Lords Sitting of 4 March 2004

Preamble
The House met at eleven of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bingham of Cornhill): The CHAIRMAN OF COMMITTEES on the Woolsack.

Horse Passports
Lord Dixon-Smith: My Lords, at the request of my noble friend Lord Burnham, whose car has broken down, I beg leave to ask the Question standing in his name on the Order Paper:
To ask Her Majesty's Government why VAT is payable on horse passports when it is not payable on passports for people or cattle.
Lord Davies of Oldham: My Lords, passports for UK citizens and for cattle are issued under statute by public authorities. On the facts available, Customs believes that horse passports will be issued commercially by non-public bodies. Under VAT law the services of non-public bodies are normally subject to VAT when a price is charged.
Lord Dixon-Smith: My Lords, I am grateful to the Minister for that explanation. Does he agree that there is an unfortunate coincidence in type, if not in practice, and in who issues the passports? Did the Government look sufficiently carefully at parallel issues before coming to a conclusion?
Lord Davies of Oldham: My Lords, our VAT laws are quite specific and are drawn up in the context of the European position on VAT. They are as stated, that if horse passports were issued by a public body—I understand that they will not be so issued—they would not be subject to VAT. But we are mindful of the fact that there is potential discretion in this area and we are aware that representations are being made. Therefore, the mind of the Treasury is not entirely closed on the matter.
Lord Livsey of Talgarth: My Lords, would it not be better if horse passports were issued by a public body and if there were no VAT on them? In Wales the value of some horses being exported can be as low as £25. That can be the value of a pony. If that is the case, surely the administrative costs alone would mean that it would not be worth enforcing VAT on such passports.
Lord Davies of Oldham: My Lords, that may be an area for further discussion, but the noble Lord will recognise that the most convenient way for horse passports to be issued is through the various horse associations. They are private bodies and are therefore subject to the law.
Lord Campbell-Savours: My Lords, could not such work simply be transferred to Workington, my former
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constituency, where there is the cattle traceability centre? That is precisely the kind of work that the centre has been doing for a long time.
Lord Davies of Oldham: My Lords, I am grateful to my noble friend for that constructive suggestion. I am reflecting the fact that we are aware that this is an irksome problem and one that appears to have an element of unfairness about it. The issue with regard to cattle, subject to public regulation and the issuing of passports, is different and does not suffer the incubus of VAT. Representations, such as that made by my noble friend, may prove to be helpful.
Baroness Masham of Ilton: My Lords, will very old family ponies that will never go into the food chain be required to have passports?
Lord Davies of Oldham: My Lords, the issue of the requirements of horse passports is a little remote from this Question which concerns purely the taxation element. I hear what the noble Baroness says. She will recognise that there is always the matter of definition when it comes to the issue of documents such as animal passports.
Baroness Byford: My Lords, does the Minister accept that the whole scheme is a sledgehammer to crack a nut? Much more thought could have been given to the proposition when it was first produced. The Minister has clearly said that VAT will be charged because other organisations will have to collect it. Defra must have known that in the first place, so when the department came up with the original scheme why did it not put it through as a government scheme? It would help if the Minister could assure the House that the matter will be reconsidered. It is typical of Defra to fall down in its duty to come up with a proper scheme, a scheme that is not welcome in the country.
Lord Davies of Oldham: My Lords, Defra was responding to a very real issue with regard to the transport of animals and the transfer of animals across borders. I hear what the noble Baroness says and that is why I have indicated that representations are being made and the Government are in listening mode.
Lord Cope of Berkeley: My Lords, the Minister has just said that a European directive somehow inhibits the Government from moving on this matter. I have some knowledge of such matters, but off the top of my head I do not know the directive. Which European directive inhibits the Government from moving on the matter if they wished to?
Lord Davies of Oldham: My Lords, it is Directive 6, governing VAT, which allows public bodies and

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statutory bodies not to have charges of VAT placed upon them; whereas non-public bodies, of course, do not fit into that category.
Lord Acton: My Lords, can my noble friend say how many horse passports are issued each year and how much VAT is raised?
Lord Davies of Oldham: My Lords, we are at the beginning of the scheme so at present I do not have those figures.
Baroness Byford: My Lords, perhaps I may help the Minister. At the moment horse passports are held by breeders and people who compete internationally. This is a totally different scheme which ensures that horses that have been given certain drugs cannot be used for human consumption. It is a totally new scheme. My question concerned Defra's mess. The scheme should have been introduced back in December. It has now been delayed until July, so it is not due to come into being until July. That is part of the problem and it is why we are trying to get the imposition of VAT reconsidered.
Lord Davies of Oldham: My Lords, that may be a subtle way of the noble Baroness asking her question twice, but I shall not answer it twice.

Film Production Tax Relief
11.7 a.m.
Viscount Falkland Viscount Falkland asked Her Majesty's Government:
Whether they will consider transitional arrangements following the termination of film production tax relief for investors so as to allow current projects to continue without the need for financing packages to be restructured.
Lord Davies of Oldham: My Lords, film production tax relief has not been terminated. A number of tax reliefs exist specifically for film production and remain available for film makers. The most frequently used are known as Sections 42 and 48 relief. What have been terminated are certain highly aggressive tax planning schemes that used general accounting principles to create paper trading losses for wealthy people. The Government acted decisively on 10 February to stop that abuse with immediate effect.
Viscount Falkland: My Lords, the Minister has attributed to me an objection to matters that I had not intended to raise. He must know that the sudden end to what was accepted by the film industry as being quite a reasonable closing of a perceived and actual tax loophole was not expected to be introduced as abruptly and with such a retrospective flavour as it was. As I am sure the noble Lord knows, it has caused the termination of about 40 film projects and has put at risk a number of production companies, with all the hardship that that entails for employment and so on. Was that decision taken, at such high cost, because of
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the gravity of what was perceived to be damaging to the nation as a tax loophole? Did his department not realise what absolute turmoil would be caused in the industry by such a sudden decision?
Lord Davies of Oldham: My Lords, I am grateful that the noble Viscount recognises, as the industry does, that serious abuse was taking place. The Treasury's motivation was with one objective solely in mind: to end the abuse of the tax system. That abuse represented £100 million and was therefore considerable.
The closing of the loophole is not retrospective; it was implemented on 10 February and stopped the abuse from that point. But I appreciate that, as the noble Viscount says, there have been effects upon the film industry, and we recognise that representations are being made in that respect.
Lord Trefgarne: My Lords, I have an interest in this matter as I have a son who works in the industry. Is the noble Lord proud of the fact that a dozen or more major film productions have either been cancelled or delayed and that a number of film workers have been placed out of work, or is he grievously ashamed, as he should be?
Lord Davies of Oldham: My Lords, the reliefs available to the film industry extend to about 15 per cent of production costs. The tax avoidance schemes being employed took those exemptions as high as 45 per cent. The Treasury had to act to stop such a significant abuse. The film industry agrees with the position we have taken.
The noble Lord's remarks reflect the fact that several films in production were based upon this source of finance and are now looking for other sources of finance which do not fall foul of these requirements.
Baroness McIntosh of Hudnall: My Lords, does my noble friend accept that—notwithstanding the point he quite rightly makes, that this was a tax loophole that needed to be plugged—to call this action not retrospective fails to take account of the fact that film preparation takes a very long time? One major project lost in this mêlée was in preparation for six years and was about to go into production and will not now do so. Although technically what my noble friend says is correct, will be accept that possibly there is an argument for suggesting that projects that have been that long in preparation are being quite unfairly punished by the sudden closure of this loophole?
Lord Davies of Oldham: My Lords, of course we are aware of the long production costs for films. That is why the Treasury has signalled that one of the reliefs due to expire in 2005 is the subject of discussion between the Treasury and the film industry in order to safeguard the future. The Chancellor has made clear that we will be looking towards ensuring that there is proper consideration for the film industry in the next Budget Statement. But this particular abuse had to be stopped forthwith. That was done.
Baroness Strange: My Lords, is the Minister aware that as a result of this many films will now not be made

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in Britain but in other places, such as the Isle of Man? It is surely better to have some tax coming in rather than none at all.
Lord Davies of Oldham: My Lords, the situation is that the legitimate tax reliefs make the British film industry and the making of films in Britain competitive with most other countries. Reflected in the abuses taking place was an extraordinarily advantageous scheme for a limited number of people, and the Treasury had the right—and in fact the duty—to put an end to it.
Lord Tebbit: My Lords, does the Minister not regard this as a classic example of the effects of friendly fire?
Lord Davies of Oldham: My Lords, I think not. The Treasury remains on the side of the film industry, to the extent that we intend to ensure the support which has been offered in the past with regard to legitimate tax reliefs. In fact the industry is in discussion with the Treasury with regard to the future position on this. The Chancellor has already signalled his intent in the matter.
The fire was directed at people who were using tax avoidance in an exceedingly extravagant way and the Treasury has the right to safeguard public revenues by dealing with such forms of tax avoidance.
Lord Morgan: My Lords, does my noble friend agree that in fact the Treasury need not be on the defensive in this situation at all? In fact it should be congratulated on stopping widespread abuse and a proper attempt to aid the film industry. There is nothing to apologise for.
Lord Davies of Oldham: My Lords, I am grateful to my noble friend for making explicit what perhaps I was dealing with in a more rotund way.

Coal-based Technologies
11.15 a.m.
Lord Ezra Lord Ezra asked Her Majesty's Government:
What is their policy on coal-based technologies which can contribute to a reduction in carbon dioxide emissions.
Lord Triesman: My Lords, the Government's recent energy White Paper recognised that, for security of supply reasons, coal still has a role to play in the UK's energy mix. Coal will continue to play a major part in energy production in countries such as China and India which offer business opportunities for British companies.
However, in order to meet the strict environmental requirements, coal-fired power generation must be much cleaner than it is today. To encourage this, the DTI is developing a carbon abatement technologies strategy which will take forward and expand the work
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of the current Cleaner Coal Technologies Programme. We plan to publish the new strategy in the summer. In the mean time, we have recently published a final call for research and development proposals under the current programme, which must be worth about £4 million of government funding.
Lord Ezra: My Lords, I thank the noble Lord for that response. Does he recall that in Grand Committee on 12 February, in response to an amendment I moved in support of new coal technologies, the noble Lord, Lord Whitty, said:
"Rather than encourage an increase in coal-based technologies we are looking to reduce the use of coal through various mechanisms"?—[Official Report, 12/2/04; col. GC 562.]
In the light of the noble Lord's Answer to my Question on the Order Paper, will be confirm that that should not be taken to mean that the Government are in any way going back on what was stated in the energy White Paper in support of clean coal technologies?
Is the noble Lord aware that the United States is spending 1 billion dollars to develop a large coal-fuelled plant with near zero emissions?
Lord Triesman: My Lords, I thank the noble Lord, Lord Ezra, for reminding me of the discussion, held relatively recently, in Grand Committee. I confirm that we have not resiled in any respect from the energy White Paper. It was fully supportive, as the noble Lord reminded us, of cleaner coal technologies and recognised that, to exist in a low carbon world, emissions from coal use must also be reduced considerably. The Government are working with the industry to look at technologies to tackle that problem. We are still pursuing the Cleaner Coal Technologies Programme and the fourth call offering of about £4 million in support was announced in January.
I am aware that in the United States, and indeed in some other countries, large sums are being spent in the cleaner coal technologies area. My understanding of the matter, which will in no sense match the understanding of the noble Lord, Lord Ezra, is that their strategic reliance on these fossil fuels remains very much greater than ours.
Lord Jenkin of Roding: My Lords, does not the question in fact go wider than that? Has the noble Lord seen the report that last year—in 2003—the emissions of carbon dioxide actually increased by some 3 per cent, representing approximately 4.5 million tonnes more from burning fossil fuels than in 2002? Is not part of the problem the fact that the Government have now set their face against fossil fuels—and I recognise that—to the extent that they are denying help to processes like coal mine methane and combined heat and power on the grounds that these are fossil fuels, while pouring all the money into wind farms? Yet those other two technologies will reduce CO2 a great deal more than the programme of wind farms. Have the Government now got their priorities wrong?
Lord Triesman: My Lords, the priorities must be right. Coal emits about twice the CO2 emissions of a natural,

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gas-fired plant. That is plainly disadvantageous in the present circumstances in an emissions trading regime or in a regime where we are trying to protect the environment in the way that the Government's Chief Scientific Adviser, Professor Sir David King, urged in a recent speech in Seattle, which I think was referred to in your Lordships' House only yesterday.
These are important factors. Wind generation emits none of these toxic substances into the atmosphere. These technologies are plainly directed at trying to improve the environment, which is at the moment subject to serious harm. That does not rule out the undertakings that I have given that the arguments in the energy White Paper for cleaner coal use will be sustained.
Lord Livsey of Talgarth: My Lords, does the noble Lord agree that the point put by the noble Lord, Lord Ezra, is that the technology does exist, albeit that it is being developed in countries other than the UK? Emissions can be much lower. Surely, the point is that the coalfield communities in particular have been absolutely devastated socially over the past 20 years or so. We need new developments to stimulate those communities, which in some places are now on their last legs.
In Wales, the landscape is being devastated by wind farms. Our coalfield communities are still suffering. Surely, now is the time to make a decision. We should not delay with further research and development, when the technology already exists.
Lord Triesman: My Lords, my understanding of the economics of the proposition that has just been made is that many of these technologies are not yet in a finely developed form and that they are relatively expensive. That has been somewhat of a sheet anchor in each of the instances where people are developing them. That is not an argument for not trying to develop them, but it is an argument about the relative cost of doing so. Appropriately regulated markets that can respond to changing prices in electricity should ensure that generators provide sufficient electricity to meet our needs and make rational choices about the methodology for doing so. It must be right to look at new technologies thoroughly—I fully accept that argument—but for future generations, we must balance the economics and the environment correctly.
Lord Clark of Windermere: My Lords, I declare an interest as chair of the Forestry Commission. I remind my noble friend that wood is a renewable, and that many of the technologies needed to burn wood are similar to those used for burning coal. Can the Minister assure me that some of the advice and some of the assistance that comes from the DTI will also apply to wood-burning power stations?
Lord Triesman: My Lords, I thank my noble friend for the question. I hope I have indicated on behalf of
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the Government that we are keen to ensure that there is a diversity of sources of supply of energy, and in that light, I think that the assurance can be given.

Northern Ireland: Paramilitary Activity
11.23 a.m.
Lord Smith of Clifton Lord Smith of Clifton asked Her Majesty's Government:
What further policies they have for reducing loyalist and republican paramilitary activity in Northern Ireland.
The Lord President of the Council (Baroness Amos): My Lords, the Government are determined to root out paramilitary activity. The Organised Crime Task Force has been established to develop a multi-agency approach to organised crime, which has a significant paramilitary involvement. The Assets Recovery Agency seizes the assets of those paramilitaries who profit through crime. The Independent Monitoring Commission was established to monitor and report on paramilitary activity as part of its overall remit.
Lord Smith of Clifton: My Lords, I am grateful to the Lord President for that reply. What are the relative numbers of loyalist as opposed to republican outrages over the past year? What arrests and charges have been made subsequently by the Police Service of Northern Ireland over the same period of loyalists and republicans respectively? Given the likely discrepancy between these two figures, what further action in addition to the Organised Crime Task Force will the Government take to alleviate the situation?
Baroness Amos: My Lords, in 2003, eight murders were attributed to loyalist groups and two to republicans; 44 bombing incidents and 139 shootings to loyalists; 28 bombing incidents and 77 shootings to republicans. Of the shootings, 154 were so-called punishment attacks, with 99 attributed to loyalists and 55 to republicans. In addition, there were 148 paramilitary assaults, with 102 attributed to loyalists and 46 to republicans.
The noble Lord, Lord Smith of Clifton, also asked me about arrests and charges. On arrests, the information is not readily available. We are looking at this, and I am happy to write to noble Lords on the matter. On charges, in 2003, 121 persons were charged under the Terrorism Act 2000; 91 were loyalists and 29 were republicans. One as yet is unattributed. Of these, eight loyalists and one republican were charged with murder, and nine Loyalists and two republicans with attempted murder.
Lord Rogan: My Lords, will the Government formally recognise that these paramilitary activities are a cancer in society and are hindering, if not in fact completely stopping, political progress in Northern Ireland?
Baroness Amos: My Lords, I totally agree with the noble Lord, Lord Rogan. The Government have made it absolutely clear that all paramilitary activity must

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stop. It is clear from the event of a week last Friday that progress is not possible without the cessation of paramilitary activity.
Lord Dubs: My Lords, in her Answer my noble friend mentioned the Assets Recovery Agency, which I believe has been in operation for just over a year. Could she say anything about how successful that agency has been?
Baroness Amos: My Lords, I think that the agency has been in existence now for some 18 months. Its success in stripping criminals of their ill-gotten gains has been very good indeed, and I congratulate the assistant director on his contribution in the fight against organised crime in Northern Ireland. It is currently dealing with 20 live investigations, with combined assets of around £8 million. In six of these cases, the agency has been successful in freezing or pursuing through taxation the value of almost £2.75 million, which includes freezing assets last week in excess of £500,000.
Lord Glentoran: My Lords, is the Lord President aware that recently the Chief Constable of Northern Ireland told a meeting of the Policing Board that republican and loyalist terrorist groups were ignoring the demands of the British and Irish Governments for the cessation of paramilitary activity, and furthermore that the IRA has carried out more than 50 punishment beatings and shootings over the past year. Does she agree with me—I am sure that she does not—that so far the Government's efforts to contain this have been totally ineffective? What will she do, and what will the Government do, to start to put more realism into the fight against paramilitaries in Northern Ireland?
Baroness Amos: My Lords, I am aware of the comments that were made by the Chief Constable. The noble Lord, Lord Glentoran, is right—I do not agree with him. As the noble Lord is aware, we have sought to look at these issues in the round. There has been some pressure on the Government, as the noble Lord knows, with respect to our assessment of the ceasefire arrangements of various paramilitary organisations. We do not make a judgment on the basis of individual incidents. Of course, the incident on 23 February does not sit well with the statements that were made by the IRA and Sinn Fein last October. We are well aware of that.
Lord Tebbit: My Lords, does the Minister agree that the prime difference between republican and loyalist terrorist groups is that republicans are protected by being behind the front of a recognised political party? Have the Government had any help from Mr Adams or Mr McGuinness by way of information about the organisation and activities of their private army?
Baroness Amos: My Lords, the noble Lord, Lord Tebbit, will be well aware that the Government have been engaged in discussions with respect to the Belfast agreement and the review process with all the parties. We will continue to
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do our best to bring cessation to paramilitary activity in Northern Ireland. We are well aware of the impact that this is having on our ability to make progress in Northern Ireland. We want to see a cessation and the people of Northern Ireland want lasting peace.

Patents Bill [H.L.]
Lord Triesman: My Lords, I beg to move the Motion standing on the Order Paper in the name of my noble friend Lord Sainsbury of Turville.
Moved, That it be an instruction to the Grand Committee to whom the Patents Bill has been committed that they consider the Bill in the following order:

Clauses 1 to 5,

Schedule 1,

Clauses 6 to 14,

Schedules 2 and 3,

Clauses 15 and 16.—(Lord Triesman.)

On Question, Motion agreed to.

Anti-terrorism Review
11.30 a.m.
The Minister of State, Home Office (Baroness Scotland of Asthal)The Minister of State, Home Office (Baroness Scotland of Asthal) rose to move, That this House takes note of the work of the Privy Counsellor Review Committee on the Anti-terrorism, Crime and Security Act Review Report.
The noble Baroness said: My Lords, in taking note of the Motion, I ask the forgiveness of the House if I pray in aid the substance of the remarks my right honourable friend the Home Secretary used in another place on 25 February, where I know that there was a detailed and balanced examination of the measures contained in the Anti-terrorism, Crime and Security Act 2001. I am confident that we will undertake this process in a like manner, and I am aware that many noble Lords will wish to contribute to the debate.
First, I thank the right honourable and noble Lord, Lord Newton, and the members of the Privy Counsellor Review Committee for their dedicated work. We in the Government all appreciate the time, energy and commitment they have put into the task that both Houses gave them in the 2001 Act.
I also thank the noble Lord, Lord Carlile, for his continuing work and his further annual report on Part 4 of the Act. This report will be of great assistance to us when we come to debate the renewal of the Part 4 powers next week. Finally, I thank the members of the Joint Committee on Human Rights for their timely report.
When we first introduced the ATCS Bill into this House, we deliberated at length and knew then that we had to face a new and unprecedented situation because of the threat posed to the very life of this nation. We

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had to consider and debate difficult issues and balances between the need to protect the life of the nation and the need to preserve individual freedoms and rights—issues that go to the heart of our democracy.
The issues that we face now are no less difficult, two years further on. We still face the same threats and the same dilemmas. The Privy Counsellors' review has been invaluable in terms of reflecting back to us all the issues that we raised then and the way in which we have implemented the powers contained within the ATCS legislation.
Neither the Government nor the committee have shied away from the fact that this is an extremely complex area which requires us to examine carefully how we interfere with some of the most fundamental rights of individuals in order that we might protect the wider communities in which we all live and work. In this case, the balance we must strike is to find a proportionate solution that best protects us from the threat that international terrorism poses to us and to our allies while interfering as little as possible with the rights of individuals.
I cannot promise that I will have all the answers today, but as my right honourable friend the Home Secretary has been at pains to stress, he wishes to engage across the full spectrum of views so that we can fully consider how we ensure that we continue, both now and in the future, to have the most effective measures to fight terrorism and to deal with international terrorists.
A report of the stature of that produced by the committee demands the most careful and testing scrutiny. I can assure the House that the report has received this level of attention. The report has been one of the principal means by which the Government have been able to test the validity of their approach to counter terrorism. As such, it has been, quite frankly, invaluable.
The process of examination that we have undertaken, both in the form of statutory reviews and the ongoing internal process of ensuring that we have the necessary measures in place to protect us have demonstrated that there are no perfect solutions. Noble Lords would not expect, I think, a government to accept without reservation all the recommendations in the report, no matter how august the membership. That is the case in this report.
A significant section of the report and its recommendations dealt with the Part 4 detention powers. I will return to these in detail but it is important to be clear that while we appreciate the genuineness of the report's recommendation that these powers should be replaced as a matter of urgency, we believe that they are still necessary and proportionate and that none of the suggestions so far put forward would offer a complete or more workable alternative. While we understand the basis for some of the criticisms of these powers, they have worked and have made the United Kingdom a more hostile
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environment for international terrorists. There are, however, other suggestions where we are in agreement with the committee, and I shall outline them shortly.
As the final document to inform our debate today, I commend to the House the discussion paper that the Government published on 25 February, which includes our formal response to the Newton committee's report.
My right honourable friend the Home Secretary has produced a document which outlines the threat and the challenges that we face and, against this background, invites contributions on how to deal with international terrorists and the threat they pose. The challenge is how we deal with terrorists while protecting our democratic life and maintaining our commitment to the principles of democracy, good government, justice and the presumption of innocence—the very values that they seek to undermine. The discussion must occur in an environment that allows us to address the issues calmly, sensibly and in an informed manner, as we are doing today and have done in previous debates.
The Government welcome a number of the suggestions that the committee has put forward. We are considering further the idea of specialist terrorist cash seizure hearings. Consultation on this issue is being taken forward.
The Government have agreed with the committee's recommendation that Revenue departments should include statistics on the use of disclosure of information cases under Part 3 of the ATCS Act. We have already published information relating to the individual SIAC cases and Terrorism Act arrest figures on the Home Office website, as recommended by the committee.
The Government have agreed to revisit and renew the "Australia list" in Schedule 5 of the Act. The Australia list is a common control list of dangerous pathogens and toxins, and we are happy to amend in line with the latest scientific opinion. This is in line with the recommendation made by the Newton committee.
The Government have also acknowledged the points made by the committee in relation to Special Branch facilities at airports and ports and has been working closely with the relevant authorities for some time on how the situation is to be improved.
The Government agree with the committee that there is a need for data retention for the purposes of fighting crime and, in the light of the review committee's comments, are considering whether mainstream legislation is necessary in this area. The Government agree with the committee's recommendation on Part 13 that the noble Lord, Lord Carlile, should keep Section 117 of the Act under careful review. Section 117, with which I am sure noble Lords are familiar, creates an offence of withholding information relating to a terrorist incident.
For many years, governments of various hues have been subject to intense criticism for the approach they have adopted in countering terrorism. One of the constant refrains is that whatever approach the Government adopt, it is not the right and proper one. The main recommendation of the report in relation to

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Part 4 of the Anti-terrorism, Crime and Security Act was that we should, as a matter of urgency, replace them. The report states:
"New legislation should: deal with all terrorism, whatever its origin or the nationality of the suspected perpetrators; and not require a derogation from the European Convention on Human Rights".
I am afraid that there are very real difficulties in doing that. We need to look back perhaps at why we introduced those powers and the threat that we faced and, regrettably, continue to face today.
My right honourable friend the Home Secretary, whose responsibility it is to reach those conclusions, believes that there is a continuing threat to the nation. His decision is based on information from a wide variety of sources and is kept constantly under review, but it is a real and continuing threat.
That threat has been most succinctly described by the director-general of the security services, Eliza Manningham-Buller, who recently said:
"I see no prospect of a significant reduction in the threat posed to the UK and its interests from international terrorism over the next five years and, I fear, for a considerable number of years thereafter."
Having made reference to Eliza Manningham-Buller to illustrate my case, I echo the Home Secretary in formally recording our thanks to the Secret Intelligence Service, to the police and to all the other intelligence gathering agencies for their efforts in continuing to combat terrorism and to make the United Kingdom a safer environment. One of the principal difficulties they face is that the major part of the fight—prevention—is never seen or acknowledged. It is only in the aftermath of tragedy that we see whether a system, process or security measure has failed. My right honourable friend has the privilege and onerous duty of seeing the evidence of what they are doing and how they are doing it and of accepting the political responsibility for dealing with it.
I make no apologies for reiterating those comments or for reminding the House of examples of the atrocities that have been carried out by those whom we believe to pose a threat to the United Kingdom: in Bali, where 202 people were killed; in Casablanca, where 44 people were killed; in Riyadh, where 34 people were killed; in Jakarta, where 12 people were killed; and in Istanbul, where, at the end of last year, more than 50 people lost their lives, including our Consul-General and members of his staff.
Those are continuing threats that are taken seriously by all democratic nations, and rightly so, given the tremendous threat from Al'Qaeda, repeated by Osama bin Laden on numerous occasions. In February of last year, he said:
"We also point out that whoever supported the United States, including the hypocrites of Iraq or the rulers of Arab states, those who approved their actions and followed them in this crusade war to fighting with them or providing bases and administrative support to them or any form of support, even by words, to kill Muslims in Iraq should know that they are apostates and outside the community of Muslims. It is permissible to spill their blood and take their property".
That is a direct and continuing threat—not in theory, but in practice—to our lives, to the well being of our country, to the values that we hold and to our
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democracy. Our assessment was, and continues to be, that the threat is predominantly, but not exclusively, from foreign nationals.
The Home Secretary asks that in our consideration of those issues, some of which are extremely important, we bear in mind the nature and level of the threat and what it means to all of us. However, like the Home Secretary, I freely admit to addressing noble Lords with some trepidation, because when this House passed the Act, we debated the substantial dangers involved in any democracy taking such powers as we did when we enabled the Special Immigration Appeals Commission, as a superior court of record chaired by a High Court judge, to deal with those cases in circumstances where we knew that information pertaining very directly to national security would have to be provided to a court. We therefore established facilities outside the normal criminal justice system.
Many Members of both Houses raised perfectly legitimate issues about the challenge that such a course of action posed to human rights and the presumption of innocence. I stress that that is not a criminal trial process. It is an immigration power designed to address the fact that the threat comes principally, but not exclusively, from foreign nationals whom we cannot deport.
I can only reiterate that we did not take that decision lightly. In all other ways, the position we are in today is not one that any of us would have chosen, but the events of September 11 have fundamentally changed both the threat and the way that we must view it. We introduced the powers in Part 4 of the Act because we believed at the time, and continue to believe, that given the nature of the continuing threat and the absence of any credible alternatives, they offer the only way of protecting our security from international terrorists and from non-British citizens whom we could not remove from this country. We have brought those measures into being as a response to the most extreme circumstances.
It is perhaps worth pointing out that we cannot remove those foreign nationals precisely because we respect international conventions and the human rights of individuals who would be put at risk if they were returned to their country of origin, where they face possible death or torture. Our desire to remain within international law led us to derogate from Article 5. That is expressly provided for under Article 15 of the European Convention on Human Rights to the extent strictly required by the exigencies of the situation.
I acknowledge that the rights of individuals have been affected by our decision, but one of the primary roles of the Government is to take decisions which, while they may not be popular, they judge to be necessary to safeguard the country, so long as we remain within the law. I hesitate once again to repeat myself before the House, but we believe that the powers in Part 4 are a necessary and proportionate response to the threat we face.
I turn to a specific point raised by the Newton committee. It will come as little surprise to the House that, in the absence of any viable alternatives, we do not

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require a derogation or accept the recommendation that the powers in Part 4 be replaced as a matter of urgency. However, as I indicated earlier, we do acknowledge that a replacement will be necessary by November 2006.
The powers remain an essential part of the UK's fight against terrorism. We believe that, on the evidence produced, the individuals concerned pose a continuing threat. The Home Secretary has used the powers sparingly to date. Sixteen people have been certified and detained, two of whom have chosen to leave the United Kingdom, as detainees are free to do at any time. One individual has been certified, but is currently detained under other powers. In addition, in practice, my right honourable friend the Home Secretary has himself applied a higher test than that of "reasonable belief" required by the legislation.
The noble Lord, Lord Carlile of Berriew, in his second report on the operation of Sections 21 and 23 of the Act, found that the powers were used appropriately. The Special Immigration Appeals Commission has been hearing individual appeals since May last year. To date, it has heard 13, delivering determinations in 11 of them. In all 11 cases, SIAC has upheld the Home Secretary's decision to certify. I understand that all the individuals involved are seeking leave to appeal to the Court of Appeal against the determination. The House will also wish to be aware that this House is to hear the detainees' appeals against derogation later this year.
The challenge in the months ahead is to explore whether we can make existing legislative measures work more within the criminal justice system. We have a wide experience of fighting terrorism that is reflected in a wide range of criminal and terrorist legislation. That has been developed from the hard-won lessons of Northern Ireland. I believe that the United Kingdom has a good track record in securing prosecutions of terrorists directly under terrorist legislation. However, the position that we face now is a very different one.
The challenge that we face post 11 September 2001, and will face again as we debate the issue in the months ahead, is how to deal with circumstances in which prosecution and detention are not viewed as a discouragement, where we pre-empt the actions being taken by those for whom prosecution and punishment hold no fear. There are no norms when dealing with the suicide terrorism generated by Al'Qaeda and the networks working with it, in the way that there were in the past with terrorist groups that had a negotiating position and whose members sought to preserve their own lives, even if they endeavoured to take the lives of others.
The Newton committee has sought to address the issues, for which we are grateful. Among the ways suggested by the committee—
Lord Lester of Herne Hill: My Lords, I am sorry to interrupt the Minister in full flow, but I wonder whether in her opening speech she will address the strong concerns expressed by the unanimous Joint Select Committee on Human Rights, in addition to the Newton committee. Will she also explain why the Government
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have rejected all the main Newton committee proposals with regard to Part 4, or will she deal with that by way of reply at the end of the debate?
Baroness Scotland of Asthal: My Lords, I hope that I shall deal with them fully by reply. I do touch on those issues; I have already explained the basis on which we took the view that the derogation was appropriate. It was very much based on the very lengthy debates that we had before the Act was passed. The situation has not, regrettably, changed—and I do say regrettably. It would have been a hope and expectation of all of us that we may have been in a slightly happier position in that regard than that in which we find ourselves. However, as I have said throughout my opening remarks, that is the reality in which we find ourselves.
Among the ways suggested by the committee was whether one could take the lesser criminal offence. We shall explore that matter, and noble Lords will know that the committee raised that issue. There are profound questions: can we get in at the sharp end, and can we pick up the low-level criminality that is associated with terrorism? Those are not proposals but issues that we want to hear from people about. There are a lot of issues that we need to debate. The Newton report, and the noble Lord, Lord Carlile, made other suggestions for dealing with low-level terrorist activity and association. Some legislative measures have been implemented abroad, long before 11 September. We shall consider those measures. While those examples might help to deal with low-level support activities, they could not offer an effective substitute for the protection offered by Part 4 powers.
We are currently conducting a review that will address the use of the intercept evidence and whether it can be admissible in court proceedings. That is one issue flagged up by the noble Lord, Lord Newton. We invite views on that, and other suggestions, in terms of responding to the challenges set out in the discussion paper. My right honourable friend the Home Secretary has been at pains to stress that this is an open invitation, with only one proviso. The proposals must offer the population of the United Kingdom the most appropriate level of protection commensurate with the level and type of threat with which we are faced. As for the timing of any replacement measures, I would not wish to mislead the House by offering any false deadlines. What I can do is to reiterate that the existing powers offer the United Kingdom a level of protection for which there are currently no satisfactory alternatives. These, however, must be replaced by 10 November 2006, and the debate that we have entered into will inform that process.
Before I end, there is one point on which we must all be clear. As I have said elsewhere, the Government's fundamental duty in this matter is to protect their citizens. We do not claim that the powers that the Act introduced in Part 4 are perfect, but we suggest that they have been effective in addressing a specific threat that we faced at a specific time—a threat that is still with us today. We strongly believe that we have powers that offer a proportionate and measured response to the threat that we face.

