intended precisely to allow the court to consider any unfairness to the parties which might occur were the evidence to be admitted. Any further clarification on the point seems unnecessary. Further, the court is already required to take into account any other relevant factor by the opening words of subsection (2). In the light of that reassurance, I hope the noble Lord will not press those amendments.
Lord Hylton: I have listened to this fascinating debate with interest. However, I want to draw attention to the words printed at line 21 of page 68 which are,
"assuming it to be true".
I note that similar words occurred in Clause 102.
Why should such an assumption be made and, if it is made, how will it be tested? It may be that subsection (2)(h) is relevant, but if so, how is the amount of difficulty involved to be assessed?
Baroness Scotland of Asthal: I hope that noble Lords will not mind if I respond to the question. Under Clause 107, one of the issues that must be determined before one considers whether the evidence should be included is to assume on the basis that one says, "If that which is not admitted is true, does it have the quality to cause the court to say that it should be admitted into evidence?".

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The importance of the evidence should he considered on the assumption that it is true, when the judge comes to decide whether he or she will allow that particular matter to go before the jury. There is no other way of dealing with it. The evidence is proffered in the way that it is, but the court has to determine whether its quality and value to the case make it necessary for it to be admitted. There may be other challenges when the evidence comes in. The defendant may still say, "It may be hearsay, but it's not true". The question is: should the court have the opportunity to hear that challenge, or should that evidence be excluded? Have I made myself clear? I think that the noble Lord still feels puzzled.
Let us take the example given by the noble and learned Lord, Lord Cooke. In the case of Kearley, there was evidence that a number of people were phoning the house and asking to speak to the defendant by name and indicating by their comments that he had been the supplier of drugs in the past and that they were seeking supply on that occasion. In assessing whether that evidence should be admitted and thinking about its importance, the court would be entitled to say, "Assume for the moment that that evidence is true. Due to its probative value, importance and relevance, is it the sort of evidence that should be admitted so that the court can determine what it makes of it and the jury can decide what it wants to do with it?" It is a two-stage test. I hope that has helped the noble Lord.
Lord Thomas of Gresford: I am grateful to the Minister for such careful consideration of the amendments. We are not satisfied with the clause. I have the quoted the dicta of the noble and learned Lord, Lord Cooke, in my favour so many times that I am always dismayed when I discover that he is on the other side of the argument. His argument that, if hearsay evidence is to be admitted, the rules must be a lot simpler should be heeded by the Government. They should read carefully what he said. For example, the subsection to which we take exception, subsection 1(d), would, as my noble friend Lord Carlile pointed out, mean that the statement was automatically to be admitted if, in a hearing, the court was satisfied that,
"it would not be contrary to the interests of justice for it to be admissible".
The burden is very much upon the defendant to establish that it would be contrary to the interests of justice for it to be admissible.
Amendment No. 152, on the other hand, puts the matter more positively. The prosecution would be required to establish that the court was satisfied that it would be in the interests of justice for the statement to be admitted. That would be a more satisfactory way of dealing with hearsay evidence than the proposals in the Bill. First, it is obvious that the judge would take into account the factors set out in subsection (2). Secondly, they amount to a shopping list that will unquestionably prolong hearings as counsel runs down them. Finally, I note that a later amendment, Amendment No. 154, has
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been grouped with these amendments. I propose to address that amendment separately when we come to that particular clause.
Our discussion has been extremely useful in clarifying to me where the problems arise in the clause. I shall give further consideration to the problems with hearsay evidence. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 150 to 152 not moved.]
On Question, Whether Clause 107 shall stand part of the Bill?
Lord Ackner: I shall take up no time in mounting a spirited defence of the decision of the Appellate Committee to which I was party, because the noble and learned Lord, Lord Cooke, gave me no notice that he was going to rely on any past peccadillo of mine and my brothers. That has saved your Lordships from unnecessarily listening to what might otherwise have been of academic interest.
I am, however, delighted at the way he addressed your Lordships, because he spelt out in greater detail than I would have been able to give the wisdom of adopting what the Lord Chief Justice and the judges of the Court of Appeal have said. Perhaps I may set that out in a little more detail. It is to be found in paragraph 22 on pages 6 and 7:
"The need for the reform of the Rules of Evidence relating to hearsay is not in doubt".
So there is harmony on that. Secondly, they observed the way in which the drafting follows the recommendation of the Law Commission. One must not be hypnotised by the fact that the Law Commission has gone one way. They go on:
"However, we question whether the complexity of the provisions is necessary. What has happened is that the complex common law rules are being replaced by complex statutory rules. some of which are a repetition of the common law rules".
Then the Lord Chief Justice, who is particularly expert in the civil field, says:
"What happens now in civil proceedings is that a judge has a general discretion to determine how matters are to be proved. The judge has to exercise the discretion in the interests of justice. He is assisted in doing this, because the probative value of the evidence depends upon its nature and source. If it is not first-hand evidence, then it has the disadvantage that it has not been tested by cross-examination. Whether this matters depends on the circumstances".
Then, moving to the criminal field, he says:
"If we have got to the stage where it is considered that it is safe to allow juries to hear hearsay evidence, then we must be accepting that they can be trusted to use that evidence in accordance with the directions of the judges".
The paragraph ends with that which my noble and learned friend Lord Cooke quoted:
"Instead of the detailed and complex provisions which are contained in Chapter 2, what is needed is a simple rule putting the judge in charge of what evidence is admissible and giving him the responsibility of ensuring that the jury use the evidence in the appropriate manner".
That is what I rely on for the justification that the clause should not stand part of the Bill.
3.45 p.m.
Lord Hodgson of Astley Abbotts: My name appears in support of the proposal that Clause 107 shall not stand part of the Bill, so I rise to support the noble and learned Lord, Lord Ackner. First, I noted from my copy of The Times that today is his birthday and I wish him many happy returns.
Noble Lords: Hear, hear!
Lord Hodgson of Astley Abbotts: I shall not reveal his age because that would be indelicate.
I listened with great care to the debate on the preceding group of amendments. I am not a lawyer, so I tread carefully. I listened carefully to the noble and learned Lord, Lord Cooke, on the weight of evidence and reliability rather than technicality, and to the noble Lord, Lord Carlile of Berriew, about whether it is codification or change. I also listened carefully to the Minister, whose case was based around the importance of certainty and consistency.
In our view, the provisions of Clause 107 as presently drafted make too great a shift in the delicate balance as regards the admissibility of hearsay evidence—from one in which the evidence is generally excluded, unless an exception to the rule applies, to one in which the evidence is ordinarily admitted unless certain safeguards are met; in other words, a shift from an exclusionary hearsay rule to an inclusionary one. In this, our debates have followed those which we had earlier today and on Monday on bad character.
That having been said, we accept that there is a need for reform to the present hearsay rules as suggested by many authoritative bodies, the Runciman Royal Commission and the Auld report. Since the publication of the draft of the Bill, several bodies have expressed concern over whether the provisions have been drafted too widely.
When replying to the previous debate the Minister quoted from Justice briefing. Perhaps I may quote back to her from that briefing. Justice said that,
"the breadth of this power is such that, far from simplifying the law (something we all agree is necessary), it will lead to even more uncertainty for lawyers and members of the public alike. It will not, we feel, reduce the amount of time spent on legal arguments relating to hearsay".
Our concern is therefore that the Government have initiated too extreme, too severe and too sudden a shift.
It is worth while the Committee remembering—particularly those of us who are not lawyers—that in criminal trials the defendant's liberty is at stake, so there is a need for an even greater vigilance to protect his or her rights. Relaxing the laws of evidence admissibility may accelerate court procedure in areas that are being unnecessarily bound up in red tape, but if this is at the expense of giving a defendant a trial that is unquestionably not a fair one, this cannot be an acceptable price. That point was made by the noble Lords, Lord Thomas of Gresford and Lord Carlile of Berriew.
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Justice has laid out in helpful briefings the background to the historic tendency for the exclusion of hearsay evidence: first, that untruthful witnesses can more easily manufacture evidence and there is no reliable way of proving otherwise; secondly. that there is unlikely to be any satisfactory or fair way of testing whether the out-of-court statement maker was mistaken, or, for that matter, was worse than mistaken and was attempting to mislead. Thirdly, the evidence referred to is not given on oath and the out-of-court statement maker may not be prepared to repeat it on oath. Fourthly, there are human rights implications that must be considered.
The rule against hearsay evidence is recognised as an aspect of the right to a fair criminal trial by Article 6.3(d) of the European Convention on Human Rights. It states that everyone charged with a criminal offence has the right,
"to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him".
Obviously, if the admissibility of hearsay evidence were to be relaxed, as proposed in the Bill, such treatment of evidence would not be so closely adhered to.
Those points of clarity and the important need to bring to the court's attention the critical issues were highlighted by the noble Lord, Lord Thomas of Gresford, in the amendments that he moved. They seem to us to be sensible amendments which dot the "i"s and cross the "t"s of the Bill. While we do not believe that this clause as a whole should stand part of the Bill, we nevertheless support the amendments as they stand.
Apart from those issues, and the others which we have been discussing, we are also concerned that the Government have initiated this change without fully considering the implications of the relevant section of Lord Justice Auld's report, from which many of the changes have sprung. In paragraph 101 of chapter 11 of the report, which is entitled The Trial: Procedure and Evidence, Lord Justice Auld observes how the Law Commission considered that the "best available evidence principle"—that is the adduction of evidence based upon its weight rather than its admissibility; in other words, the use, inter alia, of hearsay evidence—is one that might suit an inquisitorial system like that in Germany but,
"it would not work in our adversarial system where the parties. not the tribunal, are responsible for seeking out and calling evidence".
But Lord Justice Auld, having posed the question, did not give an answer to it—nor, I fear, so far have the Government. Since Lord Justice Auld saw it appropriate to include this in his report, it is intriguing that the Government chose not to make it a consideration. Perhaps if they had reflected upon this important consideration, their proposals to relax the laws regarding hearsay would be appropriately better balanced. I shall be interested to see whether the Minister can enlighten us further today when she comes to reply.

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In conclusion, I understand that the Government appreciate the sensitivities surrounding the admissibility of hearsay evidence, as the discussions in Committee in both Houses have shown. Words such as "considered", "potential" and "relevant" often appear when the Government discuss provisions on hearsay in this Bill. But these safeguards surely should not be there to weed out and identify the exceptions to hearsay that are not admissible. The emphasis should be to the contrary— safeguards should be there to identify hearsay evidence that should be admissible.
As I have said, the amendments tabled by the noble Lord, Lord Thomas of Gresford, certainly improve Clause 107. I hope he will agree that achieving an "improvement" on an issue that stands at the heart of our civil liberties is not sufficient. That is why I support the noble and learned Lord, Lord Ackner, in his opposition to the Question that in its present form Clause 107 shall stand part of the Bill.
Baroness Scotland of Asthal: I, too, add my many congratulations to the noble and learned Lord, Lord Ackner, on his birthday. It is a sad reflection that he has to spend it here with us. I hope he understands that the pleasure it gives us is considerable.
Clause 107 was ably dealt with by the noble and learned Lord, Lord Cooke, in his exposition of why change is necessary. I found that exposition enlightening and I could not possibly have expressed it as elegantly. For once, I had the advantage of listening confident in the knowledge that I did not have to respond immediately.
Clause 107 establishes a new primary rule for the admissibility of hearsay evidence in criminal trials. It allows all statements which were not made in oral evidence during the trial to be used as evidence of the facts stated within it provided that, first, the statement is admissible under the Bill or another statutory provision; secondly, that the statement is admissible under one of the common law rules preserved by the Bill; thirdly, that all the parties agree that it can go in; or, fourthly, that the court gives leave to admit the statement.
The current common law rule against the admission of hearsay evidence means that, in general, only a statement given by a witness orally in court proceedings is admissible as evidence of the facts which it contains. If evidence falls within the hearsay rule, it will be inadmissible unless an exception applies. We are changing the balance slightly.
However, the changes in the Bill will replace the current hearsay rule with a modern, comprehensive and intelligible legislative scheme. The scheme should reduce the incidence of legal argument concerning the exact boundaries of the hearsay rule and its exceptions. While it is accepted in the Bill that hearsay evidence is generally less satisfactory than first-hand oral evidence given in court, it is also recognised that there may be
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cases where that is not so and that, where hearsay evidence represents the best evidence, it should be admissible, subject to appropriate safeguards.
I was pleased that the noble and learned Lord, Lord Cooke, alighted upon the case of Kearley. That was a very clear example of why it is important that we have a change. I wish to echo what the noble and learned Lord said about the way that the courts have been reluctant to interfere in this area and re-constrain the exercise of the hearsay rule, even though it was created initially by the courts themselves. I believe that that was clearly indicated in the majority judgment given by the noble and learned Lord, Lord Bridge, in that case. Even in confirming what the law then was, he recognised that there was a real need for reform and that the ordinary man in the street would find it difficult to understand. Indeed, the noble and learned Lord, Lord Griffiths, in dissenting in that case, said:
"In my view the criminal law of evidence should be developed along common sense lines readily comprehensible to the men and women who comprise the jury and bear the responsibility for the major decisions in criminal cases. I believe that most laymen if told that the criminal law of evidence forbade them even to consider such evidence"—
your Lordships will remember the facts of that case—
"as we are debating in this appeal would reply 'Then the law is an ass'".
We want to do all that we can to give the matter clarity. I see the attraction of what the noble and learned Lord, Lord Cooke, said in relation to simplicity and, indeed, what the noble and learned Lord the Lord Chief Justice said in his comments contained in the letter which we now have the advantage of having in the Library.
Simplicity may be attractive and the benefits of that simpler approach are obvious, but we must also consider the disadvantages. Those include the problems for practitioners in basing a scheme entirely on judicial discretion, the uncertainty surrounding the admissibility of the evidence and the particular difficulty which the lower court would have in dealing with this issue. The Law Society, for example, believes that such an approach would create hurdles in the operation of the court system, and the Crown Prosecution Service believes that such a rule would be even more difficult to understand and even less certain in its practical operation. I believe that the Bar Council also rejected it on the grounds that any new scheme must replace the present uncertainties with fewer, not more, uncertainties. That is why we have tried to structure Clause 107 with an eye to a deal of precision, which at least gives the court and practitioners the framework in an understandable, intelligible way in order to implement it.
Clause 107 also provides the court with an additional discretion to admit out-of-court statements if, despite the difficulties that there may be in challenging the statement, it is,
"not … contrary to the interests of justice",

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to do so. The idea, therefore, is that the court should be able to admit an out-of-court statement where it is cogent and reliable. This also aims to ensure that defendants can present all evidence vital to their defence and receive a fair trial. Some guidance is included at subsection (2) on what factors the court should consider when deciding this issue. Those factors are intended to focus attention on whether the circumstances surrounding the making of an out-of-court statement indicate that it can be treated as reliable enough to admit the evidence, despite the fact that it will not be subject to cross-examination. That discretion would operate for both the defence and the prosecution. In summary, we believe that Clause 107 will provide a structured and simplified approach to the admissibility of hearsay evidence.
I was asked why we have crafted the Bill slightly differently from the way proposed by the Law Commission. Clause 107, like the other provisions in Chapter 2 of Part 11, draws substantially on the work of the Law Commission in its 1997 report on hearsay evidence, but it does not follow it slavishly. The commission proposed that the general rule against hearsay be maintained subject to specified exceptions. The commission also proposed that there be a residual inclusionary discretion to admit first-hand and multiple hearsay evidence.
However, the Government have since reconsidered what form the primary rule should take in the light of Sir Robin Auld's recommendation that hearsay should be generally admissible, subject to the principle of best evidence. We have concluded that there are advantages in expressing the hearsay rule in a positive way, whereby all relevant hearsay is potentially admissible unless there are good reasons for excluding it. That approach reflects our desire to allow fact-finders greater access to cogent and relevant evidence in their search for the truth. It is also consistent with the Law Commission's proposal that hearsay evidence should be admitted if the interests of justice require it. The judicial discretion referred to by the noble Lord, Lord Carlile, is preserved within this section because Clause 107 acts to avert any possible injustice by allowing a court to admit cogent and reliable hearsay statements, even if they do not fall within any of the categories of admissibility provided by the Bill. We would argue that that is a very fair and just test. With those comments, I hope that noble Lords will feel able to be content that Clause 107 should stand part of the Bill.
Lord Ackner: I had hoped that my anniversary would pass without being noted because I am bound to say that as the years roll by I find it increasingly difficult to measure up to my sobriquet, "Number One Trouble Maker", but I do try.
The ground has been very fully covered on this subject. In order to make my anniversary more pleasurable to recollect, I do not think I need do more than to invite your Lordships to enter the Not-Content Lobby in order to get rid of this clause.
3.58 p.m.
On Question, Whether Clause 107 shall stand part of the Bill?
Their Lordships divided: Contents, 66; Not-Contents, 70.

