Lords Sitting of 9 March 2004

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

Palliative Care
Lord Ashley of Stoke Lord Ashley of Stoke asked Her Majesty's Government:
What recent improvements have been made to the financing of palliative care in hospices.
The Parliamentary Under-Secretary of State, Department of Health (Lord Warner): My Lords, the Government have met their pledge in the NHS Cancer Plan to increase NHS investment in specialist palliative care, including hospices, by an extra £50 million per year by 2004. The £50 million has been allocated to local level by the joint NHS/voluntary sector national partnership group for palliative care, which will undertake a monitoring exercise to ensure the funding is used appropriately.
Lord Ashley of Stoke: My Lords, I am grateful to my noble friend for that reply. Is he aware that the recent extra funding is welcome and very commendable? But would he comment on a report that the percentage of funding for National Health Service hospice care is lower now than it was in 1997? Could the Government make the funding of palliative care in hospices, and elsewhere, a higher priority? No one who is terminally ill or suffering from pain should be denied palliative care if he or she needs it. The estimates of those people who need it and do not receive it vary between 300,000 and 1 million. Either figure is shocking.
Lord Warner: My Lords, although I gave the answer for NHS increased investment, it is also worth bearing in mind that about £170 million per year is also spent in hospices in the voluntary sector. During the past few years, the New Opportunities Fund has put extra money into palliative care, including into hospices for adults and children.
Lord Walton of Detchant: My Lords, the Minister's original Answer was clear. But, does he accept that palliative care is a principle of care which is not devoted totally to the care of patients in hospices, but extends into the community? In that regard, organisations such as Macmillan Cancer Care, Marie Curie and others make a major positive contribution. Within the initiative to which the Minister referred, are the Government giving priority to proposals relating to the work of primary care trusts to ensure that this community programme goes forward?
Lord Warner: My Lords, as I said in my Answer, there will be careful monitoring of the £50 million. It is worth bearing in mind that the £50 million will fund an additional 66 consultants in palliative care, 162 clinical nurse specialists and 92 in-patient beds. It will provide additional funding to the voluntary sector, including hospices, and for example, extra Marie Curie nurses to provide practical care to patients.
Baroness Pitkeathley: My Lords, to follow on from the question asked by the noble Lord, Lord Walton, does my noble friend agree that a mix of care is really important when it comes to providing care for terminally ill patients and, indeed, for their relatives? In that regard, funding given by the New Opportunities Fund pioneered some of those domiciliary care services that are very valued by patients so that they do not have either hospice care or care in the home but a mix according to their needs at the time.
Lord Warner: My Lords, my noble friend is right. I pay tribute to the work that the New Opportunities Fund has contributed in this area under her chairmanship. As I said earlier, about £90 million in total is going into a wide range of care to meet the needs of adults and children in their local communities.
Baroness Finlay of Llandaff: My Lords, the £50 million given by the Government is greatly welcomed by all those working in palliative care. Do the Government recognise that there needs to be ongoing funding of services, particularly in those areas where there is poor provision of services for patients who have diseases that fall outside the current service provision? Just funding services for cancer is not enough in the long term to ensure that patients have the choice to access the service wherever they are and when they need it, irrespective of where they live or their diagnosis. That needs long-term ongoing funding to ensure that salaries are paid.
Lord Warner: My Lords, of course, the £50 million will continue to meet the service needs of people to whom it is allocated. On top of that, my right honourable friend the Secretary of State for Health has announced another £12 million to improve the quality of care services for people who wish to die at home.
Baroness Barker: My Lords, what steps has the department taken to identify those strategic health authorities which, in their criteria for NHS continuing care, have time limits on life expectancy? When it does find them, will there be changes?
Lord Warner: My Lords, I shall have to make inquiries into the question posed by the noble Baroness and write to her.
Earl Howe: My Lords, following on from the answer given by the Minister a moment ago, is he aware that Marie Curie Cancer Care believes that the NHS could save itself some £200 million a year if more terminally

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ill people were given the choice of dying at home? Is he receptive to that message, and to what extent will the Government's money be directed towards that end?
Lord Warner: My Lords, we welcome the Marie Curie Cancer Care campaign. Indeed, my right honourable friend the Secretary of State for Health spoke at its launch. We look forward to working in partnership with Marie Curie Cancer Care and other voluntary sector providers to improve the services for people who choose to die at home. Moreover, as I said in response to an earlier question, my right honourable friend has announced an extra £12 million to be put into work in this area.