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I do not doubt that there will be many noble Lords who wish to raise other issues relating to Part 4. I shall attempt to respond to those issues as fully as I can in the course of the debate. There will no doubt be many other points relating to the other measures in the Act. Again, I shall endeavour to respond as fully as I can to these points.
I formally commend the Motion to the House and thank noble Lords for the attention that they have given to these difficult and sometimes uncomfortable issues, and for the way in which they have approached them and, I am sure, will do in this debate. We in the Government look forward to a stimulating debate over the coming months and sincerely hope that those who wish to take part will rise to the challenge of coming forward with ideas that will help us to address the concerns that they raise with us and deal with the very real national security concerns that it is our duty to tackle.
Moved, That this House takes note of the work of the Privy Counsellor Review Committee on the Anti-terrorism, Crime and Security Act Review Report.—(Baroness Scotland of Asthal.)
11.56 a.m.
Lord Newton of Braintree: My Lords, it is particularly important that the Minister moved the Motion, because, as I was going to start by saying, it would be slightly disingenuous of me to welcome the debate in view of the fact that it is virtually essential for the Government to pass the Motion. Under Section 123 of the Act, the result of our report is that the whole Act would disappear into thin air were it not debated by this House. I say that in no spirit of suggesting that force majeure was necessary, as we actually made the recommendation in those broad terms. We decided that it was more sensible not to pick and choose bits of the Act, but to recognise that the Government would have a debate and to designate the whole Act for that purpose. Whether or not it is disingenuous to do so, I undoubtedly welcome the opportunity that the debate provides and the spirit in which the Minister spoke.
The first thing that I must do is to pay tribute to my fellow members of the committee, not only for the amount of time and effort that they put in but for the totally non-partisan way in which they approached the matter. Indeed, at one point I contemplated following the example of the noble Lord, Lord Ryder, when speaking about the BBC the other day, and going to a different part of the House to emphasise that point. On the committee there were nine Privy Counsellors, consisting of two former Conservative Ministers, of whom of course I was one, three former Labour Ministers, including a former Secretary of State, a senior Labour Back-Bencher, two widely respected Liberal Democrats and a distinguished Law Lord. Our conclusions and recommendations were unanimous. As I said when the report was published, I do not believe that if the proverbial fly on the wall had been present at our deliberations, he or she would have been able to tell which of us was coming from which direction, and which was our partisan allegiance. They might possibly have detected that the noble and learned Lord,
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Lord Browne-Wilkinson, was the Law Lord, but as for the mere politicians, I believe that they would have found it difficult to sort us out.
Against our collegiate and consensual background, I find it mildly ironic that the report has been so often short-handed as the "Newton report". That kind of imperialist grandeur is something that I tried to avoid, successfully for the most part, throughout my ministerial career. However, I seem to have got stuck with it on this one, no doubt because of the length of the alternative, which is the Privy Counsellor Review Committee on the Anti-terrorism, Crime and Security Act Review Report.
There was one other matter on which the committee was and is united: our appreciation of the heroic efforts of our small secretariat, comprising Angela Harris, John Pavel, Alan Pitt and Shabs Hariff. Anyone who has had the time to read the report as a whole will marvel at the amount that was done by only four people in the secretariat to support and help us. The amount and quality of their work was exemplary and the support that they provided to us was exemplary. Lastly, and to some possibly a little surprisingly, I would like also to thank the people from the Home Office, not least, and elsewhere in Whitehall, who contributed to our work. Whatever they thought or think of our report, they gave us a great deal of assistance in completing it.
I had initially anticipated that this might be a Select Committee-type debate in which my task would be to set out our stall. In fact, for reasons that I understand and do not complain about, it has taken a slightly different form. In any case, it would have been neither possible nor appropriate for me to deal in any detail with all 14 parts of the Act or all the nearly 60 conclusions set out on pages 10–17 of our report. We continue to hope that the Government are listening but no doubt it can be argued that the committee has had its say and should now itself listen as much as talk. Nevertheless I think it right, as chairman of the committee and in the context of this debate, that I should take a few minutes to set out what I see as the main thrust of the report.
I want to emphasise that there is no difference between the committee and the Minister, or indeed the Home Secretary in another place, in their views of the fact that there is a problem and of its overall nature. We took the view that it would be prudent to assume that the terrorist threat is of a nature that may warrant special legislation and that it is likely to be with us for a number of years to come. In considering whether particular measures were justified, we took as our starting points the rights of the individual to privacy and liberty and the duty of the state to maintain security, as did the Government, although we did not always reach the same conclusions. The nub of the issue, as the Minister said, is to ensure that the balance between those two imperatives is properly struck in cases where they conflict.
In general, we felt that, where possible, the mainstream criminal justice system should apply to terrorism, just as it does to crime that is motivated by more conventional objectives, such as self-enrichment, although many

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terrorists may commit such crimes. This may be a point of difference from some of the things that have been said by the Government. We recognised that special antiterrorism law can be justified because of the way that terrorists operate, which makes them hard to catch and convict, and because of the risks that they pose. It needs to be principled and properly considered and to command broad support. We consider—this is the possible point of difference—that emergency anti-terrorist legislation, or even anti-terrorist legislation designed to last over a longer period, which is what we are really talking about now, should be segregated from the mainstream criminal justice law and should be accompanied by proper safeguards so that the balance between the rights of the individual and the need to maintain security can be preserved.
I see the noble and learned Lord, Lord Lloyd, in his place, which I very much welcome, as I welcomed the supportive comments that he made both during our deliberations and following the publication of our report. I mention the noble and learned Lord principally to observe that at the time that the Terrorism Act 2000 was passed the Government appeared to take the view that the right approach was anti-terrorism legislation that was separate and distinct, self-standing but linked in some ways with other legislation. We set this out on pages 28–33 of our report. The committee felt that it continued to be the right approach and that what the Government argued in relation to that Act is just as valid now as it was then.
The background to the report, and therefore to this debate, was the concern in this House at the time that the Act was passed that led to debate, I think, in the middle of the night. At any rate, the insertion into the Bill at a very late stage of the clause that led to our establishment gave the House some reassurance that there would be a review. That is what produced our report.
There is no point in me, any more than the Minister, disguising the fact that the most controversial and difficult issue raised by the Act is Part 4, which makes provision for cases where there is persuasive intelligence that a foreigner has links to Al'Qaeda but it is not useable in court, so that he cannot be prosecuted and where, although he is a foreigner, the authorities judge that it would not be possible to deport him, for the reasons on which the Minister touched. I have no doubt that a lot of the debate today will focus on Part 4. The Minister also made the point that it is well known that, since it is contrary to the right to liberty under the European Convention on Human Rights to detain someone pending deportation if there is no real prospect of deporting him, Part 4 effectively disapplies the right to liberty in this context and so requires a derogation.
We currently have an immigration-based framework for detaining without charge, potentially indefinitely, a narrow group of foreign suspects who it is thought cannot be prosecuted and who cannot be deported. This is the point that concerned us, which was acknowledged by the Minister. I continue to feel that this gives rise to several general issues which need to be addressed and I
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am not entirely comforted by what the Minister said today or by what the Secretary of State said in another place last week.
First, there is the fundamental question of whether the best thing to do with these people is to move them to somewhere else. It has been made even more of a question by the emphasis that the Minister placed today on incidents taking place abroad, some of them involving Britons and British property. Is this a sensible approach? It is a fundamental question because it is the basis on which this law stands. It is immigration law and it rests on the proposition that if someone can go somewhere else—and as we know, two individuals have chosen to do so—then that is the best outcome. I question that.
The second point is how the threat from British nationals suspected of involvement in extreme Islamist terrorism is handled by the authorities. How can that be tackled? I imagine that it will arise in the case of anyone returning from Guantanamo Bay. It would be interesting to hear more about how that is to be addressed. Although the Minister this afternoon put heavy emphasis on "predominantly but not exclusively" and then I think that she said "principally but not exclusively", I need to remind the House that we touch on this point in paragraph 193 of the report, where we say:
"The British suicide bombers who attacked Tel Aviv in May 2003. Richard Reid ("the Shoe Bomber"), and recent arrests suggest that the threat from UK citizens is real. Almost 30% of Terrorism Act 2000 suspects in the past year have been British. We have been told that, of the people of interest to the authorities because of their suspected involvement in international terrorism, nearly half are British nationals".
There is a real question there that I have not heard clearly addressed.
Then there is the third large question of why no other country has found it necessary to derogate from the ECHR in order to deal with extreme Islamist terrorism. I must add that, having read the document published a week ago and the two sections on how these matters were handled in France and Germany, it seemed to me that that question got larger rather than smaller. It needs to be addressed.
In the report we also touch on a range of questions on more specific issues relating to the fairness of the appeal and review procedure that currently operates. For the reasons set out on pages 48–62 of our report, we concluded that the shortcomings of the system are sufficiently serious for us to recommend that it should be replaced, as the Minister said, as a matter of urgency by one that is better able to meet the full extent of the threat and would be more acceptable in human rights terms.
We can, no doubt, debate at length the precise meaning of "matter of urgency". My experience of British government is such as to know that "urgency" in dealing with this kind of thing is not a matter of next week or even next month but of a longer period of time. The point is that we feel that the issue needs to be addressed urgently and as soon as possible. I do not know whether all members of my committee would agree with that slight rephrasing, but I think that that

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is the thrust of what we had in mind. As noble Lords who have read the report will know, and as indicated in the Minister's speech, we made a number of suggestions on the elements of a possible successor system, including, of course, reference to the possible ending—we think desirable ending—of the ban on the use of intercepts in court, on which the Government's review appears to be taking an interminably long time.
I should emphasise, however, that we do not see any one of these measures on its own as an alternative. We felt that a range of measures in some combination—perhaps with others that we did not think of but that the Government may be able to come up with—could form the basis of a more satisfactory approach.
Although I have concentrated on Part 4, as other speakers in the debate may well do, there are many other provisions here that apply in general to crime and security, and in particular to extra powers for the police, to disclosure and to a range of other things. Those have had relatively little attention so far, but I hope they will have a bit more in this debate. In most cases we felt that the powers were largely justified, but in several—notably the information disclosure provisions—we felt that additional safeguards were required. I know that the noble and learned Lord, Lord Browne-Wilkinson, wants to say more about that issue later in the debate. In general, we felt that, over time, as opportunity arises, most of these provisions should be more clearly incorporated in what we have put in shorthand as "mainstream" legislation.
I shall not attempt to discuss further those other matters now because it would take too much time. However, I should like to make one brief comment on Section 124 of the Act—which appears to me, and appeared to the committee, to be the ultimate Henry VIII power, and which I think will become even more difficult to justify in the context of longer-lasting legislation. In my view, it is not very justifiable at present.
The committee, like the Minister today, set out to be balanced, considered and constructive, recognising the real difficulties faced by the Government and not pretending, any more than the Minister did, that there were quick or easy answers. I hope that the House will feel that we successfully reflected that approach. We were, of course, somewhat disappointed by the tone of the Home Secretary's initial response and, in many ways, of the document published last week—a document which I am bound to say bore all the marks of being rather hastily cobbled together. However, just as the committee sought to concentrate not on complaining about how the legislation was passed in the first place but on how to get something better for the future, so I prefer to concentrate not on that, but on building on the far more constructive tone adopted by the Home Secretary in another place last week and, notably, by the Minister in this House today.
I can perhaps convey something of the flavour of that by quoting from part of what the Home Secretary said last week. He said:
"I intend to have extensive consultation over six months, in which we will invite Members of Parliament"—
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I assume that "Members of Parliament" includes Members of this House—
"the public and those with a specific interest to come forward and to build on the propositions in the reports that I have mentioned and the challenges that we put in our paper".—[Official Report, Commons 25/2/04; col. 298.]
The Home Secretary made it clear that part of his purpose was not to wait until we are within a few months of the sunset clause that would put paid to Part 4 in November 2006, but to have a properly considered way forward worked out well in advance. That echoed the phrasing which I also very much welcomed in the document published last week. At page ii, it states:
"I therefore hope that this document will begin a wider debate over the next months. It is important"—
this is the point I want to emphasise—
"that this process should be inclusive and genuinely consultative".
I agree with that in spades.
Whatever the differences between us, and I have to acknowledge that there seem to be quite a number of them, I welcome the fuller opportunity for reflection, consideration and greater engagement, both with Parliament and with other stakeholders, which I believe is essential if we are to achieve a more broadly acceptable, and therefore more sustainable, approach than it appears to the committee and myself that we have yet achieved.
The fact that the Government are now looking ahead in this more considered way and at least acknowledging the need to address some of the questions we asked is itself a significant advance on anything we detected during our review. I think that all of us who took part in it will welcome that. We shall not, of course, be able to take part as a committee, because we no longer exist; our secretariat, having published our report on 18 December, had disappeared by 21 December. However, I am sure that we shall seek to take part as individuals, as no doubt will other noble Lords to whose contributions we look forward today.
12.16 p.m.
Lord McNally: My Lords, I should—and I do so very willingly—pay tribute to the noble Lord, Lord Newton, his committee and its staff. As has been pointed out, that committee was very much a creation of this House and a condition for passage of the original Act. I can only say that it has done us proud. I associate those remarks also with the work of the noble Lord, Lord Carlile, whose report is also under review today.
My starting point may seem a rather odd place—it is the south Pacific, or, more particularly, the film "South Pacific". At one point, the doomed hero in that film, Joe Cable, says, "I know what I am fighting against—what are we fighting for?" Roosevelt and Churchill very wisely recognised that point during the course of the Second World War when they put into the Atlantic Charter the four freedoms: freedom of speech, freedom of belief, freedom from want and freedom from fear. They recognised that it was important that people knew what they were fighting for. It is worth reminding

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ourselves that, in that respect, we are fundamentalists, too. We believe in those four freedoms, not just for ourselves but for all humanity.
Of course, we also believe in parliamentary democracy. At a moment of exasperation during the Second World War, Churchill described Nye Bevan as "a squalid nuisance". But he never questioned his right to harry and probe, even in war time.
I think that this House fully understands and appreciates the heavy burden that Ministers carry in this area. Defence of the realm is the first duty of government. In Britain we have managed to combine ministerial responsibility for national security with appropriate parliamentary scrutiny and accountability. However, we need to keep under constant review the issue of whether we are getting that balance right. We on these Benches recognise the tensions and conflict in our position. As the Minister rightly says, if a terrorist outrage occurred, the first questions we would ask are how it happened, why, and what went wrong. Yet we also want to safeguard human rights, civil liberties, privacy and the rest. This review gives us the opportunity to examine whether we are getting the balance right.
I think the House recognises, and we certainly did in 2001, that there are dangers in emergency powers; there is a danger of shelf clearing, to which I shall return later. There is also the danger of what I would describe as elephant dust: a man is spreading powder outside his house and his neighbour asks what he is doing. He says, "This is elephant dust to keep the elephants away". His neighbour says, "There isn't an elephant for 3,000 miles." "Effective, isn't it!", the man says. There is always the danger of slipping into legislation powers that appear to defend us but are rather illusory.
The noble Lord, Lord Carlile, looking at the operations of the Act from his position, gave the Act a clean bill of health, but even he said,
"Continuing scrutiny should be given to possible alternatives to detention and to the consequences of the sunset provisions in 2006".
In other words, he advised—and I hope that the Minister's reply today indicates—that the time between now and 2006 has to be used constructively. As the noble Lord, Lord Newton, has indicated, his committee was less enthusiastic, particularly about powers under Part 4.
As your Lordships will see from the speakers' list, I have an array of QCs behind me—the noble Lords, Lord Goodhart, Lord Lester and Lord Thomas of Gresford—who will be making their contributions later. But the key point to remember is that this is a high-grade review, built into the statute as a condition of its being passed in the first place. I well remember the debates and why the noble Lord, Lord Carlile, was given his responsibilities and why this special committee of Privy Counsellors was set up. As the noble Lord, Lord Newton, has emphasised, what they came up with was a package of proposals to identify and remedy concerns and weaknesses but with no approach of finding a single magic solution.
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Therefore, without dwelling on it, it is a matter of regret that the initial response from the Government and the Home Secretary looked like an exercise in rapid rebuttal and a pitch for renewal of Part 4 powers in advance of a proper discussion. If we are to have this new, constructive approach, I urge the Home Secretary in particular to match his conciliatory words with similar action. I urge the Government to use this debate and next week's on renewal for second or even third thoughts. They must realise that the British people are instinctively against detention without trial. They are uncomfortable with the UK requiring a derogation from the European Convention on Human Rights, and they do not like what we call "Henry VIII" clauses to amend without further legislation. As the report states:
"The powers of amendment … are particularly unwelcome in emergency legislation of this kind, and should be repealed".
I think the man in the street sees the anomaly that the noble Lord, Lord Newton, referred to, that these provisions apply to foreigners but not to equally dangerous British nationals.
Let us learn a few lessons. We should beware of what I call "parliamentary bounce". Paragraph 333 of the report states:
"Some of these provisions appear to have been included in counter-terrorist legislation in order to take advantage of its accelerated passage and limited scrutiny, in order to avoid the difficulties which had previously been experienced in securing parliamentary approval".
That is the shelf clearing that I referred to earlier. The Home Office, among all departments, is the most adept at that.
As the first contributions indicated, this is not a matter of party political difference. We accept that a real and present danger to national security is posed by Al'Qaeda and similar terrorist groups. We accept that there is information about terrorism and terrorists which requires protection on national security grounds and to protect operatives who are gaining intelligence on our behalf. We accept that intercepts and surveillance of communications are of increasing importance. I echo the inquiry of the noble Lord, Lord Newton, into what is happening to discussions with the industry and others on a code on this matter. But we urge the Government—this will be a recurring message from this House—not to retreat into a bunker or to see parliamentary scrutiny as an exercise by "squalid nuisances". We have to be partners in getting the balance right between now and 2006 which allows counter-terrorism to be more securely based, both within due process of law and under proper parliamentary scrutiny. As the committee of the noble Lord, Lord Newton, stated:
"Our starting point is that the ordinary criminal justice system and established security methods must remain the preferred approach to tackling the crime of terrorism".
That does not rule out special courts or changes to the approach to intercepts as evidence, or as my noble friend Lord Carlile suggests, a new offence of "acts preparatory to terrorism". What we need to do is to make that balanced judgment.

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The Minister referred to the work of the security services. I think that we all recognise that this is a difficult, dangerous and often lonely task that they undertake on our behalf. It is also true that their work has been made much more difficult by the change in nature of the threat since Cold War days. I draw the Minister's attention to a letter I had from the British Society for Middle Eastern Studies, which stated,
"There are too few graduates in Middle East studies and languages to meet the needs of government and NGOs … The cadre of experts in Middle East and Islam in the UK is dwindling'',
and that the "UK is declining" compared with other countries in investing in Middle Eastern and central Asian languages. I wonder how that ties in with getting our security services prepared for this different kind of threat.
I also ask Ministers to beware. I was a little worried when the Home Secretary announced 1,000 extra recruits to MI5. If you expand a security service rapidly you have to be very careful that mavericks do not slip through the net. While piling the praise on the security services, our history since the Second World War is not entirely without blemish and there are dangers that government and Parliament should remain alert to. During this process I hope we can review again whether parliamentary surveillance of the security services is right and proper to the needs. The intelligence committee could be set up as a full parliamentary committee. Perhaps we could even reconvene the Committee of Privy Counsellors of the noble Lord, Lord Newton, although the security of Privy Counsellors is not always what it used to be.
I conclude by repeating what my colleague Alan Beith said:
"Many of the recommendations go far beyond terrorism, and I therefore put in a very strong plea for the extension of the spirit of consensus". —[Official Report, Commons, 25/2/04; col. 348.]
That is my message and the appeal I make from these Benches. The final call on national security must be with the Ministers of the day and it is a heavy burden that they carry. But in this area, above all, consensus and national unity are essential if we are to make clear both what we are fighting against and what we are fighting for.
12.29 p.m.
Lord Browne-Wilkinson: My Lords, as the noble Lord, Lord Newton, chairman of the committee to which I also belonged, said, I was the only non-politician in that body. It was a position which I often found awkward, not improved by the fact that I was also the only lawyer.
That said, I hope that note will be taken of the constitution of the committee. It covered the whole spectrum apolitical belief from right to left. It was not comprised of a bunch of wets and this was not an emotional bleeding heart response. The committee comprised a group of people who one would not always expect to agree, nor, indeed, did they to begin with, but they came to agree. That in itself is to my mind a matter of great importance because they demonstrated in a semi-representative way an attitude that there must be some limit to the extent to which the
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security of the majority trumps the need to treat the few fairly. At the end of the day, we all of us thought that detention under Part 4 was not a tolerable system in a civilised community.
That said, I do not propose to say much about Part 4 because I know that it is the subject on which everyone else would speak; I also have an interest in Part 3. However, I am immensely encouraged by the recent changes in position that have been forthcoming. One of the significant things that struck a number of us during our inquiry was that, apparently, no steps, or very limited steps, were being taken to examine alternatives to Part 4. It was just allowed to drag on. The ideas in our report—good, bad or indifferent as you may think them to be—were self-generated ideas based on evidence brought before us. They were not matters under consideration by the Home Office, and for that reason if for no other I believe that the committee has done valuable work; namely, that it examined the matter to see whether there were any alternatives. Let us hope that that is of help.
I move on to Part 3. I am sure that it is very familiar to all your Lordships, but I remind the House that Part 3 conferred powers on a certain number of authorities under Section 17 and, more importantly, on the Inland Revenue and Customs and Excise under Section 19, to disclose confidential information which they had received under statutory powers. Noble Lords may know—I hope they consider that this is the case—that in the past the Revenue has been scrupulous in the preservation of confidence regarding what is communicated to it. What is introduced by Section 19 is a power for the Revenue to disclose the information in your tax return and mine to the security forces and the police. If that power to disclose had been limited so as to make available information required for anti-terrorist purposes, I think that few people would have objected. But your Lordships may remember that there was an earlier Bill in 2001, about which your Lordships made some difficulty, which contained those exact powers to disclose information. Your Lordships objected to them and, in order to get the Bill through, the Government withdrew the clauses conferring those powers. Then when they introduced this anti-terrorism Act under pressure of time, they put straight back into it the clauses they had just withdrawn from the earlier Bill. In both cases, the clauses empower the Revenue to disclose information if it is required for the investigation of crime.
That was to my mind a fairly extraordinary thing to do. Under the powers as now inserted the Revenue can be called upon to disclose information relating to any criminal investigation in the UK and in relation to certain investigations outside the UK. That is subject to the requirements of the Human Rights Act, which requires the powers to be exercised proportionately.
The fact is that now, for the first time, we ordinary individuals are faced with having information disclosed in a tax return or a Customs and Excise form, however trivial the crime under consideration. That is a major incursion into our freedom. The case has nothing to do with terrorism. The Government said initially that it was necessary to have the power in order to make the terrorism legislation work

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properly—that it could not be limited to terrorism—but our inquiries never disclosed any reason why that was so. It remains the position that these rights to demand information are there to be exercised by the criminal authorities.
I hope that I shall be forgiven for quoting the only statistics we have on the matter. The Revenue has immaculately kept records of its disclosures. Apparently, no other government department has done so, despite the gross intrusion involved. Out of just 20,000 disclosures made by the Inland Revenue in a period of nine months in 2002, murder accounted for 821, 4 per cent; sex offences, some of which were linked to Operation Ore— which is the large American investigation—accounted for 9,157; drug offences accounted for 4,848; terrorism accounted for 701—that is, 4 per cent of the total disclosures related to terrorism—financial offences accounted for 3,390; violent crime accounted for 372 and others for 620. It is quite clear that the confidential information is not being used, even primarily, for anti-terrorism purposes. The use of those statistics in relation to terrorist offences is minuscule.
I had hoped that we might get a more positive response on that aspect of the matter and I still have hopes regarding the noble Baroness's reply. However, I suggest that this is a matter that we should look at as a general matter of principle. We recommended in the report that anti-terrorist legislation should be kept separate from mainstream legislation. I am sure that some people would say that a similar right to disclose confidential information should exist in relation to sex offences. On the other hand, few people would say that there should be a right to disclosure of confidential information in relation to driving offences, and yet that right exists however trivial the crime under investigation.
This is a truly constitutional point and very distinguished constitutional lawyers are present who will put me right if I am wrong. The whole basis of the English constitution is that the Government can do nothing more than any private individual unless Parliament so authorises. Therefore, every time we in Parliament give extra powers of this kind, we are pro tanto cutting down the freedoms of the individual in a way that is irremediable. Under the Human Rights Act, nothing can be justified by government if it is an unlawful act. What this measure is doing is to render lawful what was previously unlawful. I hope that your Lordships will one way or another find some way in which this matter can be investigated so as to get rid of what strikes me at least as a gross anomaly, and to try to see that these excessive powers are not in future given quite so freely.
12.40 p.m.
Baroness Hayman: My Lords, I start by paying tribute, as did the noble Lord, Lord Newton, to the support that we received from our small but perfectly formed secretariat and the help and devotion that they gave to the task, which was extremely difficult, not least because of the diverse nature of the members of the committee. That posed particular problems for its
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chairman and I pay tribute to the noble Lord, Lord Newton, for the way in which he navigated a difficult course, held us together and produced a unanimous report. I am sorry that he did not come to sit on these Benches, because I could then have called him "my noble friend". As the noble and learned Lord, Lord Browne-Wilkinson, said, it was a unanimous report from diverse individuals from diverse backgrounds. That is a reflection that I hope the Government will take to heart when they embark upon the discussion that they have initiated.
I am particularly glad to follow the noble Lord, Lord Brown-Wilkinson, for two reasons. First, he was the only non-politician on the committee. I believe that it was something of a culture shock for him to sit with us over 15 months and there were matters that he found truly shocking—culturally or otherwise—in some of the attitudes that were expressed. Equally there were times when it was refreshing and stimulating for politicians to hear his clearly articulated views—and the House has heard them today. He and I might find ourselves possessing different degrees of "wetness" on some of the issues. What we agreed upon was the way they should be treated by Parliament and the importance of separating out terrorist legislation from non-terrorist legislation, as the noble and learned Lord described. I shall speak for a moment or two on that, before moving on to other matters.
I, too, thank my noble friend the Minister for the tone that she adopted in introducing this debate. But she will forgive me if I say that she, of all Ministers, is the most adept at spinning gold from straw in some areas. She managed to find for us many extremely minor recommendations from our committee with which the Government could agree. When one examines the fundamentals, if one looks at not the tone but the words of the discussion document, I am afraid that their words are dismissive, although the tone may be conciliatory. We have a job to do over the next six months to change the words as well as the tone. We may have made a start in another place in a debate last week and I hope that we shall continue that in your Lordships' House today and beyond.
However, I am afraid that on all three issues that I want to deal with today, the Government have set their stand against that of the committee. The first issue is that of mainstreaming, to which the noble and learned Lord, Lord Browne-Wilkinson, referred in terms of disclosure of information. He made that case clearly, but there were many other areas of the Act where we considered that the provisions were sufficiently detached from the immediate terrorist threat or sufficiently wide-ranging to warrant ordinary parliamentary scrutiny, not the accelerated procedures that were available to the House under emergency legislation.
As well as the disclosure of information provisions, there were also provisions relating to the aggravation of certain offences by religious hatred—a deeply contentious, important subject which needs the most careful scrutiny; there were the police powers regarding fingerprinting and removal of disguises; and there was the extension of the powers of the British

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Transport Police. I would not contend that the wrong thing was being done in any of those areas. We would readily reach agreement that paedophilia was a sufficiently important offence to warrant that type of disclosure of information. But we ought to debate that issue separately. It is not simply an academic point; it is important, given that we legislators may again face an emergency situation. We may be asked again to shift the balance between individual liberties and national security and we should be reassured that when we do that it is laid down in the narrowest terms possible.
I am not trying to bring an enormous legislative burden and distortion to the Government framework and its legislative programme, most of which would end up on the shoulders of my noble friend, as it always does. However, a commitment to mainstreaming and to taking those opportunities whenever possible is an important commitment that the Government should make.
The Home Office also gave a dismissive response to the provisions in Section 124. I was shocked by their wide-ranging nature, which I did not understand when we passed them. Anything in the Act could be amended or repealed—and indeed in other legislation—by statutory instrument using the negative resolution procedure. The House was not told that, because the Home Office memorandum that was sent to the Delegated Powers and Regulatory Reform Committee said that the provisions would be considered using the affirmative resolution procedure. I do not suggest that there was any ill will or malevolence; I believe that a mistake was made. In fact those provisions are all subject to the negative resolution procedure. As we understood the matter, our own committee, whose deliberations were central to the reason why the House agreed to the Bill, could have been abolished by a statutory instrument using the negative resolution procedure.
I am not for a moment suggesting that the Home Secretary would have thought of doing that. But it is not right that those arrangements remain on the statute book in relation to legislation of such importance. Equally, I assume that the same would apply to the sunset clause. We all assume that the sunset clause is there, but it could be changed using not primary legislation but a statutory instrument and the negative resolution procedure. My noble friend may tell me that I am wrong, but that is my understanding.
However, in the problem we have the solution. An easy legislative mechanism is currently available to the Home Secretary: using a statutory instrument approved by the negative resolution procedure, the arrangement could be changed to one involving the affirmative resolution procedure. He could table that, make the disbenefit into a benefit and we could all sleep easier in our legislative beds. I hope that my noble friend will take that as a constructive suggestion.
I turn to the central conundrum with which our committee wrestled for a long time—the threat posed by an individual against whom there is the gravest suspicion of involvement in actions preparatory to terrorist activity; where there is a mosaic of reports and
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intelligence that builds up a case that a reasonable individual would believe to be substantive; but that does not currently provide admissible evidence in criminal proceedings. Do those circumstances—where, as a result of terrorism, all of us are enemy combatants and where the Government have an enormous responsibility for the protection of society—warrant divergence from the normal criminal procedure and normal evidential standards? In relation to other circumstances—other crimes and instances of terrorism—there may be the deepest of suspicions but we know that it may be impossible to mount a prosecution. In my view, yes, those circumstances do justify that. It is overwhelmingly a responsibility for a government to protect their citizens from terrorism, and I do not think that one can be absolutely purist in saying that we will never change the evidential or juridical framework in which we look at these cases.
On the question of whether Part 4 provides the best balance we can achieve between protecting the rights of the individual suspect and the safety of all citizens, my answer is "no" for two different reasons. My noble friend said that Part 4 was "necessary and proportionate". If it is necessary to protect us from this level of threat from non-UK nationals, it is also necessary to protect us from this level of threat posed by UK nationals. If that is so, we must have measures competent to deal with UK nationals as well as non-UK nationals.
I have grave reservations about the idea of exporting terrorism—that the best way to deal with this sort of threat from a non-UK national is deportation. That is because, of the sad litany that my noble friend put forward of deaths from terrorism and UK nationals involved, all of them have taken place outside the United Kingdom. I am not comfortable with the idea that people who are this much of a threat are able to pursue their activities outside the UK or—because we know the problems of identity fraud—that they can then come back under another identity and work within the United Kingdom. Criminal prosecution must be a more satisfactory approach. We must try and facilitate criminal prosecution, and there are a number of ways we can do that. There are suggestions in our report, in the report of the noble Lord, Lord Carlile, and in the discussion document.
On the discussion document, I fear we may get a whole range of other additional measures—such as inchoate offences, bringing surveillance evidence into court, the use of intercepts, possible aggravation of offences linked to terrorism, possible restraining orders that would be followed by detention as a criminal offence—as well as, instead of or as an alternative to Part 4. We should not believe that there will be one single measure that will deal with all these suspects. We need a range of measures in the armoury. One of those measures will be additional surveillance and additional resources for the security services, and that is why I welcome what has been done in that area. Those are the measures that are being used at the moment against UK citizens, because Part 4 is not available.