Division No. 1

CONTENTS

Acton, L.

Grocott, L. [Teller]

Ahmed, L.

Harrison, L.

Andrews, B.

Hayman, B.

Archer of Sandwell, L.

Hilton of Eggardon, B.

Ashton of Upholland, B.

Hollis of Heigham, B.

Bach, L.

Howells of St. Davids, B.

Bassam of Brighton, L.

Hoyle, L.

Bernstein of Craigweil, L.

Irvine of Lairg, L.

Bhatia, L.

Jordan, L.

Billingham, B.

Judd, L.

Blackstone, B.

Lea of Crondall, L.

Borrie, L.

Lipsey, L.

Bragg, L.

Macdonald of Tradeston, L.

Brooke of Alverthorpe, L.

MacKenzie of Culkein, L.

Brookman, L.

MacKenzie of Framwellgate, L.

Campbell-Savours, L.

Massey of Darwen, B.

Christopher, L.

Mischon, L.

Clarke of Hampstead, L.

Pitkeathley, B.

Cohen of Pimlico, B.

Rooker, L.

Corbett of Castle Vale, L.

Scotland of Asthal, B.

Crawley, B.

Simon, V.

Davies of Oldham, L. [Teller]

Stallard, L.

Dormand of Easington, L.

Stone of Blackheath, L.

Dubs, L.

Strabolgi, L.

Eatwell, L.

Temple-Morris, L.

Elder, L.

Turner of Camden, B.

Evans of Temple Guiting, L.

Uddin, B.

Falconer of Thoroton, L. (Lord Chancellor)

Weatherill, L.

Whitaker, B.

Farrington of Ribbleton, B.

Whitty, L.

Gale, B.

Williams of Elvel, L.

Gavron, L.

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

Gibson of Market Rasen, B.

Gould of Potternewton, B.

Woolmer of Leeds, L.

NOT-CONTENTS

Ackner, L.

Howe, E.

Alderdice, L.

Howe of Aberavon, L.

Ampthill, L.

Hylton, L.

Anelay of St Johns, B.

Jenkin of Roding, L.

Attlee, E.

Kingsland, L.

Biffen, L.

Linklater of Butterstone, B.

Blatch, B.

Lyell, L.

Bridges, L.

McCarthy, L.

Brooke of Sutton Mandeville, L.

Mackay of Clashfern, L.

Brougham and Vaux, L.

Maddock, B.

Campbell of Alloway, L.

Marlesford, L.

Carlile of Berriew, L.

Mayhew of Twysden, L.

Carlisle of Bucklow, L.

Molyneaux of Killead, L.

Colwyn, L.

Naseby, L.

Cooke of Thorndon, L.

Newby, L.

Cope of Berkeley, L. [Teller]

Nicholson of Winterbourne, B.

Craigavon, V.

Noakes, B.

Crathorne, L.

O'Cathain, B.

Denham, L.

Onslow, E.

Elton, L.

Park of Monmouth, B.

Fowler, L.

Peel, E.

Freeman, L.

Phillips of Sudbury, L.

Guildford, Bp.

Plumb, L.

Hanham, B.

Portsmouth, Bp.

Harris of Richmond, B.

Rawlings, B.

Hodgson of Astley Abbotts, L.

Rees, L.

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Renton, L.

Strathclyde, L.

Roberts of Conwy, L.

Tenby, V.

Rolls of Ipsden, L.

Thomas of Gresford, L.

Roper, L.

Tordoff, L.

Scott of Needham Market, B.

Walker of Worcester, L.

Seccombe, B.

Walmsley, B.

Skelmersdale, L.

Wedderburn of Charlton, L.

Stern, B. [Teller]

Wilcox, B.

Stewartby, L.

Worcester, Bp.

Resolved in the negative, and Clause 107 disagreed to accordingly.
4.9 p.m.
Clause 108 [Statements and matters stated]:
Lord Thomas of Gresfordmoved Amendment No. 153:
Page 69, line 9, at end insert—
"( ) A statement of opinion is only admissible if the opinion would have been admissible as oral evidence in the proceedings."
The noble Lord said: The problem with Clause 108 appears in subsection (2) where it delineates a statement as a,
"representation of fact or opinion made by a person by whatever means".
It says not "expert opinion" but "opinion". Effectively, anyone's hearsay opinion is being permitted. For example, hearsay opinion might be admissible under these provisions in an identification, such as, "I didn't see the man who robbed me but Mrs A told me she thought it was X", or "Mrs A said that in her opinion, knowing X, only X could have committed this robbery".
Such opinions clearly would not be admissible as oral evidence in the proceedings because opinion evidence is not generally admissible unless it is given by an expert on the basis of his or her professional expertise. The purpose of Amendment No. 153, therefore, is to make it absolutely clear that a statement of opinion can be admissible only under the hearsay provisions if the opinion would have been admissible as oral evidence in the proceedings. I think that its purport is extremely clear. I beg to move.
Baroness Scotland of Asthal: Although the hearsay rule and the rule in relation to evidence of opinion originate from the same principle that in general witnesses may only give evidence of facts of which they have personal knowledge, it is important to remember that the two rules are distinct, even though the same piece of evidence might require both rules to be examined.
Neither Chapter 2 nor the rest of the Bill for that matter is intended to affect the common law rule in criminal trials which, subject to limited exceptions, prevents witnesses expressing their opinions about what happened or may have happened in the case. Under the rule, the opinions of witnesses are inadmissible, unless they fall within an exception, such as where the court needs expert help in deciding an issue, or where it is genuinely impossible for an ordinary witness to tell his story in any other way.
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Nothing in this Bill will alter that position. If an out-of-court statement contains opinion evidence, that part of the statement will not be admissible unless it falls within one of the exceptions to the general rule against opinion evidence. To ensure that there are no unintended consequences, Clause 107(3) explicitly states that nothing in this chapter affects the exclusion of evidence of a statement on grounds other than the fact that it is a statement not made in oral evidence in the proceedings. So we would respectfully suggest to the noble Lord, Lord Thomas of Gresford, that no clarification would seem necessary.
It is right to say that in another place concern was expressed as to why it was necessary to refer to "opinion" within Clause 108(2) if nothing in the Bill was intended to alter the common law position on evidence. I think that is the import of much of what the noble Lord, Lord Thomas of Gresford, said today.
I hope that I have explained that there are occasions when common law permits opinion evidence to be admissible. We need to ensure that admissible opinion evidence is not excluded from the hearsay provisions of Chapter 2, bearing in mind that that is somewhat difficult because we have had a clause stand part debate on Clause 107.
Lord Thomas of Gresford: Of course, Clause 107 no longer stands part of the Bill. I am assured by the noble Baroness that opinion evidence is not to be treated any differently under the Bill than it is in common law. If something like Clause 107 were reinstated, it might play a further part in our considerations. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.15 p.m.
On Question, Whether Clause 108 shall stand part of the Bill?
Lord Renton: I notice that the noble and learned Lord, Lord Ackner, has put his name down to omit this clause. I feel bound if I may to move that. It is extraordinary. Imagine criminal proceedings in which a cartoon—even one in The Times—could be quoted as a way of exposing truth. So many cartoons are a diversion from the truth and the idea that they could be admitted in a criminal case as a sketch—because that is what cartoons are—could lead to the most extraordinary results. I hope that the Government will reconsider this clause altogether. It is utter nonsense.
Baroness Scotland of Asthal: I hear what the noble Lord, Lord Renton, says. We think that Clause 108 is sound. It defines the type of statements that will be covered by the new scheme. According to subsection (3), the rule will apply only if it is the purpose of the person making the statement to cause someone to believe the matter stated is true or to act on the basis that it is true. The common law rule was much wider than this and excluded statements or conduct from which a relevant fact could be inferred, although the maker did not intend to communicate that fact. The

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rule has caused much confusion and injustice in borderline cases, known to lawyers as implied assertions. We think that the clause is well founded.
On the issue raised by the noble Lord, Lord Renton, we do not think that this matter will engage the court in any difficulty in relation to criminal cases.
Clause 108 agreed to.
Clause 109 [Cases where a witness is unavailable]:
Lord Thomas of Gresfordmoved Amendment No. 153A:
Page 69, line 30, at end insert "but only after such steps as may reasonably be taken to address that fear have been taken"
The noble Lord said: The problem that arises under Clause 109 is the extension of the concept of fear as a reason for a witness not giving evidence in court to fear of "financial loss". We are well used to situations in which evidence is brought before the court—before the judge in the absence of the jury, or before the magistrates—of a witness who is too afraid to come to court. Usually, it is obvious from the nature of the proceedings why that fear has arisen—perhaps it is a rape case, or the witness has been attacked or there is evidence of threats having been issued against a particular witness.
However, were a person saying, "I'm not coming to court to give evidence orally because I'm afraid of losing money", to be the basis for the statement to be admitted takes the matter too far. I refer your Lordships to subsection (3) which says:
"For the purposes of subsection (2)(e) 'fear' is to be widely construed and…includes fear of the death or injury of another person or of financial loss"
That is unacceptable. Fear of financial loss ought not to be a proper reason for reading the statements of witnesses as opposed to having them give evidence orally and it is in those circumstances we have lodged these amendments. First, we wish to ensure that steps have reasonably been taken to address the fear before that can be the basis of an application to read a statement. Secondly, we wish to leave out that enormous widening of the concept of fear and, finally, we wish to insert that,
"in appropriate cases, leave may be given…having regard to the fact that",
a special measures direction could be made in relation to the relevant person. Increasingly, screens are creeping into courts. They are obviously good where there is a vulnerable witness. However, very often, in certain circumstances, they appear to be taken advantage of. Not long ago, screens were required in the case of an alleged murder some 30 years previously. One would have thought that the witness's fear was of giving evidence—it is never a pleasant thing to do anyway—and not of any consequences to himself. I beg to move.
Baroness Scotland of Asthal: The purpose of Clause 109 is to provide for the use in evidence of a witness's out-of-court statement, with the leave of the court. where that witness is too frightened to testify, or to continue testifying. The important element is the leave of the court. The court will have an opportunity to
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determine whether the reasons put forward by, and on behalf of, the party who seeks such leave are found to be capable of falling within the type of reason that would deny the court the advantage and privilege of having live evidence before it.
Leave can be given only in circumstances where to do so is in the interests of justice. It replaces existing powers to admit statements of frightened witnesses under the Criminal Justice Act 1988. This provision plays an important part in ensuring that the evidence of frightened witnesses can be heard by the court, where appropriate.
The list outlining the species of issues capable of causing fear, to which the noble Lord referred, are simply examples rather than an exhaustive list. Any of those issues would be subject to the court applying the interests of justice test.
Amendment No. 153A proposes that leave can be granted to admit a statement of a frightened witness only where such steps as may reasonably be taken to address the fear have been taken. We understand why the noble Lord should raise that as a concern, but witnesses in such positions are now increasingly concerned by a wide variety of issues.
The noble Lord, Lord Thomas of Gresford, mentioned the use of screens. He knows that they are often used for vulnerable children, rape victims and others who have been genuinely terrified and would find it almost intolerable to be in the same room as the alleged assailant. In an effort to make witnesses feel more confident, we have also taken advantage of the use of video-link facilities and other opportunities. Those issues will be in the court's mind when deciding whether the interests of justice are served by an agreement that evidence can he led as opposed to taking advantage of all the other opportunities, such as screens, video-link evidence or otherwise, in determining the application.
We recognise that the problem of reluctant witnesses is serious, and that much more needs to be done to ensure that courts receive the best possible evidence. As the noble Lord knows, there is a difference between a witness who is reluctant and one who is genuinely fearful. As part of our wider programme to improve the treatment of vulnerable and intimidated witnesses, we are piloting new witness care arrangements in eight areas: West Mercia, Warwickshire, London, South Yorkshire, Essex, Gwent, North Wales—I am sure that that will give the noble Lord, Lord Carlile, a modicum of pleasure—and the West Midlands. That will result in much earlier and more accurate identification of witnesses who may be subject to intimidation, or who feel that they may be at risk.
Lord Carlile of Berriew: I am grateful to the noble Baroness. It gives me much pleasure to hear mention of North Wales. I understand that the Question whether Clause 109 stand part is in this group. In that respect, I ask: what do the words,
"is to be widely construed",