Home Equity Release Schemes
2.42 p.m.
Lord Sharman Lord Sharman asked Her Majesty's Government:
What steps they plan to take to regulate home equity release schemes, in view of the increased use of such schemes.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey): My Lords, mortgage-based equity release schemes, also known as lifetime mortgages, will be regulated by the Financial Services Authority as from 31 October 2004. However, the Government are considering responses to their consultation on whether home reversion equity release plans should also be regulated by the FSA and will make an announcement in due course. Meanwhile, last week, on 3 March, the FSA published a consumer fact sheet entitled Raising money from your home, which I commend to noble Lords.
Lord Sharman: My Lords, I thank the Minister for his Answer. Does he not agree that there is now an urgent need to address all forms of equity release schemes? Does he recall that since the passage of the Financial Services and Markets Bill, in which we both participated, I have argued that all forms of such schemes should be included? In the summer, mortgage-based schemes for release were considered. Does he not also agree that a market now estimated by some to be worth £1 billion a year, targeted at—in the Government's own words—elderly and sometimes vulnerable people, provides a huge potential for mis-selling? If urgent action is not taken soon, will we not be attempting to shut the stable door after the horse has bolted?
Lord McIntosh of Haringey: My Lords, I pay tribute to the work of the noble Lord, Lord Sharman, during the passage of the Financial Services and Markets Bill and subsequently in pressing for the regulation of
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equity release schemes. I hope that he is pleased that the vast bulk of them—almost 90 per cent—which are mortgage-based schemes, will be regulated from 31 October this year.
There is a problem with home reversion schemes because, strictly speaking, such schemes are not financial services; they are sale and purchase agreements. To have them regulated would require other primary legislation. However, the consolation is that reversion schemes are almost dying out, representing only 11 per cent of equity-based release schemes compared with 94 per cent only seven years ago.
Lord Blackwell: My Lords, I declare an interest and ask whether the Minister accepts that, if operated within proper standards, equity release schemes can be an important way of allowing older people in particular to benefit from savings by translating them into income? Therefore the objective of regulation should be to create confidence so that the market can develop rather than to create conditions which would choke off its development.
Lord McIntosh of Haringey: My Lords, I do not think that I can disagree with the noble Lord, Lord Blackwell. Within the past year I myself have taken out an equity release scheme. As an elderly person—and of course I may be vulnerable as well—I can hardly disagree that, in the right circumstances, they perform a useful function.
Baroness Noakes: My Lords, during the consultation carried out by the Treasury into a regulatory scheme, can the Minister say whether there was any opposition to having a single regulatory scheme; that is, one covering both home mortgages and reversionary schemes? If so, can he tell us which organisations argued against such a single scheme?
Lord McIntosh of Haringey: My Lords, we have not published the results of the consultation which finished only last month. We shall publish them with our responses as soon as possible. The answers to the questions put to me by the noble Baroness, Lady Noakes, will of course be contained in those responses.

Kashmir
2.46 p.m.
Lord Ahmed Lord Ahmed asked Her Majesty's Government:
Whether they will facilitate peace talks between India and Pakistan on the issue of Kashmir.
Baroness Crawley: My Lords, we commend the statesmanship and courage that President Musharraf and Prime Minister Vajpayee have demonstrated in moving Pakistan and India resolutely towards substantive talks on all the outstanding issues between them, including Kashmir. As a friend of both countries, we stand ready to offer any assistance that they might request. But at their