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En passant, I point out that it is important that we do not look only at the nature of the threat and fail to take account of the nationality of the threatener or their political allegiance. Another point that was not well understood during the passage of the provisions through your Lordships' House was that our derogation—these powers—deal only with terrorism related to Al'Qaeda. I do not know what has happened since I heard the news about France today. If there were a threat from a new group that did not have established links to Al'Qaeda, even if they were foreign nationals, Part 4 and this legislation would not be a satisfactory way of dealing with them. That is another reason why I do not believe the legislation deals with the necessity of the situation. We need a basis in law which will provide for the future threat, as well as the past threat. It is our responsibility to ensure that it is there.
I turn to proportionality: whether what we are doing in terms of detention without trial of non-UK citizens is proportionate. I thought it interesting that when the equality issue was discussed in the document published by the Home Office, the Home Secretary said,
"it would be possible to seek other powers to detain British citizens who may be involved in international terrorism. It would be a very grave step. The Government believes that such draconian powers would be difficult to justify".
I agree with that. But, actually, for the purposes of Part 4, foreign nationals are exactly the same as British nationals because they cannot be deported. They are people who have no alternative place to go and who cannot be taken elsewhere. If this is too draconian for UK nationals, I suggest that it is also too draconian for non-UK nationals.
I have spoken for too long. I urge the Government to look very carefully at a way in which we could substitute—I pay tribute to the SIAC process—what is a thorough, responsible, careful, detailed and fair review of an administrative decision based on reasonable belief. I refer to the need to change from a judicial review of an administrative decision to a fair trial, which is said to be non-negotiable in the introduction to the discussion document, that is conducted, perhaps, under very different circumstances, with many of the frameworks that are in place in the SIAC review, but which is actually a trial of whether someone has committed an offence, rather than the review of an administrative decision.
12.58 p.m.
Lord Dixon-Smith: My Lords, it is not inappropriate to attempt to recall the atmosphere in the Chamber in the autumn of 2001. I had been in France on September 11, and received a phone call from my daughter, advising me to turn on my television set. There, unusually—I think uniquely—we saw the dreadful events of that awful terrorist act taking place live. Generally speaking, fortunately, we are spared a live programme on terrorist events. The cameras come later, and show only the consequences. We all have our own memories of that situation, but it did create a fairly unique atmosphere in the Chamber. Because, of course, any government whose first responsibility is the security of the nation for which
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they are responsible were bound to review their security-related legislation. It had to happen. Not only were they bound to review it, but there would have been immense pressure on them to be seen to be doing something and to be seen to be doing it quickly. Those factors were very much in play as we considered the Bill.
Consideration of that Bill was unlike that of most Bills, which I find to be a learning curve. It was like the ascent of a precipice: it was hard work all the way and we were going up almost vertically. There was immense pressure to agree.
In fact, there was general agreement on all sides of the House that much of the Bill was necessary, but there was also much disagreement over many points of detail. It was a highly contentious Bill, but the insertion of Clauses 122 and 123 were essential. To corrupt an old phrase, we were in danger of legislating in haste and repenting at leisure.
I pay tribute to my noble friend Lord Newton and his committee, who had the task of reviewing the Act. The outcome is the complete justification of the insertion of those clauses. I would go so far as to say that the whole legislative process would probably be improved if every Bill had within it a clause requiring a review of fitness for purpose two years later. I do not apologise to my noble friend that he had to undertake the task. He was somewhat rueful when he reported to me that he had been "landed" with it. But he and his committee have served Parliament and the country well in the job they have done.
It is unsurprising that the report reflects in a remarkably good way the tenor of much of the debate that took place on the Bill that autumn. It was emergency legislation. There was a recognition that it might be flawed and that perhaps the drafting was not perfect. Those considerations were continually present during the debate. But also present was the need to gain agreement and to get something done. I take that to be the reason lying behind the report's consistent refrain that it would be better if many such matters, if not all, could be dealt with by consolidation into regular legislation.
That concern was expressed during the passage of the Bill and I remember it being argued on various subjects. If the Government take note of the committee's recommendations, that is the most significant. We should be past the stage where emergency legislation is seen to become permanent. We should put it into general legislation around which these matters are dealt with.
It is also unsurprising that the committee devoted most of its paper and a great deal of its time to Part 4 of the Bill, which was highly contentious during its passage. There were always the questions on the definition of "international terrorism" and how we dealt with the security services. There were problems also relating to the Human Rights Act, which had been passed only three years previously. Everyone wanted to see full compliance with that recent legislation and inevitably there were problems over detention, derogation and deportation. The European convention made the passage of the Bill much more difficult. I am unsurprised that we could not then find

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a solution to the issue of derogation and, as a result of our debates today, it looks as though derogation will be with us for some time.
On page 68, the committee reports the use that has been made of the Bill as regards investigation and the number of criminal charges that have resulted from those investigations. However, I did not see reported the number of charges which led to convictions. Perhaps it is just that the committee's report is not sufficiently precise, but I wonder whether in response the Minister can indicate how many of the charges reported on page 68 led to convictions. That is the real question to be answered.
We know that 16 foreigners have been detained and that two have been released to other host countries. What we do not know—and I suspect that we cannot know—is how many terrorist acts have been deterred as a consequence of this legislation. It' we are considering fitness for purpose, that is a consideration that we must take on trust—unless the Minister has information, but I suspect not.
It is certain that, although some dreadful terrorist acts have been committed since the passage of the Bill, we in this country have been blessedly spared, as has most of the rest of the world. It would be nice to think that in part that relative peace is the consequence of the actions taken by the Government here and by those in other countries. I cannot help but wonder how far that situation arises because the Iraq war has given a different focus to Al'Qaeda and many other terrorist organisations.
I look forward to the debates in the coming months on the detail of the Bill which gave rise to this report. There we will really see the wisdom of the committee's report and I hope that the Government will respond positively to the refrain that as far as possible this emergency legislation should be consolidated into normal legislation.
1.8 p.m.
Lord Holme of Cheltenham: My Lords, as a member of the committee, perhaps I may remind your Lordships of the most striking aspect of our conclusions; that this disparate group of Privy Counsellors, with different affiliations, experience and perspectives, reached a unanimous conclusion. That is the effect not only of the evidence we received and the deliberations we shared but the way they were led by the noble Lord, Lord Newton, in a wise and consensual way. And, as other members of the committee have said, that was also facilitated by our admirable small staff led by Angela Harris.
From these Benches, I also want to pay tribute to my noble friend Lord Carlile of Berriew, not only for his very helpful evidence to the committee but also for his scrupulous review of all the anti-terrorism arrangements that are in place.
I can speak only for myself but I emerged from our efforts even more aware than I had been before of the threat which fundamentalist Islamist terrorism poses to our whole way of life. This is a serious threat which should be treated seriously in all debates and
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discussion. I believe that the committee did that, and I was very pleased to hear the noble Baroness acknowledge it in her opening remarks.
Within this consensus, which my noble friend Lord McNally and my erstwhile leader, the noble Lord, Lord Newton, have enjoined on us, I want to press the Home Office a little through the noble Baroness. I shall try to keep within this jolly consensual framework but I may test its boundaries just a little.
The first point that I want to reiterate—a point raised by other members of the committee—is the absolute desirability of treating all terrorist suspects in the same way at law, regardless of their origin, instead of dividing them into British sheep and foreign goats. I believe that, in a society such as ours, it is particularly vital to avoid the kind of easy scapegoating which says that our problems in general come from abroad and that our problems are always due to foreigners. I am very afraid that that assumption is almost implicitly built into using immigration and asylum procedures for these grave anti-terrorist problems.
I say to the noble Baroness that, frankly, I was astonished that page 2 of the Government's discussion paper still asserts that the threat comes predominantly from foreign nationals. The noble Baroness, skilled advocate that she is, nuanced that it came "principally" from foreign nationals. Although I believe it may have been possible to say that partly from ignorance when we did not know what we were up against in 2001, we received clear evidence, as colleagues of mine have already said, that very nearly half the people of interest to the security authorities are British nationals. As others have said, there is the case of Richard Reid, the shoe bomber, and other clear evidence that terrorism does not really recognise national boundaries.
Secondly—a point to which others have referred—I should like to ask the Home Office, through the noble Baroness, to stop piggy-backing and to stop taking emergencies and loading them into the dusty pigeonholes of the Home Office to produce all kinds of other extraneous legislation not directly attributable to the emergency. We talked at length in our report about mainstreaming. Following the Omagh atrocity, when I had responsibility for Northern Ireland matters on these Benches, I well remember that we saw exactly the same phenomenon. A great deal of extraneous legislation was loaded in by officials, who were no doubt glad to see their pet priorities and wheezes on the statute book. But can we please ask the Government not to do that? It creates part of the problem that they have in getting legislation of a special nature through the House.
The third point, on which I know there is a widening consensus, is that there is a clear need to remove the total ban on intercepts so that far more cases can proceed in a more normal way in court. Consensus is now spreading from the noble and learned Lord, Lord Lloyd, and my noble friend Lord Carlile to, as the Minister will know, at least part of what we are now supposed to call the "intelligence community". At least part of that community knows that that would allow us to treat within the rule of law far more

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suspected terrorists. I simply say to those in the intelligence community who do not like this—I assume they are those who are so protective of signals intelligence—that they should reflect that in the United States, who are our partners, as I believe is becoming more and more well known through the newspapers, in most of what is known as "sigint" there is no such total ban. Indeed, intercepts are widely used and are admissible as evidence in court.
Finally on that point, I want to press the noble Baroness as to when the review of the removal of the total ban on intercepts will conclude. As others have said, we have been hearing about it for rather a long time. The issue is now pressing and it would be good to hear from the Minister when the review will be concluded and when there will be a clear ruling on it from the Government.
My final point is to ask that the Home Office be less dismissive of the committee's conclusions on Part 4 of the Act. Of course, we did not produce an alternative but then we were not asked to do so; we were asked to review the legislation, and in this respect we found the legislation profoundly unsatisfactory. We suggested a number of ways in which, perhaps in combination, the Government might be helped to find alternative solutions. However, it was regrettable, before the ink was dry on our report, that the noble Baroness's right honourable friend the Home Secretary attacked our conclusions on Part 4 and particularly misinterpreted one of the basket of proposals that we made—alternative approaches: electronic tagging—as being in some way the committee's answer to Part 4. It was never so, and I believe that it was misleading and inappropriate of the Home Office to do that.
The trouble with the kind of spin control which we saw at the time of our publication and with which, in other spheres, we are all too sadly familiar is that it makes far more difficult subsequent attempts at rational discourse, such as the February discussion paper, which we have now seen. It makes the arguments advanced there—they are still relatively thin—seem no more than ex post facto rationalisation of the original knee-jerk hostile reaction to our proposal. Therefore, it devalues the discussion paper, which is meant to mark the beginning of a more constructive way forward.
Nevertheless, I certainly hope that the Government's position, as enunciated by the Minister's right honourable friend in another place, of achieving a constructive dialogue and serious discussions to find a generally acceptable way forward will materialise.
Before I sit down, I should remind the House, as did the noble Lord who preceded me, that Parliament was so concerned about this Act that it allowed it through only with a watchdog attached to its trouser leg, and that watchdog was the Privy Council committee. The watchdog has barked and it has barked loud and clear. Therefore, I hope that the Government will pay attention. If not, Parliament will have to ensure that they pay attention, but I very much hope that we do not come to that point and that the Government will now reach out towards the committee rather than turn their back on its main conclusion.
1.18 p.m.
The Lord Bishop of Rochester: My Lords, I wish to focus on the question of hate crime and, in particular, on whether incitement to religious hatred should be an offence in its own right. Before I do that, I should like to acknowledge the review committee's recommendation that legislation should deal with terrorism, whatever the origin or nationality of those who are suspected of it, and also that it should deal with the matter in a way which does not require derogation from the European Convention on Human Rights.
The committee set out a number of ways in which those objectives could be achieved, and I hope that the Government are able to give them more attention than they appear to have done thus far. In the end, freedom and justice will not be served by denying them to some without due process, however few they may be.
Turning to the subject of legislation on hate crime, the committee is surely right in its view that this Act is not the place for it and that it should be reconsidered in the context of what it calls "broader mainstream legislation". It seems that the Select Committee on Religious Offences did not come to any agreement about legislation in this area—surprise, surprise. However, it points out that the existing legislation on blasphemy has a wider role in society as it also concerns a particular Christian basis for the constitutional heritage of the nation. That is a view that I had not heard before.
The Select Committee comes to two conclusions in that regard: first, that Parliament should reflect very carefully on leaving the blasphemy legislation as it is, and, secondly, that it should urgently seek ways of expressing in law the need for protection of all faiths. Whether both of those points can be held together is not a matter for me to judge.
Of course, the present provisions in the Act are a compromise. They provide for account to be taken of aggravation because of religious hatred in the committing of a crime. While that has the effect of providing some protection from attack for particular groups of people, their places of worship and their objects of veneration, it does nothing about those who may incite such hatred of religious groups that a breakdown in community relationships and even violence are the result.
It seems that there is widespread support among the faith communities for legislation on incitement to religious hatred. The Home Secretary in his formal response to the review indicated that he is sympathetic to that feeling among faith groups. For its part, the Church of England is still committed to support legislation on incitement to religious hatred with or without the retention of the blasphemy law. It recognises, of course, the importance of freedom of expression in our society and it would want any legislation to safeguard academic inquiry, legitimate criticism and vigorous discussion of competing truth claims. However, freedom is never absolute and cannot be at the expense of hurting, degrading and humiliating people of particular faith communities.

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It appears that the best way of achieving the review committee's recommendation is for there to be a separate Bill on religious offences. That could also be achieved by the Government bringing forward a Bill on hate crime as such, but including incitement to religious hatred within its provisions, or perhaps by the noble Lord, Lord Avebury—I am sorry he is not in his place—reintroducing his Bill in due course. It should be made absolutely clear that such legislation would protect people and places from attack and not restrict free discussion of the merits or otherwise of various beliefs.
Finally, one matter that has caught my attention in the report is that of confiscation of terrorist cash and its return if a suspicion proves unfounded. The review points out that the provision in the Act for the cash to be held in an interest-bearing account for such a reason would be problematic for Muslims. The report refers to the suggestion made by the Forum Against Islamophobia that Muslims could donate any such income derived from interest to charitable and humanitarian causes. However, that would leave them out of pocket. I should like to hear the views of our Muslim Members on this issue, but I should have thought that the Government could easily devise a way that involved the return of capital plus an ex gratia payment calculated on the basis of a typical rate of return on investments. I understand that making a profit on capital investment is not illegal for Muslims. That would properly compensate those who had undergone the trauma of wrongful accusation.
The Privy Counsellors have brought some important issues to the attention of the nation and the Churches, for their part, are glad that this debate is taking place.
1.25 p.m.
Lord Judd: My Lords, I join with those who have expressed great appreciation to the noble Lord, Lord Newton, and his colleagues on the committee and to the noble Lord, Lord Carlile, for the thorough task that he undertook as well.
In the Joint Committee on Human Rights under the impressive chairmanship of Jean Corston, a Member of the other place, and with a strong cross-party representation, we have given very careful and lengthy consideration to the human rights implications of the Newton report. I hope that my noble friend will not mind if I say that I was somewhat surprised by her failure to deal with the observations by the Joint Committee on Human Rights, particularly as in the conclusions the committee was unanimous. It seems to me that if both Houses give a committee the task of looking at human rights implications of policy and legislation, and that committee then reports, it is incumbent upon Ministers to treat the recommendations and observations seriously.
The dangers that we face are grave and acute. I shall take second place to no one in recognising that. If I am allowed to put the matter in personal terms, I care for the safety of my wife, my children and my grandchildren as much as anyone else in our country. That places
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tremendous responsibilities and duties on Ministers. Sometimes it is too easy for us to take for granted the burden that they carry on our behalf. I for one want to say thank you as I know that it must be extremely taxing.
I am also glad that the Minister in her opening remarks paid tribute to the security service and to the police. I believe that they undertake a courageous and very crucial task on behalf of society and we do not record often enough how much we need that important work to be carried out.
I was just beginning to think, however tentatively, about the world in which I was living when the European Convention on Human Rights was drafted. It made a tremendous impression on me in my formative years. I grew up in a fairly politically articulate and conscious family. There had been much discussion and debate at Sunday lunchtimes about the horrors of the Second World War and the lessons that we should learn from it. The European Convention on Human Rights came out of the determination to build a sound and better society. It was not just an idealistic commitment to human rights and something that was rather nice; it was an understanding that human rights were a pillar of a decent, stable, secure society and therefore had to be put at the centre of public concern.
When we talk about the dangers of terrorism, what are we defending? Of course, we are defending ourselves and our families and friends—it would be nonsense to pretend otherwise—but surely we are also defending the way of life and the system of our society for which people have struggled over centuries, not least in the post-Second World War period because, in the end, that system is understood to be the best way of protecting all that we really care about and it enhances the quality of our existence.
Therefore, I unashamedly start by believing that it would be a major tragedy historically if we gave extremists and terrorists a victory by undermining those very principles that have become central to what we believe is important in our society. Either, therefore, we accept the principles of the rule of law and stand by them or we do not. If we do, in the battle for human hearts and minds, which must be central in the fight against terrorism, there has to be consistency.
When the pressure is most acute we have to show more clearly than ever what really matters in our society and our determination to stand by it; in other words, I start from the premise that there are some absolute standards which should be absolute. Once derogation has happened—whatever the pressures may have been—there is an insidious danger that we shall get into a habit of mind whereby these things are no longer absolute; that we all have to be reasonable and come to terms with their relative nature rather than their fundamental importance. That I think is a danger of which we have to be conscious.
Speaking in this debate is very intimidating for a non-lawyer. There are so many distinguished lawyers in the Chamber that one really does rise with a sense of humility, if not a sense of intimidation intellectually, to make any points. But I want candidly just to underline some points as a layman; as an ordinary member of society.

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What is it that we look to in the law to protect us? There is the presumption of innocence, which is terribly important in British law. There is the principle of beyond reasonable doubt; not reasonable belief or suspicion, but beyond reasonable doubt. These are—I was using the word "absolute" a moment ago—absolutes, which are terribly important to ordinary people as being central to our legal system.
Against that background and analysis, I think we all recognise that we are faced with a situation—and that, of course, is what I am saying in effect—in which suspected international terrorists have been charged, convicted and sentenced to indefinite imprisonment without proper trial. I do not in any way cast aspersions at the Special Immigration Appeals Commission—of course not—but it is a fact that some of the evidence is taken in secret; and it is a fact that the special advocates cannot discuss with those they are defending evidence that is presented in the secret part of the proceedings. This is a big fundamental challenge to the principles to which I have been referring.
In the debate a number of your Lordships have referred to the fact that it is only non-UK nationals who can be dealt with by the procedures we are discussing. I align myself with many of the arguments that have been put forward. But I think that the Government must address more thoroughly the issue of how far this is a discriminatory act by making only some people subject to these procedures while other people enjoy the full safeguards of the law as it more normally operates.
There is another issue which is quite worrying. That concerns evidence. As I understand it, in the secret part of the proceedings in particular it has been accepted that evidence extracted from third parties, perhaps under torture, is admissible as evidence. I think that raises very big issues in terms of our commitments in other conventions about torture. It also in my view very much raises questions about—as we have seen in history—the reliability of evidence extracted under torture. I hope that we are not drifting into a situation whereby indirectly—and I am certain unintentionally—we are in fact condoning torture by others who use it.
There is also of course the issue of the intercepted communications and the ban on using information gained in this way from legal proceedings as things stand at the present. This really is becoming nonsense. I suggest, because we all know that central to so much of what we are discussing is the whole professionalism and art. Having been in government I believe that is an unfortunate necessity and it is there, but there is this task of interception. What we have got here is the challenge of how that can be regularised in a way that enables it to be more fully, if not completely, used in legal proceedings.
The noble Lord, Lord Newton, has referred, as indeed have other noble Lords, to the issue of those who are detained being free to leave. I find that a very irrational, if not cynical, provision.
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I found, as indeed I think we all did in the Joint Human Rights Committee, the proposals in the Newton report on alternatives interesting. Personally, I was sorry that they seemed to be so quickly dismissed by the Home Secretary. I think they deserved better than that. I repeat one very interesting observation made by that much respected organisation Justice about the alternative provisions. It makes the point that the alternative arrangements themselves do not exonerate us from the need to observe the European Convention on Human Rights because some of them would raise the same issues, although perhaps in not such a draconian way.
Perhaps I could conclude—as my noble friend chose virtually to ignore the report's observations—with some brief quotations from the Joint Committee on Human Rights. I stress again that the committee was made up of lawyers and non-lawyers from both Houses and all parties under the extremely able leadership of Jean Corston from the other House. In paragraph 33 we state:
"We continue to doubt whether the very wide powers conferred by Part 4 are, in Convention terms, strictly required by the exigencies of the situation".
Paragraph 36 says that,
"we are nevertheless certain that a more satisfactory legal framework is urgently required which would be both effective and compatible with the United Kingdom's human rights obligations including full compliance with Article 5 of the ECHR".
And in paragraph 37 the committee states:
"If the Government argue that it is necessary to continue Part 4 in force this should be limited to six months and should be subject to a firm undertaking that the Government will actively seek, as a matter of priority, a new legal basis for its anti-terrorism tactics to be put in place speedily and in accordance with the principles developed in the Newton Committee Report".
In paragraph 40 we turn to the issues raised by the noble Lord, Lord Carlile, in his review in February last year of the conditions of detention. The people who are being detained have neither been charged in the normal legal sense of the word nor convicted of any offence. It is bad enough for them to be in a place like Belmarsh to start with, but are we certain that they are being treated with the respect and held in the conditions which people in that situation deserve? Do we believe that people are innocent until proved guilty, or do we not?
That is a matter of principle, but it is also a vital matter of the battle for hearts and minds because this is seen around the world. Do we live by the standards we express or do we just apply them selectively when it suits us? I think that we have to be very careful, just as the Americans have to be careful in Guantanamo Bay, about the provoking nature—the recruiting nature for extremists if you like —of the action that is being taken.
It has been said that the Newton committee was introduced during the deliberations on the Act as a way of ensuring a majority. I make no apology for saying that I would have had great difficulty in supporting what was being proposed if the Newton committee had not been introduced. It was certainly a decisive factor in my decision. The Government cannot play duck and drakes with the House. If a provision of that kind is introduced

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as a serious commitment, not just a face-saving formula, when a committee of that distinction, weight and representative nature reports as authoritatively as the noble Lord's committee reported, it is incumbent on the Government to respond with equal gravitas and seriousness and to put what has been said high in their deliberations on future policy.
1.40 p.m.
The Earl of Northesk: My Lords, I thank the Minister for her helpful introduction to the debate. I also congratulate my noble friend Lord Newton of Braintree and his committee. Like other noble Lords, I am struck by the quality of the report which, as has already been mentioned, gives ample justification for this House's decision to insert the appropriate amendment in the Act.
As the Home Secretary has observed, the Part 4 powers are the most controversial powers of the Anti-terrorism, Crime and Security Act 2001. Accordingly, Part 4 has rightly attracted the greatest attention. Indeed, I bow to the superior expertise and eloquence of those noble Lords who have already spoken so effectively about those aspects of the Act. None the less, the Act and the report that we are considering today contain other matters that in their own way are no less important. My interest, which will come as no surprise to your Lordships, is Part 11, on the retention of communications data. I might also have been tempted to touch on Part 3, but happily the noble and learned Lord, Lard Browne-Wilkinson, has already covered that ground effectively, and I agree with what he said.
I do not underestimate the threat that is facing us. The Home Secretary's analysis is to the point,
"The main threat to the UK and its interests overseas is international, likely to be of long duration, involving groups of people engaged in long-term planning, using sophisticated new technology, science and communications available to them, skilled in practising deception and evading surveillance, and using multiple stolen or fraudulent identities".
In light of this analysis, I do not underestimate how potentially useful Part 11 of the Act on the retention of communications data could be in limiting and defeating the threat. Moreover, I welcome the exhortation from the Home Secretary that:
"The Government's mind is open on the long term way forward. We are not advocating any particular course. It is the Government's ultimate responsibility to find a fair and effective balance between security and liberty but the rights we must balance belong to everyone. Ensuring a successful fight against international terrorism demands we all play our part in getting that balance right."
Against that background, your Lordships will be aware that I have long argued that the Government's proposals for data retention do not strike a proper balance. I need not rehearse the arguments from the Second Reading debate. It is enough to say that I continue to believe that the provisions of Part 11 fail four tests: effectiveness; necessity; proportionality; and consequence. At the heart of this is the simple fact that the statutory authority for the retention of
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communications data predates the provisions of Part 11 of the anti-terrorism Act. As the Explanatory Notes stated explicitly,
"Whilst the Regulations permit the retention of communications data on national security and crime prevention grounds, they do not give any general guidance as to when these might apply".
We also know that, in the immediate aftermath of the horrific events of September 11, the National Hi-Tech Crime Unit submitted a request to communications service providers that relevant logs of communications for the period should be retained for investigative purposes. On advice from the Information Commissioner that,
"the request from the NHTCU is lawful and proportionate in the circumstances",
CSPs complied with the request. The noble Lord, Lord Rooker, confirmed this during the Second Reading debate,
"Communications data has been central to the investigation into the terrorist attacks of 11th September. This data has been available because of the excellent co-operation shown by communications service providers".—[Official Report, 27/11/01, col. 152.]
All of this even before the Anti-terrorism, Crime and Security Act had its First Reading in another place.
It is salutary to reflect that the Act was an emergency response to a dire situation. Ministers constantly and rightly emphasised the sense of urgency attached to its provisions. It is to Parliament's great credit that it was scrutinised so expeditiously and diligently. However, implementation of Part 11 has subsequently progressed at something approaching a snail's pace. The relevant statutory instrument giving effect to the voluntary regime of data retention, the Retention of Communications Data (Code of Practice) Order, was not passed until 13 November last year, nearly two years on from the grant of Royal Assent to the parent Act.
This begs a number of important questions, with which I hope that the Minister might be able to help me. Do the Government still perceive the grant of data retention powers to be urgent'? Has it been the case that, in the absence of the voluntary code provided for by the anti-terrorism Act, the information gathering and investigative talents of our security and law enforcement agencies have been unacceptably constrained? Or can we assume that, in the intervening period, they have had access to the facility of data retention and/or preservation from prior statutory sources?
In turn, insofar as they may now be operating under a previous statutory sanction for data retention, what useful purpose is served by pursuing the full implementation of the voluntary regime envisaged on the face of the Act? It is fair to say that the structure of a voluntary regime is now in place. However, your Lordships will be only too well aware of the considerable concerns that have been expressed about data retention over the past few years. In particular, CSPs continue to have grave reservations in respect of their potential legal liabilities when compliance with any retention regime is measured against the requirements of the Data Protection Act 1998 and the Human Rights Act 1998. It is to state the obvious, but a voluntary regime can only

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be successful if the relevant enterprises sign up to it. With that in mind, how many CSPs have done so? What criteria do the Home Office intend to apply to measure whether the voluntary code is operating satisfactorily? What is the time scale of any review of the effectiveness of the voluntary regime? What criteria are being contemplated as appropriate triggers for a switch to a mandatory regime?
Your Lordships will recall that a particular theme of Parliament's scrutiny of the anti-terrorism Act was the sense in which emergency powers were being sought to deal with what my noble friend Lord Dixon-Smith defined as the generality of crime. This tension has always been particularly acute in respect of data retention. In this context, the Committee's report states,
"We can see the case in principle for requiring communications data to be retained for a minimum period (which would vary with the type of data) for a defined range of public interest purposes such as helping in the prevention and detection of terrorism and other serious crime. These provisions should, therefore, be part of mainstream legislation and not special terrorism legislation."
This recommendation has my whole-hearted support. I can do no other than congratulate the Government on their response,
"The Government tend to agree with this recommendation and is considering putting Part 11 in an additional section to RIPA. The Government would also like to see data retained for the purpose of fighting crime generally. The current position creates a disparity, which needs to be addressed. At the moment data is held for the purpose of safeguarding national security but can be accessed for many reasons including national security. Expanding the purpose for which data is held to include crime generally would eliminate this problem."
How true that is. I find all that extremely helpful, but without wishing to be too churlish, it might have been better had the Government arrived at this view rather earlier in the process. That may well have engendered a speedier and more coherent data retention regime than the current muddle in which it seems to be mired.
Of course, it is always dangerous to make assumptions. None the less, the implication of the Government's response is that, to all intents and purposes, Ministers are keen to move to a mandatory scheme of data retention via the expedient of consolidating Part 11 of the anti-terrorism Act into the Regulation of Investigatory Powers Act 2000. Perhaps the Minister could tell me whether that is a reasonable interpretation of current thinking. I do not doubt that there might be little enthusiasm among your Lordships for a return to the Regulation of Investigatory Powers Act. None the less, and in all the circumstances, it strikes me as a most sensible and appropriate route to take.
1.50 p.m.
Lord Lloyd of Berwick: My Lords, I am particularly grateful to my former pupil, the noble Lord, Lord Thomas, for allowing me to go before him on this occasion. He usually goes before me and I usually find that I agree with everything he says. This time, it is the other way round.
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I should also like to say what a very strong case was made by my noble and learned friend Lord Browne-Wilkinson on Part 3 of the Act, with which I am not familiar—it is not my field. The noble Baroness, Lady Hayman, made an equally strong case in relation to Section 124 and suggested a neat way in which the Minister could get out of that particular problem.
I shall confine myself to a single point only, a point made very well at the bottom of page 57 of the report about the interception of communications. I have been involved in the interception of communications business, if I may call it that, for nearly 20 years now, since the passing of the original Interception of Communications Act 1985—IOCA, as it is called. During all that time, I have never been able to see the sense of using telephone interception to identify the criminals but not using the self-same telephone intercepts to convict them. Yet that is the precise effect of the notorious Section 9 of IOCA. I call it notorious because it was extremely difficult to understand, as drafted—so obscure, indeed, and so apparently silly in its purpose that it took three decisions of the House of Lords to decide exactly what it meant.
I first pointed out the inconvenience of the old Section 9 of IOCA in Chapter 7 of my report on terrorism. It meant, I thought, that we were fighting terrorism with one arm tied behind our hack. I had another chance of saying the same thing when Section 9 was replaced by Section 17 of the Regulation of Investigatory Powers Act 2000. I spoke against the Motion that Clause 17 should stand part of the Bill. The Minister replying was the noble Lord, Lord Bach, and what he said is quoted extensively in the footnote in the Newton report. The noble Lord, Lord Bach, was kind enough to say—not once but twice—that he regarded the point as being very finely balanced. Indeed, at one point I had the impression that I might even have persuaded him.
Yesterday, the Library was able to pinpoint where I could find what I had said and then to produce, in a miraculously short time, what I had actually said. It is usually a mistake to reread one's former speeches on any topic, but, contrary to what I am sure is the experience of many of your Lordships in these matters, on this occasion I find that the matter appears to me now exactly as it appears to have appeared to me then. So rather than make the same speech again, it seemed that it would save time if I simply handed my copy of the speech which I then made to the Minister in the hope that she may read it before this time next week, because it says all that I need to say on the subject. The Hansard reference is 19 June 2000, column 106. It is an unusual course to take but, as I am sure she knows, the people in her team at the Home Office know my views on this topic—indeed, they are sick of hearing them.
I shall give just one example of the idiocy of Section 17. It concerned a conspiracy to import heroin from Holland to England. The Dutch conspirator was convicted in Holland on the basis of a telephone intercept by Dutch authorities, carried out in Holland. The question was whether the Dutch intercept could then be used to convict the English conspirator in England. Happily, it was held by the House of Lords that it could. So we have this extraordinary situation

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that an English intercept could not be used in proceedings in England to convict that conspirator, but the Dutch intercept of exactly the same conversation could be used. That, I suggest, makes nonsense of the argument so often put forward that we must not use telephone intercepts in court proceedings for fear of revealing our interception capabilities. Is there a serious terrorist in this country today who does not realise that his telephones are being intercepted?
On the 14 foreign nationals currently detained without trial, I have two questions only for the noble Baroness. Everybody agrees, I think, that they should be tried if they can be tried. Is the reason that they cannot be tried that there is not an available terrorist offence with which they can be charged in English law? If so, surely we ought to be thinking of amending the Terrorism Act 2000. But if the reason is evidential, then the question is: how many of the 14 could be tried now, and perhaps convicted, if we relaxed the rigour of Section 17? That is exactly the same question I asked the Minister a week or two ago, since when I am sure she will have the answer. If she has the answer, I see no reason for not revealing it, since I cannot see any security reason why that figure should not be given.
Finally, on the broader question of Part 4, I entirely agree with the Newton report summary on page 56 that we simply must find a way of dealing with the problem not only of asylum seekers but also of British nationals without derogating from the European convention.
I was not able to take part in the debate on the Antiterrorism, Crime and Security Act 2001 because I was abroad for several months at the time. However, I wrote a personal letter to the Home Secretary expressing some views about what might be done in the aftermath of 9/11, and added that whatever we did, we ought not to derogate from the convention. I did not get an answer to that letter before I left the country, but when I came back, I found a letter from an official of the Home Office. It was addressed to Mr Lloyd and said that my views would be given very careful consideration by the Home Secretary. That was a useful lesson in humility.
I found, therefore, that the views expressed in the Newton report were like music to my ears, and I entirely agree with everything it says.
1.59 p.m.
Lord Thomas of Gresford: My Lords, the noble Lord, Lord Newton, and his committee have attacked this problem with the thoroughness and integrity that we hoped they would when we insisted upon the inclusion of the need for a review within the Act.
In his speech, the noble Lord referred to the balance of the rights of individual freedom and personal liberty against the state's proper interest in security. What has occurred is a rebalancing. In the name of security, the Government have increased their powers by diminishing the rights of the individual and by curbing the powers of the courts to do anything about it. It is what has been described in America as creating a "new normal". We have moved away from what was accepted normality into another situation.
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That can be illustrated in a number of ways; for example, by looking at the burden of proof that is necessary under the Act; that is, the reasonable belief of the Home Secretary. It is illustrated also in the wider context of statements made by the Home Secretary; namely, that in other fields a lesser standard of proof than proof beyond reasonable doubt may be acceptable in criminal proceedings. We have seen that also in the denial of rights of appeal that is proposed in Clause 11 of the Asylum and Immigration Bill that we will debate next week. We know that judicial review is excluded. There is even a suggestion that habeas corpus will be excluded as well.
The noble and learned Lord, Lord Browne-Wilkinson, referred to Part 3 of the Act that we are considering; namely, the disclosure provisions via the Inland Revenue and Customs and Excise. He pointed to how rarely those powers have been used in terrorist cases. I was struck particularly by his reference to applications being made in 800 cases of murder, because that suggests to me, knowing the number of homicide cases that are investigated in this country, that the Inland Revenue and Customs and Excise are consulted as a matter of' routine, no doubt by the simple filling-in of a form by investigating authorities when offences of that kind are under investigation.
The concept of the "new normal" was referred to in a report that was published in September of last year by the Lawyers Committee for Human Rights in the United States. It stated that the "new normal" is defined by,
"dramatic changes in the relationship between the U.S. government and the people it serves—changes that have meant the loss of particular freedoms for some, and worse, a detachment from the rule of law as a whole. As this report details, the United States has become unbound from the principles that have long held it to the mast".
Referring to the situation in Guantanamo Bay, the committee went on to state:
"Perhaps most marked of these changes, the new normal has brought about a sharp departure from the rule-of-law principles guaranteeing that like cases will be treated alike—
other noble Lords in our debate have referred to that principle—
"and that all will have recourse to fair and independent courts as a check on executive power. In the two years since September 11, the executive has established a set of extra-legal institutions that bypass the federal judiciary; most well known are the military commissions and the detention camp at the U.S. military base in Guantanamo Bay, Cuba".
My information, gleaned on a visit to Washington where I discussed the matter with the American Bar Association and the National Institute of Military Justice, is that at the time of September 11 and in the aftermath, a White House council, not of great seniority, took down from a shelf and dusted off a document about the way in which a military commission was put together during the Second World War to deal with a group of Nazis who invaded America intent on mischief. Without consultation with the American Bar Association, the Pentagon or with the body of military lawyers, that was published, under presidential decree, as the way in which Guantanamo suspects were to be treated. It has caused a huge furore within the legal establishment in the United States, perhaps evidenced by the fact that defence