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add to the clause? Is there a statutory precedent for the use of those words or are the Government trying to introduce an amended canon for judicial construction of the clause?
Baroness Scotland of Asthal: One of the difficulties about the issue of fear, as the noble Lord will know, is that there are many witnesses who will experience genuine fear, but the cause of that fear may differ. The court has to identify whether the fear is real, whether it is pertinent, or whether it would prevent the person from appearing, as opposed to necessarily being restrictive about the source from which that fear would spring. I cannot tell Members of the Committee whether this phraseology has been used in other legislation—not least, because I have had about one and a half hours' sleep. Currently, I cannot bring any to mind, but I can certainly write to the noble Lord about this issue if I find any such example.
I hope that I have been able to reassure noble Lords. All the pilots about which I spoke are exploring a one-stop approach, with better communication and information, better risk management and better individual case management of witnesses who may need additional support to get to court and to give best evidence. In relation to that, too, I shall be happy to write to the noble Lords, Lord Thomas of Gresford and Lord Carlile, if further information is sought.
Notwithstanding that we shall continue to do all we can to support witnesses so that they feel able to give live evidence, we also understand that there is a real issue for those who are fearful, whether by intimidation or any other reason, and are unable to do so. We want the evidence to be available to the court if it believes that, in the interests of justice, it is necessary to admit it in this way.
Clause 109 does not attempt to provide an exhaustive definition of what may constitute a sufficient basis of fear. Instead, as the noble Lord, Lord Carlile, said, Clause 109(3) states that fear should be interpreted widely. That is the reason. It is drafted in the terms used in the Law Commission's draft Bill and seeks to achieve a compromise between, on the one hand, the difficulty of setting in legislation a comprehensive list of the circumstances in which fear justifies the reception of a hearsay statement and, on the other hand, the danger that in the absence of any definition, a court might hold that a particular kind of fear is not what Parliament meant.
Amendment No. 153B seeks to remove this interpretation, which we do not think is helpful. We believe that it is a helpful guide to the courts as to what may be considered as constituting a "fear" for the purpose of this provision. If the reference was removed, it would mean that the courts might consider that fear of injury to others or financial loss was not what was intended to be covered by Parliament under the scope of fear. That would be undesirable. It is really for the courts to determine whether the quality of fear experienced by the witness is such as to make the interests of justice weigh in favour of allowing this
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evidence in written form, as opposed to permitting it in a live form. Therefore, the ambit of this clause enables the interests of justice to be better served.
4.30 p.m.
Lord Mackay of Clashfern: May I ask the noble Baroness whether the phraseology used in this clause implies that a "fear of financial loss" might be a reasonable justification for not coming to court to give evidence?
Baroness Scotland of Asthal: This is a question of quantum and nature. One would have to balance the fear of financial loss against the interests of justice. If, for example, someone said, "I don't want to come to court because I shall lose an hour or two's worth of extra money", that is one thing. However, if the witness is out of the jurisdiction and would lose all forms of gainful employment because he happened to operate in a narrow sphere, and if he were able to convince all concerned that his work was something that he would be incapable of replacing and would be bound to bring about a form of nervous psychosis, that is quite another matter.
We have a very broad spectrum. It is for the court to exercise good sense and judgment and to consider whether the reasons given by the witness are such that it believes that the interests of justice demand that the evidence should properly be admitted. I know that from his long experience, not least as a former Lord Chancellor, the noble and learned Lord will know how carefully and jealously the judges of England and Wales and, I dare say, Scotland as well, will guard the necessity for the interests of justice to be preserved. We think that the phrase gives them the flexibility to so determine. It has been included simply so that it is not a species which is automatically excluded from the court's consideration. Whether it is persuasive will depend on the facts of the case.
Lord Thomas of Gresford: I have to say that I am completely dissatisfied with the explanation of why the fear of financial loss should make it possible for the prosecution to read a statement in a criminal case where the liberty of the subject is involved. The kinds of circumstances referred to by the noble Baroness seem unlikely to occur at that level.
May I suggest that a pilot scheme covering fear of financial loss is also run in Ceredigion, in addition to those set up in North Wales and Gwent? We might receive some examples from that part of the world which would assist us more. I am afraid that only my noble friend Lord Carlile will understand the significance of that remark.
We shall come back to this matter because it is important. However, for the moment I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 153B and 154 not moved.]
Clause 109 agreed to.
Clauses 110 to 113 agreed to.
Clause 114 [Multiple hearsay]:
Lord Hodgson of Astley Abbottsmoved Amendment No. 155:
Page 74, line 4, leave out from "deceased")" to end and insert "only a statement by a person to whom the original statement was made is capable of admission in criminal proceedings as evidence of a matter stated in the original statement (so that a statement by B, but not A, may he admitted as evidence of the fact that C shot the deceased)"
The noble Lord said: I beg to move Amendment No. 155 and to speak at the same time to the Question whether Clause 114 shall stand part of the Bill. Clause 114 takes us into a still more delicate set of issues, this time concerning the admissibility of multiple hearsay. I shall speak both to the amendment and to the Question whether the clause shall stand part because, as noble Lords will appreciate, the issues are closely intertwined. Although this is an important and serious matter, I shall speak briefly because many of the concerns and issues were raised in our debate on Clause 107 stand part, which concerned single hearsay.
As I have said before, we agree with the recommendations of the General Council of the Bar and the Criminal Bar Association and we welcome attempts to codify the complex rules of hearsay. However, I am afraid that we cannot support the Government's proposals in Clause 114 for the inclusion of multiple hearsay in this Bill.
Multiple hearsay concerns not only one statement not made in oral evidence but a series of statements. Therefore all the reservations and concerns that we have in regard to the inclusion of hearsay, which were raised in the debate on Clause 107 stand part, are multiplied and reinforced in regard to the provisions of Clause 114.
Amendment No. 155 seeks to limit potentially flawed evidence which we believe would cause inconsistencies and unfairness in a trial if the clause were allowed to pass unamended. I shall not repeat the detail of my arguments on Clause 107 stand part. I shall confine myself to pointing out that any hearsay may be inaccurate or mistaken; it is easily manufactured; it is difficult to challenge; it is difficult for a jury to test; and it cannot be tested on oath as the maker of the statement will not be standing before the court to give direct oral evidence. If we are concerned about hearsay, how much more should we be concerned about multiple hearsay?
The Joint Committee on Human Rights raised the point—it was also raised by Justice—that the Bill does not expressly prevent a person being convicted on the basis of hearsay or multiple hearsay alone. It concluded that there was a significant risk that,
"the provisions as currently drafted would lead to violations of the right to a fair trial under ECHR Article 6.1 and 6.3(d), a fair trial provision which provides the right to examine witnesses called against the accused".
The Criminal Bar Association has highlighted the case of Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea. It states that cases such as Unterpertinger v Austria, Kostovski v Netherlands and Saidi v France illustrate the reluctance of the Strasbourg
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court to accept that the use of hearsay evidence is compatible with a defendant's right under Article 6.3(d) to examine, or to have examined, witnesses against him.
If we have to accept the introduction of the use of potentially unreliable evidence into our court system, we firmly believe that it should be first-hand hearsay only. It should not be extended to what could come down to, in my non-legal words, a series of Chinese whispers—"He overheard a conversation in which he heard A say that he had heard B boasting about killing C". Could or should such statements have a place in our judicial system? I beg to move.
Lord Renton: As we have voted against Clause 107, Clause 114 becomes largely irrelevant. But I am sure that my noble friend is justified in moving his amendment because, alas, there is a reference in subsection (1) of the clause to Clauses 109 to 113, which we have left in the Bill.
However, now that Clause 107 has been ruled out of the Bill, I would expect the Government to consider whether Clause 114 makes any sense at all. If they decide that it should be left in the Bill for some purely technical reason—which I would find surprising—perhaps the amendment moved by my noble friend is fully justified.
Lord Thomas of Gresford: I speak to Amendment No. 156, which is grouped with Amendment No. 155. Clause 107 has gone from the Bill and therefore I do not propose to say anything further.
Baroness Scotland of Asthal: I will therefore confine my remarks to Amendment No. 155. I should make clear that the Government very much share the concern of noble Lords about the genuine risks involved with multiple hearsay and the danger that unreliable or manufactured evidence might go in if there are not adequate safeguards in the Bill. Amendment No. 155 would prevent multiple hearsay from ever being used in our criminal courts. While I appreciate the concerns that have prompted the amendment, we believe that it would set the hearsay clock back too far and that it is over-prescriptive in preventing the courts considering reliable evidence.
Currently, multiple hearsay is prima facie admissible in business documents in England and Wales under Section 24(2) of the Criminal Justice Act 1988, provided that each person in the chain has received the information in the course of a trade, business or profession. Many of these documents, as noble Lords will know well, will have passed through the hands of several people. However, as each business document is inherently reliable, there is no substantially increased risk of error or fabrication at each stage. Therefore, it is right that such evidence should be admissible.
The effect of the amendment is that the courts would be prevented from considering routine business documents which everyone accepts are properly admissible in criminal cases and which the Law

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Commission concluded worked well and without injustice. I am therefore bound to resist the amendment.
Clause 114 is an important safeguard in addressing dangers posed by multiple hearsay. It seeks to establish the general principle, subject to limited exceptions, that if a witness is unavailable to testify, their written statement cannot be used to prove other admissible hearsay evidence. This would prevent the admission of hearsay within hearsay unless the earlier statement can be proved by an inherently more reliable form of hearsay statement such as a business document or where the multiple hearsay is of such exceptional probative value that the court is able to exercise its discretion to admit a series of statements in the interests of justice under Clause 107(1)(d), as it then was. I am responding to the comments in this way because while I appreciate the provision has gone, it is important to understand how we saw this fitting in.
We recognise that this is a complex area where some common law jurisdictions have taken a more liberal approach to the automatic admission of multiple hearsay than is proposed in the Bill. The formulation of the rule in Clause 114 follows the approach taken by the Law Commission in its draft Bill. We believe that such a safeguard against multiple hearsay is necessary. It serves to differentiate the exceptional circumstances in which it may be appropriate to admit multiple hearsay from those where the risks would be too great. I hope that with that explanation, the noble Lord, Lord Hodgson, will feel content to withdraw his amendment.
Lord Hodgson of Astley Abbotts: I thank my noble friend Lord Renton for his support for these amendments and the noble Baroness for her explanation of the Government's thinking. She remains remarkably lucid, even on an hour and a half's sleep.
The core of our concern is that we are moving from reliable hearsay, which we can get our minds around, to reliable multiple hearsay. That having been said, the Minister made two very valid points. She referred to the issue of routine business documents being excluded and the safeguards that have been built in to the Bill. We would like a chance to read what she said and consider it further. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 156 not moved.]
On Question, Whether Clause 114 shall stand part of the Bill?
Lord Renton: It seems to me abundantly plain from the discussion we have just had and the decision to strike out Clause 107 from the Bill that the Government really should consider not only the drafting of this clause, which has two references to Clause 107, but its content, which is dependent upon Clause 107 to a great extent. It is irrelevant and unnecessary and, I suggest, undesirable. It could lead
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to injustice. I do not know whether my noble friend has decided to move that Clause 114 be left out, but I hope that the Government will seriously consider doing so between now and Report.
Clause 114 agreed to.
Clauses 115 to 118 agreed to.
4.45 p.m.
Clause 119 [Court's general discretion to exclude evidence]:
Lord Thomas of Gresfordmoved Amendment No. 160:
Page 76, line 37, at end insert "including the power to exclude prosecution evidence where its prejudicial effect outweighs its probative value"
The noble Lord said: We come to the general discretion of the court to exclude evidence. This clause ensures that in every case where hearsay evidence is introduced there will be a double application: the first under the relevant clause—whether one to replace Clause 107, Clause 114 or whatever—and the second under Clause 119. The clause introduces the interesting concept that a court,
"may refuse to admit a statement as evidence of the matter stated if…the court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it".
Undue waste of time? That strikes at the root of the criminal justice system. Undue waste of time is a difficult concept to define. What is undue and what is a waste of time, when we are considering the liberty of the subject?
However, our amendment is to subsection (2). The Explanatory Notes state:
"Subsection (2) preserves both the existing common law power for the court to exclude evidence where its prejudicial effect outweighs its probative value and the discretion contained in section 78 of the Police and Criminal Evidence Act 1984 in relation to the admission of unfair evidence".
All that we seek to do through the amendment is to write into the Bill the words in the Explanatory Notes. I do not understand how the Government can object to that, although we should probably be satisfied if the noble Baroness would make it absolutely clear that the power of the court to exclude evidence where its prejudicial effect outweighs its probative value is maintained and that it relates to every other provision in this chapter dealing with hearsay evidence. I beg to move.
Baroness Scotland of Asthal: Clause 119 indeed provides the court with a general discretion to exclude an out of court statement, if it is satisfied that the statement's probative value is substantially outweighed by the danger that admitting it would result in undue waste of time. It will enable the court to exclude superfluous hearsay evidence.
The Law Commission took the view that it was important to provide the courts with some power to control the quantity and quality of out of court statements that are adduced. Evidence that is wholly irrelevant is not admissible at all—nor should it be—