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root the differences between Pakistan and India are bilateral in nature and will have to be resolved through peaceful engagement between the two countries.
Lord Ahmed: My Lords, I thank my noble friend for her reply and I pay tribute to the Foreign Secretary and the Prime Minister for encouraging both India and Pakistan to talk during the SAARC conference. Does the Minister agree that, in order to reach a lasting solution on the issue of Kashmir, the Kashmiri leadership must be involved in the talks between India and Pakistan and that violence on all sides must stop? Does she also agree that fence building along the line of control has to stop if we are to secure the right to self-determination for the Kashmiri people? Finally, military personnel in residential areas of the Kashmir valley must leave as soon as peace talks begin.
Baroness Crawley: My Lords, I thank my noble friend for his encouraging words about my right honourable friend the Foreign Secretary. I very much agree that the views of the Kashmiris must be taken into account if any settlement of the issue of Kashmir is to be durable. Of course it is not for us to go into the nature of that settlement, but we welcome, for example, the announcement made by the Government of India of an inquiry into the killing of five civilians in Bandipore on 8 February. It is important that the inquiry is thorough, transparent and independent, and that any perpetrators of human rights abuses are brought to justice.
Lord Howell of Guildford: My Lords, as the Minister rightly indicated, it is obviously not for Britain to tell India and Pakistan how to resolve their differences. However, does she agree that the Indian cricket tour of Pakistan which is just beginning—an historic development—and the moves towards talks are promising signs? Will she undertake to ensure that, while we do not interfere, we extend to both governments every possible offer of facilities and encouragement, not merely to talk about Kashmir and its difficulties over the years, but also to discuss mutual disarmament and de-escalation, in particular on the nuclear side?
Baroness Crawley: My Lords, I thank the noble Lord for his words of encouragement in regard to the cricket tour. My noble friend the Leader of the House knows more than I do about the intricacies of who is up and who is down in cricket, but certainly a unique tour is about to begin.
We very warmly welcome the announcement that the Indian and Pakistan Governments have made in regard to agreeing an agenda and timetable for substantive dialogue to begin following the Indian general election. I agree that this is a promising start after many years of anxiety world wide about the situation in the region. It builds on the highly significant breakthrough in relations announced by President Musharraf and Prime Minister Vajpayee at the beginning of January. We welcome the agenda and timetable; we wish it well and encourage it.
Lord Avebury: My Lords, while endorsing the welcome given by the Minister to the signs of progress that we see between India and Pakistan, particularly the cessation of shelling across the line of control, how can the views of the people of Kashmir be taken into account? Does she think that, notwithstanding the fact that we have no direct role to play in the negotiations between India and Pakistan, we could encourage both countries to allow greater freedom of expression in the parts of the territory which are under their own jurisdiction? This would enable the people of Kashmir to exchange views, both among themselves and across the line of control, on a future constitutional settlement.
Baroness Crawley: My Lords, I agree with the noble Lord, Lord Avebury, that the views of the Kashmiri people must be taken into account if a settlement is to be sustainable. As to his point about freedom of expression for the people of Kashmir, we welcome the steps taken by the Jammu and Kashmir state government to address human rights grievances, including the disbanding of the police special operations group and the release of leading political detainees.
Lord Paul: My Lords, when I was in India recently I met the Indian Prime Minister, who was cautiously optimistic about the new negotiations. Will my noble friend the Minister congratulate Mr Vajpayee? He has been working on this for four years, persevering with every new initiative despite the setbacks. The final negotiations have now started and Mr Musharraf has responded very well. Will my noble friend congratulate them on this start? Does she agree that any outside interference can only damage the negotiations that they have started and that we should refrain from doing so?
Baroness Crawley: My Lords, I agree with my noble friend that a solution to the problems of Kashmir will be through direct bilateral agreements between India and Pakistan. I agree that Prime Minister Vajpayee is to be congratulated on the hard work that he has put into reaching the position we are now in, where there is an agenda and substantive timetable for talks to begin after the Indian elections. I also of course congratulate President Musharraf.
Baroness Knight of Collingtree: My Lords, does the Minister also agree that there is a strong element of urgency in this matter as people are dying every day it goes on? The bloodshed which has already taken place is heartbreaking. We should all recognise that there is a real need to settle the matter.
Baroness Crawley: My Lords, I wholeheartedly agree with the noble Baroness about the urgency of the matter. That is why we welcome the detailed talks that

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are taking place between Deputy Prime Minister Advani of India and the leaders of the moderate separatist Kashmiri groupings called the All Parties Hurriyat Conference. The noble Baroness will know of the ceasefire along the line of control. We encourage the confidence-building measures that are taking place, such as the Muzaffarabad and Srinagar bus link which will bring benefits to people living on both sides of the line of control.
Lord Corbett of Castle Vale: My Lords, if the voices of the people of Kashmir are to be heard, the guns must be silent. Is it not the case that, in this instance, the less the Government try to do the better?
Baroness Crawley: My Lords, I think I made it clear in my earlier replies that I believe an appropriate line is to be drawn between encouragement and intervention.
Lord Dholakia: My Lords, I endorse much of what the noble Lord, Lord Paul, said about the negotiations that are taking place at the present time. Not only the cricket tour but also the opening of airways between India and Pakistan, better trade links between India and Pakistan and better links for surface transport between the two countries are steps in the right direction. Does the Minister agree that we should congratulate both countries on having the courage to move in a peaceful manner?
Baroness Crawley: Absolutely, my Lords. The opening of transport links is a very encouraging start to what we all hope will be the beginning of a real solution.
Lord Weatherill: My Lords, in view of the fact that yesterday was Commonwealth Day, does not the Minister feel that it would be a considerable encouragement to Pakistan if it could now be brought fully hack into the Commonwealth family?
Baroness Crawley: My Lords, the decision on lifting Pakistan's suspension from the counsels of the Commonwealth is ultimately a matter for the Commonwealth Ministerial Action Group, as the noble Lord will know. However, Her Majesty's Government consider that Pakistan has met the criteria laid down by the Commonwealth Ministerial Action Group and support its readmission to the counsels of the Commonwealth as a result.