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counsellors, who have been appointed to attend the military commissions in Guantanamo Bay, have themselves, in recent days, come out and criticised the whole procedure. The military justice establishment in America is incensed that its introduction of due process by reforms in 1952 has been totally ignored in the military commissions that have been put forward.
However, it is interesting that yesterday, perhaps in response to some of those criticisms, the Department of Defense in Washington released a draft administrative review process memorandum, in which it sets out the right of each enemy combatant,
"to explain before an administrative review board of three military officers why he should no longer be detained. Specifically, he would be permitted to explain why he is no longer a threat to the United States and its allies in the ongoing war on terrorism. The enemy combatant would be assigned a military officer to assist him in presenting this information to the review board. The detainee's government and his family would also be permitted to provide information regarding the detainee under review".
The Government have quite rightly attacked the Guantanamo detentions and the way in which prisoners are dealt with, but I contrast yesterday's announcement by the Department of Defense with paragraph 200 of the report of the noble Lord. Lord Newton, in which he states:
"Given the novel and contentious nature of these powers we believe that there should be a continuous proactive effort to manage the individual cases of the suspects with a view to finding alternative ways of dealing with them (such as finding evidence that would support a prosecution). We were, therefore, surprised to learn that the authorities appear to have given no thought to what change in circumstances might lead them to conclude that an individual should be released or dealt with differently … We have been told that prior to the forthcoming post-appeal reviews, to be heard by the Special Immigration Appeals Commission … the authorities will be considering any relevant new evidence".
The committee goes on to recommend that some form of review is urgently required.
Therefore, our Government are criticising the procedures and the military commissions in Guantanamo on the one hand, yet, on the other, they have not gone as far as the American Government have now gone to provide for the possibility of a review of decisions that have been taken about people detained under the Act.
Under the Act, what is the "new normal"? How has it worked out? The noble Lord, Lord Judd, referred to the fact that before the special commission evidence obtained under torture is apparently admissible. I do not know whether that is true, but that is what has been reported. Those noble Lords who saw a film on television last week about the way in which SAS recruits are trained to withstand interrogation may have gained some flavour of the nature of the investigation that may be carried out against people who have been captured in Afghanistan or Iraq, or who have been detained in other parts of the world on suspicion of terrorist activities. If evidence obtained in that way is to be admissible in any form of judicial proceedings, it is a blight on our judicial processes.
Another problem that has emerged is that of disclosure. No disclosure is obviously made to the person who has been detained under Part 4 of the Act, but there is some form of disclosure to the special
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advocate who has been appointed. The noble Lord, Lord Carlile of Berriew—the Minister wrongly pronounced "Berriew"—points out in paragraph 86 of his report that no procedures similar to those in the criminal court have been published for ensuring that there is proper disclosure to the special advocate.
The concept of the special advocate itself was something that my colleagues and I criticised at the time when the provisions were considered. From the report of my noble friend Lord Carlile of Berriew, it appears that the special appointed advocate is very often an administrative lawyer with no criminal experience; that no training has been set out for such people; that he is not provided with proper assistance to perform his task; and that it is a huge burden on the individual special advocate even to attempt to carry out the very onerous tasks placed upon him.
Beyond that, the fundamental criticisms that we made when the Act was before us as a Bill have been fulfilled. I was surprised to discover, although it is perfectly consistent, that the special advocate may see his client and may take instructions from him but that, once he has seen any material, he is no longer entitled to talk to him at all and may not see him again. That is an extraordinary situation, and it seriously weakens the validity of the special adequate procedure. It is unthinkable in any other area of the law that an advocate would be unable to speak to his client when the information upon which he requires instructions in order to carry out his task has been placed before him in such a secret way.
Urgent consideration is required as to how we can bring terrorism and threats to security within the normal criminal justice system. In the courts, we are used to dealing with security problems, and public interest immunity applications are made daily in every court in this country. We should be able to trust our advocates and judges to keep the necessary information that they receive in that way entirely secret, as they do at the moment.
Some constructive ideas have been suggested in the report, which should be fleshed out. The noble and learned Lord, Lord Lloyd of Berwick, to whom I suppose I must refer as "the Master", as he always refers to me as his pupil, pointed out that there may be room for the development of a completely new set of offences, of acts preliminary to a terrorist offence—the sort of offence that my noble friend Lord Carlile of Berriew was interested in fleshing out himself. Alterations to the laws of evidence and the use of intercepts can be considered. Whether they will be very much use to a prosecution, for the reasons given by earlier speakers, is something that we can investigate. However, since so much of the intelligence on which we went to war was based on intercepts, it is perhaps conceivable that they may provide enough information to bring a prosecution against an individual.
If there are new offences and new laws of evidence and procedure within our normal justice system, which still fail to convict a person suspected of a terrorist offence, we should use new technology for surveillance of that person, release him into the community and

815
keep a watch on him—whether by overt surveillance or tagging or covert surveillance, which would perhaps give a lead to other people suspected of the same thing. We must get away from the new norm that is being proposed by the Government and get back to the basic principles on which our criminal justice system has been built for centuries.
2.14 p.m.
Lord Lester of Herne Hill: My Lords, like everyone else who has spoken in the debate, I pay tribute to the Privy Counsellor Review Committee chaired by the noble Lord, Lord Newton. It is Parliament's watchdog in this matter, it is authoritative in its composition and it has taken evidence with great care. It had the great merit of including as one of its members a senior Law Lord, who is not a politician. I regard its report as the most important state paper that I have read during the 10 years that I have been a Member of this House. I should explain that I believe the Government's response to the Newton report to be unsatisfactory and inadequate. I should like also to express genuine sympathy for the Minister, who needs giant strength to carry the heavy burdens of collective responsibility on this and some other matters. She is the most humane and human Minister, whether of the Home Office or otherwise, in this Government, which must make her burden in some ways more difficult.
Going hack to the mention made by the noble and learned Lord, Lord Browne-Wilkinson, of knee-jerk wet liberals, I should point out that I live in south London and not in Hampstead. I hope that the Home Secretary is told that in due course. I am not a Hampstead liberal—I have lived in south London all my adult life. I should also like to make it clear that I am in no sense wet about terrorism. When I worked with Roy Jenkins in the Home Office in 1974, we had to fashion the Prevention of Terrorism (Temporary Provisions) Act 1974, which was the first of such Acts. We had to deal with Irish terrorism and the Price sisters. I was involved in all that and I perfectly understand the dilemmas that terrorism gives rise to, as did Roy Jenkins. However, I would like to think that, if he were now the Home Secretary, he would not have reacted as the present Home Secretary has done.
The first thing that I would like to say about the present Home Secretary is that he had no business to broadcast, within almost minutes of the publication of the Newton committee's report, his knee-jerk reaction rejecting the report, or to suggest later that really these Privy Counsellors were not adding anything to the public debate that had not been said when the original legislation was enacted. That was disrespectful to the Privy Counsellor Review Committee, which spent a great deal of time under its special mandate, considering evidence before reaching its careful conclusions.
I also regret the fact that, when the discussion document was produced with great fanfare, as showing how open-minded the Government were, when one actually read it one discovered that, without any parliamentary debate, all the main proposals put forward by Newton were essentially being rejected, often with hare reasons or no reasons that withstand
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scrutiny. It is all very well for the Minister to come before us today to explain how open-minded the Government are, but they are not open-minded about the Newton committee's main recommendations. I agree with everything that the noble Lord, Lord Judd, said, as a fellow member of the Joint Committee on Human Rights; as he said, there is no recognition in the discussion paper of the force of our successive reports dealing with these matters.
All that is most regrettable, and it is not an example of polite or good government or proper respect for the will of Parliament in setting up the committee or the work done by the committee. But that is water under the bridge.
On Part 3, the noble and learned Lord, Lord Browne-Wilkinson, dealt with the matter with such force, reinforced by the noble and learned Lord, Lord Lloyd of Berwick, that I simply point out how grossly inadequate the Government's response has been thus far. I hope that the matter can be mended, either in the reply today or next week. The position is that, in paragraphs 165 and 166 of the report, the Privy Counsellor Review Committee endorsed the conclusions reached by the Joint Committee on Human Rights. In that committee, in an earlier report, we wrote that,
"there remains a significant risk that disclosures will violate the right to respect for private life under Article 8 of the ECHR, because of the range of offences covered, and the lack of statutory criteria to guide decisions and the lack of procedural safeguards to be followed when deciding whether it is necessary and proportionate to make a disclosure of personal information".
That was from the unanimous report of the Joint Committee on Human Rights. The Newton committee report stated:
"In our view the Government should legislate to provide independent external oversight of the whole disclosure regime, (e.g., by the Information or one of the other statutory Commissioners) to provide a safeguard against abuse and to ensure that rigorous procedural standards governing disclosure are applied across the range of public bodies, prosecuting authorities and intelligence and security agencies. It should also require the independent overseer to publish statistics twice a year on the use of Part 3 (both within the United Kingdom, and to overseas authorities)".
It seems to me that those recommendations are of enormous importance. How then did the Government deal with them in paragraphs 24 to 27 of this discussion document? In paragraph 24 they say:
"The supply of information about an individual by one public authority to another cannot, in the Government's view, realistically be regarded as being as intrusive as, for example, a search of that individual's home".
I am not sure about that. It seems to me that swapping information about me between two public bodies may well be as intrusive to my personal privacy. But it does not matter whether it is "as intrusive"; the fact is that it is a grave interference with personal privacy. They go on:
"The courts have also recognised that while they will hold public authorities to high standards of reasonableness in their assessments of proportionality, they will not interfere to impose their own judgement where they are satisfied that the decision is within the range of reasonable responses open to a reasonable decision-taker".

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That is, of course, correct. It means that the courts defer to the public authority. But that is why we need a different kind of external monitor of the process.
They continue:
"Given these considerations, and the numerous occasions where public sector data sharing of this sort, and joined up administration"—
that ghastly cliché of modern government—
"will be in the public interest in promoting legitimate aims, the Government cannot accept the Review's proposal of prior judicial control of information disclosure".
But the Newton committee was not recommending prior judicial control of information disclosure.
They then say:
"Nor does the Government discount…as 'illusory' the protection afforded by the Human Rights Act".
But that does not deal with the problem that the victim of an invasion of privacy does not know that his privacy is being invaded. It is only by having a positive obligation on the public authorities of the state with external scrutiny that there can be what the European convention requires, which is adequate safeguards against abuse. The Government do not propose any adequate safeguards against abuse. They simply refer to the Department for Constitutional Affairs having published guidance on the legal framework. The problem is that the legal framework is unsatisfactory because it does not have adequate safeguards. That will not do. An open-minded government do not close their minds to these central points and, unless I am much mistaken, that is what the discussion paper says has happened.
Part 4 has been concentrated on in the debate. I agree with the noble and learned Lord, Lord Browne-Wilkinson, that what it contains is not a tolerable system in a civilised society. It threatens the rule of law and it threatens fundamental rights and freedoms. The derogation is the only derogation among all the member states of the Council of Europe. In fact, it is the only derogation in the world since, as far as I am aware, neither Australia, the United States nor any other party to the International Covenant on Civil and Political Rights has derogated, even though they have some fairly tough laws. I believe that it can be very strongly argued that the derogation is not justified under the European Convention on Human Rights. That is a matter that will be dealt with by the Law Lords and, if necessary, by the European Court of Human Rights.
Let me reinforce what the noble Baroness, Lady Hayman, and other noble Lords said about the curious contradiction regarding British citizens and foreigners. Everybody agrees that there are some nasty terrorists or suspected terrorists who are British citizens as well as some who are aliens. The discussion paper says that the powers in Part 4 are too draconian to impose on British citizens. But if they are too draconian to impose on British citizens who are terrorists or suspected terrorists, then I do not understand how the Government can justify imposing them on foreigners, except on the legalistic argument that foreigners can be
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deported but British citizens cannot. The reason why that is a legalistic argument is because we all know that, in practice, foreigners cannot be deported and so they are being indefinitely interned without trial, just as we interned suspected IRA terrorists without trial under the regime that existed in Northern Ireland when I was young. That is another matter that will have to be decided by the courts. Effective measures that are irrespective of nationality are needed against British citizens as well as against foreigners who are terrorists or suspected terrorists.
My next point is that in paragraphs 205 to 234 the Newton committee imaginatively sets forth a whole range of new ideas about how to deal with the matter in a way that did not require derogation. That is very important if one is thinking of European convention ideas of proportionality because if other means can be used to achieve a legitimate aim, it is disproportionate to take unnecessary powers and use them. In her opening address, the Minister said that she recognised that the Part 4 powers were not perfect. I bet that in her reply she will not tell us in what respect the Home Office thinks that they are not perfect. It would be a very interesting exercise to discover that from her officials because if the powers are imperfect and people are being held under them, it is another example of the lack of a sense of proportion.
I am also very sorry that the Home Office document gives no response not only to the paragraphs to which the noble Lord, Lord Judd, referred, but also to paragraphs 19 to 21 of the Joint Committee on Human Rights report, as well as paragraphs 33 to 40. As, I think, the noble Baroness, Lady Hayman, said, there is great danger that the Home Office will simply cherry-pick those new powers being suggested by Newton, rather than cut back on unnecessary powers.
I shall say a word about SIAC, the Special Immigration Appeals Commission. I am one of those people who reluctantly supported setting up SIAC and I have appeared as counsel before its twin, POAC, which deals with proscribed organisation appeals where terrorist organisations are banned. I must put this very delicately: at the Bar, whether among special advocates or ordinary practitioners like myself, there are great concerns about the procedures operated and about the appearance of an independent and impartial trial in any normal sense. I know that the special advocates to whom I have spoken feel worried about that. It is not dealt with by the Newton committee, but I mention it so that the House knows. It is not a very happy situation at the moment.
Press reports suggest that the Home Secretary is a close personal friend of the Attorney General of the United States, John Ashcroft. That gives me real concern because of what has happened under his jurisdiction with the Patriot Act and, as my noble friend has said, in Guantanamo. The noble Baroness, who speaks better Latin than I do, will know what is meant by the maxim noscitur a sociis. One must be very careful about the contaminating influence on our own legislative regime of a lack of due process on the other side of the Atlantic.

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Finally, I am sorry that the right reverend Prelate the Bishop of Rochester is not in his place. I do not agree with what he said about Part 5 on race and religion. The Newton committee put it moderately, carefully and sensitively in suggesting that the matter might best be dealt with by taking it away from this type of legislation and seeing whether the Public Order Act needs to be amended.
We know that the Select Committee on Religious Offences spent a very long time unable to reach any clear conclusion because of the problems that politics and law, free speech and religious diversity created. I represented the Satanic Verses book in the case with Salman Rushdie when an attempt was made by Muslims to extend blasphemy law to religions other than the Anglican faith. It convinced me that nothing could be more divisive in our society than to set Hindus against Muslims, Christians against Jews, secular against religious, by widening the anomalous and outdated offence of blasphemy.
So I would say to the right reverend Prelate that the first thing that would have to be done if one wanted to change the law, as the Law Commission long ago suggested, is to get rid of the offence of blasphemy, which is seen to be discriminatory, not by extending it to all religions, but by abolishing it all together. If that were done, then there would be a great deal to be said for including incitement to religious hatred and incitement to racial hatred and incitement to hatred, for example, against homosexuals in a general hate offence in the Public Order Act. However, I think that one has to tread extremely carefully if one goes down that road.
2.31 p.m.
Baroness Whitaker: My Lords, I very much agree with the noble Lord, Lord Lester, about the inadvisability of the offence of blasphemy. But I rise to make a short intervention, you may be pleased to hear, on a discrete part of this Act, Part 12, which creates a new offence, that of bribery outside the United Kingdom. I remind your Lordships of my membership of Transparency International UK's advisory council.
The provision was widely welcomed, and, as the highly respected review says, is largely uncontroversial. It goes some way to implement the UK's compliance with the OECD convention on combating bribery, pending the comprehensive legislation which the Government are committed to. My concern is that the review also welcomed the repeal of Part 12, on the basis that there would be an anti-corruption Bill on the statute book which would be the proper home for such a provision and the others that are required to comply fully with all our international obligations in the world-wide fight against corruption.
But, my Lords, we have no such statute. The Government did present a draft, for scrutiny, and as a member of the scrutiny committee, I think I ought to say that the draft that we saw would not in our opinion have provided satisfactory compliance. This was echoed by our OECD witness, and indeed by the review itself. The Government accepted some of our
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recommendations, but have not as yet presented a fresh Bill. So if Part 12 of the Anti-terrorism, Crime and Security Act is repealed now as things stand, we shall have no offence of bribery outside the United Kingdom.
I do not need to tell your Lordships that overseas bribery is widespread, more so, probably, than domestic UK bribery. It is enormously destructive of development and democracy itself in developing countries. The USA has had legislation to counter bribery abroad for 30 years, and the recent succession of OECD, Council of Europe and United Nations instruments shows the priority the international community has chosen to give to the subject. So a lacuna in our legislation at this moment would not only prevent effective prosecution of highly damaging offences, it would send all the wrong signals to the rest of the world.
When I raised this point earlier (Hansard 4 February, col. 679), my noble friend agreed that Part 12 was important. I am grateful for that, and I am also grateful that my honourable friend Beverley Hughes said in another place in their debate on the review that,
"we would not want to lose the powers in part 12 until alternative legislation was in place"—[Official Report, Commons, 25/2/04; 378.]
But can I press my noble friend to be firmer? As my honourable friend Hugh Bayley said in that debate, the United Kingdom faces an evaluation by the OECD of our compliance with the convention this year, as well as one by the Council of Europe, on our compliance with the council's convention on corruption, ratified by our Government last December. We really need to show we are serious about this. Can she assure us that there will be no government proposal for repeal of Part 12 until a new corruption Act is in force?
It would, of course, be the most desirable of all to have the new corruption Bill. What can my noble friend tell us about its timetable?
2.36 p.m.
Lord Goodhart: My Lords, we have been presented with a very full and carefully considered report on the Anti-terrorism, Crime and Security Act 2001, of a committee of nine Privy Counsellors, four of whom are Members of your Lordships' House, all four of whom have spoken to great effect in this debate. Their report has been supported by speakers on all sides of your Lordships' House and has met with no serious criticism other than that from the Government Front Bench. I, too, and my party support the report. It makes it possible for me to be briefer than I would otherwise have been. I have been pruning my speech quite vigorously and hope to be able to finish well within my allotted time.
The report was, of course, unanimous. Not only that, but it was endorsed by a report of the Joint Committee on Human Rights, two members of which have also spoken in this debate. It has, however, met with a profoundly hostile response from the Government. When the Minister gave a list of points in the report which the Government accepted, she came out with four or five frankly minor points out of a report containing nearly 60 recommendations.

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By far the most controversial element is Part 4 of the Act. However, other issues raised in the report also need to be looked at. If I may, I shall deal briefly with those.
The Bill included a number of provisions which had little to do with terrorism but were intended to extend general police powers. As the noble and learned Lord, Lord Browne-Wilkinson, and the noble Baroness, Lady Hayman, have pointed out, the report says that these issues should be taken out of the terrorism legislation and put where they belong, in general anti-criminal legislation. The Joint Committee agrees with that. I must say that I, too, agree very strongly with that conclusion.
The committee made some very sensible proposals on Part 3 of the Act concerning the disclosure of information held by public authorities for use in the investigation of crime. The Government rejected those proposals for the oversight and limited judicial control of those disclosures. I believe that, there again, it was the committee that was right.
Part 10 deals with police powers such as fingerprinting. Although those new powers are undoubtedly useful against terrorism, their impact and use goes far beyond terrorism. The committee said that the measures in Part 10 needed to be re-examined. Some of the provisions, the committee said, went too far and should be repealed or significantly amended. The Joint Committee once again agrees. The Government once again reject that out of hand.
Part 14 of the Act contains a particularly sweeping Henry VIII power to amend or repeal legislation by order. That order, as the noble Baroness, Lady Hayman, pointed out, is subject only to the negative resolution procedure. The committee says that that power should be repealed. The Government respond with a single word: "Disagree". It seems obvious that Section 124, in Part 14, should at least be subject to the affirmative resolution procedure when it is used to amend or repeal primary legislation.
I now turn to Part 4. Part 4 is, of course, extremely controversial. Some people describe detention under Part 4 as the United Kingdom's equivalent of Guantanamo Bay. That is not entirely fair. It is, for example, possible for detainees to leave the United Kingdom for their home country or a third country willing to accept them, and two out of the 16 people who have been detained have done so. Again, unlike the situation up to now at Guantanamo Bay, there is an appeal against detention to SIAC. That is not a proper trial, but it is at least a legal process which involves a review of the case by a judicial body chaired by a high court judge. But Part 4 still authorises detention for an indefinite period and does so without a criminal conviction. Part 4 undoubtedly breaches Article 5, and the United Kingdom has therefore had to derogate from that article.
The application of Part 4 to foreigners alone is disturbing. On the face of it that does appear to be discrimination, and indeed SIAC held that Part 4 amounted to unlawful discrimination which rendered
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the whole of the process unlawful. That decision was reversed by the Court of Appeal, but it is that decision in turn which is subject to an impending appeal to your Lordships' House.
I agree with the Newton report and, in particular, with the noble Baroness, Lady Hayman, and my noble friend Lord Holme and others, that we cannot say that home-grown terrorists are less of a threat than imported ones. So what is the justification for Part 4?
The Government said, at paragraph 36 of their response, which was a passage referred to by my noble friend Lord Lester of Herne Hill, but I quote it in full:
"While it would be possible to seek other powers to detain British citizens who may be involved in international terrorism, it would be a very grave step. The Government believes that such draconian powers would be difficult to justify".
I believe that the powers that are now in Part 4 are equally draconian and equally difficult to justify. If the threat is so serious that detention is needed then the Government should apply it to domestic as well as to foreign suspects. If the threat is not serious enough to make detention of domestic terrorist suspects necessary, then foreign ones should not be detained either.
It is of course clear that we cannot abolish Part 4 today. In the debate on 25 February in the House of Commons that point was accepted in a thoughtful speech by Vera Baird, a distinguished lawyer for whom I have great respect, who can perhaps be described—and I hope she will not mind my saying so—as a realistic radical. What she said was this:
"When I asked my right hon. Friend the Home Secretary whether, if we work hard at expanding the capability of the criminal law, we will succeed in getting rid of Part 4, he said, very clearly, no. We have no option but to accept that today—everyone agrees that there is an emergency and a threat. We cannot possibly demand that the measure ends now, so we must vote for it tonight".
Then, omitting a couple of sentences:
"All of us who are consulted should aim to ensure that the criminal law can achieve the successful prosecution of British or foreign nationals who are terrorists. There is no other way in which we can persuade the Home Secretary that we can do without Part 4, and we must do so by letting the provision fall into disuse and using the criminal law more often".—[Official Report, Commons, 25/2/04; col. 367.]
That seems a very wise description of what I believe is the course at which we should aim.
Of course I recognise that there are serious problems. Evidence cannot always be produced in court because it might give away vital information about intelligence procedures and sources. My noble friend Lord Carlile of Berriew, in his recent review of Part 4, concluded that it was not a disproportionate response. But I agree with the Newton committee and with the Joint Committee on Human Rights that the time has now come to start the work of replacing Part 4. I agree that the replacement must apply to domestic as well as to foreign suspects. I agree that we should, as soon as possible, move to the end of derogation from Article 5. I agree that, as far as possible, we should use criminal law. In that context, one thing that has met with wide approval in the debate this afternoon is to allow intercepts to be used as evidence. That was particularly supported by the noble and learned Lord, Lord Lloyd

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of Berwick, who I am glad to see just returning to his place, who has exceptional experience in this matter and whose views are ones that the Government ought to take very much into consideration.
So long as any form of Part 4 procedure needs to be retained, we must also bring it closer, if we can, to the criminal trial. A starting point for this would be to raise the threshold for the exercise of the power to order detention under Part 4. Under that Act the threshold is the "reasonable belief- of the Home Secretary that there is a suspect who presents a threat to national security. In fact, the Government have made it clear that it is actually operating on the basis of a higher standard. The Home Secretary said so in the debate in the House of Commons on 25 February, when he said:
"We have used a higher level of evidence and lifted the test higher than the standard required by 'reasonable belief".—[Official Report, Commons, 25/2/04; col. 295.]
That was the test laid down in this House just over two years ago. The same point was made in the consultation paper just published by the Government and by the noble Baroness, Lady Scotland of Asthal. It is obvious that raising the threshold would not endanger the system.
We need to achieve a correct balance between the protection of the public from terrorism and the protection of the civil liberties of suspects. We have not yet got that balance right. I hope that the Government will now come forward with substantial reforms to the anti-terrorism Act. In that context I have to say that I am deeply concerned by the negative response to the consultation paper, though slightly relieved by the somewhat more ameliorative line that has recently been taken. I am also concerned by the unusually long period which has been allowed for consultation. I fear that this may have been intended to ensure that no new legislation can be passed in the next 12 months, so that Part 4 will have to be renewed again, though admittedly for the last time, next year. I hope that this time next year my concerns on these matters will have been proved wrong.
2.48 p.m.
Baroness Anelay of St Johns: My Lords, I join other noble Lords in thanking my noble friend Lord Newton and his colleagues for their report that we have debated today. As the House would expect from a committee of' such distinguished Privy Counsellors, it has produced a report that is substantial, measured and constructive. The committee obviously put in a formidable quantity as well as quality of work, and did an enormous amount of research. Members of the committee have paid due tribute to the small team that assisted them, but I have no doubt that there was a huge responsibility on their own shoulders. They brought to their work a considerable level of expertise and experience from around the world of politics and from the very top of the world of law.
The committee made a number of serious recommendations worthy of careful consideration by the Government. I, too, was somewhat disconsolate when the Home Secretary made a rather rapid and
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unhelpful response, but, as is her wont, the Minister has today given a full and courteous introduction to this debate and I have absolutely no doubt that she will do the Home Secretary proud in her response. Whether it is a response that meets the points made by noble Lords is yet to be seen.
Matters as serious as the balancing of the safety of our citizens against the fundamental rights to justice of all human beings demand serious consideration. That is, indeed, just what they have received today. As my noble friend Lord Dixon-Smith pointed out, the context for the Anti-terrorism, Crime and Security Act 2001 was the tragedy of the events of 11 September 2001.
The Minister reminded us that since that date attacks have taken place in Bali, Mombassa, Riyadh, Casablanca and Istanbul, so no one can harbour any illusions about the strength of the terrorist threat or about the fact that we in the United Kingdom remain a serious target. No one who has spoken today has questioned that threat. Indeed, I have never heard a Member of this House do so.
The reality is, therefore, that we are not talking about a temporary measure when we discuss these issues today. So far we have, indeed, been fortunate. The Minister was right in her opening remarks—I join with her—to thank the police and the intelligence services for the work that they do to try to ensure that we remain secure. We need to have in place all the necessary measures to prevent attacks from succeeding in the UK. We acknowledge that we have to be united in the war against terror—and all in this House always have been. We agree, therefore, with the Newton committee that there is a continuing need for special counter-terrorist legislation. We also believe that terrorists should be given no special status and should be treated as criminals. As the noble and learned Lord, Lord Lloyd, set out in his 1996 review, so far as possible anti-terrorist legislation should approximate to the ordinary criminal law and procedure.
Above all, we need constantly to check the powers in the 2001 Act against three strict and rigorous tests. First, are we confident that the powers work to minimise the risk of terrorism? Secondly, do they undermine fundamental liberties to the extent that they do the terrorists' work for them? Thirdly, can we protect the public at least as effectively by any other measures that involve less harm to those self same liberties?
After careful consideration of those three tests, we support the 2001 Act overall but we believe that all anti-terrorist legislation should be subject to annual review and full debate by Parliament and, if necessary, to regular revision. I was grateful to my noble friend Lord Northesk for reminding us of the part of the Act that deals with the retention of communications data. I very much look forward to the Minister's responses to the questions that he posed.
One of the most striking aspects of the committee's report is the number of powers that it identifies in the 2001 Act that have been used sparingly or not at all. It gives the example of freezing orders provided for in

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Part 2. Everyone agrees that the power to freeze assets is, indeed, a key weapon in the fight against terrorism. Yet the committee states at paragraph 146:
"These measures are unlikely to be used against terrorism while the Terrorism (United Nations Measures) Order 2001 is in place, which already makes specific provision for freezing terrorist assets".
The committee goes on to cite a number of advantages that distinguish the United Nations order from the Part 2 powers and concludes in paragraph 149 that,
"freezing orders for specific use against terrorism should be addressed again in primary terrorism legislation, based on the well-tested provisions of the Terrorism (United Nations Measures) Order 2001".
In their response to the Newton report, the Government say at paragraph 13 on page 21 that they do not accept the proposal, stating:
"The fact that the power has not been deployed since the legislation came into force is not of itself an argument for setting it aside now, nor including it within primary anti-terrorism legislation".
That view was repeated by Beverley Hughes when she concluded the debate in another place and added that,
"the fact that some powers may not have been used much does not detract from their deterrent effect".—[Official Report, Commons, 25/2/04; col. 377.]
I have to say that we still find that a curious justification for rejecting the committee's perfectly reasonable proposal. We ask the Government to consider that particular issue again as much of the committee's argument is that the United Nations terrorism order is a better, more effective and more just law.
On the question of identity theft the committee says that it is not convinced that all the relevant measures in Part 10 address that effectively. I refer noble Lords to paragraphs 43 and 336 of the report. In his response the Home Secretary said at paragraph 107:
"The Government are assured that these powers are effective and proportionate".
The question is, how can that be the case when the committee has said that the problem is on so large a scale? The Home Secretary's response at paragraph 109 is that the problems will be addressed by the introduction of identity cards in the UK and by the use of biometric technologies. But under the Government's scheme compulsory cards will not be introduced until 2011 at the earliest, and will not solve the problem of credit card fraud. Therefore, I do not think that the Government's response addresses the committee's points directly. We need a more rapid and tailored solution than the one that the Government are currently offering.
We agree strongly with the committee's recommendation on terrorist property, particularly in relation to extending the power of seizure to non-cash items. The Government say that the powers in the terrorism Act already allow such seizures, yet the committee has clearly identified a problem. We believe that the Government need to give greater reassurance than that given in the published response which simply states that the current powers are adequate to tackle the problem.
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We also agree with the committee's view at paragraphs 15a and 124:
"Open hearings in an ordinary Magistrates' Court are not the appropriate forum for handling cash seizures in terrorist cases".
The committee recommends that the terrorism Act be amended to enable cash seizure hearings to be handled in a similar way to warrant hearings under the legislation. The noble Baroness, Lady Scotland, said that the Government would look more closely at that proposal, and we certainly welcome that assurance.
The committee echoes and endorses concerns that were raised by my noble friends, for example, my noble friend Lord Dixon-Smith, during the passage of the Bill in 2001 on the Henry VIII powers in Section 124. That has received very proper attention from noble Lords today. The committee's recommendation could not be stronger. Paragraphs 58 and 442 state:
"The powers of amendment set out in Section 124 are particularly unwelcome in emergency legislation of this kind, and they should be repealed".
However, the Government dismissed the committee's recommendation; they are wrong to do so. We strongly urge the Government to reconsider their view, most of all on legislation such as this that impinges so fiercely on individual civil liberties. I, too, should like to commend the very careful and clever assistance that the noble Baroness, Lady Hayman, gave to her noble friend the Minister in pointing out that there is a straightforward resolution to the problem. I hope that the Government are able to seize upon her offered solution.
I turn now to the most controversial aspect of the legislation on which the committee echoes our view that was originally expressed during the passage of the Act. I refer to the detention powers in Part 4 that have received so much attention today. The committee's conclusion in paragraph 203 is unequivocal. It states that,
"the Part 4 powers which allow foreign nationals to be detained potentially indefinitely should be replaced as a matter of urgency".
During the passage of the Act my noble friends argued strongly that internment was not the best way of dealing with such cases. Regrettably, the alternatives that were put forward by the Opposition did not persuade the Home Secretary. As a result, as we have heard, under the detention powers some 14 foreign nationals are being held indefinitely without trial.
It is undoubtedly the case that such detention is a serious infringement of civil liberties. The Home Secretary is fond of saying on television and radio—he said it again on 25 February—that the detained persons can always leave the country. I do not find that a particularly persuasive argument. I very much welcomed the Minister's measured and accurate response today when she recognised that if those people returned to their countries of origin they could well face death. However, the other side of that problem was very properly pointed out by the noble Baroness, Lady Hayman; namely, that it is a very difficult matter to release such persons into the community here thus—one would expect—putting our own citizens at risk. Any government have to