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but out of court statements that have marginal relevance to the issues will be prima facie admissible, providing that they meet the criteria in Clause 103. The commission was concerned that in some cases that evidence will be superfluous to the issues and highlighted the risk that the parties might seek to use every conceivable piece of evidence, no matter how marginal its value, to bolster their case. We agree with the commission's conclusion that an exclusionary discretion is necessary to ensure that court time is not wasted and to address concerns that the greater admission of hearsay will lead to barely relevant evidence being adduced. Of course, the evidence that the prosecution seeks to adduce may still be excluded by the court in the exercise of its discretion at common law or under Section 78(1) of PACE. However, that would not provide a means of controlling the quantity and quality of evidence that would be used by the defence.
Clause 119(1)(b) will therefore enable the court to exclude superfluous hearsay statements from any party if it is satisfied that the value of the evidence is substantially outweighed by the undue waste of time that its admission would cause. I hope that the noble Lord will feel content with that full explanation.
Amendment No. 160 would insert wording that would make it clear that the common law discretion continues to apply to evidence admissible under this part. I can offer the assurance that that is indeed the case, and is achieved by Clause 119(2)(b). I hope that will be of use to the noble Lord and practitioners.
Lord Thomas of Gresford: Could the Minister just say the magic words that there is a power to exclude prosecution evidence where its prejudicial effect outweighs its probative value? If the Minister could say that, we would not need the amendment.
Baroness Scotland of Asthal: I have said it. I said that Clause 119 provides the court with the general discretion to exclude an out-of-court statement if it is satisfied that the statement's probative value is substantially outweighed by,
"the danger that to admit it would result in undue waste of time".
I have already said that probative value as defined in Section 78 includes prejudicial value.
Lord Thomas of Gresford: I take it that the noble Baroness means prejudicial effect. The incantation was not exactly correct, but I believe that I have heard the message and I do not ask her to repeat it. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 160A had been withdrawn from the Marshalled List.]
Clause 119 agreed to.
Clauses 120 to 128 agreed to.
Schedule 6 agreed to.
Clauses 129 to 132 agreed to.
Baroness Walmsleymoved Amendment No. 160B:
After Clause 132, insert the following new clause—
"IDENTITY PARADES
Where a victim or witness is unable, due to visual impairment, to identify a suspect visually, an auditory identity parade may be used."
The noble Baroness said: This is a probing amendment. I have been briefed on this matter by the RNIB, Scope and the Guide Dogs for the Blind Association.
It is widely believed that the Government's intention behind the Bill is to make it easier to convict criminals. The Minister is aware that we on these Benches have considerable problems with a few of the ways in which they are trying to do that. However, without this amendment, the Bill could fail to provide effective protection for blind, partially sighted and other disabled people against harassment and assault inspired by disability prejudice, hatred and crime more generally.
With one in four disabled people having been subject to harassment on grounds of disability, rising to nine in 10 people with learning disabilities, the need for action is urgent. Under other later amendments, we shall consider the penalties relating to a hate element in an offence against a person with a disability.
The amendment relates to the ability of blind and partially sighted people to participate in obtaining justice, as can all other citizens, by using that sense that for many of them is particularly acute—the sense of hearing. We seek to include in the Bill the words,
"Where a victim or witness is unable, due to visual impairment, to identify a suspect visually, an auditory identity parade may be used".
Why is this amendment necessary? The RNIB, Guide Dogs for the Blind Association and NACRO have anecdotal evidence of police not always taking reports of crimes by visually impaired people seriously because the victims could not identify their assailant by sight. Assailants, of course, may be counting on that and may even target blind and partially sighted people on that basis. However, in some cases it might be possible for a visually impaired person to identify their assailant by the sound of their voice. If that were to happen, criminals would face an added deterrent and the partially sighted person could participate in justice in the same way as fully sighted people.
The evidence suggests that that is possible. Voice identity parades are already used in Holland. The first ever conviction for murder in the United Kingdom based on a voice identity parade was secured at the Old Bailey in December 2002. Assad Khan and Didar Bains were convicted after the witness, Raymond Sarong, identified Khan's voice in an auditory identity parade. A linguistics expert from Cambridge University was used to make sure that the process was sound. Detective Sergeant McFarlane was commended by the judge for his work. Speaking after the case, DS McFarlane said that he would be recommending the technique to the National Crime Faculty. Following that, the Metropolitan Police are drawing up their own guidelines for the use of voice identity parades in consultation with the RNIB.
RNIB and the Guide Dogs for the Blind Association welcomed David Blunkett's response to the House of Commons Second Reading briefing on voice identity parades. The Home Secretary said:
"I am firmly of the view that voice recognition is feasible and I have asked my officials and scientific advisors to reconsider this area urgently to see what steps we can take to further encourage the use of voice recognition by police and criminal justice agencies".
Those words were a most welcome step forward. However, I wonder whether the Minister can give us an update on the progress of this issue and perhaps reassure us that this wholly reasonable addition to the toolkit of evidence available to the police will be available for use in the future. I beg to move.
Baroness Anelay of St Johns: I have put my name to this amendment, which of course I support. I think that both the noble Baroness, Lady Walmsley, and I are hoping that the Minister will tell us that the amendment is not required not only because there is already permission for an auditory identity parade to take place, but because it will in future be used more frequently. The noble Baroness has already referred to the Khan and Bains case where a conviction was secured. Could the Minister say whether her understanding accords with mine—that such auditory identity parades are very infrequently used, and that there is perhaps a resistance to their use by the police or an uncertainty about how to proceed with them? Could the Minister tell us whether the Government are doing anything to encourage the further use of such identity parades where it is proper so to do?
The noble Baroness, Lady Walmsley, quoted from the words in another place of the Home Secretary who directed his officials urgently to review this matter. That was hack in May. As the word "urgent" was used, one would think that something might have happened since then. I hope that we will learn that use of the word "urgent" by this Government means that something has happened since May.
Lord Clinton-Davis: Before my noble friend replies to this important amendment, I think that there is a point that the noble Baroness, Lady Walmsley, did not address. I am not sure that I heard the noble Baroness, Lady Anelay, aright, but I think that she did address it.
In my view, it is highly important that the word "may" does not become "will". It is important that this provision should be used only in certain very limited circumstances. It can be used at the present time. That is a point which the noble Baroness, Lady Walmsley, did not address.
In my view, while an auditory identity parade should be available, it should be used only in the rarest of cases. There is a danger that people who are subject to that kind of parade can all too easily be wrongly identified. We should not allow our natural emotions to be besmirched by that possibility.
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I cannot recall in my professional career an instance of such an auditory identity parade. No doubt there have been one or two cases but they are a minority. A special warning to the jury from the trial judge is appropriate in those circumstances. I do not oppose the idea at all but we have to be very careful about its use. I hope that my noble friend will concur on the matter.
5 p.m.
Baroness Scotland of Asthal: I say straight away that I understand the concerns raised by my noble friend Lord Clinton-Davis. I hope that in replying to the noble Baronesses, Lady Anelay of St Johns and Lady Walmsley, I shall be able to quieten my noble friend's concerns.
I absolutely understand that the amendment put forward is not proposed to be acted upon but simply to be a means through which we can discuss the matter. The noble Baronesses will be aware that the amendment contains a number of flaws with which I need not trouble the Committee.
The noble Baroness, Lady Anelay, was absolutely right to say that auditory identity parades already exist. They appear to be a very good idea. The noble Baroness, Lady Walmsley, gave a specific example of where such a parade had worked well. The importance of that case is that some very careful and precise steps were taken to ensure that the validity of that identification could be assured. That was what was so interesting and commendable about the work that was done in that case.
PACE Code of Practice D deals with the procedures for identifying persons by police officers and allows the use of auditory identity parades where the police judge them appropriate. As the noble Baroness, Lady Anelay, said, auditory identity parades are not used frequently. We are currently involved in ongoing work to make voice identification procedures more effective and develop their use as an investigative tool. If necessary, amendments to PACE Code D can be made in the future.
As drafted at the moment, the proposed new clause in Amendment No. 160B would preclude those who have normal vision but are unable to see temporarily—for example, if their head is covered—from taking part in auditory parades. That seems an unnecessary restriction on the use of such parades. We are trying to look at the quality of the means by which such identification can be perfected as opposed to its being solely available to those who are either partially sighted or do not have sight at all.
The noble Baroness presses on the timing and how much has been done. We appreciate the sentiment in the amendment. For the reasons that I have given, we resist it, but we accept that the matter needs to be looked at more quickly. I am not able to confirm the time when the work will be concluded, but I can tell her that the matter is being energetically pursued at the moment. My right

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honourable friend the Home Secretary is seized of it and has expressed acute interest in it. I assure her that the spotlight on the issue has not gone away at all. It is being pursued as quickly as possible.
If I have more news on where we are by Report, I will be happy to give it. I cannot say that it will be quite as good as the noble Baroness would like, but you never know.
Lord Hylton: The Minister mentioned that the police already had discretion in the matter. Would she suggest to the police, perhaps through the Home Office, that, where the witness has either lost his sight or could not see on that occasion but recalls particular words having been used, the suspect might be asked to repeat those words so as to obtain an identification?
Baroness Scotland of Asthal: I can quite see why the noble Lord would make that suggestion. In the case referred to by the noble Baroness, Lady Walmsley, a procedure was adopted by the police that might provide an exemplar of how the matter could be dealt with in future. Best practice to get the best quality of evidence before the court in a more consistent way is one issue being looked at. I take on board what the noble Lord said.
Baroness Walmsley: I thank the Minister for her explanation and do not intend to keep her from her well-earned rest very long. I welcome her confirmation that the Government are committed to the idea and her explanation of how the detail of the process is being looked into. The noble Baroness, Lady Anelay, and I. and the organisations that have briefed us would be most grateful for any progress reports she finds herself able to give us. It is particularly important that people with disabilities are given every opportunity to participate in justice. We are all behind that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 160BA had been re-tabled as Amendment No. 252C.]
Clauses 133 and 134 agreed to.
Lord Bassam of Brighton: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Royal Assent
5.8 p.m.
The Deputy Speaker (Lord Brougham and Vaux): My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts:

Fireworks Act 2003,

National Lottery (Funding of Endowments) Act 2003,

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Human Fertilisation and Embryology (Deceased Fathers) Act 2003,

Northern Ireland (Monitoring Commission etc.) Act 2003,

Local Government Act 2003.

Fire Services Bill
Lord Rooker: My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Lord Rooker.)
On Question, Motion agreed to.
Clause 1 [Powers of the Secretary of State]:
Lord Wedderburn of Charltonmoved Amendment No. 11:
Page 1, line 16, at end insert—
"(2A) The provisions of an order made under subsection (1)(a) shall have effect, notwithstanding any agreement to the contrary, as binding terms of the contracts of employment of fire brigade members to whom it applies, and not otherwise."
The noble Lord said: My Lords, we are very glad to return to the Bill which, since the sunset clause was accepted in another place, has been rather doomed to be considered in the dim, evening hours of the sunset, but we are happy to have an opportunity to look at a Bill that raises such important questions.
The amendment concerns the orders that the Secretary of State can make under Clause 1(1)(a) and their legal effect. It eventually concerns the question of the right of firefighters and their union to take industrial action, a right that, time and again in Grand Committee, the Government have stated they do not intend to modify through the Bill.
Unhappily, in trade union law, Parliament has a long history of passing statutes which trade unions believe and are told, quite genuinely, release them from a series of illegalities, but decisions of courts later prove that they do not have that effect. In 1875, the new TUC parliamentary committee came close to winding itself up after receiving assurances of that kind. That belief was later rapidly reversed in the face of court decisions in the era of the Taff Vale case and the like.
There were similar occurrences in 1906 and in the 1960s and 1970s. Indeed, disaster would have ensued were it not for the famous amendment, which is relevant here, moved by Sir Charles Dilke at a late stage of the passage of the Trade Disputes Act 1906. I say with all humility that the amendment, as far as firefighters are concerned, is of parallel importance.
As constructed, the Bill threatens the right of the firefighters' union to take industrial action, albeit that we recognise that the Government say, as other governments have said for more than a century, that that is not their intention. That is why we are here tonight. The issue was not discussed in the House of Commons and it was not properly considered in

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Grand Committee. It is therefore a very serious matter for your Lordships to consider before the Bill goes through this House. Let me explain.
There are two ways in which a provision in or under a statute, such as an order made by a Minister in this case, can affect conditions of employment or other rights and duties. The amendment would cure the ambiguity in the Bill concerning the legal nature of duties imposed by an order under Clause 1(1)(a) on conditions of service. The first way in which a statute or order may do so is by imposing a statutory duty. An example would be a regulation under statutory powers relating to health and safety at work. Those duties are enforceable against the employer, for example, by persons whose interests are involved—very often, the worker concerned.
The Bill contains an example in subsection (9), which states:
"It shall be the duty of a fire authority to comply with a direction contained in an order under this section".
The other way in which a statute or order can affect conditions of service is by imposing compulsory terms on the contract of employment. The legal force then operates not as a direct statutory duty, but through the medium of the contract of employment. That meaning is traditionally always made clear in the statute that wishes to adopt it. The primary example, which will be known to many of your Lordships, is the famous equality clause that was imposed to ensure equal pay between men and women in Barbara Castle's great Equal Pay Act 1970. Those duties are enforceable between employer and worker as a contractual condition of employment, because the Act says so.
There is another example in the Employment Act 2002, but the draft regulations in that Act have raised questions as to whether the Government are going to go through with that meaning. As has been said, it is not a difficult question of law. It is a simple proposition that has abundant authority from the courts and existing statute. It is that if the breach of a statute or, as here, an order—and by that I mean a group of work people not complying with, or not liking and acting against the effectuation of an order—is a breach of a contractual duty, the right to strike is undoubtedly retained, provided that the other conditions are met. Primarily, it must be action in furtherance of a trade dispute and the conditions imposed by statute as to ballots and other procedural requirements must all be met. Nothing in the amendment affects that. If, however, the statute or order imposes a direct statutory duty and that is contravened, the right to strike is lost—ballot or no ballot, trade dispute or no trade dispute.
That is not my proposition; it is the proposition of the Court of Appeal directed in Meade v Haringey Borough Council, which is reported in 1979 Industrial Cases Reports 494. In that case, two judges at the Court of Appeal made it quite clear. Lord Denning, Master of the Rolls, stated at page 505, that the legislation,
"gives them [the union] immunity if they induce a person to break a contract. But it gives them no immunity if they induce a local authority to break a statutory duty",
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which was in issue in that case and which they had done. Lord Justice Eveleigh put it simply and in the same way. He said:
"They [the union] may in proper circumstances induce others to break a contract in furtherance of a trade dispute but they are not entitled to order or solicit a breach of statutory duty".
The Bill leaves the position unclear. I must refer to the Minister in Grand Committee. The way he put it leaves an ambiguity even in respect of the intended application. He said:
"To cut a long story short, if an order is issued under the Bill it directly operates on the conditions of service of the members of the fire brigade. The conditions of service are altered by the operation of the law immediately the order comes into force".—[Official Report, 14/7/03; col. 187.]
The quotation is longer, but if the Minister does not mind I shall not read the rest. It merely confirms that way of putting it. I have discussed it with a large number of colleagues and scholars on the subject and the majority view is that it appears clearly to impose a statutory duty to comply with the order.
Later at col. GC190, the Minister said that he was not sure what the effect of an amendment I was moving would be. He went on to say that,
"any terms imposed by order under the Bill will be contractual in any case. It is difficult to know whether the amendment adds or removes anything. In some ways I have just made an argument for accepting my noble friend's amendment but I shall certainly not do so as to do so would be fraught with difficulty and would constitute uncharted waters. As I say, the imposition of any terms by order under the Bill is contractual anyway and therefore limiting the definition would not have any effect overall. As I do not know whether the amendment adds or removes anything. I shall reject it for the time being. My noble friend is always free to explore the matter at a later stage".—[Official Report, 14/7/03; col. GC190.]
We are exploring it now. We are saying, "Please, put the second meaning clearly on the face of the Bill. If you do not, you raise the question for the courts as to the meaning Parliament has put upon the clause in question and here on the order in question". The meaning is not what the Minister may intend.
In Grand Committee, I referred to the recent speeches of the noble and learned Law Lords in the constitutionally important case of Wilson v Department of Transport, decided on 10th July 2003 and available in your Lordships' Judicial Office. To sum up the main thrust of the judgments, with which all five Law Lords agreed, the noble and learned Lord, Lord Nicholls of Birkenhead, said:
The courts are strictly unable to take cognisance of the Minister's statements…they cannot control the meaning of an Act of Parliament…the courts must be careful not to treat the Ministerial or other statements as indicative of the objective intention of Parliament. Nor should the courts give a Ministerial statement, whether made inside or outside Parliament, determinative weight. It should not be supposed that members necessarily agreed with the Minister's reasoning or his conclusions".
The reason for the amendment is to introduce clarity into the Bill. We do not want to leave the question, as Lord Denning put it in another case in 1978, to be a matter of guesswork for the courts in deciding what Parliament intended. He said then that, where

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Parliament did not say what it meant in relation to the legal effect or nature of a statute or order imposing duties, he felt that it was a matter of,
"guesswork…you might as well",
said Lord Denning, with his usual aphorism to make the point deeply,
"toss a coin".
We do not believe that the courts should be left in the position of having to toss a coin to decide whether this is a direct statutory duty or an imposition of contractual terms operating by law as obligatory terms of the contract. We are of that view, especially because the right to strike depends on which choice one makes, as the Court of Appeal stated clearly in the case of Meade v Haringey Borough council in 1979.
In one sense, the amendment asks the Government simply to clarify what they appear to have said in one part of their explanation in Grand Committee; in another sense, it also asks them not to fall into the kind of pit into which previous governments since 1875 have, for some reason or other, regularly fallen. Why it has happened is a matter of great debate among those involved in the scholarship of the subject. There is no need for it to happen here.
I hope that the Minister can give us some encouragement that, if the Government do not like the precise words of the amendment, they will at least accept the thrust of it and guarantee that, by the end of Third Reading, we shall see the right to take industrial action, as they intend, properly inscribed in the Bill. I beg to move.
Lord McCarthy: My noble friend has developed the argument with particular reference to the uncertain state of the law. He cited many extremely persuasive authorities, including the judgments of Lord Denning. The Government may well say—to some extent, they have said—"Well, time will tell. It may turn out that you are right: it may turn out that we are right", although it is not absolutely clear that what they are saying is right They do not come before us and say, "Well, conditions of service are the same thing as contracts of employment". They do not go so far as to say that, but they say that there will still be a right to strike. One might say that whether there is a right to strike or whether the right to strike remains as it is at present is something which, in the fullness of time, the courts will decide.
However, I want to suggest, as I tried to do in Grand Committee, that the striker or would-be striker or the member of the fire service would not be able to wait or, I suggest, would be unlikely to be able to wait for the courts to decide. In that connection, my noble friend mentioned the debate that we had with the noble Lord, Lord Rooker, on 14th July, as reported at cols. GC 181 and so on of Hansard. I sought to explore the sense in which the Government could continue to say that a right to strike remained.
I think I understood—the point of this intervention is to see whether I understood correctly—what the noble Lord, Lord Rooker, said. It seemed to me that he was saying that if there was industrial action and it
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was lawful in the sense that there had been a ballot, nevertheless, if the Secretary of State issued an order and created a statutory duty, the chances are that it might well eventually transpire that that statutory duty would create a liability. If any worker was found to be frustrating that statutory duty that would be an unlawful act, but that it might not be; and the legal process might be gone through to find out.
The point was that the right to strike had not been got rid of. It might have been made a little more faint. It might have been temporarily put upon a shelf, but it would re-emerge. I sought to find out the sense in which it would re-emerge. I think that the noble Lord was saying (at col. GC 181 of Hansard) that. of course, so long as the workers conformed or the employers did nothing about the fact that they were not conforming in the enforcement of the statutory duty, the time would come when the terms and conditions of employment would be changed. People would return to work, there would be peace, tranquillity and quietness and a new right to strike would rise. The right to strike would still be there in exactly the same way as it is for the labour force. It would still be there because—I suggest solely because—there was no order.
As long as there was no order, as long as there was peace and quiet and, in the case of a dispute—the Minister said that the dispute could be about something which had been the subject of an order—as long as no industrial action was taken, or, as long as the union and the members only took industrial action after a lawful ballot, the right to strike in the case of the Fire Service would rise again in all its purity.
The trouble with that is that there might then be another order. The moment that order is introduced, the workers concerned would find that they did not have the right to strike. That is a very poor right to strike, which does not affect other workers. Other workers do not have the threat that if they start to have any effective industrial action they are made the subject of an order which cancels their right to strike for the time being.
If I am right and that is the sense in which the Government are saying that a right to strike will remain, I ask the House to think of the position of the individual workers. The chances are they will be dismissed. No doubt the employer will he told through guidance in legal journals and so forth: "This is not a breach of contract but the interruption of an imposed condition of service. You can dismiss those people".
What would be the position of the individual workers then? If the matter went to the current Master of the Rolls he may say that they are protected, but they will be on stones. That is the point. What would be the position of the chairmen and side members of industrial tribunals who find that people had been dismissed in that context? Of course, the union would come along and take the case to an industrial tribunal. Meanwhile, the individual worker is dismissed. Even if the tribunal found in his favour he would get only compensation; he would not get back his job. Then we would find out whether the Government is right or the

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noble Lord, Lord Wedderburn, is right. That is not enough, and that is not fair. That is not, in effect, a right to strike. It is a right to strike which the workers use at their peril; and it is a right to strike which can be interrupted effectively at any moment by the Secretary of State imposing an order. I ask the Government, therefore, to think again and to agree to this amendment.
5.30 p.m.
Baroness Turner of Camden: My Lords, this really is a very simple amendment. My two noble friends have advanced a great deal of legal argument in support of it. I do not want to follow down that path. It seems to be a simple question: if a union orders a strike in breach of a contract of employment and goes through all the processes required—balloting and so on—there would be immunity; but if the strike is in breach of a statutory order the union has problems. The issue is as simple as that.
Lord Rooker: My Lords, the issue is even simpler than my noble friend Lady Turner states. Amendment No. 11 seeks to put on the face of the Bill that the provisions of any order under Clause 1(1)(a) about terms and conditions of service shall have effect as binding terms of the contracts of employment of fire brigade members to whom it applies. It is simple because we have already said that we propose that such orders should indeed take effect as new or revised contractual terms. That appears to be in effect stating the obvious.
The amendment adds nothing whatever to our intention. In fact it would produce a restriction of uncertain effect and offer opportunities for debate; and it offers absolutely nothing additional to fire brigade staff. I do not want to wind my noble friends up, but I have not heard from any modern practising academic or industrial relations expert to the effect that we have a problem with this part of the Bill. Therefore, on that basis, I invite my noble friend to withdraw the amendment.
Lord Wedderburn of Charlton: My Lords, I am disappointed by that reply because—it would not be unfair to say—my noble friend suggests that it is nonsense to move this amendment. The Government may propose that the order takes effect by way of obligatory terms and conditions of employment. One is bound to ask why they do not propose it in the Bill. What on earth would they lose by making that clear in the Bill? What are they afraid of?
Secondly, is the Minister denying that where a legal duty is imposed by a statute, as in this Bill, it is for the courts to interpret—not for the Ministers to interpret if they have chosen to say nothing—what kind of legal duty it is? I refrained from pointing this out, but so many matters were raised by my noble friend's reply that I must put some of them on record. First, on the fire authority's duty in Clause 1(9), the Government go out of their way to make it clear that they are imposing a statutory duty. Why do they not adopt a similar
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clarification concerning the order on conditions of service? Conditions of service are not defined in the Bill. We are told what they include in a later subsection.
Furthermore, the Minister says that no writer. scholarly expert, or, as I understood him, anyone else he knows of, thinks that there is a problem. I invite him to stand up now and to say who he has consulted. I have consulted—I am not at liberty to divulge their names, but I shall certainly get them by Third Reading if they agree—a number of people of various types, shades and hues, not all of them necessarily of bad character under the Criminal Justice Bill, who take the view that there is a problem here. One even takes the view that the issue is both contractual and statutory.
Frankly, I do not think that we are at liberty to adopt such an interpretation. They all agree there is a problem, but my noble friend does not. What is this curious lethargy in trade union legislation? It is only for workers and their right to strike that these gaps are left. It happened in 1871, 1875 and even in 1906, 1913 and subsequent statutes, although not so much, I am proud to say, in the Labour Government's legislation in 1974 and 1992, when several problems of this sort were solved. Why do the Government want to create another one?
Since my noble friend has taken this attitude of blasésmugness, I wish to put on record the simple proposition that the union with a ballot and a trade dispute has the right to induce a breach of contract and is protected. A union with a ballot and a trade dispute does not have any protection, nor do its workers individually, as my noble friend Lord McCarthy has said, in respect of an inducement of a breach of statutory duty.
I wish to put on record the case of Meade v Haringey Borough Council of which the Minister, I say with great respect, appeared unfamiliar; and the case of the Department of Transport v Williams, (1993)—these are in all the books—in which the Lord Justice Dillon said that,
"anything which is illegal under any statute provides the unlawful means",
for tortious liability.
I wish to put on record the judgments of Associated British Ports v the TGWU(1989) in the Court of Appeal, of Rookes v Barnard(1964), of Stratford v Lindley(1965) and the case of Acrow Automation v Rex Chainbelt(1971). If the Minister is not familiar with those decisions, he should be by Third Reading.
I also refer to the case of Michaels v Taylor Woodrow(2001), Chancery 502, in which Mr Justice Laddie refused the entire authorities including four cases in the 1999–2000 era that manifestly support the point that this simple, clarificatory amendment is trying to make.
Whatever the intentions of the Government, are they really so proud and arrogant in their drafting of the Bill that they refuse to include a clear protection, which they say they intend, for a particular group of workers in the public service? I cannot understand the Government's position or the reply that we received

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today. The matter needs a great deal more work by those who advise the Minister and the Minister himself. I say that because—I must add this point because noble Lords who were not in Grand Committee will not have heard it and there are very few noble Lords present tonight to consider the rights of firefighters—an injunction can be obtained not by those who prove a final case, but by those who prove an arguable case.
There is no difficulty in law about that. There are problems about how that applies when the balance of convenience lies with the claimant and so forth. However, an arguable case has to be proved. is the Minister really saying that, with the Bill as drafted, without the clarification that we seek, there would never be an arguable case that an order under Clause 1(1)(a) imposed a statutory not a contractual duty? If he is saying that, your Lordships' eyebrows should reach beyond the ceiling.
This is a helpful amendment for the Government. They say that they want to make it clear that firefighters are not in any way discriminated against in terms of the normal rules of industrial action. We say the same, but it is not made clear in the Bill. Our amendment would make it clear, although it will not settle the question, as later amendments will show. There are other matters to be raised. As my noble friend Lady Turner of Camden said, this is the simplest of simple amendments to make progress on this matter. That is why we moved it, genuinely hoping for a positive response of some sort from my noble friend the Minister.
However, if there is no indication that this fundamental point which is coming to be well known in the trade union movement can be addressed properly and professionally by the Government, it will be necessary to return to the matter firmly at Third Reading to press the point with any noble Lords who are in any way concerned about the rights of workers under this Bill. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Wedderburn of Charltonmoved Amendment No. 12:
Page 1, line 16, at end insert—
"(2B) An order made under subsection (1)(b) shall not affect "property" that consists in rights or duties arising from or under a contract of employment, and the provisions of such an order shall not directly or indirectly affect the conditions of service of fire brigade members.""
The noble Lord said: My Lords, in a sense, the amendment is a mirror image of the one that I have just withdrawn. Although, until a few minutes ago, I had some hopes for it, they are now dimming as the sun sets. As the Bill stands, an order under Clause 1(1)(b) giving directions to fire authority employers could very easily have obligatory consequences that affect the conditions of work of firefighters. An example taken often in Grand Committee is the closure of a station. An order giving directions to close a station,
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or changes in the use of appliances on shift work, could have immediate results on employees' conditions of work.
The Government have stated that they do not mean that to happen, and the amendment throws no doubt on that intention. But there is abundant authority that the Government's intentions do not control the interpretation of the Act in the courts. If Parliament does its job—and this is the only House to debate the powers in detail—it is concerned with what the powers are that are placed on the statute book. To ignore that is to treat this House as a talking shop and a club where people stroll through the Lobbies without much consideration.
Not every order under Clause 1(1)(b) will necessarily affect the working conditions of members of a fire brigade. When we considered the provision in Grand Committee, the Minister said:
"I must make it clear—I think that I did so earlier—that directions to the tire authorities under Clause 1(1)(b) are not intended to be a direct or indirect way of affecting the employment contracts of fire brigade staff. I also gave the example that it could happen that a direction about the use of assets—the physical assets in a station—could have an impact on staff, but that is not the route by which we would seek to change the terms and conditions for staff. We have a power in Clause 1(1)(a) to do that directly—
that is a very interesting formulation—
"so there is no reason to use an indirect route. I can tell noble Lords that we have no plans to use any orders made under Clause 1(1)(b) to affect the rights arising from contracts for work or services. It might happen, purely as an incidental side-effect of a kind of order".
He went on to say:
"We do not want to use the power, and the Bill is drafted widely enough to cope with any disputes … I gave examples originally of appliances remaining in stations when they could be used by somebody else. Clearly, the public did not understand what happened during the previous dispute, so we must overcome that. If it were difficult or impossible to use the powers in respect of, say. an appliance or some specialist piece of equipment ‖ that was needed, we could not say to the public, 'Well, we would have liked to have an order to make sure that we could use an aerial platform, but we could not because it would have affected some exclusion in the Bill about contracts"".—[Official Report, 14/7/03; col. GC 194.]
By "contracts" the Minister meant contracts of employment.
We accept all that. But we accept also that, as the Minister said, there would be incidental effects on the working conditions of firefighters. Their duty would be not to do anything to disturb an order coming into effect and operation under Clause 1(1)(b). That is why we have drafted our amendment in its current form:
"An order made under subsection (1)(b) should not affect 'property"'—
it normally would—
"[in the form of] rights or duties arising from or under a contract of employment".
Rights and duties under a contract of employment are obviously included within the notion of property. The amendment also states:
"The provisions of such an order shall not directly or indirectly affect the conditions of service of fire brigade members".
That is what we are asking.