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undertake the most excruciatingly difficult balancing act in order to make these decisions. We do not underestimate the problem faced by the Government in the matter. We recognise that the Government have had to take a tough decision on keeping those people in detention and we support them in the action that they have had to take.
Nevertheless, because it is such a serious infringement of civil liberty, the Government should heed the committee's request and seek an alternative approach. I welcome the Government's undertaking to review Part 4 over the next six months. The next question is which alternative approach would work? The committee offers several serious options. I shall seriously prune my speech at this point, as did the noble Lord. Lord Goodhart, because noble Lords have appropriately addressed those alternatives.
We support in general almost every proposal by the committee. Perhaps my noble friend Lord Newton will say that I ought to refer to one on which we do not agree with the committee—that is with regard to the use of electronic monitoring. There is a difficulty in proposing that people who are potential suicide bombers might be appropriately electronically monitored and released into the community. I believe that their lack of care about being followed or having their whereabouts known might lead to a tragedy before any electronic means might be taken to stop them from performing an illegal act. We accept the other recommendations almost without exception.
The Home Secretary has told us that we already have,
"a wide range of criminal and terrorist … offences that can be used to bring prosecutions. The Government is considering whether further offences should be introduced".
That is an interesting proposal, but senior police officers have told us that there are gaps in the law that create problems for them in their pursuit of terrorism. For example my right honourable friend David Davies invited the Minister in another place to say, when she wound up the debate, when we were likely to see such further proposals. The Minister Beverley Hughes did not take the opportunity on that occasion to respond to a point about conspiracy law and I would be grateful if the noble Baroness the Minister could do so today, or indicate whether she can write to me.
The powers that the House is examining today are exceptional. Under normal circumstances many of those powers would not even be contemplated, let alone approved by this House. Other noble Lords who have taken part in the debate had the opportunity at an earlier stage to debate the Act when it was passing through the House and have made clear the reluctance but realism with which they had to agree to such provisions—subject, of course, to those that made it possible to have this debate today.
Regrettably the threat of terrorism dictates that some extreme measures are necessary. We agree with the Government that without the powers of the 2001 Act our defences against international terrorism would be weakened to an unacceptable level. For that reason, despite our reservations about Part 4, we
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support the continuance of the Act. However, we call on the Home Secretary to return to the questions raised about Part 4 and to review most carefully whether changes in evidence could allow him to replace what is effectively internment with what we all want—a proper process of justice.
3.3 p.m.
Baroness Scotland of Asthal: My Lords, I straightaway express my gratitude for the way in which this debate has been handled and repeat my sincere thanks to the committee. I should also make some general responses to the issues that have been raised. I also accept that the report was unanimous and was undertaken by those involved in the process from all sides of the House. I reassure all noble Lords that that is a matter that the Government very much take into account. We also accept the sagacity of its authorship.
However, infallibility is an issue with which it is difficult to struggle and I agree with the comment of the noble and learned Lord, Lord Browne-Wilkinson, when, with great humility, he accepted that the committee which was entrusted with such an onerous task did not claim omniscience or omnipotence. Equally, the Government find themselves in the same position. That helps to explain what I mean when I say "perfect". We and the committee are both striving for a balance—not "perfect" in the sense that, as the right reverend Prelate the Bishop of Rochester made plain, freedom is not absolute and in balancing one group's interest against another one restricts the rights and liberties of one group, often to give voice to the rights and liberties of the other group. Regrettably, we do not find ourselves in a perfect situation because we have to accept, with due humility, that whatever we craft—no matter how we strive to make it fair and proportionate—it will not be perfect. All we can hope is to make it as perfect as we can.
I understand the sensitivities that may have been bruised by what may have appeared to be too hasty a rejection from my right honourable friend, the Home Secretary. But I hope that both he and I have made it plain that no discourtesy was intended to your Lordships. I thank my noble friend Lady Hayman for her kind words in relation to my ability to spin gold from straw. That is not an ability that I have yet crafted, but I thank her for that. Her advocacy was well demonstrated in he measured comments. I also thank the noble Lord, Lord Lester, for his kindness. I do not know whether that will prove to be a kindness, but I thank him none the less.
Lord Lester of Herne Hill: My Lords, it was intended to be a kindness and the noble Baroness is undoubtedly the best alchemist in the House.
Baroness Scotland of Asthal: My Lords, I do not know what to say to such flattery and I accept it with as much grace as I can. I hope that the noble Lord understands, in relation to the report of the Joint Committee on Human Rights, that it was difficult to have a discussion on those matters. He will remember

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that the discussion paper was published on 25 February and so it was impossible to consider the report of the Joint Committee as it was published the next day, on 26 February, the day after the discussion paper, a draft of which was available only on 24 February. I know that many people believe that we can act with speed, but that report needed a deal of consideration.
I now turn to some of the main issues that were raised by a number of noble Lords in relation to the report. The first is the distinction that appears to have been drawn between nationals and non-nationals. That is an issue that was raised not only by the noble Lord, Lord Newton, but the noble Lords, Lord Lester and Lord Holme, as well as my noble friend Lady Hayman.
We have made clear the difficulty that that poses. The difference between the national and the non-national is particularly challenging for the very reason that we prosecute wherever possible. If there is evidence upon which we can prosecute for any offence, that is the Government's preferred course. In relation to international terrorists, there is a difficulty, which I am grateful that the House has accepted, over what one does about removal of that individual. Deportation, if possible, is the natural consequence of the fact that Part 4 powers are immigration powers. Detention is only permissible pending deportation and when no other powers are available. I hear what is being said, that there should be a change to bring the two together.
As with international terrorists who are foreign nationals, our first thought is to prosecute wherever possible. Where evidence of offence is not available, we seek to investigate and, hopefully, disrupt them in ways permissible by law. Part 4 is not available, by definition, but the question of what more we could and can do is raised by the Privy Council committee, and acknowledged in the discussion paper. The latter asks for ideas. I hope that noble Lords will see that the Government are trying to be open, are considering these matters, and will take into account the ideas that have been both raised in this debate and in the Newton report. I hope I have made that plain.
Lord Lester of Herne Hill: My Lords, I am grateful to the noble Baroness for giving way, and l shall not interrupt again. To take one specimen example, the Newton report recommends that the Government think about using the French procedure of the juges d'instructions to get over the difficulties of the Special Immigration Appeals Commission. Is that the kind of recommendation that the Government will now take really seriously, coming back with informed recommendations by August, or has that been rejected?
Baroness Scotland of Asthal: My Lords, I cannot say that that has been rejected. On the options currently put forward, I accept entirely the comment made by the noble Lord, Lord Holme, that the committee was not asked to put forward solutions in this regard. It
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was simply asked to report, review and recommend. I have taken that very much to heart, and the Government have taken that very much to heart. But we are now in a position where what we have crafted appears to be the best possible option at the moment. We have made plain that we are willing to explore other options, other exceptions, to see whether a better way may be found. The legislation we currently have gives us a deadline in relation to November 2006 in any event. I can certainly reassure my noble friends that the sunset clause is there, it is robust and there is no question of not operating as far as the Government are concerned. I have listened very carefully to the ingenious suggestion put forward by my noble friend, Lady Hayman. I cannot make a commitment about it. Noble Lords will know that quiet reflection is always important in these situations. I commend my noble friend for her ingenuity, and we will consider her suggestion.
Baroness Hayman: My Lords, I am very grateful to my noble friend Lady Scotland. She chose her words carefully and said that there was no intention not to abide by the sunset clause. That, of course, I recognised in what I said. My assertion was that the power to remove that clause, by SI with negative procedure, was there, and that was something that we should change as a matter of principle. I am grateful for her assurance that the Government will look at that.
Baroness Scotland of Asthal: My Lords, I should make it clear that we do not believe the way in which the provision is currently crafted is as negative as my noble friend Lady Hayman believes. The powers in Section 124 are more limited than she implies, and we consider it would be ultra vires to repeal the sunset clause. Perhaps it is not the most appropriate time, but I do assure her that we do not think the situation is quite as bad as she thinks, but we are going to look at the provision to make sure that it is as good as we think it should be.
These matters can now be looked at, and options considered. I do not say that at the end of that consideration any particular course will be predestined. We will look at it properly and openly. Even if the blanket ban on use of intercept evidence were lifted—and that possibility is currently under review—it would not be, if I may respectfully say so, a whole answer. The review should be concluded fairly shortly. I know that I have been pressed as to what "fairly shortly" is, and I cannot be more specific than that, other than to say that it is clearly understood that this matter warrants a degree of urgency.
Lord Holme of Cheltenham: I am grateful to the noble Baroness for giving way, since it was I who pressed her on a specific date on which the review would be concluded. "Fairly shortly" in parliamentary terms has been known to extend over several years. Does the noble Baroness, Lady Scotland, think that "fairly shortly" would mean that this review by the

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Government would be concluded within the six months that her right honourable friend set for consideration of alternatives?
Baroness Scotland of Asthal: My Lords, I would certainly hope that it would be concluded within six months. I would love to say much more in terms of certainty, but I would be very disappointed if at the end of July we were not in a position to give the sort of response the noble Lord would wish. The noble Lord knows, having been in these situations before, how difficult those dates are. I certainly assure the noble Lords that it is understood that this needs to be done in shorter, rather than longer, time.
Not all the intelligence material is, of course, derived from intercept. It is rarely used in court proceedings. It does not come in coherent chunks. There will always be problems in relation to proper intelligence sources, and how we use the intelligence material in court, particularly if the criminal trial defendant needs to know the full case against him. Any new offence cannot be retrospective. Even if Part 4 were repealed, it could not prosecute those detained for the new offence. All those issues are issues with which we are going to have to deal and consider very carefully.
The noble Lord, Lord Newton, asked why other EU countries have not derogated in this way. The events of September 11 were unprecedented, as we have all agreed, in terms of the loss of life and damage to property. The UK has, as your Lordships know, previously derogated from Article 5 in respect of the threat from terrorism. We consider the threat to the UK, as the closest ally of the United States, is such as to justify the derogation. It has been accepted that each country has to make its assessment of the threat posed to itself. It may be that different countries, for different reasons, will be placed at different levels of stress. But I can assure your Lordships that we are trying to establish a framework of agreement with potential destination countries of the kind suggested in paragraphs 254 to 257 of the Newton report. The purpose of the agreement is to protect the individuals who may be adversely affected and the human rights of individuals following their departure from the United Kingdom.
Many of those matters were echoed also by the noble Lord, Lord McNally, and I hope he will take my answers as answers to him, too. He raised one specific issue in relation to recruitment of staff for the security services, and we take very seriously indeed the comments he made regarding the historical arrangements. I can reassure the noble Lord that the security service has been planning the expansion for some time. The recruitment plan is well in hand and will not be affected by the announcements that we have made in relation to it.
The noble and learned Lord, Lord Browne-Wilkinson, commented on Part 3 of the Act, which allows the Inland Revenue and Customs and Excise to make disclosures for the purposes of criminal investigation. The Government believe that this is necessary in the context of these bodies because of the statutory restrictions on what they can disclose. Other departments and police forces can disclose, where
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information assists in the detention of serious crimes such as murder, sex offences and the like. It is right that Part 3 allows the Inland Revenue to disclose for Section 19(2) purposes, which include crime.
Your Lordships will know of the serious issues of a Soham-type nature—
Lord Browne-Wilkinson: My Lords, can the noble Baroness confirm that disclosure by the Inland Revenue and Customs and Excise can be made in relation to any crime—not just serious crime, but any crime—and if so, what is the justification?
Baroness Scotland of Asthal: My Lords, it is right that disclosure would have to be relevant to the crime and pertinent in satisfying certain elements of it. I am not able to tell your Lordships precisely, but I believe that these powers are used only in relation to very serious matters. I can write to the noble and learned Lord with clarification.
He referred to various figures but I am unable to respond to them either in relation to their accuracy or to say whether there are other contextual issues which would put them into a different light. I therefore hope that the noble and learned Lord will forgive me for not being able to deal with the matter as he might want.
My noble friend Lady Hayman asked whether detainees can leave and expressed her discomfort about them being set at large. I was trying to explain why that is understood and the work we are trying to do carefully with our partners to address that issue.
The right reverend Prelate the Bishop of Rochester raised the knotty issue of hate crime. The Government will consider whether the existing system of aggravated offences could be improved, but have not identified earlier opportunities for reform in the legislative programme to date. We remain attracted in principle to introducing an offence of incitement to religious hatred, analogous to the existing offence of incitement to racial hatred. We will listen most carefully to those views before reaching any decision.
The noble Earl, Lord Northesk, asked about the voluntary regime and its success. The public sector wanted the element of compulsion to justify disclosure, and the policy interests were clear. We will certainly give consideration to the noble Earl's comments.
I turn to the issues raised by the noble and learned Lord, Lord Lloyd. Various comments were made about the discussion paper, which asks for suggestions about possible new offences, as I hope I have outlined. The noble Lord, Lord Carlile, suggests a broadly-drawn offence that acts preparatory to terrorism, and the Government must consider whether that assists in filling the gap. We will take into account the other comments made today by the noble and learned Lord, Lord Lloyd, in relation to those other offences. We are looking at both ideas and at what other countries do; for instance, the French offence of association with a wrong-doer. We will follow that suggestion, together with many others.
The noble and learned Lord, Lord Lloyd, also asked about Section 17 of RIPA. Material on which these decisions are held comes from a variety of sources. It

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is not simply the intercept material and it would be wrong to assume that relaxation of intercept answers the problems entirely. Regrettably, it does not. I am not able to give your Lordships the precise nature of all the evidence held in relation to each of the 14 persons. I am sure that the noble and learned Lord understands why that is so.
I turn to the noble and learned Lord's able pupil, the noble Lord, Lord Thomas of Gresford. He raised the issue of insufficient case management. We do not accept the criticism made by the committee in terms of the individual management of cases. The first tranche of individual appeals took longer to come before SIAC because of the legal challenges made by the appellants to the derogation that had first to be heard. In preparation for the individual appeals each of the cases was considered. That included the threat posed by the individual and the ability to deport, as well as any other changes in circumstances.
The individual cases are kept actively under review. One individual has subsequently been convicted on criminal charges and another is currently being prosecuted. Both cases were based on evidence that came to light after certification. The first set of reviews will therefore start in April. These will be the first reviews six months after the determination of appeals. The reviews then have to be conducted at three-monthly intervals. All the information, as well as any new information on the detainees, including a threat assessment and any changes that have been made to ability to remove, will be reassessed.
I come next to the noble Lord, Lord Lester. I hope that many of the issues he raised have already been covered in my comments and that he will take that as an answer. If I find that there are other matters that I have not covered, I undertake to write to any noble Lord to whom I have been so discourteous as not to answer.
My noble friend Lady Whitaker rightly raised the whole issue of Part 12, its efficacy and the need to retain it unless and until we replace it with something else. I can give her the assurance that she seeks. The Government have no intention of repealing Part 12 until such time as a new corruption Act is in force. I hope that I have said that with sufficient clarity for her to feel comforted.
The noble Lord, Lord Goodhart, then raised several issues. I hope that he and the noble Baroness, Lady Anelay, will find that the comments I made earlier are a proper response to them.
This has been a testing issue and we will have an opportunity to answer many of the points more fully next week when we discuss Part 4. I therefore hope that noble Lords will find it appropriate that I have concentrated mainly on the other issues. I shall write to noble Lords in relation to any other matters that I have failed to address in full.
On Question, Motion agreed to.

Local Elections (Ordinary Day of Election 2004) Order 2004
3.27 p.m.
The Minister of State, Office of the Deputy Prime Minister (Lord Rooker)The Minister of State, Office of the Deputy Prime Minister (Lord Rooker) rose to move, That the draft order laid before the House on 29 January be approved [7th Report from the Joint Committee].
The noble Lord said: My Lords, with this order, we are debating the four subsequent election regulations on the Order Paper. The instruments represent necessary and important legislation to ensure the effective running of this year's elections. They are highly technical and they do not vary current practice too much. They simplify existing legislation covering combined elections.
On 6 May last year, the Government announced a further step towards convenience for voters as part of our process for modernising elections —our intention to move the date of the English local authority and the Greater London Authority elections to the date of the European parliamentary elections so that all the 2004 elections would be combined together on the same day.
The five instruments before the House today form part of the package of the secondary legislation that provides for the proper conduct of the European elections and those that will or may be combined with them in 2004 in line with our stated aim. Before I give some background on each instrument, there are a number of important points that your Lordships will want to note.
First, combined elections are not new. Provision already exists for different types of elections to be combined. The Government are not fundamentally changing election practice. I should add that the legislation before us today has nothing whatever to do with the election pilots being considered elsewhere. The Government would like to see combined elections in 2004, and today we are debating the mechanics of bringing that about.
In preparation for these instruments, the Government have undertaken extensive consultation. In late 2002, the majority of those responding to our consultation paper were in support of combining elections in 2004. Late last year, draft instruments were the subject of both public and statutory consultation. In short, the policy and subsequent instruments before the House today are the result of significant consultation with the Electoral Commission and other stakeholders. A summary paper of the responses that we received and our reaction was placed in the Library of the House on 12 February. I can assure noble Lords that revisions and amendments to take account of those responses have been made, where appropriate.
Lastly, by way of introduction, the life of a returning officer has not always been helped by existing legislation. Combined elections have traditionally been governed by rules set out in slightly different ways in a multitude of different legislative instruments. We are taking this opportunity to simplify matters and to bring all the key rules together under one consistent set of instruments.
I now turn briefly to the details of each of the five instruments before us. The European Parliamentary Elections (Appointed Day of Poll) Order 2004—Statutory Instrument 217—has already been made by the Secretary of State for Constitutional Affairs and specifies the date of the United Kingdom's European parliamentary elections as 10 June. Your Lordships will already be aware that the time period within which those elections must be held is set by unanimous agreement of all the member states.
The Local Elections (Ordinary Day of Election 2004) Order 2004 moves the date of elections to local authorities in England and the Greater London Authority from 6 May to the date of the European parliamentary elections, which, as I have just indicated, is 10 June. The order also provides for consequential amendments that arise as a result of the date change. It amends the following: the term of office of councillors; the six-month period during which it is not necessary to hold a by-election; the timing of annual and parish meetings; and other matters that relate to the moving of that date.
Your Lordships will also wish to know that on 3 February the National Assembly for Wales, which has responsibility for local government in Wales, approved a similar order to move the date of the Welsh local authority elections from 6 May to, again, 10 June— the date of the European parliamentary elections.
The European Parliamentary Elections Regulations 2004 revoke the European Parliamentary Elections Regulations 1999 and make provision for the conduct of those elections in Great Britain and, for the first time, in Gibraltar. While the regulations provide largely for similar arrangements to those used in 1999—the date of the last European parliamentary elections—a number of significant changes are also being proposed. These regulations are necessary because those which governed the 1999 European parliamentary elections require amendment to take account of changes that we have since made to the law in this country relating to parliamentary and local elections. They are also necessary in order to implement recommendations made in a post-European parliamentary election review by the Home Office.
While those regulations largely reflect existing provisions or changes resulting from other new legislation and government reviews, there are some new provisions which your Lordships will wish to know about briefly. In line with the European Parliament (Representation) Act 2003, the draft regulations make certain provisions enabling the people of Gibraltar to vote in EU elections for the first time.
Provisions regarding absent voting are updated in the draft regulations to apply changes in absent voting arrangements at parliamentary and local elections which have been implemented since the last European parliamentary elections. That will make postal voting easier. Reflecting the provisions in other legislation, the regulations will operate in relation to combined elections, allowing for combined applications for absent votes.
The regulations take account of the registration of accession-state citizens. Ten further states are expected to be part of the European Union by the time of the European parliamentary elections on 10 June. Provision is therefore being made for citizens of those states who are resident in the UK to be able to vote in the elections. The majority of the necessary provisions have already been set out in other secondary legislation, but modifications are needed to the European Parliamentary Elections Regulations 2004 and the European Parliament (Representation) Act 2003 in order to complete the picture.
I mentioned that the regulations took account of changes in other new UK legislation and government reviews, and I shall briefly set out some of those changes. The making of a false statement in nomination papers will constitute a corrupt practice. The publication of exit polls before close of poll will become an offence, liable to fine or imprisonment. References to controls on the campaign expenditure of political parties are being removed as that issue is now covered by the Political Parties, Elections and Referendums Act 2000. However, individual candidates' expenditure will still be covered by the regulations.
Amendments to controls on broadcasting are also being reflected. There is the provision of deices to assist voters who are physically impaired or unable to read. There is provision for postal ballot papers to be returned by hand, if wished, to the appropriate polling stations. Rules on admission to polling stations will include access for Electoral Commission observers—the Electoral Commission having a statutory duty to evaluate the European parliamentary elections. The rules will allow the counting of votes to start before close of poll across the European Union. However, no results may be made available until after close of poll across Europe. Ballot papers will be designed vertically rather than, as in 1999, horizontally so as to make them easier for electors to use.
I shall now deal with the remaining instruments which form part of the package before your Lordships' House. The draft Representation of the People (Combination of Polls) (England and Wales) Regulations 2004 revoke and replace the Representation of the People Regulations 1986. They largely update and clarify the current provisions governing returning officer functions at combined elections and they consolidate existing provisions relating to referendums concerning local authority executive arrangements and mayoral elections. However, there are some modifications specifically in connection with combining European parliamentary and local government elections in 2004.
With regard to the functions of returning officers, Regulations 4, 5 and 6 of the new draft regulations make similar provisions to the 1986 regulations concerning the functions of individual returning officers at each election where polls are to be combined, their funding and the polling stations to be used when polls are combined.
The provisions now expressly take account of the possibility of the combination of more than two polls—for example, where a local parish election is also combined with the European parliamentary and local government

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elections. Regulation 8 and Schedule 2 update existing provisions for the combination of a parliamentary general or by-election with other polls, including mayoral elections or referendums concerning local authority executive arrangements. These regulations also include significant changes which apply in 2004 only.
Draft Regulation 7 and Schedule I include particular provisions specifically relating to the European parliamentary election, Greater London Authority elections and other local government elections which are to be held on the same date in 2004—that is, 10 June.
The Greater London returning officer is to be the returning officer for the London European parliamentary electoral region, assisted by a designated deputy. That capitalises on the fact that the Greater London Authority and the European parliamentary London region cover the same geographical area.
In 1999, the European parliamentary elections were arranged and votes were counted on the basis of Westminster parliamentary constituency boundaries. However, in 1999 they were not held in combination with local government elections. As a result of a request from electoral administrators and views received from its first consultation, the Government propose in the draft regulations that this year's European parliamentary elections should be arranged, and votes counted, on the basis of local government areas instead of the Westminster parliamentary constituencies. If that provision were not included, so-called combined local authority and European parliamentary elections would, in fact, each have to be run quite differently, often according to non-contiguous boundaries. That would lead to a confusing patchwork and would probably make a nonsense of holding everything on the same date.
As a consequence of this decision, the returning officer for each local authority area will exercise the functions of the local returning officer, under the direction of European parliamentary regional returning officers for each area, instead of the acting returning officers for parliamentary constituencies in 1999. For the convenience of voters we are providing for the sending out and the return of all ballot papers together, including one single declaration of identity to cover all the ballot papers that a voter receives.
With reference to the Greater London Authority election booklet, under regulation 7(7), the Greater London returning officer will be able to include a limited amount of information about European parliamentary election voting procedures in such a booklet. It is reasonable for the European parliamentary elections to be mentioned in the Greater London Authority "election addresses" booklet but that information should not dominate what is essentially an opportunity for London mayoral candidates to address voters. However, the booklet is not available to other regions in the country—it is specific to London—and that is why the European parliamentary issue should not dominate, so that people in one region have different information compared with the rest of the country.
For London there is provision for the electronic counting of votes in the 2004 European parliamentary election, when the Greater London Authority election is
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also counted electronically. That is not new. London had experience of counting Greater London Authority votes electronically in 2000, and is expected to count electronically in 2004, so it is logical that they be allowed to count the European parliamentary votes electronically at the same time.
Your Lordships will know that the Government have given local people choice about how they wish to be governed locally. Neither the Local Authorities (Conduct of Referendums) (England) (Amendment) Regulations 2004 nor the Local Authorities (Mayoral Elections) (England and Wales) (Amendment) Regulations 2004 change that policy. We do not expect any electoral referendums for mayors or elections in June, but we cannot rule them out. So, these regulations provide for the eventuality that either a referendum or a mayoral election could be combined with other polls in June or in the future. That is to ensure consistency of provisions with other polls.
I do not propose to go into all the provisions of the regulations here, but noble Lords may be interested to note that they provide for: postal ballot papers which are returned by hand to be returned to a polling station within the area common to all the elections being combined; for example, in the parish area where parish, district and European parliamentary election are combined; and they clarify that in accordance with common law, a personal mark which the elector is accustomed to make will suffice where a signature is required on a form.
The Electoral Commission and other stakeholders have, in their responses to our consultation, given many useful and practical comments which have been taken into account in the final draft versions of the package of statutory instruments which are now before the House. This secondary legislation will enable this year's local government, Greater London Authority and European parliamentary elections to be properly conducted, and will implement the Government's decision to combine elections in England and Wales in 2004. I beg to move.
Moved, That the draft order laid before the House on 29 January be approved [7th Report front the Joint Committee].—(Lord Rooker.)
3.45 p.m.
Baroness Hanham: My Lords, I thank the Minister for giving a brief but reasonably comprehensive overview of this package of regulations. It will not have escaped his notice that we have never been totally in favour of having all these elections together. We still believe that there is likely to be confusion. Although the regulations are the same, there are different aspects to all the elections and how they take place. None the less, that is happening now and it is clear, from the fact that so many regulations have had to be produced to bring them together, that it is not entirely an easy matter.
I do not want to refer to any of the regulations in particular, except to comment on one or two aspects of those relating to local elections and the mayoral elections and then I shall turn to the European one. In relation to citizens of the new states that will join the European Union on I May, can the Minister advise the House—I

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should know the answer to this so I apologise—whether when the electoral canvass was carried out last year it was made clear that this was coming and therefore people were entitled to put their names on the electoral register and were entitled to recognise that they would be able to vote in the elections? If not, this is very late in the day to be advising citizens of the new European states who are in this country that they will be able to vote in those elections. Perhaps the Minister could answer that point.
I welcome the fact that exit polls will not be published before the close of polls. That is long overdue. Such publication has had a dramatic effect in many places and the legislation has been required for some time. I welcome that.
What I had not picked up when I read the regulations was that the counting of votes will start before the close of polls. That is most unusual. Perhaps I misunderstood what the Minister said.
Lord Rooker: My Lords, the misunderstanding has probably arisen because of my inadequate explanation. The counting of the European elections, which this year take place on Thursday 10 May, has always been held hack in this country until late on Sunday evening when all the polls have closed in the rest of Europe. It will now be open to the returning officer, if he wishes, to start counting before the close of polls across Europe which could be on the Friday, the Saturday or early on the Sunday. It would not happen before the close of polls in this country.
Baroness Hanham: My Lords, I thank the Minister for that explanation. I was wondering how all the ballot boxes were going to be opened before the close of polls. If I had given it a moment's thought I might have realised, but thank you for that explanation.
I refer briefly to the electronic counting of votes in Greater London. It was not an unalloyed success in 2000 and I hope that a review has been undertaken of what happened. I remember it well because my chief executive at that stage was the chief returning officer and I had a dramatically different chief executive the following day from the one I had the previous day. Some of the votes were munched up, which caused the most terrible problems. Has what happened been reviewed and has the system been dealt with to try to ensure that that does not happen again?
I know that one can listen and talk at the same time—I have come across that in several Bills. I understand that.
On the European Parliamentary Elections Regulations 2004, it is plain that that concerns the regions that will not be part of the European pilot, except that in the regulations it is not plain that that is the situation. Nowhere do the regulations say that that does not refer to areas that are in the European pilot. It is a general directive on European elections. There will be considerable differences in the regulations for the areas not in the pilots from those that are in the pilots as a result of the extensive discussions that we have had on the European Union Parliamentary and Local Elections (Pilots) Bill.
One of those pilots is on the interesting aspect of the requirement for a witness signature on postal votes. To get that matter secured for the electoral pilots we had
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to divide the House and it has now been agreed that there should be a witness signature. It is commonplace within the other areas. I wonder out loud—I do not think that the Minister can answer this question—why we had such a tussle in our discussions on the pilots Bill to secure what is plain and straightforward and which is, we always realised, part of normal practice.
The second matter over which we had a tussle, and on which we have now had to abandon ship, is the question of why the regulations for the European pilot Bill are not coming to the House on affirmative resolution. I have here the regulations for the European regions. They are not a matter of the most enormous quantity of information: they are full of useful information. I cannot believe that the regulations on the pilots Bill will come to any more than these do. I simply place on record the fact that I cannot understand why there has been such resistance—it is from the department dealing with the pilots Bill, not from the Minister's department—to bringing this provision to the House for affirmative resolution, except for the fact that the time is very late.
None the less, it is important how these elections are conducted. I speak only because I have the opportunity to do so, and I know the Minister has no hand in the matter. I think it is extremely unfortunate that we shall not have the opportunity to see the same detail as there is in these regulations because there are very interesting differences between the regulations for the two.
I think those are the only points that I need to make on this issue. I thank the Minister again for his presentation.
Lord Rennard: My Lords, I too thank the Minister for his very good précis, if I may call it that, of these regulations and the reasons behind them. I ask him to address a number of points about them. First, in relation to the principle of the combined elections, the Minister referred to the widespread consent that it would not make sense to have local elections on the first Thursday in May followed by European elections on 10 June, five weeks later. That is not perhaps a view which is shared by those on the Conservative Benches, but generally that was the view of most local authorities and, indeed, that of the Local Government Association.
Is the Minister aware, however, that the view of most local authorities and indeed the Local Government Association was explicitly contingent: on the assumption that the experiment of combining the two elections in June was based on there being no all-postal votes in any of those elections in June? The local authorities which consented to the postponement of their elections, at some inconvenience to themselves in holding elections in June, did so on the basis that they understood there would be no postal voting pilots in those elections in June.
Secondly, in relation to the principle of the combined elections, I would kindly suggest to the Minister that it is now the second time in four years that we have postponed the May local elections to June in order to coincide with other elections. I happen to

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think that is very sensible. I think I was one of the first and strongest advocates for doing that this year, because it seems quite wrong to expect people to have to vote twice in five weeks. There is fatigue among the parties; the party bank balances empty to pay for the May elections, but we have to try and fight an election again in June; and the media get bored by a very long election period. So it does make sense in my view to combine them.
We now have the European elections fixed every five years on the second Thursday in June or in association with that weekend. Rather than having an order suggesting that we combine them now, would it not make sense that they should be combined every five years, or should all dates for voting in local elections perhaps now be switched to June? Perhaps the weather would be better for campaigning, for canvassing and delivering leaflets; and we would have some certainty in the timescale each year. It is hard for local authorities not to know when their elections will be in knowing when they should plan their annual meetings. It might be sensible to suggest that June in general would be a better time for holding them.
I follow the points made by the noble Baroness, Lady Hanham, about the declaration of identity by briefly saying that Schedule 3 to the third statutory instrument explains in considerable detail the regulations over postal voting and the declaration of identity. As we go into such detail as saying that we have this declaration of identity, I should be grateful if the Minister could explain why the Government think it so important that these regulations should have this declaration of identity.
Thirdly, I ask the Minister to confirm my understanding in relation to the UK parliamentary election regulations. I cannot find anything within them that is in any way contingent upon the pilots Bill. I think that is our collective understanding. I cannot see anything within it that would be affected one way or the other by the passage or not of the pilots Bill.
Perhaps I may ask the Minister further about the recount process within these regulations. I have thought for some time that the counting for the European elections, if held on the same day as the local elections, would have to be done by local authority area rather than by parliamentary constituency, as in 1999. It does not seem to me that it could be done any other way.
However, in relation to the recounts I am a little puzzled as to how you can put into regulations a call for a recount. The Minister with his great experience of parliamentary elections will know that normally in such a count if the result is very close one or other of the party agents will call for a recount because it is very close. I cannot understand how you will have the counting process confined to the local authority area. How would you know across the whole of your European region whether or not the result is very close? You are, it seems to me, expected under these regulations—and indeed under those of 1999—to try to make a judgment as to whether, for example, in the city of Leicester you accept the result as declared for
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that city, but you have to do it in complete ignorance of the votes cast in Leicestershire, Nottinghamshire, Lincolnshire and elsewhere. It is hard to say that the result is close and it is hard to accept the result when you do not know whether it may be close in other places. Perhaps the Minister could help me with that.
Finally, on the issue of election petitions, it seems to me that there is still a problem within the system. We know that sometimes mistakes are made by the returning officer. Sometimes that is a very obvious flaw, something that everyone knows—every party, agent and returning officer knows that there has been an error within the system. Sometimes that can make a difference between someone being elected or not being elected. But it is incumbent entirely upon one of the parties or another individual to launch an election petition at great expense, great risk and great difficulty to perhaps see that it should be a different result returned. Would it not be sensible to allow the returning officer to be able to initiate such legal action if in his opinion and that of his staff a mistake has been made that may have resulted in a wrong result being declared? Perhaps the Minister might help me with those few points on the Order.
Lord Campbell-Savours: My Lords, I want to speak specifically to the Local Authorities (Mayoral Elections) (England and Wales) (Amendment) Regulations 2004, which is the last regulation in this group. In doing so, I apologise to the Government for failing to respond in the consultation process because I have a significant point to make. Civil servants in the Chamber today will want to take it on board when they consider these matters further.
The explanatory memorandum to the regulations states in paragraph 14:
"The main changes to the version of the rules, which previously applied"
under the regulations, include—
"ensuring that forms which are or may be used for all polls, such as notices in polling stations and declarations by disabled voters are in a form which is consistent with those applying under the legislation governing the election with which the mayoral election is combined."
I want to use that statement as a peg to raise the whole question of the voting slip guidance which operates in the case of the supplementary vote—the supplementary vote being the voting system which is used for the election of mayors nationally.
My noble friend will know that I devised and gave name to the supplementary vote after 12 months' detailed work in 1989 on electoral systems following an argument about the operation of the alternative vote system, the problems it has with third place candidates wining seats and the weighting given to lowest placed candidates influencing the votes in elections.
The supplementary vote is simple but it needs explanation. There is a problem with the design of the ballot paper. It was my son who drew my attention to it following a party meeting he attended, where it seems people were led to believe that a ballot paper would be invalid in the event that only one vote was