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We are taking the Government at their word. We are saying that Clause 1(1)(b) is a direct order to the fire authority on what to do as regards closure of stations, use of appliances and all the other things that the Government want to control by statutory duty. It does not affect the conditions of service, in law, of the firefighters. I cannot understand why the Government cannot accept that, except that the Minister says, as he said about the previous amendment, that it is all nonsense. With great respect, I do not think that is a reply worthy of the Government. I beg to move.
5.45 p.m.
Lord Rooker: My Lords, I am unable to accept Amendment No. 12, irrespective of the care and consideration with which my noble friend moved it. Along with other amendments in a similar vein, it makes it difficult—almost impossible—for the Secretary of State to exercise the powers in the Bill that, ultimately, Parliament would give, powers that the elected House has, in principle, agreed that he should have.
The amendment is in two parts, both of which would limit the scope of the Secretary of State to issue orders under Clause 1(1)(b). The first part would prevent the use of the power to give directions about the use or disposal of property where that property consisted of rights and duties under contracts of employment. The second part would prevent the making of an order under Clause 1(1)(b), which would directly or indirectly affect the conditions of service of fire brigade members.
We discussed that in Grand Committee. The position is no different. What I said there is exactly what my noble friend repeated. If the Secretary of State were to judge that action to change terms and conditions of staff were necessary, he would have a direct route under Clause 1(1)(a) and he would not use Clause 1(1)(b). I have made that absolutely clear.
Notwithstanding that, I accept that, under Clause 1(1)(b), there might be an incidental consequence from a direction, for example, aimed at making available facilities or equipment to those trying to provide emergency cover. Nevertheless, I am unaware of any plans to use orders under Clause 1(1)(b) to affect rights arising from contracts for work or services. To be honest, if we were to accept the amendment, we could not make such a direction. It would be impossible, even if everyone agreed that the intention was appropriate and benign.
As I said, I cannot accept any amendment—I do not want to upset anyone—that simply seeks to frustrate or make impossible the effective use of the powers. That is what this amendment seeks to do; that is what the effect would be. The public would not understand it if they were denied the protection of crucial equipment because of an exclusion about contracts. Amendment No. 12 would put an arbitrary restriction
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on the powers in the Bill and contribute nothing to public safety. Therefore, I invite my noble friend to withdraw the amendment.
Lord Wedderburn of Charlton: My Lords, the Minister ended on the sort of note that he constantly injected in Grand Committee, which I can describe only as the habit of some midfield defence players: go for the man, not the ball. He said that the amendment sought to frustrate the Bill. I hope that he will think again about that. We are trying to get clarity into the Bill. We are trying to say what the Government say they intend. What the elected House has got to do with it, I do not know. It never discussed it; it did not discuss the previous amendment or this amendment or the matters concerning them. Nor did the Government choose to explain them to the other House.
We said all that in Grand Committee. I do not want to go over the ground of Grand Committee because, in retrospect, some of it was rather painful—just as that last remark was. We are not frustrating the Bill. We are genuinely moving amendments that concern especially—it is true—the persons employed in fire brigades, but also the fire authorities, the employers.
My noble friend has said, quite rightly, that if they thought about it, the Government would normally seek to make an order under Clause 1(1)(b), telling the fire authorities what to do in respect of the closure of stations, use of appliances and so forth; and, if they were to think of perfecting the conditions of employment for firefighters, they would make an order under Clause 1(1)(a). I quite understand that. But he is also obliged to accept once again, as he accepted in Committee, that an incidental effect of a Clause 1(1)(b) order where no Clause 1(1)(a) order is made, would be that it would affect or be likely to affect the conditions of work of firefighters.
We do not think that it is right for the Government or for Ministers to take that power. If they mean to affect the conditions of firefighters, tell them that by way of a Clause 1(1)(a) order, although, as we have just seen on the previous amendment, they are in a terrible muddle about how that legal effect would come about. If they intend a Clause 1(1)(b) order to affect only the fire authorities—as the Bill suggests in places, but the Government are now constrained to agree that it may affect others—then surely this should be cleared up.
I hesitate to put it this way, but I am not interested in my noble friend's plans, as he put it. He has said that the Government have no plans or intention to do this. However, if I am defending a firefighter or a union in court, I cannot refer to that. In its judicial capacity, the House of Lords told us that in July this year in the Wilson case. Does no one read any of what is said by the noble and learned Lords in our Judicial Committee? You cannot give that remark to a court as controlling the meaning of these clauses. We are asking for it be made clear on the face of the Bill that a Clause 1(1)(b) order does not affect, in the legal sense, the conditions of work of those employed in this public service.

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If we chose the wrong wording in the amendment, then of course that is another matter. But our intention is not to frustrate the Bill and it is quite shocking to hear my noble friend on the Front Bench return to that kind of language, which was used so often in Grand Committee. However, I shall refrain from going into that territory. We have put our arguments on the record and they stand as they are. If the Minister cannot think better before Third Reading, it may and certainly should be necessary to come back to this matter. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 13 not moved.]
Baroness Turner of Camdenmoved Amendment No. 14:
Page 1, line 17. leave out from "section" to "the" in line 18 and insert "save for an order made under subsection (1)(b) which he declares for the reasons which he states to be required by reason of an emergency"
The noble Baroness said: My Lords, this amendment is very similar to the amendment I moved in Grand Committee, but with an important difference which I shall explain. It seeks to remove from subsection (3) the words,
"that fixes or modifies conditions of service of fire brigade members".
The effect of this would be automatically to oblige the Secretary of State to consult in relation to what is provided for in subsection (1)(b), which states,
"give specific or general directions to fire authorities about the use or disposal of property or facilities".
It seemed to me in Grand Committee that decisions which affect the provision of local facilities—either the disposal of property or the use to which that property is put, whether leased or otherwise disposed of—could have an effect on the workforce in that particular location. There may be less reason to have a certain type of person or there may be a need for a different kind of workforce. This could have a major effect on fire service employees working and probably living in the area. It therefore seems entirely reasonable that an obligation should be put on the Secretary of State to consult about the conditions of service for fire brigade members in the way suggested.
That still seems reasonable to me, but I listened very carefully to what the Minister had to say in Grand Committee. He made the powerful argument that there could be emergency situations in which the amount of time required for a consultation process would simply not be available. He said that,
"there could sometimes be a need for speed so that the public property is protected".—[Official Report, 3/7/03; col. GC 265.]
Our new amendment attempts to meet that valid argument. We seek to insert the words,
"save for an order made under subsection (1)(b) which he declares for the reasons which he states to be required by reason of an emergency".
In other words, under normal circumstances consultation about these matters would be expected to take place, but in an emergency of course it is accepted that there may very well be no time for this to be done.
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We have attempted to meet the requirements as set out by the Minister in Grand Committee and I hope that he will find our proposed solution acceptable. I said in Grand Committee that I would take note of what he had said and then come back to this on Report in an attempt to deal with the valid arguments that he then advanced. I beg to move.
Lord Wedderburn of Charlton: My Lords, I had hoped that it would not be necessary to move the amendment because, in Committee, we moved an amendment seeking to limit to emergencies the operation of orders under Clause 1(1)(a) and 1(1)(b). We set out a notion of what an emergency might be, including a likely set of events which the Minister could see would need rapid action. That is why, as my noble friend Lady Turner said—I shall not repeat her quotation—we have taken note of what the Minister said and repeated it, in a brief form, in Amendment No. 14, under which the Secretary of State must declare, for the reasons he states, that the action needed is required by reason of an emergency. I believe that that was the only argument raised against our attempt previously to include Clause 1(1)(a) and 1(1)(b) orders in the clause. I hope the amendment will be given favourable consideration.
Lord Rooker: My Lords, I understand why my noble friends have come back on this issue. In many ways—although I do not have it immediately to hand—the amendment is consequential on an earlier amendment we have discussed. I believe it may have been Amendment No. 1.
Basically, the amendment seeks to change the drafting of Clause 1(3) to bring it into line with what was proposed in Amendment No. 1—it was Amendment No. 1 to which I was referring—about having to declare an emergency before using the powers in the Bill. The consultation required in Clause 1(3) would continue to apply to an order about terms and conditions of service but it would extend to any order made under Clause 1(1)(b) where the Secretary of State failed first to declare an emergency.
The current negotiating body referred to in subsection (3), as I understand it, is the National Joint Council, the remit of which covers terms and conditions of service—pay and conditions, in other words. It is the pay and conditions negotiating body. It has no role whatever in relation to other Fire Service matters, to the best of my knowledge. We therefore do not think it appropriate to require that body to be consulted about the use of Clause 1(1)(b) powers.
Lord Wedderburn of Charlton: My Lords, I am grateful to my noble friend for allowing me to put this point to him. Has he not just admitted that the Clause 1(1)(b) order may well incidentally affect the conditions of work of firefighters? Would that not be a proper subject for discussion?
Lord Rooker: No, my Lords. My noble friend puts his question in a somewhat substantive way. It is not the way in which I have put the issue about how a

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Clause 1(1)(b) order may have an incidental consequence on conditions. That would not be its central role. If the central role was to do something about the terms and conditions of individual members of the Fire Service, clearly the Secretary of State would use Clause 1(1)(a). We would consider that before we used Clause 1(1)(b) to ensure that there was not a substantial change in conditions.
We live in the real world and we have accepted that there might be an incidental consequence on conditions as a result of using a Clause 1(1)(b) order, but that would not be its main purpose. The reasons I have given on the previous amendment would cover such consequences. But it is not a substantial issue to be written on the face of the Bill that the negotiating body—which is a pay and conditions negotiating body—will have a statutory role in all other Fire Service matters outside the narrow confines of pay and conditions. Although I do not have the amendment immediately to hand, it appeared to us consequential on Amendment No. 1, and therefore stands and falls with it. In the light of our earlier discussion, I cannot accept the amendment.
Baroness Turner of Camden: My Lords, my noble friend the Minister is of course quite right. Had Amendment No. 1, which we proposed at the previous sitting, been accepted by the Government, it would not be necessary to move this amendment, because it would have covered the whole of the Bill. The intention of what we can call the emergency amendment that we moved and I spoke to was to cover all the powers in the Bill. But because it was not accepted, it was felt necessary to follow what had been said in Committee about emergencies and to do so in this way.
I am not entirely happy about the Minister's response. He says it is not a substantial issue but, as he accepts, there could be circumstances in which conditions would be affected quite materially. Therefore, I am not at all persuaded that the amendment is unnecessary. But in the light of what has been said this afternoon, I beg leave, at least for the time being, to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McCarthymoved Amendment No. 15:
Page 2, line 2, at end insert—
"(3A) Where a report shows that there is an agreement between the members of the negotiating body concerning matters dealt with in his proposals under subsection (1)(a), the Secretary of State shall, save in an exceptional situation, withdraw any proposals which are in conflict with that agreement and engage in further consultation with the members of that body.
(3B) An exceptional situation exists when the Secretary of State declares that the terms of an agreement made by the members are unacceptable for the reasons set out in his declaration, such reasons which may include objections to the increases in pay or changes in conditions of service or similar associated matters contained in the agreement."
The noble Lord said: My Lords, the object of this amendment is to try to pick up various statements made in Committee. The Minister was at that time trying to explain what the attitude of the Secretary of State would he where there was agreement between the
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parties. We tried, in a number of amendments, to say surely a power as powerful as the power in this Bill would be introduced and enforced only in extreme circumstances. For much of the time, the Minister was prepared to say that. In almost all the concrete examples which he placed before us of the circumstances in which the powers would be used, there was undoubtedly an element of emergency. Indeed, at one stage, I thought he said that the recent 12-month dispute between the union and the employer was not an emergency. That made us feel that the emergency which would justify the use of the Bill would be very exceptional—terrorism, perhaps.
That being the case, it seemed reasonable to suggest that when there was an agreement between the parties and no question of an industrial dispute of any kind—and, we would have thought, no emergency, because the two parties had agreed among themselves—surely it would be possible to say on the face of the Bill, if we can get the wording right, that in those circumstances the Bill would not be used. But we have tabled this amendment because it was not possible to get the Minister to agree. At one stage, he went so far as to tell us what would be the circumstances in which there was an agreement, under which, nevertheless, the Government would be justified in imposing the powers in the Bill. He said:
"I was asked whether, if employers and trade unions agree, they should not therefore be allowed to carry on. I made the point that to differentiate between the public and the private sector, the question is who pays. If the employer is prepared to pay for a negotiated deal, fine. In the public sector, the employer, at the end of the day will be local government or Parliament, in the sense of disbursing taxpayers' money".—[Official Report, 3/7/03; col. GC274.]
So there was a distinction between the public and private sectors.
He gave examples of other circumstances, the most important of which was where, although there was agreement between the two sides, the employer and the union may have got together or ganged up, so that in the public interest a reserve power had to be left for where a negotiated settlement, although agreed. was not in the public interest. The circumstances would be either that the union was offered too much money or that there was insufficient improvement in productivity. The Government would need reserve powers for that. Well, OK.
So we have tried through the amendment to cover those circumstances. The amendment states:
"Where a report shows that there is an agreement between the members of the negotiating body concerning matters dealt with in his proposals under subsection (1)(a), the Secretary of State shall, save in an exceptional situation"—
not in an emergency, in an exceptional situation—
"withdraw any proposals which are in conflict with that agreement and engage in further consultation with the members of that body".
Note that we are not saying that his veto can be overruled. We are not saying that in those circumstances, the parties can say, "Unless you can specify an exceptional situation, we are free to agree". We are saying that the Secretary of State should take it away and think about it and that the exceptional situation should be defined in the Bill.