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cast. The ballot paper in the case of the supplementary vote is set out on page 30 of the Local Authorities (Mayoral Elections) (England and Wales) Regulations 2002. The only guidance that I can find is in the Guidance on New Council Constitutions, which states in paragraph 14.16:
"Where there are more than two candidates, the voting system used for elected mayors is the Supplementary Vote system, as established by section 42 of, and Schedule 2 to, the Act. Under this system, voters cast first and second preference votes. After counting all of the first preference votes, if no candidate has secured a simple majority of the first preference votes cast, all but the top two candidates are eliminated. Any of the eliminated candidates' second preference votes cast for the remaining candidates are added to those totals, and the one with the most votes is elected as elected mayor. Where there are only two validly nominated candidates, the first-past-the-post system is used."
There is a slight error in that text, in that it states,
"Under this system, voters cast first and second preference votes".
They can cast them, but they are not required to cast the second vote. Therein lies the problem.
What can we do about it? I have a number of proposals, which perhaps I can briefly put to the House. I have a copy of the ballot paper, which is a photocopy of page 30 of the regulations. The only reference to guidance is where it says on the top right hand corner:
"Vote once [x] in each column".
I ask Ministers to consider adding one of the five following options as wording, because they make it clear. The first option is, "You need vote only once. Voting for a second choice is optional". The second is, "You need only to vote for your first choice. A vote for your second choice is optional". The third is, "You need to cast only one vote. You can cast votes for both your first and second choices if you wish". The fourth is, "Vote once [x] for your first choice in column 1. If you wish to express a second choice vote [x] in column 2". The final one is, "Vote [x] for your first choice. Vote [x] for your second choice if you wish".
Some Members of this House might think that this is a trivial matter. In fact, it is extremely important, because it affects hundreds of thousands of votes that will be cast in the mayoral elections. I ask my noble friend whether it is possible for an additional, supplementary guidance note to be issued to local authorities that they have in mind a revision of the ballot paper under one of the proposals that I have made today.
4 p.m.
Lord Rooker: My Lords, I shall answer off the top of my head the point made by my noble friend Lord Campbell-Savours. I do not know the procedures. I am a little out of date. But I imagine that this would be an issue for the Electoral Commission. I am not sure whether when the mayoral elections took place four years ago the Electoral Commission was in existence. In fact, the legislation setting it up was passed only in 2000 or thereabouts. I suspect that the commission was not in existence. This would be a matter for it to look at. If it does not fall within its remit, there is something wrong with the set up and with the guidance.
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The point raised by my noble friend is valuable. He is the kind of Member that I like. He came along with a problem, but also brought five solutions. I will certainly take advice on that point, but I imagine that would be the way out of this.
Perhaps I may deal with the specific questions in reverse order. I have answers to most of them. I am about to prove whether I was listening to the noble Baroness at the same time as discussing one of the issues with my noble friend.
These regulations set the basic rules for pilots, following the European Parliamentary and Local Elections (Pilots) Bill. In a pilot area, they will be subject to modification to allow for the pilot scheme. I hope that makes sense. I have not followed the European Parliamentary and Local Elections (Pilots) Bill so I cannot therefore go beyond the advice that I have, because I have not been dealing with the Bill.
Regarding the returning officers correcting errors, the regulations replicate existing provisions for parliamentary and local elections. We do not feel that we can use what are in effect parts of secondary legislation to make what would be a substantial change to the existing law. I am not saying that the point is not valid—it is. The threat of almost questioning an election puts people off, because of the procedures used and the costs involved. There are people who are much better aware, having had to use it in recent years. It is not something that we feel that we can do in secondary legislation.
A point was made about recounts, but the recounts can be called only in a local area, which follows the practice in 1999. There is no change in the recount provision, and it would not be any different. I suppose in a local area you would not know about the votes in the constituencies as opposed to the votes in the local areas on the European side. I fully accept that, and I do not know what the closest European vote was at the last election, using the much more modern and sensible PR system compared to the previous unfair system—those are my personal views. I do not know how practical that would be, but we are following existing practice and not changing it for the moment.
It was suggested that we combine elections every five years, given that we have European elections every five years on a fixed date. I do not know how far in advance the member states fix the span of control. We are allowed to have the European elections within a period of about four days, which allows us to vote on Thursdays. Member states can choose what day they vote on. I do not know how far ahead that date is fixed, whether it is fixed for the rest of the century or the rest of the decade. The Government invited the Electoral Commission to consider having the local elections. It would be wrong to make long-term amendments to those election dates at present. We have just received the report on this issue, and we will give a view on that in due course.
The declaration of identity provisions follows existing provisions in parliamentary local government elections. We have made no change in this respect. As for the declaration of identity with postal votes, the regulations

845
require a witness signature. The elector is required to make his usual mark but the witness is required to give a signature. That is my understanding of the point.
Baroness Hanham: My Lords, that was not the point. The point was that we had a great humdinger when debating the European Parliamentary and Local Elections (Pilots) Bill on whether a witness signature was required to accompany a postal vote. The regulations are as plain as a pikestaff and perfectly easy to follow; the only way we ensured, finally, that the witness signature was to be attached to a postal vote in the Bill was through winning a vote in the House. I cannot understand why we had that row when the regulations were already there in the normal way. I do not think that the Minister will be able to answer this, but we had better get the point straight.
Lord Rooker: I did not get the point straight, did I, my Lords? We may have had a slight lack of joined-up government. That may be the answer—I do not know. It sounds terrible, but I do not think it is a matter for my department. However, the noble Baroness's point is well made, bearing in mind the other legislation going through the House on which the Government have not taken the same line.
The consultation mentioned the fact that no decision on pilots had been taken. Many respondents took the opportunity to comment on that, so it was an issue.
The orders for previous pilots have never been subject to parliamentary approval. These follow that precedent. I do not know whether that is a good answer, but it is the honest answer.
The noble Baroness wondered whether I had taken electronic counting on board. Electronic counting in the Greater London Authority elections and in the pilot has been reviewed. Lessons have been learnt—I am assured of that. The Greater London Authority is confident that the system will run smoothly in 2004.
I am surprised and, indeed, gratified by the answer I am about to give the noble Baroness to her first question about citizens of the accession states. I did not read the detail of my form, I just signed it, but it appears that the canvass form made it clear that citizens of accession states would be able to register to vote in advance of their member states joining on I May this year. To that extent, it was made clear. I suspect that the information would be in the small print on the back of the form—nevertheless, it was there. In any event, people have their own networks and are able to get information.
Because we now have a much more sensible system of a rolling register without that fixed slot on 10 October, people have plenty of time to get registered, now that Parliament—this House and the other place—has approved the regulations. I think there is one more order to slot in— two at the most—to the package for the elections on 10 June. So there is plenty of opportunity between now and then to get registered.
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The noble Baroness said that her party was not fully in favour and did not see a lot of merit in the regulations. I appreciate the reasons why. There are different election systems for many people, particularly in the London area, where more than one system will be used.
I have always taken the view, as I promote the sensible, fair voting system of PR around the country, in a personal capacity, that people can understand and read knitting patterns, while I cannot. They can understand and fill in football coupons, while I cannot. I have yet to see a ballot paper that is more complicated than a knitting pattern or a football coupon.
On Question, Motion agreed to.

Representation of the People (Combination of Polls) (England and Wales) Regulations 2004
Lord Rooker: My Lords, I beg to move.
Moved, That the draft regulations laid before the House on 5 February be approved [8th Report from the Joint Committee].—(Lord Rooker.)
On Question, Motion agreed to.

European Parliamentary Elections Regulations 2004
Lord Rooker: My Lords, I beg to move.
Moved, That the draft Regulations laid before the House on 5 February be approved [8th Report from the Joint Committee].—(Lord Rooker.)
On Question, Motion agreed to.

Local Authorities (Conduct of Referendums) (England) (Amendment) Regulations 2004
Lord Rooker: My Lords, I beg to move.
Moved, That the draft regulations laid before the House on 5 February be approved [8th Report from the Joint Committee].—(Lord Rooker.)
On Question, Motion agreed to.

Local Authorities (Mayoral Elections) (England and Wales) (Amendment) Regulations 2004
Lord Rooker: My Lords, I beg to move.
Moved, That the draft regulations laid before the House on 5 February be approved [8th Report from the Joint Committee].—(Lord Rooker.)
On Question, Motion agreed to.
Lord Bassam of Brighton: My Lords, I beg to move that the House do now adjourn during pleasure until 4.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 4.14 to 4.30 p.m.]

Domestic Violence, Crime and Victims Bill [H.L.]
4.30 p.m.
Baroness Scotland of Asthal: My Lords, I beg to move that this Report be now received.
Moved, That this Report be now received.—(Baroness Scotland of Asthal.)
Baroness Anelay of St Johns: My Lords, I have given notice that I would like briefly to raise a matter of concern to me with regard to the tabling of extensive government amendments that appeared in print yesterday and today. Yesterday, we received 17 pages of amendments on mental incapacity. They require an amendment to the Long Title. The Minister kindly gave me notice that the matter might be raised on Report when she wrote to me some 10 days ago. At that stage, quite naturally enough, I was not given sight of the projected amendments; indeed, I did not see them until yesterday morning, though when I returned to my desk after the debate in this House which was completed just an hour ago they had by then appeared on my desk.
When I arrived in the House today, I found a further seven pages of government amendments, including two more amendments to the Long Title of the Bill—on this occasion, so that the Government might amend Section 58 and Part 12 of the Criminal Justice Act 2003. The Minister will anticipate that I will tease her slightly that a Bill that was wrestled from our grasp only as recently as last November is now the subject of a revision in this Bill through amendments to the Long Title.
Given that amendments that require changes to the Long Title must in themselves be significant, have the Government given consideration to recommitment proceedings on those matters? If they have not done so, will they undertake to consider that between now and next Tuesday when we are next on Report?
Lord McNally: My Lords, I associate myself with those remarks. We mentioned in Grand Committee that the Government do test the goodwill of the Opposition parties and the system of referral to Grand Committee if Bills are so substantially rewritten on the hoof as this one has been and proper opportunity for full scrutiny in Committee is not given. I warned in Grand Committee that if the Government continue to do this, it will jeopardise the experiment of Grand Committee coverage of Bills such as this one.
Baroness Scotland of Asthal: My Lords, I thank the noble Baroness, Lady Anelay, for giving me notice that she intended to raise the issue. I should also point out to the noble Lord that absolutely no discourtesy is intended. Indeed, I do not seek to test the goodwill of the Opposition parties in relation to Grand Committees. The Grand Committee procedure has worked very well. I accept that it is in accordance with best practice for government amendments to be tabled at least a week ahead of consideration.
The amendments that we are discussing will come before us next Tuesday as the noble Baroness, Lady Anelay, has mentioned. The mental health amendments were tabled last Tuesday, which is a week in advance of their consideration. However, I regret that further amendments had to be tabled yesterday—only six days in advance—and that one minor amendment was tabled today.
As the noble Baroness indicated, I wrote about the mental health amendments 10 days ago, which was 23 February, to all noble Lords who spoke at Second Reading. I stated the purpose of the amendments and invited noble Lords to contact me if they wished so to do. Nobody took advantage of that offer, so I assumed that noble Lords were content with the information that I had provided and did not deem the amendments contentious. I hoped that I had in that way shown clue and proper courtesy to all noble Lords who had participated up to that point.
On the other amendments, relating to multiple offending and intermittent custody, I have sent similar letters today. None of the amendments will be reached today, so your Lordships will have until Tuesday to consider them. I hear what the noble Baroness said in relation to recommitment, and I hope that noble Lords will feel content that I have done all that I could to ensure that proper notice was given.
I suggest that we leave these matters to the usual channels. If your Lordships are content, I invite them now to consider the amendments on Report.
On Question, Motion agreed to.
Report received.
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 1:
Before Clause 1, insert the following new clause—"
"CERTIFICATION OF RESOURCES
No provision of this Act shall come into force until the Lord Chancellor has laid before Parliament a certificate that all necessary resources will be made available—

(a) to implement the provisions of this Act, and

(b) to provide any training necessary as a consequence of any provisions of this Act."

The noble Baroness said: My Lords, we made it clear that we support in general the Government's objectives in all three parts of the Bill, but we have some objections to the way in which the Government propose to translate those objectives into offences. When I prepared my speaking notes last Sunday, I was going to go on to say that the Bill was relatively short, but wide-ranging and important in its effect. It is still

849
wide-ranging and important, but no longer relatively short, after the extensions that have been made over the past two days.
I agree with the Minister that those matters should be referred to the usual channels. She will note that my objection was not quite so much with the late tabling as that the Government are making a significant change to the long title of the Bill. I always try to speak on behalf of Back-Benchers, although they are more than able to speak for themselves—and, I am pleased to say, do so. It is always put to me by my colleagues that it is particularly difficult for Back-Benchers to come fresh to Report matters because the rules of Report do not enable them to have the same to-and-fro discussion and cross-examination of the Government's objectives as in Grand Committee. However, that will be dealt with as another matter next week.
The Bill is known colloquially as the "domestic violence Bill"; indeed, that is the name used widely by the Government in their press releases. However, its impact goes far wider than that very vital issue. It also covers the replacement of some jury trials by judge-alone trials and covers the extension of restraining orders to those who have been acquitted of any criminal offence.
So why have I returned to this issue on Report, having had a little bit of discussion on it in Committee? Because I was not satisfied with the answers given by the Government at that stage. I have tabled it again to draw attention to two major problems that flow from the Government's drafting of the Bill. First, the House has been prevented from scrutinising in full the proposals for the compensation of victims that the Government may ultimately propose as their new policy after the consultation that was launched when the Bill received its Second Reading in this House. The consultation is on compensation and support for victims of crime. Secondly, the issues of resources and the need for training will be considerable as a result of the wide changes introduced by the Bill.
I have inserted the amendment at the beginning of the Bill so that we may debate our amendments subsequently against the background of those two concerns. I do not thereby intend in any way to preempt the ability of the House to amend the Bill and introduce new provisions; indeed, I do not believe that it can have that effect, because I believe that if that had been the case when the amendment was called, that would have had to be made clear as pre-emption. Any requirements for funding or training that might be necessary as a result of any such amendments would be covered by the provisions of my amendment.
This House is in the process of scrutinising, in Grand Committee, now in Report and subsequently at Third Reading, proposals that will be only a part of the picture. After Second Reading, the Government published their consultation document on significant and potentially controversial proposals to revamp the way in which compensation for victims is funded. The Government have said that they hope to legislate in
850
this Bill for changes that will follow the consultation exercise. Even though the consultation period allowed is only one week short of the guideline period of 12 weeks, the results will patently not be available in time to be considered here. I understand that it is hoped at the moment that the Third Reading of the Bill in this House will take place on 25 March. The first time that we will be able to consider any new clauses as a result of that consolidation exercise will be during our consideration of Commons amendments, much later this year. Earlier this year, I invited the Government to work with the usual channels to ensure that when we consider Commons amendments, we do so in such a way that proper Committee stage scrutiny can take place. Can the Minister say whether an agreement on that matter has been reached?
Secondly, I turn to the issue of resources. At the moment, we can only consider the impact of the extant part of the Bill. We shall need to return to the matter when we see what the Government insert into the Bill in another place. There will be a significant call upon resources by the implementation of the provisions of the Bill. The police, the Prison Service and the probation service are all currently overstretched and the Bill will bring extra burdens. It will also have a significant impact on voluntary agencies and statutory agencies that must implement the victim's code. No doubt, they will take on that work with good will but it will require adequate resources and, especially, adequate training to make the systems work effectively.
It is clear that, in some cases, training is not sufficiently effective for the proper application of the current law. One of the reasons why I retabled this amendment is because it has come to my notice since Grand Committee that two reports have pointed this out with clarity. A joint study by police and CPS inspectors was published last week. It found that a big leap forward in police attitudes and much work by the CPS to raise awareness of domestic abuse had not filtered down to the grassroots. The report found that frontline officers and lawyers who dealt with domestic violence were often highly dedicated. But it found that more in-depth training is required, as well as systems to examine why arrests were not made in some cases. Harriet Harman, who commissioned the report, said:
"The police and CPS now have the right policies, but not everyone is putting them into practice".
What reassurance can the Minister give that the Government are putting the funding, the legal aid and the systems into place to ensure that everybody puts the current policies into practice and that they are able to put the new policies into practice once the Bill is enacted and, indeed, once we find out what the Government intend those policies to be? I beg to move.
Lord McNally: My Lords, as noble Lords can see from the Marshalled List, this is a "go-it-alone" amendment by the noble Baroness, Lady Anelay.

851
Having listened to her, I am not sure whether it is a probing amendment or a shot across the bows. Either way, I look forward to hearing the Minister's reply.
Lord Campbell of Alloway: My Lords, on recommitment, we return to day one of the Committee stage when my noble friend Lady Anelay made it plain that if substantial new clauses were brought into the Bill there should be recommitment. If I remember correctly, at that time the new clauses were concerned with using money raised from motoring offences for compensation for victims of domestic violence.
This is a totally different proposal. I attended the Grand Committee and had no idea, until this morning, that there will certainly be changes to the Long Title and so forth. I sought to support the warning of my noble friend Lady Anelay about recommittal. Unfortunately, I was deprived of the opportunity to do so and can at least do so today.
On the substance of the Bill, as I read the amendment—and I understand that my noble friend Lady Anelay maintains that I have perhaps read it wrongly—it could well delay, for example, the setting up of the integrated court at the urgent request of the Court of Appeal sought in Amendment No. 30. I am seeking an assurance from the noble Baroness that, come what may, should that amendment commend itself to the House, there will be no change to the commencement Clauses 28 and 29.
4.45 p.m.
Lord Carlisle of Bucklow: My Lords, I strongly support my noble friend Lady Anelay in Amendment No. 1. Clearly, as the amendment says, it is right that none of the Act's provisions should come into force until the necessary resources have been made available to implement them. In those circumstances it is right that, as the amendment asks, they should not come into force until the Lord Chancellor—provided that we still have a Lord Chancellor; if not, then presumably the Secretary of State for Constitutional Affairs or his or her spokesman in this House—
"has laid before Parliament a certificate that all necessary resources will be made available to"—
as I said—
"implement the provisions of this Act".
Consequently, it is fundamental that we should know what are the provisions of this Act. At the moment, we do not know. I follow the noble Lord, Lord Campbell, in this. I have also given the Minister notice that I proposed to raise the matter again. Before we can decide an amendment on resources, we must know the provisions of the Act.
Last year the Government introduced a consultative document dealing with changes in the criminal injuries compensation scheme. They announced that responses to the consultation should be sent in by 31 March 2004. Later, when publishing this Bill, the Government said:
"We propose to legislate to make the changes where necessary"—
852
as a result of consultation on the criminal injuries compensation Bill—
"through amendments to the Domestic Violence, Crime, and Victims Bill".
Now that we have reached Report stage, I ask the Minister—who was understandably hesitant in Committee about whether that remained the situation—whether they are sufficiently advanced in their consultation to say, "Yes; we will introduce through this Bill legislative changes that are necessary as a result of our consultation". Alternatively, perhaps they are prepared to say, "No; we accept that, in some ways, to do that when the Bill has left this House and is already in the Commons, is a parliamentary outrage. We will say now that if any major amendments to the criminal injuries compensation scheme are to be implemented, they will be introduced by means of a new Bill".
It is an important point. The decisions taken on that scheme are bound to have an effect on the resources required for it. If the Government's present proposals are accepted, there may be a substantial reduction in the resources required by the scheme. However, we cannot know what resources are required by the Bill until we know what resources will be saved or expended as a result of changes to the scheme. We have not been told what is being introduced into the Bill, and currently we do not have the opportunity to debate it.
Furthermore, one is not encouraged by the fact that, as the noble Baroness, Lady Anelay, said, we are faced with the introduction into the Bill of a health clause that has absolutely nothing at all to do with domestic violence and victims. It is to do with the amendment of Schedule 12, I think, to the Criminal Justice Act 2003, the provisions over intermittent custody, and it deals with how one assesses the period that people have spent in prison when they have had consecutive sentences. The Minister cannot possibly suggest—I know she will not—that that has anything to do with domestic violence at all. That is a change in the general law of this country. What is the effect of that change going to be? Will we be in a position to resource that change? Is it something that will cost a lot of money? We need to know all these matters before we know what resources are available for the implementation of this Bill.
To say, with great respect, that it was published and you have until Tuesday to consider our proposals, ignores the fact that the whole of the committee stage of these changes has been removed, and that on Tuesday we will be at Report stage. I think it is already too late to put down amendments for Tuesday. I look to the noble Baroness, Lady Anelay, who is the fount of all knowledge in these matters, to shake her head or not; apparently it is not too late but I suspect it has to be done before this House rises tonight. How can we amend something we have just been shown? It has nothing to do with this Bill. Is the explanation that since it can be debated at Report stage in the Lords on Tuesday, we need not have a Committee stage at all?
Worse still, so far as the Criminal Injuries Compensation Scheme is concerned, because the earliest that amendments can be introduced is in the House of

853
Commons. The Government say that the Bill will come back here as an amended Bill, but, as I understand it, the only right of this House will be to debate the Commons amendments rather than having a full Committee stage on what may be some highly contentious proposals. My noble friend Lord Campbell mentioned some of these proposals; for example, the idea that you surcharge everyone for a speeding offence so as to provide a pool of money for the Government to pay out as compensation to people who are the victims of crime of a totally different nature.
These are contentious issues. The Minister knows this; she knows the views of the present board on the matters proposed, but in the hope of keeping myself within the orders of this House and within the terms of order of the amendment to which I am speaking, I limit myself at this stage to saying that it is necessary to know what is proposed to be in this Bill so that we know what resources are needed, and we should not implement a Bill until we know what those resources are.
Lord Mayhew of Twysden: My Lords, the Minister will address the speeches which we have heard already on this amendment with her customary and formidable charm, but it will not be enough unless she can deal, point by point, with the very serious issues that have been raised in these speeches.
I intervene only briefly to support the amendment of my noble friend on the Front Bench. It is quite helpful, I hope, just to call to mind the Government's handling of the Human Rights Bill. They said that they wished to make the convention on human rights part of' our domestic law, and, in order to save Parliament the frustrated effort of legislating domestically in a sense that would be struck down later for breach of the human rights convention, they said that they would also introduce as part of that Bill the provision that the relevant Minister shall certify that there is compliance. That was very sensible.
What is being asked for here is a certificate that something that would be similarly frustrating and a waste of time will not occur. Many provisions in this Bill call for training. What is the purpose of legislating for various provisions that need training when we are not sure that there will be the money available to provide that training? It is very much better that such a provision should not come into force until we have a certificate that the money will be available. It would cause a lot of damage, and that can so very easily be avoided.
I know that I shall receive a formidably charming reply. However, I very sincerely hope that there will be more to the reply than mere charm.
Baroness Scotland of Asthal: My Lords, the noble and learned Lord seeks to scupper me by using his own charm. I shall try to give as frank and as open a response as I can in relation to the various matters that have been raised.
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We are still consulting on the measures about which the noble Lord, Lord Carlisle, and others have spoken. The noble Lord, Lord Carlisle, will remember, as he has intimate knowledge of and concern and interest in the Criminal Injuries Compensation Board, that the proposals included in the consultation paper in relation to the Criminal Injuries Compensation Board are very limited. There was concern prior to the issue of the consultation paper that there might be a wholesale very substantive review of the structure that was being advocated for the Criminal Injuries Compensation Board. However, I remind the House that we are now talking about three very discrete areas. Those issues are still out to consultation.
Lord Carlisle of Bucklow: My Lords, I hope that I may interrupt the Minister's speech to say that of course I accept that the scope of what was at one time intended to be consulted on has been reduced substantially. However, I think that the Minister would agree, for example, that injuries incurred in the course of work constitute a major and important part of the scheme.
Baroness Scotland of Asthal: My Lords, I certainly agree with the noble Lord. Not only do we seek comment on those issues but I am talking to a number of different bodies about the concerns that they have and their alternative proposals. When we dealt with the matter in Committee, I tried to make absolutely clear that this is an open and proper consultation. I cannot pre-empt what its results may be. Noble Lords will know that a variety of consequences may emerge, one of which may be no change. However, I cannot say what will emerge. The usual channels have not reached a decision on recommitment. Therefore, I am not able to assist noble Lords on that matter.
The Title of the Bill refers to domestic violence. However, when the matter was first mooted, the noble Baroness, Lady Anelay, teased me about the Title and said that it referred also to crime and victims. Therefore, the issues that have been raised are not outwith the scope of the Bill.
I say to the noble Lord, Lord Campbell of Alloway, that the amendment tabled in the name of the noble Baroness would prevent any provision of the Bill being implemented until my noble and learned friend the Lord Chancellor had laid a certificate before Parliament that all necessary resources would be made available to implement the provisions and to provide any necessary training. If the noble Baroness's amendment were accepted, I would not be in a position to accede to the kind invitation of the noble Lord, Lord Campbell of Alloway, in relation to exempting two provisions.
I reiterate what I said in Committee. I emphasised the importance the Government attach to this Bill and the fact that the Government are committed to ensuring that sufficient resources are available before it is commenced. I believe that in Committee I reminded your Lordships what is included in the regulatory impact assessment where we set out the estimated total annual cost of the measure to be about £40.8 million, and the set-up costs.

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The Bill will be implemented as and when the necessary resources are available to do so, but so far as I am aware it is unnecessary and, indeed, unprecedented to require a Minister to certify that before commencement. I also indicated that it was more proper for these matters to be considered by the other place. The noble and learned Lord, Lord Mayhew, invites me to issue the equivalent of a Human Rights Act certificate in relation to resources. It is an innovative idea, but not one that we have used thus far.
I seek your Lordships' indulgence to give some information on the wider issue of resources. When we debated the amendment on child contact, tabled by the noble Baroness, Lady Thornton, on 28 January I said I would come back to the issue of implementing the new definition of harm and the new forms to highlight domestic violence. I am pleased to report that my noble and learned friend Lord Falconer of Thoroton has confirmed that he will now put in train the necessary changes to the Family Proceedings Rules, court forms and IT systems and any additional training required, so that the new definition of harm and new forms are in place by January 2005. From that date, for all applications for orders under Section 8 of the Children Act 1989—regarding contact, residence, prohibitive steps and specific issues the new definition of harm and the new forms will be used. I intended to give your Lordships a little pleasure by saying that and I hope the noble and learned Lord, Lord Mayhew, will not think that I am trying to be unnecessarily charming.
Those changes, taken together with the Children Act sub-committee guidelines on how courts should handle contact applications where domestic violence is alleged, will significantly enhance the ability of the courts to ensure that contact is awarded only in cases where there is no ascertainable danger to either the child or the parent. The new arrangements will give the courts the ability to consider all the issues, make findings of fact where necessary and then decide what best meets the child's needs in individual cases.
Following divorce or separation, we want to encourage contact between children and parents where it is safe for all family members. Matters relating to contact generally are best settled away from the courts, other than when there are allegations of domestic violence or other issues of high conflict. Later this month, my right honourable friend the Minister for children, young people and families, Margaret Hodge, expects to publish the Government's response to the Children Act sub-committee report Making Contact Work. That response will include a range of proposals to help more parents settle issues of contact without going to court.
Moving on to the question of training, there was a substantial discussion on the importance of training in Grand Committee. I made it clear then that the Government recognise the importance of training and will be reviewing all the domestic violence training available with a view to ensuring a more consistent, multi-agency approach. I also set out in considerable detail the training arrangements for the judiciary and
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the police in respect of domestic violence. I do not believe that it is necessary to require the Lord Chancellor to certify that sufficient resources will be made available to cover the training needs of the judiciary arising from the Bill.
Your Lordships will be familiar with the way in which the Judicial Studies Board undertakes the appropriate training for new Acts and other matters and they have always rightly been commended for the excellent work that they do. The Lord Chancellor will assess the training needs for the judiciary as a matter of course and ensure that they are adequately provided for when the Bill is implemented. The magistracy will now have the benefit of much more guidance and assistance.
I hope that I have fully answered the issues raised by the noble Baroness, Lady Anelay, and the noble Lord, Lord McNally, and that it is an answer with which they can feel a modicum of contentment.
5 p.m.
Baroness Anelay of St Johns: My Lords, I am grateful for the support of my noble friends. The Minister says that the Government are still consulting. That is understandable, because we know the length of the consultation period that was published. She also says that there is no decision, as yet, on recommitment with regard to the specific matters that were addressed by myself and my noble friend Lord Carlisle of Bucklow—the new policies for funding assistance to victims. I have to say—using the language of this House—it is disappointing that no decision has yet been reached, but I hope that firm discussions are taking place in the background.
My noble friend Lord Campbell of Alloway raised a proper question about whether there will be a delay in the implementation of proposals if my amendment were to be added to the Bill. In a sense, the Minister gave him two answers—to say yes, there would be a delay, but she then said that the Government do not normally introduce legislation anyway until the resources are available. So she seemed to be saying t hat there would not be any more delay than usual, because she properly made the point that the Government introduce parts of Bills as and when it is appropriate— when there are resources or there has been the appropriate training to put those parts of the Bill in place. I think the noble Baroness was agreeing with the sentiments of my amendment, even though she did not wish to do so, because she then went on to say that my amendment was unnecessary—because it is what would happen anyway—and unprecedented.
Much of what the Government are doing at the moment appears to be both "unnecessary" and "unprecedented". The noble Lord, Lord McNally, put it very succinctly when he said he did not know whether this was a probing amendment or whether I intended a shot across the bows. I assure him it is a shot across the bows, which will not surprise the noble Baroness, given earlier conversations. Therefore, in that sense—with a great deal of courtesy to the noble Baroness—I say that, although it is only a shot across the bows, I do intend to seek the opinion of the House.
5.6 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 50; Not-Contents, 92.

Division No. 1

CONTENTS

Alton of Liverpool, L.

Kingsland, L.

Anelay of St Johns, B.

Laird, L.

Attlee, E.

Lucas, L.

Bridgeman, V.

Luke, L.

Brooke of Sutton Mandeville, L.

Lyell, L.

Brougham and Vaux, L.

McAlpine of West Green, L.

Byford, B.

MacGregor of Pulham Market, L.

Campbell of Alloway, L.

Carlisle of Bucklow, L.

Mackay of Clashfern, L.

Maginnis of Drumglass, L.

Cope of Berkeley, L. [Teller]

Marlesford, L.

Craigavon, V.

Mayhew of Twysden, L.

Denham, L.

Northesk, E.

Dundee, E.

Norton of Louth, L.

Eden of Winton, L.

Park of Monmouth, B.

Elton, L.

Patten, L.

Erroll, E.

Reay, L.

Fookes, B.

Renton, L.

Fowler, L.

Seccombe, B. [Teller]

Freeman, L.

Selborne, E.

Freyberg, L.

Skelmersdale, L.

Glentoran, L.

Stevens of Ludgate, L.

Hanham, B.

Stewartby, L.

Hanningfield, L.

Strathclyde, L.

Howe of Aberavon, L.

Thomas of Swynnerton, L.

Jenkin of Roding, L.

Ullswater, V.

NOT-CONTENTS

Acton, L.

Farrington of Ribbleton, B.

Ahmed, L.

Faulkner of Worcester, L.

Amos, B. (Lord Privy Seal)

Filkin, L.

Andrews, B.

Gale, B.

Archer of Sandwell, L.

Gavron, L.

Ashton of Upholland, B.

Gibson of Market Rasen, B.

Bach, L.

Goldsmith, L.

Bassam of Brighton, L.

Grenfell, L.

Blackstone, B.

Grocott, L. [Teller]

Blood, B.

Harrison, L.

Borrie, L.

Haskel, L.

Brooke of Alverthorpe, L.

Hayman, B.

Brookman, L.

Hollis of Heigham, B.

Brooks of Tremorfa, L.

Howarth of Breckland, B.

Burlison, L.

Howells of St. Davids, B.

Campbell-Savours, L.