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That seems reasonable. We therefore state in proposed new subsection (3B):
"An exceptional situation exists when the Secretary of State declares that the terms of an agreement made by the members are unacceptable for the reasons set out in his declaration".
We even go so far as to as to state what they might be: the reasons,
"may include objections to the increases in pay or changes in conditions of service or similar associated matters contained in the agreement".
I know, because I have had it before and shall have it again, that the Government will say that those words are not reasonable, sensible, adequate, enough or sufficient. OK, but we do not stick by our words; we stick by a principle. The Government can take it away and write it again; they can do what they like. The Minister said that, most of the time, the authority of the order would be used when there was an emergency—we are setting emergencies aside—and that he could not accept an agreement when there was an exceptional situation, so why cannot we specify in the Bill what may constitute those unacceptable conditions?
That is reasonable and sensible and I look forward to hearing what the Minister says. Of course, if he says, as he said again tonight—I must mention it, although my noble friend has already done so—that every time we try to change how the Bill works, we are frustrating it, we will not get far. None of the amendments is what is conveniently called a wrecking amendment—at least not intentionally. They are not intended to make it impossible to use the power; not at all. They are intended to improve the Bill.
If the Bill is presented as impossible to improve and if all attempts to change, modify or restrict its application are frustrations, we will not get far. I suggest that that is not how amendments are treated in Parliament or regarded in this House. I therefore hope that the Minister will give the amendment friendly consideration. I beg to move.
Lord Wedderburn of Charlton: As the Bill has a relatively short time to go, with only Third Reading left, we must now envisage that the Government are going to reject every amendment. I had not really thought about that until this evening; I had expected some argument about words or exact phrases, but the amendments will simply not be considered.
What my noble friends and I, who have tabled the amendments, cannot accept is that the Bill somehow originated in a drafting immaculate conception and is perfect. That is the Government's position so far, and I hope it will not extend to the amendment. With my greatest respect to my noble friend the Minister—and he is my noble friend—he has already reminded me tonight, as I thought I would not be reminded, of that great member of our party, Ernest Bevin. One of Ernest Bevin's great remarks when he did not like what was about to be said in a speech was, "You don't want to open that Pandora's Box, because you never know what Trojan Horses will leap out". There is a certain flavour of that about some of my noble friend's answers to amendments.
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I shall quote in full the passage to which my noble friend Lord McCarthy referred. On 14th July in Grand Committee (at col. GC 204 of Hansard), there was an exchange between the noble Lord, Lord Campbell of Alloway, and my noble friend Lord Rooker. The noble Lord, Lord Campbell of Alloway said:
"With respect, I hope that I may ask the noble Lord a question. He said the Bill would be used only if the parties"—
that is, the parties to the national joint council—
"disagreed. That is not quite what he means. He said it but I do not think that he meant it. What he meant was, if the parties agree with what we want them to do, we shall not use the Bill. But if they do not—"
There then followed an intervention from the noble Lord, Lord Rooker; namely. "Yes, sure". After which, the noble Lord, Lord Campbell of Alloway, went on to remark:
"But if the parties do not agree with what we want them to do, we shall impose the Bill"—
"we" meaning the Government. The noble Lord. Lord Rooker, replied:
"That is entirely the case. The noble Lord expressed the matter perfectly. The two parties could have a sweetheart arrangement—it is not unknown between employers and trade unions to have a sweetheart arrangement—and say to the Secretary of State. 'By the way, we have agreed; here is the bill'. We would say, 'Sorry, we are not paying the bill'. We do not have a blank cheque".—[Official Report, 14/7/03; col. GC 204.]
There are two possible answers to that argument. As the Government frequently wish to refer to common sense and real life, presumably the Secretary of State would have done his best to persuade the fire authority employers not to enter into such an agreement. We take the case where they have, or where the parties have come to agreement—it could even be within the Secretary of State's total expenditure provisions. They might have come to a deal in which the ways of implementing the agreement were very different from those that the Secretary of State wanted. If the parties agree on that, with the help of conciliation, mediation, arbitration or in some other way, we believe that the Secretary of State should be asked to pause before he goes ahead with the order. That is all that, the amendment says. I cannot see what is wrong with that, and I hope that we shall get some acceptance of that approach.
The amendment accepts the spirit—and in many ways, the words—of my noble friend the Minister in Grand Committee. It places them in the Bill together with the following suggestion—namely, where, subject to that, the parties are agreed, the Secretary of State shall withdraw the present proposals that are in conflict with the parties' agreement and engage in some further consultation with the members of the NJC. I hope that the Government can accept the spirit of the amendment.
Lord Campbell of Alloway: My Lords, I know that it is Report stage, but I should like to ask the noble Lord a question before he sits down. Does he accept that Amendment No. 15 is wholly dependent on Amendment No. I, that there is a declaration before

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the emergency and that the whole machinery is dependent upon that? Is not Amendment No. 15 wholly dependent on Amendment No. 1?
Lord Wedderburn of Charlton: My Lords, in the spirit of the previous deliberations on the Bill, I could say that I had already sat down. However, I was semi-sedentary, so I shall answer the noble Lord's kind intervention.
The word "emergency" appeared in Amendment No. 14, not in this amendment. We have used the term "exceptional situation"—although I suppose that might involve an emergency. We understood that to be the objection to the case in which the Secretary of State says, "You may have come to an agreement between you—the parties to the NJC—but I cannot accept that". One instance that we took was the main instance that my noble friend the Minister gave whereby increases in pay or changes in conditions of service, and the like, are contained in the agreement of the parties. So that could be an emergency—I quite accept that—but it is not limited to an emergency. It is limited to exceptional situations of the sort that the Minister described, or so we thought. Perhaps the noble Lord thinks that I am wrong in that.
Lord Campbell of Alloway: My Lords, I ask the noble Lord please to look at new subsection (3B) regarding,
"reasons set out in his declaration".
That declaration, and the only reference to a declaration, is a declaration before an emergency. Surely the noble Lord understands that.
Lord Wedderburn of Charlton: My Lords, with the greatest respect, I do not understand that. If we had meant a declaration of emergency, we would have said so. The noble Lord really must look at the words we have proposed.
6.15 p.m.
Lord Rooker: My Lords, I cannot promise not to use the word "frustrating" again, but I will try. What I can say to my noble friend, believe it or not, is that all the amendments on the Marshalled List have been considered by the policy Ministers involved and myself. Indeed, they have been reconsidered since we started Report stage. So it is not true that we are not considering the amendments.
I take on board my noble friend's old quote about the Trojan horse, but this Bill is not a Trojan horse. This Bill is precise and clear. We have made it crystal clear that we do not want to use it and that its life is limited. It is true that, by using the Bill, the Secretary of State would impose pay and conditions as set out in the relevant order. We are not doing this furtively.
Amendment No. 15 adds further conditions to the consultation arrangements in subsection (3). While it states that where the negotiating body—in this case the national joint council—reaches an agreement on aspects of a proposal by the Secretary of State, the
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Secretary of State should withdraw any parts of the proposal that are in conflict with what the negotiating body has agreed and then enter into further consultation. Only in exceptional circumstances can the Secretary of State not withdraw the non-agreed parts of his proposal. To make use of that exception, the Secretary of State must declare that an exceptional situation exists because the terms of the agreement are unacceptable for reasons set out in the declaration. The possible reasons are not listed exhaustively—about which I make no big complaint—but examples include objections to increases in pay or changes in conditions of service.
The Bill already requires the Secretary of State to consult on the proposals made under subsection (1)(a). He is required, as the Bill states, to consider the report of the negotiating body. It is therefore open to him. should the negotiating body disagree with aspects of a proposal, to carry on discussions and seek a resolution. The Bill provides for all that to happen, and we would expect that to happen. However, given certain circumstances, there must come a time when, if necessary, the Secretary of State can push through his proposal. The whole purpose of the Bill is to enable us to draw a line under any future dispute. We hope that it will not come to that, but if it does we need to be able to act with reasonable dispatch. That is what this is about.
The examples given in the amendment of exceptional situations in which the Secretary of State can declare that the terms of an agreement made by the members of the negotiating body are unacceptable are both limited and vague. According to Amendment No. 15, the Secretary of State can object to an agreement on the basis of an increase in pay. Can he also object to the variation in pay between different ranks? We do not know what "similar associated matters" are. The long and short of it—and I do not want to use the "F" word that upsets my noble friends—is that Amendment No. 15 places unnecessary restrictions on the Secretary of State's powers to make the orders under (1)(a), which as I said would be used to draw a line under a dispute only after all the normal rules and negotiated procedures have failed. Those are the only circumstances in which they would be used. We cannot accept those unnecessary restrictions on the Secretary of State's powers at the point that we would have reached in a dispute. Therefore, I request that my noble friend withdraws his amendment.
Lord McCarthy: My Lords, it seems to me that the Minister is contradicting himself. For a large part of the time he tells us that the relevant provision is already on the face of the Bill. Apparently, the Bill provides an almost infinite number of opportunities for consultation. If that is the case, the addition of the provision that we are discussing is not the end of the world. It is part of the Bill. It is what the Bill is in favour of. The Bill is a consultation Bill until the chopper falls. That is what the amendment says. The amendment does not say—as one or two of our amendments in Committee said—that when there is an

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agreement between the parties, for example, on the application of an agreement and what it means—not a new agreement—the Government might consider the possibility of saying that the Secretary of State cannot turn it over. But we have dropped that. We are getting more moderate all the time but it does not do us any good.
What we are saying here is that there could he further consultation with the members of the body. I am bound to say that the Government will get in a terrible mess with the Bill and this group of workers when the information and consultation directive is finally enforced because they will not be able to dismiss all these matters and say that they will not consult about how workers are affected by being moved from one place to another. They will have to consult on such matters if they are to honour the directive. They might as well get used to that. We have tried to make the provision as much like the ideas of the Government, as expressed by the Minister, as possible. When particular circumstances apply, surely there could be the limitation that we propose on the use of the Bill.
I did not want to quote from the White Paper, Our Fire and Rescue Service because when we quoted from it in Committee the Minister did not like it. He gets frustrated when we do that. But the fact is that the Government are in a mess about what they are going to do with regard to pay in the Fire Service and the circumstances in which they will insist that pay is either reasonable or unreasonable and impose their order. Paragraph 7.14 of Our Fire and Rescue Service states:
"Finally, we intend to take powers to give guidance to any negotiating body which it would have to take into account in its work. The government has a legitimate interest in the outcome of pay negotiations and the impact on public sector pay policy"—
I must say I am pleased to hear that we have a pay policy—
"as well as the impact on the operation of the service"—
that is the works side of the thing—
"but we should not and do not want to step into the shoes of the fire and rescue authorities as employers"—
yet they have this Bill.
"Rather than be drawn into detailed consideration of options as negotiations develop"—
that is what we are trying to facilitate by our amendment—
"we will set out our requirements openly before negotiations start. It will then he for the two sides to reach agreement within those limits".
I suggest that the Government are bobbing about. They do not really know whether they will specify firm limits and tell the negotiators to confine them in that way. They do not know the circumstances in which they will say, "If you do not reach agreement and say what we want you to say, we shall impose the Bill and the orders".
The more we can put on the face of the Bill ways in which the Government might consult and consult and consult again rather than impose the orders, the better it will he for industrial relations and the Government. However, we shall not convince them tonight so I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Turner of Camdenmoved Amendment No. 16:
Page 2, line 7, at end insert "and
(c) should be consulted in accordance with the guidance issued for and advice on "best practice" given to fire authorities in respect of integrated risk management planning,
The noble Baroness said: My Lords, this part of the Bill deals with the use of property or facilities and says that the Secretary of State must consult persons who, in his opinion, are,
"likely to be affected … or … represent persons who are, in his opinion, likely to be so affected".
It so happens that the Government have decided that fire authorities must produce integrated risk management plans. Those are referred to in the agreement recently signed between the fire authorities and the FBU. Those plans will include not only the provision of appropriate cover to respond to tire and other emergencies but take into account other factors such as community fire safety, which is the subject to which the provisions relate.
Guidance notes in relation to consultation have also been produced. They are intended for fire authorities—I have a copy—and are extremely comprehensive. As that guidance is available and presumably has complete government approval, there seems no reason why it should not be used in the framework of the Bill. The Secretary of State will be entitled, within the terms of the Bill, to make orders in relation to the use of property or facilities, the area covered by the guidance in respect of integrated risk management planning.
The issue was not raised in Committee, but is fresh. I would therefore welcome the Minister's comments. The amendment is intended to be helpful. I beg to move.
Lord Wedderburn of Charlton: My Lords, I have had problems—I think that I mentioned them in Grand Committee—about such points. It is perfectly true that the Bill requires, especially in relation to Clause 1(1)(b) orders, a certain degree of consultation. My problem for some time has been that I genuinely do not understand the relationship of the provisions, especially that on consultation with regard to Clause 1(1)(b) orders, with other legislation. I was about to say that that legislation was going through the House, but we have heard tonight that some of it has gone through.
The three relevant pieces of legislation are the Bill, the Local Government Act, and what is about to be the civil contingencies Bill. I do not think it wrong to mention that very important Bill, as your Lordships have set up a special procedure in a committee to consider it. I take it that noble Lords who have shown an interest in this Bill will also know what is being proposed in that Bill. It was from that that we drew many of our suggestions on what might constitute an emergency in regard to Amendment No. 1, which was discussed when we last considered the Bill.

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The Local Government Act contains some discussion of the Fire Service, of course, because it repeals the previous provisions in regard to the Secretary of State's powers. As I understand it, it is primarily the relevant Act under which what is at present a consultation draft has been issued. That draft, mentioned by my noble friend, states:
"Circumstances may arise in which the fire authority might deem it appropriate to amend the policies/standards it has set for prevention and/or intervention activities, or the provision/ location of resources",
and so on. It continues:
"You will therefore need to make arrangements to consult those who may be affected by the changes. These issues are likely to be similar in nature to one or more of those listed in Figure 1, and the guidance given there should form the basis for your decisions about the extent of consultations".
There is a direct link with this Bill, because the consultations on similar matters come under Clause 1 in a rather more vague way. The type of consultation required under the risk management plans and the consultation draft is, first, a list of matters that require consultation with:
"Communities, business organisations, and local authorities in the area covered by the appliance",
or by the arrangements concerned, and with "Employee representatives". Those four matters are:
"Alteration in policies and standards set by the fire authority for attendance to specific types of emergency incident; alteration in the standards and/or targets set for preventative activities to achieve improvement in community safety and/or special appliances; removal from service of pumping and/or special appliances"—
and, lastly—
"change in crewing patterns of one or more appliances, e.g. shift crewed to day-crewed, constant crewed to variable crewed etc".
They require that extensive consultation.
There is another type of consultation required that is restricted to employee representatives. It is not about conditions of service directly—perhaps it is so incidentally. Perhaps the Minister will tell us, as he was directly involved in the Local Government Act. They are:
"Relocation from one fire station to another of a special appliance providing cover across part or all of a brigade's area; changes in the number of personnel provided to crew appliances".
This Bill, or some Bill—the Local Government Act does not do it—should mention the relationship between all those consultations and the consultations which are, in a more vague sense, required by the Bill. It is a separate point from those made in previous amendments. It stands by itself. Critics would say that it asks for joined-up government. The amendment asks what the relationship is between the requirements under that Act and the consultation provisions in the Bill. I support my noble friend's amendment.
Lord Rooker: My Lords, my noble friend referred to joined-up government. The Government are so well joined up that the Bill is a discrete operation. It is not dependent on the Local Government Act, which has just received Royal Assent. It is not connected with the proposed legislation that will flow from the White
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Paper on the reorganisation of the fire services as a whole. It is a Bill that we hope that we do not have to operate.
Given the way that both my noble friends have explained the consultation process, it is easy to see that, in the circumstances in which we know the Bill would be operated, Amendment No. 16 could lead to a situation where it is more difficult for those providing the emergency fire cover at the time to gain prompt access to fire authority assets so that the public can be properly protected.
Therefore, in a way, the case is made, simply because the nature of the consultation that is properly required for drawing up the integrated risk management plan is such that it could—this is why is it not included in the Bill—lead to a situation where we cannot secure prompt access to the firefighting equipment that the services need to fight the fires in the context of the operation of the Bill. I do not mean ordinary situations. It is in the context only of the Bill being in operation.
Amendment No. 16 suggests that those consultations should be conducted in a similar manner to the integrated risk management set-up, which is somewhat different. The guidance that has been issued to fire authorities on that matter rightly includes the list of interested parties that my noble friends have read out. We would expect the fire authorities to consult those bodies.
The integrated risk management plans will be key documents, setting out each fire authority's plans for the standards of emergency cover; local targets; where and when resources should be located et cetera. It is therefore right that the authorities should consult really widely and ensure that all sections of the community—including business, as my noble friend pointed out—have access to the means of influencing the way in which fire and rescue services are delivered in that area. With respect, I must say that that is not what the Bill is about. Therefore, Amendment No. 16, because it would mean that the Secretary of State's ability would be constrained in the circumstances that he would need to operate the Bill, should not be part of the Bill. I ask my noble friend to withdraw it.
Lord Wedderburn of Charlton: My Lords, perhaps I may ask my noble friend to clarify what he has just said. First, the integrated risk management consultation provisions clearly and expressly include situations where there may be an emergency. Secondly, the question that arises therefore is whether Clause 1(4) takes account of that width of consultation.
Subsection (4) has not been set out in the debate. It states:
"Before making an order under this section containing a direction about the use or disposal of property or facilities, the Secretary of State must consult such persons who—

(a) are, in his opinion, likely to be affected by the proposed direction, or

(b) represent persons who are, in his opinion, likely to be so affected, as he thinks fit".

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In making those consultations, will he take account of the width of consultation required by the integrated risk management provisions or not? If he will, that would be some reassurance.
Lord Rooker: My Lords, as I have made abundantly clear, the answer is no.
Baroness Turner of Camden: My Lords, I am surprised at my noble friend's response. As my noble friend Lord Wedderburn said—I am holding the consultation document in my hand—it seems to me that the fire authority integrated risk management planning document makes arrangements for emergencies. I would have thought that the reference to the document was to the advantage of everyone concerned. It clearly sets out the people who should be consulted and makes appropriate arrangements for emergencies.
We have attempted not only with this amendment but with Amendment No. 1 to try to deal with the Government's repeated statement that this is simply a Bill dealing with emergency situations and it is hoped that they will never have to use the powers set out in it. Unfortunately, that is not set out in the Bill. The Bill makes no reference to use only in emergencies. Our attempts to write it into the Bill have simply been rejected by the Government. That is very unfortunate. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McCarthymoved Amendment No. 17:
Page 2, line 8, at end insert—
"(4A) Where the members of the negotiating body inform the Secretary of State that they are in dispute or disagreement relating to a matter on which the Secretary of State submits proposals and that they agree to submit the dispute or disagreement to resolution in a process of conciliation, mediation or arbitration, he shall consult ACAS with a view to establishing such a process with the agreement of the parties.
(4B) Where such a process results in proposals by a mediator or an award by an arbitrator or arbitration body, the Secretary of State shall consult with the members of the negotiating body concerning those proposals or that award before proceeding to make an order."
The noble Lord said: My Lords, in Grand Committee we sought at considerable length and detail to ascertain the Government's attitude to third-party dispute resolution; that is, conciliation, mediation or arbitration which would normally be provided by ACAS.
We are therefore proposing three amendments. A previous one dealt with an agreement reached between the parties which the Government might want to set aside, whether it was the result of third-party dispute resolution or not. We have two more amendments which are more directly related to the question of third-party dispute resolution. Amendment No. 17 relates to a situation in which there is no agreement between the parties but the parties would like to try third-party dispute resolution. Amendment No. 18
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relates to a situation in which there is no agreement but the parties are not agitating for third-party dispute resolution.
It is fair to say that on several occasions the Minister has told us that he is not against third-party dispute resolution. In fact, he said he thought it was a good idea—that is, conciliation, mediation and also arbitration. He stressed to us. as reported at col. GC 283 on 3rd July, the degree to which in this service there are already proposals specifying ways of having third-party dispute resolution. Therefore, how can anyone say that this was a service in which third-party dispute resolution was an alien factor? He said:
"The arrangements in place between the Fire Brigades Union and the employers already cover the circumstances of arbitration—as a last resort. I accept. Paragraphs 13 and 14 of the constitution of the National Joint Council for Local Authorities' Fire Brigades provide that if the council fails to reach agreement on any matter contained in paragraph 8 of the constitution—that is, matters relating to conditions of service—the matter will be automatically referred to ACAS"—
automatically, ex parte. He continued:
"If the conciliation fails to resolve the dispute, either side of the NJC can refer the matter to ACAS for arbitration and the other side of the NJC is required to participate. So the mechanism already exists".
In other words, he sought to argue that various alternative ways of introducing arbitration were not required.
The Minister continued:
"Given—this has to be clearly stated: I think it is accepted; no one disagrees with it, I hope—that the agreement reached on 13th June was signed by both sides of the national joint council, it follows, therefore, that the arbitration procedures of the national joint council constitution can be applied to it if the circumstances require as it progresses through the process".—[Official Report, 3/7/03; col. GC 283.]
That is so, but only if the Secretary of State agrees and only if the arbitration, in particular—that is why we have tabled the amendment—is required as a way of gaining an independent assessment of the solution that the Secretary of State wishes to impose by law.
Perhaps I may take noble Lords back to the dispute which was the genesis of the Bill. I believe it is admitted—it was certainly reported widely in the press—that there were two separate occasions when the parties had either agreed or were about to agree and the Secretary of State intervened. He said that it was no good to reach such an agreement because the Government would not accept it.
Although the Minister told me in Grand Committee that the dispute was not an emergency, nevertheless, if it had turned into an emergency, the Secretary of State would have imposed his own solution at that point because he did not have the Bill then. We are saying that, if he does issue his proposals, there should be some kind of independent access to a verdict which the parties, the newspapers and the public can consider.
Therefore, we say in proposed new subsection (4B):
"Where such a process results in proposals by a mediator or an award by an arbitrator"—

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that is, whatever the parties are able to agree—
"… the Secretary of State shall consult with the members of the negotiating body concerning those proposals or that award before proceeding to make an order".
Therefore, the parties do not have that already as a way of appealing against an order. We are not saying that if they decide to come to the Secretary of State and say, "We would like to have what is essentially an independent assessment of your solution", that that immediately becomes a binding arbitration on the parties. We are saying that that was never available to the parties in the previous dispute.
If the Government are to be. in effect, the ghost at the bargaining table, outside the process and telling the employers what they can agree, and, subsequently, if the employers reach an agreement which the Government dislike and do not want and they impose their decision upon the parties, then there should at least, in the interest of equity, be some kind of independent assessment of the validity and fairness of what is about to be imposed by law. I beg to move.
6.45 p.m.
Lord Rooker: My Lords, I apologise to my noble friend, who quoted what I said in Committee, because what I am about to say is word for word what I said then, so he will hear it for the second time. I believe the reasons are wholly justified because, frankly, we cannot accept Amendment No. 17.
There is a set of amendments, some of which we shall come to shortly, which would make it difficult for the Secretary of State to exercise the powers in the Bill which. I repeat, the elected House, although not having debated all the details, has agreed in principle he should have.
A number of noble Lords and, indeed, some Members of the other place, have repeatedly called for the Bill to provide for arbitration between the parties. We have made it clear that in the Government's view—I keep putting a caveat on this—in circumstances where the Bill is in operation and where it is necessary to draw a line under any future dispute, it is not appropriate to include such provisions in the Bill. We have said that for a number of reasons.
We believe that the democratically elected Secretary of State with overall responsibility for the fire service—the Deputy Prime Minister—is the appropriate person to settle the dispute if the two parties cannot agree. That is in the context of the Bill where he has to impose a solution; I accept that.
The major causes of disagreement in the recent dispute have been on matters which are not capable of being arbitrated; for example, how the service should move from nationally prescribed standards of fire cover to a locally determined risk-based approach to fire cover.
It is difficult to see how even the best independent arbitrator could be better placed to make informed judgments than those directly involved in managing the service, or those in Government with policy responsibility for it.
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I repeat that the Bill requires the Secretary of State to consult a negotiating body on his proposal for when he will fix or modify; that is, impose conditions of service. That means that he has to take into account their views before making his final decision. He will be required to do that otherwise he would be up before my noble and learned friends.
Lord Wedderburn of Charlton: My Lords, I will not go into the question of when that could be raised in court. I think that that is highly speculative. What I want to put to my noble friend—I am grateful to him for allowing me to do so—is that the Government have accepted (we are not concerned with the clause at present but the Bill is joined up) a new clause in the Bill which refers to the June 2003 agreement between the Fire Brigades Union and the local authority fire service employers, and accepted a statement, for what it is worth, that the Act does not affect the possibility of parties agreeing on a reference to mediation. conciliation or arbitration.
That shows an intent not to effect that. The disputes procedure already agreed between the same two parties under the grey book applies quite clearly and expressly to the 2003 agreement. If the parties do that, is it so unreasonable to ask the Secretary of State, as our amendment seeks, that when they have done that and received some kind of answer, which might solve everything—I do not know what sort of dispute is envisaged; the Minister should spell out just what sort of dispute he envisages, at least in general terms—to say, "Surely, Secretary of State, before you impose an order. you should consult the members of the negotiating body who have used that procedure, which is already expressly envisaged in Clause 2 of the Bill"?
Lord Rooker: My Lords, my noble friend asked a question: yes. it would be unreasonable in the circumstances in which the Bill will operate, as I have said. This is where I start to repeat myself, for which I apologise but I must put this on the record.
At the end of the day, unusual circumstances will be involved. I repeat that we do not wish to operate the Bill—I have said that repeatedly so that my comments will not be taken out of context at any time in the future—and things are going well, to be best of my knowledge, in terms of the recent resolution to the fire services dispute. The various timetables have been agreed. This is only, as I said, a longstop. I am not denying that the provision is draconian. But the Secretary of State must be in a position to be able to draw a line under a dispute and then not be subject to challenge, but to do it in accordance with the power given to him by Parliament.
However, as I said in Grand Committee, there is another reason why the Bill does not need to provide for arbitration. That is because the arrangements already in place between the Fire Brigades Union and the employers already cover this. As my noble friend has read out, paragraphs 13 and 14 of the constitution

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of the National Joint Council for Local Authorities' Fire Brigades provide that if the council fails to reach agreement on any matter contained in paragraph 8 of the constitution—that is, matters relating to conditions of service—that matter will automatically be referred to ACAS for conciliation. If conciliation fails to resolve the dispute, either side of the NJC can refer the matter to ACAS for arbitration, and the other side of the NJC is required to participate.
So the mechanism already exists. As I have said before, given that the agreement reached on 13th June was signed by both sides of the National Joint Council, it follows that the arbitration procedures of the NJC constitution can be applied.
I hope that what I have just said will reassure my noble friends on Amendment No. 17. I should make it clear that in the event of the parties agreeing to seek arbitration, it would be extremely unlikely that the Secretary of State would want to exercise his powers to fix or modify conditions of service, if he considered that there was a realistic prospect that the two parties could, by seeking arbitration, resolve their differences. But it would, in theory, remain open to the Secretary of State to exercise his power at any time.
I hope that I have been able to give some clarification on the options available to the two sides—the employers and the employees—in the event of a further dispute, or a disagreement, on the interpretation of the current agreement. That is what it is about. As a result, I respectfully request my noble friend to withdraw the amendment.
Lord McCarthy: My Lords, I want to make two points. My second point is about how I do not think the Government have yet grasped what we are saying. On the first point—I say very gently; and I am not trying to be difficult—the Minister in this debate and in Grand Committee mentioned on several occasions the fact that we should do something—and I am not quite clear what it is we should do—because something has happened in another place. He says that in the other place, which is democratically elected, a decision has been taken and that in some vague way that especially should influence what we do.
I thought I understood what that meant we should do. There are conventions in this House—there are practically laws—about the powers of this House in relation to the other place. They apply to every Bill that is placed into this House. I do not know why it is being stressed especially, as though there was something additional about this Bill. Unless, of course, the Minister is arguing that our amendments are wrecking amendments; that we are trying in some way to wreck the Bill; and that we are introducing all kinds of delaying tactics—filibustering and so on—which are not done in other parts of the House on other Bills: something particularly heinous is being done.
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That is not the case. It is not our opinion that that is what we are doing. As I said in Grand Committee, and I shall say it again, the Government have everything but the argument. I do not know why they must have the argument as well. They have got the power; they have got the numbers; and they will get their Bill. No one is trying to frustrate or blow up anything. All they cannot win is the argument. I am sorry about that, but that is the way it is.
I wish to make a point about the amendment that has not been taken on board by the Minister; this is, it would not hold up or frustrate a decision on the part of the Secretary of State. That applies to the next amendment, which I shall move much more briefly, because it deals with the same matter. This amendment would not stop the decision. All that it is saying is that, as a matter of policy, the Minister ought to encourage the use of third party dispute resolution. It is no good reciting what exists already because the Minister is not saying that that applies to an order.
The Minister said that when an order was decided, it comes down instantaneously: "Boom", it goes into the contract. There is no arbitration. After the consultation process, the Secretary of State says" "I am now going to impose an order which is legally binding on all employers"—we will not debate what is legally binding because we have done so previously. But that is an order. He is not saying that the employer can then go to arbitration. All the existing facilities created before this Bill apply to the circumstances when this Bill does not apply.
Arbitration is the wrong word. We are too conventional. We are saying that, in this country—in the absence of incomes policy, I would say, but I will leave that aside—a pretence is growing, quite naturally, that employers and workers in the public sector negotiate like they used to do, as I quoted from the White Paper, as though the Government are stopping outside. They are not. They are, what I called in Committee the,
"ghost at the bargaining table".—[Official Report, 3/7/03; col. GC 290.]
The Government are deciding what the employers can say. I do not complain about that: those are the facts of life.
However, that means that workers are engaged in industrial action—as the postmen nearly did the other day; and I am very glad that they did not—and there is no appeal against the decisions of the Government. The Government are deciding and nobody even knows what arguments they are using at the bargaining table.
In my experience, employers, both government and private sector, always consistently get one thing wrong—they exaggerate the benefits that will come from their novel proposals. I have said this before. Nobody believes me, but, as we will find out, nothing will be saved by the proposals and everything will be spent by this new method. It always is. There cannot be self-financing productivity deals in the public sector because one cannot charge at the point of distribution. It always costs more money than is saved. It is bound to. However, governments and private sectors and

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people half-way in and half-way out always believe that we are going to save vast sums with more intelligent ways of working. They do not save very much, but that, on the whole, is what independent assessment uncovers. I am not talking about arbitration.
Lord Campbell of Alloway: My Lords, with the greatest respect to the noble Lord, are we not getting a little way away from the amendment on the general policy of government?
Lord McCarthy: My Lords, I have probably gone on far too long, but the Government are listening, if only for two minutes. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Grocott: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.
House adjourned at one minute before seven o'clock to Monday 6th October at half-past two o'clock, except for judicial business.

Northern Ireland (Monitoring Commission etc.) Bill [H.L.]
Bill returned earlier from the Commons agreed to with a privilege amendment; the amendment was considered and agreed to.