Hoyle,L.

Carter, L.

Hughes of Woodside, L.

Chester, Bp.

Hunt of Kings Heath, L.

Christopher, L.

Irvine of Lairg, L.

Clarke of Hampstead, L.

Janner of Braunstone, L.

Clinton-Davis, L.

Jay of Paddington, B.

Cohen of Pimlico, B.

Jordan, L.

Corbett of Castle Vale, L.

Judd, L.

Craig of Radley, L.

King of West Bromwich, L.

Crawley, B.

Kirkhill, L.

Davies of Coity, L.

Lea of Crondall, L.

Davies of Oldham, L. [Teller]

Lipsey, L.

Dean of Thornton-le-Fylde, B.

McIntosh of Hudnall, B.

Desai, L.

MacKenzie of Culkein, L.

Donoughue, L.

Mackenzie of Framwellgate, L.

Dubs, L.

Marsh, L.

Evans of Parkside, L.

Masham of Ilton, B.

Evans of Temple Guiting, L.

Massey of Darwen, B.

Falconer of Thoroton, L. (Lord Chancellor)

Merlyn-Rees, L.

Mishcon, L.

858

Pendry, L.

Symons of Vernham Dean, B.

Pitkeathley, B.

Temple-Morris, L.

Plant of Highfield, L.

Thornton, B.

Puttnam, L.

Triesman, L.

Ramsay of Cartvale, B.

Rooker, L.

Turner of Camden, B.

Sawyer, L.

Warner, L.

Scotland of Asthal, B.

Weatherill, L.

Sewel, L.

Whitaker, B.

Sheldon, L.

Wilkins, B.

Simon, V.

Williams of Elvel, L.

Stone of Blackheath, L.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
5.17 p.m.
Baroness Thomas of Walliswood Baroness Thomas of Walliswood moved Amendment No. 2:
Before Clause 1, insert the following new clause—
"ADDITIONAL CONSIDERATIONS, COHABITANTS OR FORMER COHABITANTS: REPEAL
Section 41 of the Family Law Act 1996 (c. 27) (additional considerations if parties are cohabitants or former cohabitants) shall cease to have effect."
The noble Baroness said: My Lords, in moving Amendment No. 2, I shall speak also to Amendment No. 3, which is grouped with it. Amendment No. 2 is identical to an amendment tabled in Grand Committee and it has been overtaken by an amendment put forward by the Minister.
In Grand Committee, in replying to me, the Minister said that she could be seduced into accepting the amendment. When we subsequently had a meeting with the noble Baroness and her department, I asked her what that would require from me. She said, "Wait and see". In effect, we have the same amendment with a marginal difference in the wording and, for that reason, I can assure the noble Baroness that I shall not press the amendment.
Amendment No. 3 is slightly different. It is also very similar to an amendment that we moved in Grand Committee. However, we took on board some of the concerns that the Minister and the noble Baroness, Lady Anelay, raised at the time and we have tabled a revised amendment using the current wording under Section 33 of Part IV of the Family Law Act, which refers to persons who are or are not entitled, thus slightly limiting the impact of the amendment.
The purpose of both amendments, whatever their form, was to remove some of the discrepancies in treatment in respect of the granting and length of occupation orders, which depend upon whether the people involved in a domestic case have been married or not married. At that time, I put forward the case that it was incongruous to distinguish so heavily between married and unmarried couples because, if for no other reason, so many children are born out of wedlock—that may or may not be undesirable but this is not the moment to make such a judgment—and many unmarried couples have shown a great level of commitment to each other.
In the second part of the Minister's Amendment No. 7 there is a response to my original amendment. Therefore I shall not discuss my amendment at great

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length. It is very similar to the one that I tabled in Grand Committee. I await the explanation of the Minister's amendment and how it impacts on those that we have tabled before deciding what to do with the amendment. I beg to move.
Baroness Scotland of Asthal: My Lords, I am most grateful for the way in which the noble Baroness has spoken to her amendment. She needed to do nothing more to seduce me into agreeing with her other than to use the eloquence that she used on the previous occasion.
I also agree with the noble Baroness, Lady Anelay, that Section 41 needs to be considered in the light of a proposal currently being considered under the civil partnership provisions. Your Lordships will see from the Marshalled List that I propose a similar government amendment, Amendment No. 7, which will repeal Section 41.
I believe it would be helpful if I set out the Government's reasons for tabling Amendment. No. 7, which removes the need for Amendment No. 2. As your Lordships will see, we seek to make further changes to the Family Law Act 1996 which we believe are necessary as a result of the repeal of Section 41. In accordance with the kind invitation given to me by the noble Baroness, Lady Thomas, I shall take a little time to explain exactly why and how we have done this, not only for those in the House, but it may also be of interest to others who may come to scrutinise the Bill.
The courts are already obliged to consider a number of issues when dealing with applications for non-molestation or occupation orders. Depending on the type of order sought, they must consider whether the parties before them are associated persons within the definition of the Act; whether the individuals have the legal entitlement to occupy the dwelling house by virtue of a beneficial estate, interest or contract, or any enactment giving them the right to remain in occupation; whether there has been evidence of molestation; and whether there is a need to secure the health, safety and well-being of the applicant and any relevant child. Those issues are comprehensive and objective. They relate to the parties' status and relationship to each other, their rights in relation to the dwelling house and evidence of molestation.
Section 41, however, asks the court, when considering the parties' relationship, to look at a couple—of course, an opposite-sex couple only because same-sex couples cannot marry—and to draw conclusions as to the parties' relationship because they have not married or sought to marry.
In light of the changes we have made to the definition of cohabitants and former cohabitants, to ensure that same-sex cohabiting couples are treated in the same way for the purposes of the Family Law Act 1996 as opposite-sex cohabiting couples and given the proposals in the forthcoming Civil Partnerships Bill, we believe that Section 41 no longer works. For those reasons we believe that it is right to repeal Section 41.
Section 41, of course, deals with cases where the courts are required to consider the nature of the parties' relationship. In practice that probably bites
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only in Section 36(6)(e) of the Family Law Act, which deals with occupation orders where one cohabitant or former cohabitant has no existing right to occupy the family home and paragraph 5(b) of Schedule 7, which deals with the transfer of tenancies and provides for the court to have regard to Section 36(6)(e) where the parties are cohabitants and only one of them is entitled to occupy the home by virtue of the relevant tenancy agreement. Section 36(6) sets out a comprehensive set of circumstances that the court shall have regard to, including subsection (6)(e) which states:
"the nature of the parties' relationship".
When considering the removal of an individuals from their home, it is critical that the courts should be able to take into account all the aspects of a couple's relationship. By removing Section 41, I am concerned that the courts will suppose it is not part of their remit to consider the commitment the couple have or have not given to each other. It is true, of course, that the courts may consider this aspect. After all, the wording is sufficiently wide to enable them to do so.
However, I do not wish to plant the seed of doubt into the court's mind that the level of commitment, or lack thereof, is no longer important. For example, in those cases where the parties have not married, or—if the Civil Partnership Bill is enacted—entered into a civil partnership, and an application is made to oust the owner-occupant from the property by a partner who has no beneficial interest in the property, it is extremely important that the court reviews all the evidence of' the relationship between the parties, particularly where the relationship has been of short or sometimes very short duration. That is why I have proposed an amendment to Section 36(6)(e) to include a reference to the level of commitment between the parties, which the court must consider.
I believe that this strikes the right balance between repeal of an unworkable section and reminding the court of the importance of the outward signs of commitment in a couple's relationship. For these reasons, I will not accept Amendment No. 2, as the noble Baroness has indicated, and offer Amendment No. 7 in fair exchange.
I turn now to Amendment No. 3 in the names of the noble Lord, Lord McNally, and the noble Baroness, Lady Thomas of Walliswood. It would standardise the length of occupation orders made under Sections 33 and 35 to 38 of the Family Law Act 1996. The court would be free to make the order for a specific period, or until a specified event, or until further order.
At the moment, the Family Law Act 1996 provides that an occupation order should initially be for a period of a maximum of six months. It then draws a distinction between spouses or former spouses and cohabitants or former cohabitants and parties entitled to occupy a property and those not entitled to occupy a property. For spouses, it says that the court may extend the order on one or more occasions for a further period of not more than six months if the applicant spouse is not entitled to occupy the property or if neither spouse is entitled to occupy the property. For

861
cohabitants not entitled to occupy the property, it says that there may be one extension for a further period of not more than six months.
In Committee we discussed an amendment tabled by the noble Baroness which would have standardised the length of the initial occupation order at six months and allowed the court to extend the order on two occasions for a further six months.
Amendment No. 3 is clearly different in its effect, but my objections to it remain fundamentally the same as those I set out in Committee. First, the Family Law Act draws a distinction between spouses and cohabitants with no entitlement—and it is the "no entitlement" that is important—to occupy the property so as to reflect the different levels of commitment involved in marriage and cohabitation. Where a cohabitant is entitled to occupy a property then the Act makes no distinction regarding the provisions concerning the length of the order between spouses and cohabitants. I acknowledged in Committee that these two relationships can often be similar, but they are in fact quite different in their structure and implications for property and many people who do not marry wish to keep their property rights separate. Unfortunately, or fortunately, that is quite often one of the reasons why they choose not to do so. It is not a reflection on the validity of the relationship. It is simply that legal relationships between cohabiting couples and married couples can be different.
It follows that it is just for the law to reflect the difference in the relationship and the likely complexity of financial and property arrangements in the way in which it makes occupation orders. As the noble Baroness said on other occasions, often people will not be married but they will hold property in joint names and they will make no distinction. It is clear that they wish to share what they have one with the other.
Amendment No. 3 would remove all the Family Law Act 1996 limits on the length of occupation orders, leaving it entirely for the court to determine the length of the order, be it for a specific period, until a specified event, or until a further order. The court's powers on occupation orders are extremely far ranging, for example, regulating the occupation of the home, prohibiting or restricting the rights of occupation of one party, requiring a party to leave the home, or excluding a party from a defined area around the home. I have even had a case where one party was excluded from various parts of the same home, so that one party lived upstairs and the other downstairs and they shared the kitchen.
As the noble Baroness, Lady Anelay of St Johns, said in Committee, there can be advantages for the victim in a quick-fix remedy, in that it keeps the offender's eye on the horizon. It is important to remember that occupation orders are meant to offer what hopefully will only need to be short-term protection, and they should not be used as a substitute for ancillary relief proceedings where questions of divisions of property can be properly considered. Sometimes, separating the two parties from each other can be the most cathartic and safest thing for both of
862
them. For these reasons, I am not able to accept Amendment No. 3, but I hope that the noble Baroness will be content none the less.
5.30 p.m.
Baroness Thomas of Walliswood: My Lords, I thank the noble Baroness for that long and interesting response. What she said does not address the problems faced by some practitioners in the field and also by voluntary organisations working in the field of domestic violence, which is that the orders can be too short and incapable of sufficient elongation in some cases—particularly in those that she has mentioned—to enable the victim, or the person who needs to be protected, to set up a new life that is satisfactory for her—usually her—and her children. I will go back to the people who have been advising me on this to see whether they want me to go any further. The noble Baroness will understand why I have taken that view. However, for the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 3 not moved.]
Clause 1 [Breach of non-molestation order to be a criminal offence]:
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 4:
Page 1, line 9, after "order" insert "or an occupation order"
The noble Lord said: My Lords, noble Lords will remember that in Committee I put forward an alternative to the making of the breach of the civil order, the non- molestation order, a criminal offence. I put forward as an alternative the possibility of strengthening the powers of the civil judge to deal with matters and to the granting of the power of arrest on every non-molestation order so that the police knew where they were, and the setting up of a register, so that in relation to a particular person it would be readily available to the police officer who was called on to enforce the non-molestation order. The Minister gave me a lengthy reply. There was one point in her reply that had considerable merit—that the criminal court has a wider range of penalties to deal with a person who has committed a criminal offence by community orders. I do not need to spell them out. That to my mind was the only advantage.
I have not pursued this line, because there could be an advantage in an extreme situation. The professional bodies, who know what they are talking about, and all colleagues who deal in this field to whom I have spoken regard the civil remedy, the civil application to the judge, when there is a breach of the civil non-molestation order as a far speedier and much more flexible way of dealing with the breach. The matter can be brought before the judge straight away. He has certain powers which would permit him to commit people to prison but also to let them go if the contempt of court were purged.
The purpose of the amendments that I have set down for this stage is to emphasise two points. First, if the breach of a non-molestation order is to be a criminal offence, then logic demands that it should be

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a criminal offence to breach an occupation order. The answer that was given by the Minister last time took up one paragraph in Hansard. It did not flesh out any positive reason why an occupation order should be excluded from being made a criminal offence, saying simply that the court could make a non-molestation order as well. I do not think that is a very satisfactory answer.
The second point, which was drawn to my attention by a professional body, is that, as drafted, it is possible for the criminal offence to be enforced against the wishes of the complainant. It is a position in which, for example, if the police were called to a house and the breach of a non-molestation order were involved, the police could take over a prosecution and contact the CPS even though the complainant who had obtained the order herself in the first place—because it is the non-molestation order that is being breached—objected to it. So the purpose of Amendment No. 6 is to make sure—and I am sure this was the Government's intention—that criminal proceedings would not be brought against the wishes of the person who obtained the non-molestation order in the first place.
We are told from all sides, and it is a matter of experience, that women who have obtained non-molestation orders in the civil court are reluctant to go to the criminal court. They are reluctant to stand among the people who frequent the criminal courts—among whom, of course, I include myself. They are reluctant to subject themselves, in public, to the sort of cross-examination which could take place in the criminal surroundings. It is much better for a complainant who has taken the initiative, with legal advice, of obtaining a non-molestation order in the first place to have the decision—yea or nay—whether a breach of it is to be regarded as a criminal offence. I hope your Lordships see the logic, fairness and justice of that. I beg to move.
Lord Campbell of Alloway: My Lords, I rise briefly to support Amendment No. 6 for the reasons that have been given.
Lord Borrie: My Lords, purely in relation to Amendment No. 6, I of course recall the arguments of the noble Lord, Lord Thomas of Gresford, in Committee. As the Bill stands, there are two alternative possibilities if a non-molestation order is breached. One is that at the victim's initiative, proceedings are taken in the family court, which is to be preferred for many reasons, as the noble Lord indicated. The alternative—and this has been proposed because there is an arrest power available for the criminal offence—is that a charge is brought under Clause I. The noble Lord said, quite rightly, that it seems on the face of it to be possible to bring such a charge irrespective of the wishes of the victim, but he did not mention the possibility, which is hardly imaginary, that intimidation may well prevent the victim concerned wishing to bring those proceedings and that the police may well think it appropriate, in the interests of the public and the victim, that the proceedings should none the less be brought. Since a 864
breach of a non-molestation order would be a criminal offence under this clause and since that alternative procedure would be available, it would be rather odd for what is labelled "a criminal offence" if charges could be brought only if the victim consented, which is what Amendment No. 6 proposes.
Lord Thomas of Gresford: My Lords, perhaps I may briefly interrupt. I know that we are on Report, but the noble Lord raises a point that merits a response. I have of course considered the question of intimidation, but it should be remembered that the victim will already have obtained the civil order and done so in the context of legal advice and assistance. The risk of intimidation is remote, without the person concerned committing another criminal offence for which he could be arrested. Noble Lords should remember that assault, threats and so on can always be treated as criminal offences if the police are satisfied that they have taken place.
Lord Carlisle of Bucklow: My Lords, in Committee, I briefly supported the noble Lord, Lord Thomas, in his wider amendment, as it then was, which would have retained a breach of a non-molestation order as a civil, rather than a criminal, offence. I still believe that his original proposal was right. The compromise that he now proposes meets at least one of the objections to turning it into a crime. I pointed out in Committee, as did the noble Lord, that there may well be cases where a complainant wishes to take the other party back to the court because of a breach of a non-molestation order, but does not wish that person to be landed with a criminal record as a result. That would be avoided by the noble Lord's proposal that the matter should go to a criminal court only at the wishes of the person who is alleging the breach. Although I appreciate the concern of the noble Lord, Lord Borrie, about the possibility of intimidation being used to prevent that person wishing to make it a crime, I repeat what has already been said. The only reason for the non-molestation order being in place is that the party concerned has already been to the court and obtained such an order. Having taken that action, it is difficult to think, provided that they are limiting themselves to a civil breach of that order, that they are in any way likely to be intimidated from returning to the court. They are less likely to be intimidated than they were when they made the application for the original order. I still think that the noble Lord, Lord Thomas, is right.
5.45 p.m.
Lord McNally: My Lords, with so much of what in other circumstances would be expensive legal opinion flying around, I tread with great trepidation. However, I thought I might share with the Minister in particular and the House in general what might be called hearsay evidence. A week or so ago, I was invited to a lunch where I found myself in the company of a number of very distinguished judges. One of them took me to one side and said that he had been following the domestic violence Bill very closely and reading the Hansard

865
reports of the Committee stage. He said that he wanted me to tell the noble Lord, Lord Thomas of Gresford, that he had got it absolutely right about keeping such matters out of the criminal realm and in the civil. I immediately took credit for the line that we were taking. It was interesting that an experienced judge in this area felt that he should tell me with such enthusiasm that my noble friend was on the right track.
Baroness Anelay of St Johns: My Lords, the noble Lord, Lord Thomas of Gresford, has directed our attention back to one of the most intractable problems at the beginning of the Bill. He does so, rightly, to test the Government's proposal to introduce a new criminal offence, saying to us that there is another recourse—that one can make the civil procedure work better. The noble Lord, Lord McNally, has just referred to an eminent member of the judiciary who has taken an interest in the Bill and who has, with great courtesy, ensured that all noble Lords who have taken part in proceedings have the benefit of his opinion. I know that his opinion has gone more widely than that, too.
I made the point when we discussed the matter in Grand Committee that when I first saw the provision I looked very carefully at all the submissions that had been made to noble Lords before Second Reading, and subsequently. It was very clear that there was a divide in opinion about Clause I between those who have eminent experience in the legal practice in applying civil orders as against those organisations that represent women—and, sadly, it tends to be mostly women—who are at risk from domestic violence. In that I, of course, include their families who are with them.
I had great sympathy with the noble Lord, Lord Thomas of Gresford, when, in Grand Committee, he suggested that we should make what we have work better, so that we had that protection. I listened very carefully to the huge weight of material that we have received from outside organisations, which have said that their experience is that, simply, that did not work and that they did not have confidence in it working in the future. However, the noble Lord, Lord Thomas, is absolutely right in pointing to the fact that women do not like going to criminal courts on what they consider to be domestic matters. The response to that from those who represent victims has been to say that they know that has been the case in the past but that we need to make a shift, so that we really do protect women in the future; and that the only way to do that is by having a criminal offence.
I start from the same position as my noble friends Lord Campbell of Alloway and Lord Carlisle of Bucklow. I am very reticent about introducing new criminal offences. However, in this case, I am still listening. I have given a commitment to organisations that I have met since Grand Committee, some of them for the second time and some for the first time. They include the Children's Rights Consortium, Women's Aid, Refuge and Victim Support. I have given them the commitment that I will not take any action from the
866
Front Bench that will in any way reduce the protection that may be given to women. At this stage I have to say that I believe that the Government are making a very difficult decision, but one that I cannot yet oppose. Although I am prepared to give them the benefit of the doubt, I am still listening.
The overall attitude that I have had from other organisations has been that, whatever the Government do, they must deliver better safety. That is what they really want. I have heard from lawyers repeatedly throughout our discussions behind the scenes on the Bill that they have done the absolute utmost to protect people who have been at risk and have suffered from domestic violence. They have talked to them and taken them through cases, but ultimately one of the greatest frustrations is that that particular client may see fit in the end to withdraw. That is often because of the very point made by the noble Lord, Lord Borrie, that even if there has been no intimidation, they fear intimidation.
I know that I have made a circular argument, but it is to illustrate the fact that I appreciate as much as anybody else that the issue is intractable. The Government are seeking a way out, and are trying to cut the Gordian knot and say, "Let's put the past behind us and try something new". In their consultation, they had a very heavy response in favour of the measures. At that stage, I did not have much of a response against the Government. I have concerns about this provision on the basis given by my noble friend Lord Carlisle of Bucklow today and, at greater length, in Grand Committee and I endorse all that my noble friend Lord Campbell of Alloway said at greater length in Grand Committee. He quite rightly kept his remarks brief today.
So I am still listening but whatever I, as a Front-Bencher, ultimately agree to on the Bill, it has to have the fundamental tenet that if things have not worked in the past, whatever happens in the future there must be better protection. This will not be the only solution in Clause 1, nor in the rest of the Bill, but we are still looking for the answer.
Baroness Scotland of Asthal: My Lords, I agree with the comments made by the noble Baroness, Lady Anelay. I have had the privilege—and I do see it as a privilege—of representing women who had been subject to domestic violence since I started at the Bar in 1977, which is quite some time ago. All I have to say to the noble Lords, Lord Thomas of Gresford and Lord Carlisle, is that I wish it were so in relation to intimidation. I regret to tell your Lordships that in my experience dealing with these cases at the Bar, it was not so.
One must understand the nature of domestic violence. Many women will be brave for a while, sometimes brave for a moment, and in that moment they are able to withstand the pressure of the violence to which they are subject. However, that courage can wane. There are huge issues that women in this position have to look at: the risks to their families, to their friends, to their children. Sometimes, their resolve buckles. The people who make them buckle are usually the abusers. I wish that once a woman has

867
the courage to stand up and say "No", she always has the courage to maintain that position. The tragedy is that these women often do not. That is why those who represent vulnerable women in these situations say that we must cut this knot. On occasion, particularly if police go to the door and they see a women who has been badly battered and she has evidence of abuse, it must be proper for proper protection to be attempted.
If we look at the history of many of those abusers who go on to kill, they have had relationship after relationship where the abuse of the women with whom they have been engaged has become more and more severe. Many of those women who do not want to go to court, who withdraw, end up in a situation more dangerous than before. It is a very important issue. I reiterate what the noble Baroness, Lady Anelay, said; those who deal with these matters have strongly said to the Government that this is what they want and need. They wish that when the police come to the door they are able to arrest the person and take him away, even if that is to cause respite thereafter.
I also reiterate what my noble friend Lord Borrie said. There are still two routes. In order to address this situation, which I believe the amendment seeks to tackle, we are leaving open the option of victims pursing civil actions for breach of non-molestation orders where the police are not involved or where the CPS decides that criminal prosecution is not appropriate. This should ensure that victims are not deterred from seeking the protection of the court because of fear of criminal action. In the Northern Ireland experience, where breach is already an arrestable offence, there is little evidence that this has deterred victims from obtaining orders. It appears to be working.
I say to the noble Lords, Lord Thomas of Gresford and Lord Carlisle of Bucklow, that I understand their concern. How far we should protect or honour choice is a real concern. It is a difficult balance. I am not pretending that it is not. Those who have dealt with this over a long period, who have hands-on experience at an operational level, have told us, and women have told us, that this is what they want. The Government do not have the arrogance to disagree with them.
Non-molestation orders go right to the heart of the protection for the victim where there is domestic violence. The noble Lord asks, "What of molestation orders?". Your Lordships will know that we are asking the court to consider, on every occasion that an occupation order is made, whether a non-molestation order should also be made.
As for the comments a few moments ago on the new clause, I maintain that, sometimes, occupation orders are made that have nothing to do with violence; they may deal with organisation within the home and with who should leave when. In other cases, the court may issue an occupation order telling one party that it must leave the home but the party does not do so. For example, someone may be suffering from Alzheimer's, and one of the reasons why the court orders them to leave is so that they will not be considered as voluntarily homeless. Because of the illness, however,
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the person does not leave. They will be in breach. It is nothing to do with non-molestation orders or violence. It would not be appropriate simply to say that it applies in all cases.
The scheme that we have put together says that whenever the court is considering an application, it should consider whether it is appropriate in those circumstances and on those facts to make a non-molestation order as well. We think that we can thereby deal with the matter. We say that the occupation orders are significantly different. We give as an example Section 40 of the Family Law Act 1996, which sets out a number of additional provisions that may be included in certain occupation orders, such as the repair and maintenance of the property, and the discharge of rent, mortgage payments or other out-goings. I am sure that the noble Lord, Lord Thomas of Gresford, with his fierce and proper interest in justice, would not like people to be arrested it' they failed to paint the fence in accordance with an occupation order made against them.
We fear that the amendment places rather too heavy a burden on victims, leaving them open to undue influence by perpetrators. In addition, the amendment takes away the right of the Crown Prosecution Service to decide on prosecutions and the ability of the courts to convict and makes this conditional on the agreement of the victim. I say with due humility that that cannot be right. It is, of course, appropriate for the victim's views to be taken into account, and the judge can do so when passing sentence. I am sure that those prosecuting will also take those matters into consideration, as would be proper. We have made it plain that the police and the Crown Prosecution Service have to keep at the heart of their work the interests of the victim or the witness involved in the case. We see clear evidence of their doing just that.
Lord Thomas of Gresford: My Lords, when the noble Baroness was chiding me for a lack of experience in this field, my mind went back to 1960—I am not sure whether the noble Baroness was born then—when I was a 22 year-old articled clerk instructing a young barrister by the name of Emlyn Hooson, who was being led by Elwyn Jones QC. Somehow we all ended up in your Lordships' House; it must be a unique case. The case to which I referred was all about violence in the home occasioned by a husband who was mentally ill, and what was the effect of his mental illness upon the violence which he was creating. Thereafter, as a young solicitor, I obtained many an order on behalf of victims of domestic violence. In latter years, as the noble Baroness will appreciate, I have been involved with many murder cases where domestic violence has led, as she rightly says, to the ultimate conclusion. So I do not think it is a lack of experience I can be chided with by the noble Baroness.
Where I think the mistake is being made is in suggesting that prosecution for the breach of a civil order should be done against the wishes of the victim. We are not talking about serious violence. If a policeman goes to the door and he sees a victim who has been beaten up, he can arrest the husband whatever she thinks and take him before the court.

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That is the protection that every citizen enjoys, and that is not being taken away by anybody. We are not dealing with that level of violence because the police already have ample powers, and the victim already has the full protection of the criminal law in that situation.
This is an offence, I repeat, for the breach of a civil order which the victim has herself obtained. If she does not wish to make a complaint, then I do not see why anybody else should make a complaint on her behalf. She has her remedy in the civil court, which is a better remedy, as the Minister concedes—it is quicker and more effective. All I can see happening if the prosecution were foolish enough to bring a case against the wishes of the complainant, is that she would simply fail to give evidence. We would then be into the worst possible situation for that lady whereby she might be treated as a hostile witness; she would be cross-examined by everybody—by the prosecution, by the defence—in the context of the criminal courts. That must be bad for her.
I am grateful to the noble Lord, Lord Carlisle, for supporting the wider scheme that I put forward, as did the noble Lord, Lord Campbell of Alloway. I am very grateful to them for their continued support. If we take this route of making the breach of a civil order a criminal offence, surely it has to be with the consent of the person for whom that order was made, and by whom that order was made. Anything else is dragging the poor woman into the criminal courts where she will have an experience that she will not relish and will never forget.
I hope that the Government will think more about this, as will all noble Lords, before we get to Third Reading, because I do not undertake at this moment to drop this issue altogether. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6 p.m.
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 5:
Page 1, line 13, leave out "of the order" and insert "and contents of the order, save that if after becoming aware of the existence of the order the person deliberately evades service of the contents of the order, it will suffice that the person was aware of the existence of the order"
The noble Baroness said: My Lords, Amendment No. 5 follows on from the debate we have just had about the serious nature of the offence that the Government are introducing in Clause 1.
Just about the only protection for the person who will be arrested is in the proposed Section 42A(2), which provides that an individual would be guilty of a criminal offence only if he or she were aware of the existence of the order. I made it clear in Grand Committee that that is not enough protection. It takes little imagination to see that one might have a shouted telephone conversation that one person has an order against the other—that might be held to be sufficient to make the other person aware of the existence of the order, but without giving them any idea about what the court was preventing them doing.
In Grand Committee I moved an amendment with a similar objective to my Amendment No. 5, but I have subsequently redrafted that to take account of the objections that were raised to my drafting. The Minister in her response said that,
"Orders must be served in person and, by refusing to open their doors to the processors, respondents can continue to harass the applicant while truthfully claiming not to have been served with the order".—[Official Report, 19/1/04; col. GC 225.]
I have taken further advice since then and I am told that that is not quite the case; the law on that changed a while ago. Furthermore, I am advised that there is a considerable amount of case law on the comparable notification of an ex parte order for the purposes of committal proceedings in the civil courts. It has been made clear that the terms of the order must be notified either by service of the document or by proof that they have been read down the telephone or sent by some other means, by telegram, fax or whatever.
When I moved my amendment in Grand Committee, the noble and learned Lord, Lord Donaldson, suggested that the amendment could be improved by adding wording such as,
"provided that he knows that he should not be doing it in accordance with the order".
As always I take advice from the noble and learned Lord and his advice has been used as a substance for my redraft.
There appear to be no other instances in the courts where service of the contents is not required for liability to arise.
When the Family Law Bar Association responded to the Government's consultation, it supported this clause on the basis that it supported the proposal to criminalise breach of orders,
"with the caveat that we do not support the criminalisation of breaches of orders that have been made 'without notice' and which have not been served upon the defendant".
It is in support of that view that I propose the amendment. I beg to move.
Lord Campbell of Alloway: My Lords, I support the amendment. It is absolutely essential that there should be proof of knowledge of the content of the order. This is general law. Why should there be an exception?
Baroness Scotland of Asthal: My Lords, when the issue of prosecution for breach of "without notice" non-molestation orders arose in Committee, I explained that the Government had drafted Clause 1 to avoid the existing problem of respondents deliberately evading service of an order and then breaching it with impunity on the grounds that they were not aware of its terms.
The intention of Amendment No. 5, tabled by the noble Baroness, Lady Anelay of St Johns, and moved by her today, is to provide additional protection for respondents to non-molestation orders, by making it explicit that a person can be found guilty of breach of an order only if he was aware of both the existence and contents of the order; or, after becoming aware of the existence of the order, he deliberately evades service of its contents.

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I make it clear straightaway that I sympathise with her intention, but I hope that the noble Baroness will forgive me if I disagree with the need for this amendment. Your Lordships will recall that the Government built a safeguard into these provisions: a person can be found guilty of breaching a non-molestation order only if they did so "without reasonable excuse". As I explained in Committee, this proviso could, for example, operate so as to protect a respondent who co-operated with the service of an order but who, because of blindness or illiteracy, was unable to discover its terms before inadvertently breaching one of them. The circumstances of such a failure to comply would be considered by the court, and I believe this provides an adequate safeguard. It should not, of course, be forgotten that non-molestation orders generally prohibit harassment of the victim and it might not be unreasonable to expect a respondent who is aware of the existence of an order to refrain from such harassment.
I am also concerned that this amendment would make it harder to hold respondents to account for breaching an order because as well as proving that the order's provisions were breached, the prosecution might also have to demonstrate that the respondent had deliberately evaded service, and this would potentially be very difficult to prove. As I believe the noble Baroness mentioned, when we last discussed this, the noble and learned Lord, Lord Donaldson of Lymington, suggested that a bright lawyer would inevitably protest that the respondent could not be found guilty because he did not know the terms of an order. Should this amendment pass, the same lawyer would simply argue that his client could not be found guilty on the grounds that they had not deliberately evaded service. It might then be difficult to prove that the respondent had, for example, intentionally not answered the door to the process server.
The amendment could also prevent the conviction of respondents who, while not deliberately avoiding service of the contents of an order, were aware of its existence and made no effort to ascertain its terms before breaching one of them. We also need to bear in mind that non-molestation orders generally only prevent someone from undertaking behaviour that the respondent knows would be unacceptable, such as harassing the victim. For those reasons, I cannot accept this amendment. However, the noble Baroness should be reassured that the reasonable excuse to which I referred would enable the court in those circumstances to listen to what the defendant had to say and to mete out justice.
Lord Renton: My Lords, before the Minister sits down, she said that she agrees with the purpose of the amendment. If I heard her correctly, would she give an undertaking now to table an amendment at Third Reading which will enable her to fulfil the purpose of the amendment in what she believes would be a proper way?
Baroness Scotland of Asthal: My Lords, before the noble Lord, Lord Campbell, intervenes, our point is that
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we sympathise with the intention behind the amendment, but we believe that that intention is already given expression by the term "without reasonable excuse". It enables the defendant to provide the court with evidence of the "reasonable excuse" that the defendant purports to have and it allows the court to determine the level of its reasonableness.
Lord Campbell of Alloway: My Lords, having listened to the debate with great care, it seems that something is adrift in both the way the Bill is drafted and possibly in the amendment. Without giving any undertaking, will the Minister give further thought to the matter, that someone who is not aware of the provision can be safeguarded?
Baroness Scotland of Asthal: My Lords, I will certainly continue to give such issues consideration, because—I make no bones about it—I am totally committed to making the whole Bill as fair, as effective and as just as I can. I reassure noble Lords that I am probably causing my officials great consternation by constantly reviewing matters, even those which no one else has worried about. I can give that assurance without any difficulty at all.
Baroness Anelay of St Johns: My Lords, I am grateful to my noble friends who have contributed so effectively to the debate. The Minister tried to reassure me by saying that although she sympathises with my amendment, she can see no need for it and points to the provision in subsection (1) of the clause to the effect that the words "without reasonable excuse" would properly cover the matter.
My concern, as I have previously expressed, is that it is a substantial change, as the noble Lord. Lord Thomas of Gresford, outlined in detail in the previous group of amendments. It is a considerable change in which it is important that people are protected from the moment that an action occurs. The difficulty with the Minister's response is that if one is able to show that one has "reasonable excuse" one has already reached court.
Baroness Scotland of Asthal: No, my Lords. The noble Baroness will know that both the police and the Crown Prosecution Service, when deciding whether to charge or not, will have to consider the evidence before them. The most important point about the power of arrest is that the police are, at that moment, able to go to the house and remove the person from the site. Sometimes that is the most important part of the security for the woman.
They will then be obliged in the normal way properly to consider the nature of the charge—the noble Baroness will remember that we are changing the way in which the police operates to make the CPS responsible for the charge. There should be proper inquiries into whether this part of the offence is established, and whether that person can say "I had a reasonable excuse, because I knew nothing about this. I was away and did not get it", or whatever. The CPS can make that decision on whether it, the prosecutor,

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thinks that there was not a "reasonable excuse"—and that is when there will be a debate in court over who is right and who is wrong.
Baroness Anelay of St Johns: My Lords, I am not at variance with the noble Baroness on that particular issue. Where I am at variance is that I think this is such a significant change that there needs to be clarity in respect of this particular protection, and in respect of the fact that in other parts of the law one would expect to have to know the contents of an order before there could be action taken. It is a matter between us, I think, not of disagreement over the ultimate objective but how we get there. My noble friend Lord Renton really put the matter far better than I did, when he asked for a Government amendment at Third Reading which would do the job better than this amendment. The noble Baroness is quite fairly saying that, as far as they are concerned, they have got there already. It is only in respect of that—because this is a matter of principle for me on Clause 1—that it is an issue I want to resolve one way or the other. One does not have to take up Third Reading with this. Only on that basis, I seek to test the opinion of the House.
6.15 p.m.
On Question, Whether the said amendment (No. 5) shall be agreed to?
Their Lordships divided: Contents, 42; Not-Contents, 79.

Division No. 2

CONTENTS

Alton of Liverpool, L.

Lyell, L.

Anelay of St Johns, B.

MacGregor of Pulham Market, L.

Attlee, E.

Biffen, L.

Marlesford, L.

Bridgeman, V. [Teller]

Mayhew of Twysden, L.

Brooke of Sutton Mandeville, L.

Monson, L.

Brougham and Vaux, L.

Northbrook, L.

Campbell of Alloway, L.

Northesk, E.

Carlisle of Bucklow, L.

Norton of Louth, L.

Park of Monmouth, B.

Cope of Berkeley, L.

Parkinson, L.

Denham, L.

Reay, L.

Elton, L.

Renton, L.

Fookes, B.

Seccombe, B. [Teller]

Fowler, L.

Selborne, E.

Glentoran, L.

Skelmersdale, L.

Hanningfield, L.

Stewartby, L.

Jenkin of Roding, L.

Strathclyde, L.

Kingsland, L.

Swinfen, L.

Laird, L.

Thomas of Swynnerton, L.

Lamont of Lerwick, L.

Ullswater, V.

Luke, L.

Watson of Richmond, L.

NOT-CONTENTS

Acton, L.

Bassam of Brighton, L.

Ahmed, L.

Beaumont of Whitley, L.

Amos, B. (Lord Privy Seat)

Blackstone, B.

Andrews, B.

Borrie, L.

Archer of Sandwell, L.

Brooke of Alverthorpe, L.

Ashton of Upholland, B.

Brookman, L.

Bach, L.

Brooks of Tremorfa, L.

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Burlison, L.

Hoyle, L.

Campbell-Savours, L.

Hughes of Woodside, L.

Carter, L.

Hunt of Kings Heath, L.

Christopher, L.

Irvine of Lairg, L.

Clarke of Hampstead, L.

Janner of Braunstone, L.

Clinton-Davis, L.

Jay of Paddington, B.

Cohen of Pimlico, B.

Judd, L.

Corbett of Castle Vale, L.

King of West Bromwich, L.

Crawley, B.

Kirkhill, L.

Davies of Coity, L.

Lea of Crondall, L.

Davies of Oldham, L. [Teller]

McIntosh of Hudnall, B.

Dean of Thornton-le-Fylde, B.

MacKenzie of Culkein, L.

Desai, L.

Masham of Ilton, B.

Dubs, L.

Massey of Darwen, B.

Evans of Parkside, L.

Pendry, L.

Evans of Temple Guiting, L.

Pitkeathley, B.

Falconer of Thoroton, L. (Lord Chancellor)

Plant of Highfield, L.

Puttnam, L.

Falkland, V.

Ramsay of Cartvale, B.

Farrington of Ribbleton, B.

Rooker, L.

Faulkner of Worcester, L.

Scotland of Asthal, B.

Filkin, L.

Sewel, L.

Gale, B.

Simon, V.

Gavron, L.

Symons of Vernham Dean, B.

Gibson of Market Rasen, B.

Temple-Morris, L.

Goldsmith, L.

Thornton, B.

Grocott, L. [Teller]

Triesman, L.

Harrison, L.

Turner of Camden, B.

Haskel, L.

Warner, L.

Hayman, B.

Whitaker, B.

Hollis of Heigham, B.

Wilkins, B.

Howarth of Breckland, B.

Williams of Elvel, L.

Howells of St. Davids, B.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.25 p.m.
[Amendment No. 6 not moved.]
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 7:
After Clause 1, insert the following new clause—
ADDITIONAL CONSIDERATIONS IF PARTIES ARE COHABITANTS OR FORMER COHABITANTS
(1) Section 41 of the Family Law Act 1996 (c. 27) (which requires a court, when considering the nature of the relationship of cohabitants or former cohabitants, to have regard to their non-married status) is repealed.
(2) In section 36(6)(e) of that Act (court to have regard to nature of parties' relationship when considering whether to give right to occupy to cohabitant or former cohabitant with no existing right), after "relationship" insert "and in particular the level of commitment involved in it"."
On Question, amendment agreed to.
Baroness Walmsley Baroness Walmsley moved Amendment No. 8:
After Clause 3, insert the following new clause—
"Amendment to Part 1 of the Family Law Act 1986
USE OF RECOVERY ORDERS
In Part 1 of the Family Law Act 1986 (c. 55) (child custody), after section 34 insert—
"34A USE OF RECOVERY ORDERS IN CASES INVOLVING ALLEGATIONS OF DOMESTIC VIOLENCE OR A POTENTIAL RISK TO THE CHILD
(1) If an applicant claims that their partner has abducted a child of the family, the court may grant a recovery order if the applicant already has a residence order in their name.
(2) If there is no residence order in favour of either parent, the court may grant a recovery order.
(3) The recovery order will require both parties to attend court within 24 hours of the discovery of the child, or the first working day thereafter.
(4) Before returning the child to the applicant or giving the applicant any information as to the whereabouts of the child, the police must—

(a) check their records to see if either party has committed acts of violence;

(b) check to see if either party is included on the register of domestic violence perpetrators;

(c) having located the child without notifying the applicant of the child's whereabouts, make enquiries with regard to the child's welfare.

(5) If records show that the applicant has a history of violence or the police have concerns about the welfare of the child if the child is returned to the applicant, the police will—

(a) not remove the child from the respondent;

(b) advise the respondent to seek legal representation;

(c) notify the court of their action immediately.

(6) If there is no record of violence and no reason to believe that the defendant or the child is at risk, the police will return the child to the applicant.
(7) Ex parte residence or contact orders should only be made if there is evidence that a party is wilfully refusing to attend court.""
The noble Baroness said: My Lords, Amendment No. 8 is identical to Amendment No. 12 which we debated in Grand Committee. In moving it, I am somewhat hesitant because on that occasion the Minister kindly gave us what was referred to as the tour d'horizon of the regulations that are already in place. Her main objection to my amendment was that she considered it to be unnecessary because Section 34(1) of the Family Law Act 1986 requires that a Part I order, which is more usually known as a Section 8 order under the Children Act 1989, is made before a recovery order and therefore the court will already have considered what is in the best interests of the child.
Having looked carefully at the noble Baroness's remarks, Women's Aid, which has been briefing me on this issue, has taken legal advice. That advice confirms that, because this is an urgent procedure for dealing with abductions, there is no requirement for detailed welfare investigations to be carried out, and a Section 8 order—for example, for interim residence—can be made without notice at the same time as a recovery order is granted. Therefore, this situation needs to be rectified in order to ensure that recovery orders are not misused by perpetrators.
Even if there has been an earlier order, that does not necessarily mean that the court has full and up-to-date information about the present circumstances of the case. That is crucial in order for the court to make a just decision.
I recall that when we debated this issue in Grand Committee, the noble and learned Lord, Lord Donaldson, emphasised the speed of these procedures. He proposed that it might be sensible to consider having a standstill before the order was carried out so that the custodial parent could attend and make the case as to why it should not be carried out. I submit that proposed new subsection (5) of my amendment may provide just such leeway.
Therefore, the amendment seeks to clarify the legal procedures for dealing with child abductions and it seeks to ensure that the measures are not used inappropriately in cases of domestic violence. We still believe that such a provision is necessary because domestic violence perpetrators have been able to seek, and obtain, recovery orders to track down their victims and recover children even, on some occasions, as I believe I mentioned in Grand Committee, from refuges, despite all the safeguards referred to by the Minister.
The person who must give up the child may very well have recourse to other measures after doing so. But that situation is very unsettling for the child. The genie is already out of the bottle and it is very had for the child. In those circumstances, it is far better to prevent that happening in the first place.
If an abused woman flees from the family home, taking the children with her, we still believe that her violent partner may seek legal advice, claiming that it is a case of child abduction. As your Lordships know, the person on whom the order is served must immediately disclose to the court all the information that he or she has about the whereabouts of the child. Any person with a legitimate interest can apply for orders under Sections 33 and 34 of the Family Law Act 1986 and an application for a contact or residence order will usually be made simultaneously. Therefore, as these measures are intended specifically to deal with child abductions, understandably this is a very quick procedure, as is also a without-notice application.
The order can be served on any person who may have knowledge of the whereabouts of the child. As we said in Committee, there have even been instances of staff in women's refuges being ordered to disclose in court, in front of the perpetrator, the full address of the refuge where the women and children are staying. Of course, that does not put just the woman who is the subject of the application in danger, but also all the women who are taking refuge at the address.
The reason that I return to this matter is because things do not always work as they should. Recovery orders make it possible for abusers to take action so fast that the mother has no time—it usually is the mother—to seek legal representation, or sometimes to attend court and give her side of the story before a child is removed from her care.
In the fourth annual report of the Advisory Board on Family Law 2000–01, at page 52, the Children Act Sub-Committee made recommendations. One recommendation was that when both parties are before the court, the court can make an informed decision about whether or not it is necessary and in the interests of the child to keep the whereabouts from the parent who has made the application. However, despite the measures that the Minister believes are watertight to protect children, I have pointed out that some judges appear to have difficulty in distinguishing between cases of domestic violence and cases

877
of abduction. That is hardly surprising because sometimes people are very plausible when they make their cases. Unfortunately, judges are still granting orders for children to be found and returned to violent parents and they are also granting, without notice, interim residence orders to perpetrators.
In a national survey conducted by Women's Aid in May 2003, seven refuge organisations reported problems with recovery orders. In Committee I quoted one of the cases. On this occasion I would like to quote a couple of others. The comments indicate that such a situation can happen even when the father has a police record for violence and the mother is staying in a refuge. The survey stated:
"A very recent case where a violent father with a criminal history of violence was able to get an ex parte residence order and a High Court issued recovery order executed in a refuge".
The second case is as follows:
"A court in another county issued an order for the woman's parents to disclose her address after she had fled to our area. There were police reports of domestic violence".
In those circumstances, because the mother is viewed as having abducted the child, she is likely to be treated very harshly by the courts and the wishes and feelings of the child will not necessarily have been taken into consideration at all. That is made very clear in the case details provided by another survey respondent:
"The father started proceedings claiming [the mother] had abducted the child without warning. The mother was ordered at very short notice to attend court. She did not manage to get to court in time, and did not have a solicitor, so the decision was made before she arrived: a residence order in favour of father. The child is not at all happy with this decision, which is being appealed".
As I said earlier, even if that appeal is successful, a great deal of damage will have been done to the wellbeing of the child in the mean time. Even when the perpetrator is in prison the family justice system can still be used to track down his victims. The following case does not involve a recovery order but it illustrates the dangers of making orders without notice when the circumstances of both parties are not known:
"The parents of an extremely violent man, who is in prison for assaulting his ex-partner, applied for contact with their grandchildren. At the same time the grandparents obtained an order for disclosure of the mother's address. All of this was done ex parte, and the mother knew nothing about this until she received an order from the court stating that a welfare report had been ordered on the issue of parental grandparent contact. This woman is still receiving hospital treatment for the injuries she received a year ago, and she is terrified that her ex-partner will find out where she is living".
The family justice system should recognise the need to protect children and mothers who flee violence in all circumstances and be that little bit cleverer than the very clever and manipulative men who sometimes can find loopholes in the law to get at their victims.
In Committee, the Minister said that we should not allow the courts to be used as a weapon in a protracted war between partners—a kind of tug-of-love situation about which we have all heard. I absolutely agree with
878
her. In fact, I have personal experience of one of these situations. I know that the need to avoid such situations is so great that people sometimes make great sacrifices in order to ensure that the child is not damaged in that way. But it is very damaging for children.
However, I think the courts recognise these cases and deal with them appropriately. So it is essential that family law should not enable perpetrators to track down their victims and obtain without notice orders for contact or residence before the court is fully aware of the circumstances of the case and is able to deal with a full and up-to-date report on the situation regarding the welfare of the child. I beg to move.
Baroness Anelay of St Johns: My Lords, the text of the amendment is identical to the one tabled in Grand Committee. Therefore, the drafting questions I posed then must remain the same. On the last occasion the noble Baroness, Lady Walmsley, said that she would consider my questions. I wonder whether she has had the chance to do so and whether Women's Aid has been able to advise her upon it. She might be able to set my mind at rest when she responds to this short debate.
As I said in Grand Committee, I sympathise with the noble Baroness's objective. I notice that subsection (5)(a) in the amendment refers to not removing the child from the respondent and subsection (6) refers to defendant. Is that intentional? Who is the defendant and who is the respondent in this context? Subsection (4) refers to a police check of records to see whether either party has committed acts of violence. As I said before, I agree entirely that that should be done. But then subsection (5) goes on to state:
"If the records show that the applicant has a history of violence"—
and the applicant is mentioned here—
"the police … will not remove the child from the respondent".
My question is simple: what if a search of the records shows that the respondent has committed acts of violence in the past? What are the police expected to do then?
The amendment puts a very heavy responsibility on the police. We need to take account of what happens to the child. According to Amendment No. 8 the police do not remove the child from the respondent even where he or she is shown to have a history of violence. That makes one wonder whether the amendment puts the welfare of the child first. I know from the noble Baroness's long history and experience in these matters that that is the last thing she wants because she always, quite rightly, considers the welfare of the child first.
So, although it is almost my pleasure to receive briefing from Women's Aid and to do as much as I can to support its amendments, I find myself in the position where I cannot support the text of this amendment because of the problems it raises. I still sympathise with the objective, but at this stage I am not in a position to support it.
Baroness Scotland of Asthal: My Lords, as the noble Baroness, Lady Walmsley, rightly says, these amendments are identical to the ones we discussed in Grand Committee on 21 January. On that occasion I set out at length—and I apologised then—how the current law on recovery orders operates. I do not intend to repeat that detailed explanation this evening. I will, however, briefly rehearse my objections to the amendments. I must say that my objections remain the same.
I hear what the noble Baroness says in relation to child abduction issues. I do not agree. Obviously, I do not know the details about which the noble Baroness speaks. I can tell your Lordships that the law and the rules are robust. Of course I cannot comment on whether they are applied accurately, properly and appropriately in each case without looking at the particular facts of the case. We do not know whether these cases are internal or international abductions and which rules applied and which did not. The welfare of the child remains the kernel to each application. So, all I said on the last occasion still applies.
Case law indicates that the police should not be ordered to disclose the address of the women's refuge. The Chief Constable of West Yorkshire Police v S in 1998 is reported in Family Law Reports at page 973. That is what is supposed to happen. The normal procedure is that if there is any issue or difficulty the court invites the parties to write the address down on a piece of paper. Your Lordships will know that it is usual for the officer of the court or the constable to be given the right to take charge of the child and deliver him to the person concerned. Where neither party has a residence order, and accusations of violence are made, Amendment No. 8 seeks to place additional duties on the court and the police to inquire into whether the allegations of violence are justified. If they were, the court would not return the child to the applicant, but the respondent would be advised to get legal advice.
I hope that I made the point when we discussed this in Committee that Amendment No. 8 seeks to place these additional duties in a way that I do not think is appropriate. My objections to the amendment are as follows. Respondents to the Children Act Section 8 applications have the right to appeal and can seek variations of the order. The Section 34 application is not the place for rehearsing the facts of the case that will already have been decided at an earlier hearing. The existing remedies for the enforcement of the residence order against those who do not comply with them and the powers to make orders authorising the return of the children are sufficient. What is more, they safeguard the welfare of any children involved. The provisions of the Children Act and the guidelines on how the court should deal with the allegations of domestic violence ensure that the welfare of the child is paramount and that allegations of domestic violence are properly taken into account by the court when deciding contact issues.
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I have already given the House the good news about what will happen in relation to the forms, which will ensure that allegations of domestic violence are dealt with at the initial application stage. There should be no need for further discussion of the issues or applications made under Section 34 of the Family Law Act 1986.
While I fully understand the good intentions behind Amendment No. 8, the law as I set it out in Grand Committee already provides sufficient protection and, with the introduction of the new forms, will offer increased protection. For all those reasons, I regret that I cannot agree with the amendment. I know that the noble Baroness expresses the issue of child abduction on behalf of Women's Aid. Since it is an issue with which I am familiar, if the noble Baroness thinks that it would be helpful for me to produce a note on why the child abduction provisions do not also impinge on this, I would be happy to do that. I do not wish to tire the House by going through the structure, the case law, and the different forms of international child abduction and non-international child abduction. If the noble Baroness would find that helpful, I would be happy to do it.
Baroness Walmsley: My Lords, I thank the Minister for her explanation and for her offer of a note about the child abduction arrangements. That would be most helpful. I hope that the House will forgive me for returning to test this issue once more on behalf of Women's Aid, which still has concerns, mainly connected with the speed of the proceedings and the fact that sometimes the person who has custody of the child does not even get the chance to know that it is going on.
I apologise to the noble Baroness, Lady Anelay of St Johns, for not addressing the issue that she raised last time. I had intended to do so. We should have changed one of those words so that both were the same. Both "respondent" and "defendant" refer to the person who has custody of the child; in other words, the person who is not the applicant.
I accept that the noble Baroness raised the issue of what happens if the person who has custody of the child has a history of violence. In that situation, the person who is trying to get custody of the child would not be bringing it under a claim that the child had been abducted. He or she would be bringing that claim for custody of the child on the basis that the person who had custody was totally inappropriate because of that history of violence. So I do not think it would apply in this case.
It would be most helpful to have the note to which the Minister referred. I think Women's Aid will consider that with very great interest and I hope that their minds will be set at rest. It is nice to know that the Minister thinks that the law is robust in this case, and I hope that she is right. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.45 p.m.
The Deputy Speaker (Lord Brougham and Vaux): My Lords, I must advise the House that if Amendment No. 9 is agreed to, I cannot call Amendments Nos. 10 to 17 inclusive, because of pre-emption.
Clause 4 [The offence]:
Lord Renton Lord Renton moved Amendment No. 9:
Page 2, line 29, leave out subsections (1) to (5) and insert—"
"(1) A person is guilty of an offence if—

(a) a child or vulnerable adult dies as a result of the unlawful act of—

(i) a member of the same household as that victim, and

(ii) who had had frequent contact with him or her,

(b) at that time there was a significant risk of serious physical harm being caused to the victim by the unlawful act of such a person, and

(c) either it was that person whose act caused the victim's death or—

(i) that person was, or ought to have been, aware of the risk mentioned in paragraph (b),

(ii) that person failed to take such steps as he could reasonably have been expected to take to protect the victim from the risk, and

(iii) the act occurred in circumstances of the kind that that person foresaw or ought to have foreseen.

(2) The prosecution does not have to prove whether it is the first alternative in subsection (1)(c) or the second in subsection (1)(c)(i) to (iii) that applies.
(3) If that person was not the mother or father of the victim—

(a) that person may not be charged with an offence under this section if he or she was under the age of 16 at the time of the act that caused the victims death, or

(b) for the purpose of subsection (1)(c)(iii) that person could not have been expected to take any such step as is referred to there before attaining that age.

(4) For the purpose of this section—

(a) a person is to be regarded as a "member" of a particular household even if he or she does not live in that household, if he or she visits it so often and for such periods of time that it is reasonable to regard him or her as a member of it, and

(b) where the victim lived in different households at different times, "the same household" refers to the one in which the victim was living at the time of the act that caused the victim's death.

(5) For the purposes of this section an "unlawful" act is one that—

(a) constitutes an offence, or

(b) would constitute an offence but for being the act of—

(i) a person under the age of ten, or

(ii) a person entitled to rely on a defence of insanity.

(6) Subsection (5)(b) does not apply to an act of such a person as is mentioned in subsections (1), (3) or (5)."
The noble Lord said: My Lords, Amendment No. 9 is an important drafting amendment. It is important because Clause 4 includes a new method of drafting which is unconventional, ungrammatical and, I suggest, unacceptable. May I have the attention of the Front Bench?
This new method of drafting introduces a system which contains references to capital letters of the alphabet, which are repeated, instead of using the traditional, grammatical method which has always been used and which everybody understands. In redrafting subsections (1) to (5) of Clause 4 in the traditional way, not only have I made them clearer but I have shortened them without altering their meaning or legal effect. Moreover, I have, I believe, made them easier to understand.
I ought to confess that I was chairman of the only official committee since 1870 to advise on the way in which Acts of Parliament should be drafted. In our day, this method of using capital letters as cross references had never even been contemplated. So far as I know, this is the only precedent so far in which they have been used in a massive way. I really do think that the purpose and method of drafting should continue in the way that they have for generations.
I draw attention to a strange reference in Clause 4; it is in line 21 of page 3, at the end of subsection (5), and states:
"Paragraph (b) does not apply to an act of D".
Is that English? Is that a proper way to draft?
This is an important matter, and I hope that the noble Baroness, for whom we all have very great respect, will show that she understands the problem and will accept my solution to it. I beg to move.
Lord Borrie: My Lords, I should like to give an indication of a view from this side. I recall very well that the noble Lord, Lord Renton, raised this matter in Grand Committee. I congratulate him on following that through and putting his money where his mouth is, as it were, in setting out and drafting in full what he regards as a suitably drafted Clause 4—or, rather, most of Clause 4.
I recognise of course that the noble Lord has many years' experience of drafting, statutory interpretation and all such matters. However, I suggest that innovation in parliamentary drafting is fairly rare, because, without any disrespect to them, parliamentary draftsmen are very traditional people. I find Clause 4 quite easy to read with its use of two simple initials, "D" and "V"—one meaning defendant and the other meaning victim. It is easy to understand to whom reference is being made by those initials. Given that brave innovation by parliamentary draftsmen, which assists clarity not just for laymen and social workers, but even for the lawyers who have to interpret Clause 4 in the future, it would be a great pity to "knock it on the head". That would probably put an end to all innovation from parliamentary draftsmen for

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years to come. I do not know any of them and I may be wrong in thinking that they are men and women of sensibility, but they may be sensitive and they may be quite upset if we were to knock on the head that particular attempt, which is useful and should be encouraged.
Baroness Thomas of Walliswood: My Lords, I hesitate to intervene in this battle of the Titans, but I must simply confess that I am with the noble Lord, Lord Borrie, and not with the noble Lord, Lord Renton.
Lord Campbell of Alloway: My Lords, I am with my noble friend Lord Renton. He was after all my sponsor in my introduction to your Lordships' House some years ago and he tried to teach me about its ways, so, inevitably, I am with him. I prefer his traditional form of drafting. I prefer it because, in this clause, "D" wears two hats. Wearing one, he committed the act; wearing the other, he failed to take appropriate steps to stop it. Perhaps because I am a bit of a traditionalist myself, I find it much easier to understand this drafting than that of the Bill. My confusion is compounded in this clause by a totally new form of criminal offence, which one does not have to prove one way or the other. Clause 4(2) does not state which way an offence has to be committed, which is a novel offence of omission. We are therefore moving into a very strange territory and I find the drafting of my noble friend Lord Renton much more comforting than the "D" and the "V" and one thing and another. Of course, I respectfully ask my noble friend certainly not to take the opinion of the House on the matter, because it will suffer considerable erosion in the light of our debates. One would therefore get into a hopeless mess by giving the parliamentary draftsmen instructions to do what they could to put it right. I hope my noble friend will not think me disrespectful if I suggest he does not seek the opinion of the House tonight.
Baroness Howarth of Breckland: My Lords, I spoke about this matter in Committee. Despite the fact that I have not been able to be present at much of this debate for other reasons, I only wish that I could be with the noble Lord, Lord Renton, because I admire him so much. However, I take the other view, simply because, as a social worker and not a lawyer, I find the drafting of the Bill much easier as it is. My colleagues, who are at the front line trying to do the day-to-day job, find "D" and "V" much easier than what is sometimes seen as traditional lawyerspeak.
Lord Carlisle of Bucklow: My Lords, at an earlier stage of the Bill, the noble Lord, Lord McNally, referred to me as "that wise old owl". All I can say is that I hope that I am wise enough not to get involved in any argument with the noble Lord, Lord Renton, about drafting. I do not propose to do so, but I want to ask one question on a point that he made.
What does the last line of subsection (5) mean? As I understand it, the subsection says that an "unlawful" act is one that,
"constitutes an offence, or … would constitute an offence, but for being the act of … a person under the age of ten";
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in other words, if it is committed by a person under the age of 10, it is not an offence. Then it says:
"Paragraph (b) [the paragraph which contains that wording] does not apply to an act of D".
Does that not mean by "D" if he is six or seven? Does it mean therefore that, if he commits an act, it is an offence?
Lord Mayhew of Twysden: My Lords, my noble friend has done the House a great service in reminding us once again of the importance of drafting. We all remember the seminal effect that the report of his great committee had all those years ago. However, I am afraid that I am an insufficiently wise old owl to suppress an impertinent desire to take issue on a minor matter. If my noble friend agrees, he might be able to remedy it at the remaining stage of the Bill.
It is a drafting matter. I venture to suggest that in his amendment, at line 4, the word "and" is superfluous if the word "who" appears in the next line. It is a grammatical matter. In the Bill as drafted, the word "who" does not appear at that point. He may on reflection think that I am not being too terribly impertinent in pointing that out.
Lord Renton: My Lords, I included the word "and" because it was in the Bill as drafted and it does no harm there—in fact, it has some advantage. I was merely trying to improve the drafting by getting rid of this new convention of using capital letters. It seemed to me that the word "and" could well be left in.
Lord Mayhew of Twysden: My Lords, that would be true if the word "who" had not been inserted into the next line, because it is not in the original text. Without going too heavily into it, I believe that I am right. I used to appear before my noble friend when he was recorder of Rochester, and I never thought that would be tangling with him on a matter of this sort. Perhaps I may compound it by saying that I believe "D" and "V" to be rather helpful.
Baroness Anelay of St Johns: My Lords, it will come as no surprise to the House that I am very happy to take lessons in drafting from my noble friend, who always has a way of making the difficult seem more intelligible. I certainly do not believe that a draftsman or draftswoman will be offended by any debate on t his matter; they might consider it a bit of serious levity, if there is such a thing, at the end of a long and testing day.
My noble friend is right to test drafting. With the examples behind us of the Sexual Offences Act 2003 and the Criminal Justice Act 2003, we are beginning to get into the world of alphabet soup. I am not too sure that that is always the right thing to do.
I am grateful to my noble friend Lord Carlisle of Bucklow for returning to a question I brought up in Grand Committee, about line 21 on page 3 of the Bill, which says:
"Paragraph (b) does not apply to an act of D".

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The Minister was kind enough to answer my question on that occasion, but I must admit that I still do not understand it and that I am still trying.
7 p.m.
Baroness Scotland of Asthal: My Lords, I have the vote so far as "Renton 2, Those against 4". That need not trouble the noble Lord.
I am grateful to the noble Lord for tabling this amendment. I commend him, if I may respectfully do so, for his industry in redrafting the clause to remove the letters "D" and "V", which denote the person charged with the offence and the victim respectively. I know that he mentioned earlier in debate that he was uncomfortable with the drafting, which he did not think was clear.
I am reluctant to agree to the amendment. This style of legislative drafting does not suit everybody, but it became clear in earlier debate that many of us find the use of initials very helpful. It is now a common form of drafting. I know that the noble Lord, Lord Renton, thinks that this is perhaps the first time. I regret to tell him that it is not. This device was used for example in the Criminal Justice Act 2003, the Sexual Offences Act 2003, and the Proceeds of Crime Act 2002. It was also used by the Law Commission in its proposed draft Bill, which accompanied its recent report on this issue, Children: their non-accidental death and serious injury (criminal trials) no. 282. I will not tire the House with a complete list of examples in earlier legislation where letters are used in an effort to simplify drafting. The list is very long indeed and includes Acts such as the Consumer Credit Act 1974, which contains references to persons from A to Z, and the pièce de résistance was probably the Local Government Finance Act 1988 which created the community charge. In that Act I found a very interesting calculation that I would like to share with your Lordships. At one stage it says,
A × B /C
is the formula to be used. Then, later on the following appears:
(P × A/C) + (Q ×A/C × 1/5)
I do not think we quite go into that territory, but the "D" and the "V" do have a certain utility and simplicity.
The noble Lord has added "or her" wherever the word "he" appears. I can quite see why he considers that important. But it is an even more long-standing tradition that in any legislation "he" is read as referring also to "she" and the singular is taken to include the plural. This is enshrined in the Interpretation Act 1978, and was stated explicitly there in order to make the draftsman's job easier for the future. So I think that, if I may very respectfully and gently say so, those amendments do not appear to be necessary.
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More importantly, the changes that the noble Lord has made will not in fact work. This is because it is not clear which of the various "that persons" in the revised clause refer to the person who committed the act which killed the child or vulnerable person and which refer to the defendant who is before the court. The drafting would also remove the requirement that the defendant who knew of the risk to the victim, but did not take reasonable steps to protect that victim, must also have been a member of the household who had frequent contact with the victim. This is very important. If we delete this requirement we will be placing on everyone who knew of the risk to the victim a duty to take steps to prevent the harm, or face a criminal penalty. So this might include a neighbour, a doctor, a teacher or a social worker who was aware of the risk. Of course, those people would be doing what they could in their professional capacities, but they do not and should not face the same duty to intervene that is incumbent on a member of the household. The noble Lord's amendment would make the responsibility too wide.
If I may respectfully say so, the amendment of the noble Lord, Lord Renton, does help us because it demonstrates how very difficult it is to get the clarity we need and seek without being quite rigid about saying "D" and "V". I am positive that the noble Lord would not wish the confusion that I have just described to come about.
I am sorry that the explanation I gave on the last occasion was not sufficiently clear; I did try to make it so. Line 21 of page 3 of the Bill states:
"Paragraph (b) does not apply to an act of D".
An amendment in Grand Committee sought to remove the provision, as the noble Baroness, Lady Anelay, said. Hansard will record, I hope, that I gave a full explanation. However, the purpose of the provision is to make it clear that subsection (5)(b) does not make unlawful the act of someone who is not criminally responsible because they are under the age of 10 or insane. I hope that that is clear and that the noble Baroness now understands it.
I commend the noble Lord, Lord Renton, for giving us perhaps one of the most delightful 10 or 15 minutes that we have had for some time.
Lord Renton: My Lords, I am grateful to the Minister, to the noble Baroness, Lady Howarth of Breckland, and to my noble friends for their kind words. However, I must confess that I think it immensely important that we should legislate in a way that ordinary people will understand and in a way that will be accurately quoted when statutes are cited. I must confess—I am grateful to the noble Baroness for pointing it out—that I did not realise that there were three, four or five precedents for this. I ought to have known about it but my research did not get me that far.
In view of what the noble Baroness said, I propose to ask leave to withdraw my amendment. However, I shall study very carefully what she said. If necessary, I shall come back to the matter at Third Reading, although I know that that is sometimes unusual and

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difficult. However, I think that this is a new departure about which we should have real scepticism. I think that the great mass of people who are obliged to obey or be guided by our laws will find it puzzling to find this new departure from the ways in which we have expressed our laws for generations—indeed, for centuries. Those ways are immensely important and have been copied all over the Commonwealth.
This new departure has, so far, not been justified and could cause trouble. As I say, I shall return to the point. I hope that the noble Baroness will think about this again. With those thoughts in mind, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton: My Lords, I beg to move that consideration on Report be now adjourned.
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Moved accordingly, and, on Question, Motion agreed to.

London Local Authorities Bill [H.L.]
The Chairman of Committees acquainted the House that, pursuant to the resolution of 3 March, the Bill had been deposited in the Office of the Clerk of the Parliaments together with the declaration of the agent; the Bill was presented, read a first time, passed through all its remaining stages pro forma and sent to the Commons.
House adjourned at nine minutes past seven o'clock.