Intelligence Services: Recruitment and Foreign Language Studies
2.57 p.m.
Lord Harrison Lord Harrison asked Her Majesty's Government:
In the light of their announcement concerning expanded MI5 recruitment, whether they are content that there are sufficient graduates of non-European
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languages to meet MI5's requirements and the continuing needs of MI6 and Government Communications Headquarters.
The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, the intelligence services all run active and successful recruitment campaigns which attract candidates with qualifications in hard non-European languages and from various ethnic backgrounds. Where necessary, the security and intelligence agencies work closely together to bolster language capability, and of course language graduates are not the only source of recruits with fluent foreign language skills.
Lord Harrison: My Lords, I thank my noble friend for that Answer. Nevertheless, is my noble friend worried that some universities are closing courses teaching non-European foreign languages, not because of a lack of suitably qualified students but because the courses are expensive to run? Is she further worried by the closure of the East Asian Studies Department at Durham University, which currently produces one-sixth of our Chinese and Japanese linguists? This will make it even more difficult to recruit suitable applicants for MI5, MI6 and GCHQ.
Baroness Scotland of Asthal: My Lords, I understand my noble friend's anxiety in relation to this matter, but I can certainly assure him that the Higher Education Funding Council for England has a programme of support for minority subjects to provide special funding where it is satisfied that continuing provision is in the national interest but might be at risk. As to the University of Durham, I am aware that it closed its Department of East Asian Studies in September 2003 and that this has generated a deal of publicity. However, universities are autonomous organisations with responsibility for their own financial and academic decisions. I understand that the provision of language training in this regard is an issue which is still under consideration at Durham.
Lord Quirk: My Lords, is it not the case that even more serious than the dearth of British graduates is the dearth of British teachers in these subjects? In a letter only last week, Sir James Craig, Arabist and former ambassador, tells me that in Oxford, Cambridge, Edinburgh and SOAS, the professors of Arabic are all Syrian, Palestinian, Dutch or German; and that of the entire membership of the British Society of Middle Eastern Studies—the "British" society—barely one-third are home-grown British scholars. Will the Government address this whole issue with a sense of urgency—and, indeed, the whole issue of foreign language teaching in general in this country?
Baroness Scotland of Asthal: My Lords, I can reassure noble Lords that the Government are taking the matter very seriously. I have already referred to the work undertaken by the Higher Education Funding Council for England. Over the past three years, it has provided

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£3 million of funding for 35 minority subjects in different institutions. The Higher Education Funding Council for England intends to undertake a review of the arrangements for minority subjects in 2004—that is, this year. As a result of the review, I understand it is likely that institutions will have the opportunity to bid for additional funding to support subjects of strategic importance. The figures may have dipped, but I understand that those for people undertaking these studies have started to rise, which we are very pleased about.
Lord Watson of Richmond: My Lords, does the Minister agree that the balance of experience over the last few years is that intelligence gathered from human sources is of greater value than that gathered from satellite and technological sources and that in that regard language ability is crucial? Does she further agree that beyond intelligence gathering, if we are to have a real dialogue between cultures, it is essential that the learning of Arabic is greatly strengthened in this country?
Baroness Scotland of Asthal: My Lords, I agree with the noble Lord about the importance of language, particularly as we are living in a very multi-cultural, multinational community. That is why the Government have made such strenuous efforts to enhance the learning of various languages and wholly support its promotion.
Lord Archer of Sandwell: My Lords, can my noble friend confirm that the intelligence agencies benefit from a new recruit only after a substantial period of learning the job, and that the time to train linguists is before they are needed? Is work being done to ensure that we know the linguistic skills that are likely to be needed over the next decade?
Baroness Scotland of Asthal: My Lords, I have already mentioned the strategy that we have taken in terms of learning additional languages. That strategic approach has started to bear fruit—the figures indicate an upward trend, having gone down for a number of years. We congratulate all those who are involved in the teaching and promotion of an interest in others' languages.
Baroness Carnegy of Lour: My Lords, the noble Baroness has given us a number of very interesting figures for England and Wales. Does she not have in her brief the very important figures for Scotland, where a good deal of this goes on and there are problems?
Baroness Scotland of Asthal: My Lords, I do not have the figures for Scotland. As the noble Baroness knows, the Scottish have the benefit of their own education system, and I am unable to give those figures in relation to England and Wales.
Lord Campbell-Savours: My Lords, can we safely presume that there is no age limit on recruitment and therefore that everyone is welcome?
Baroness Scotland of Asthal: My Lords, for the security services, the age limit is between 18 and 60. I can reassure noble Lords that if they have specific linguistic qualifications, then all will be considered, irrespective of age.
Viscount Bridgeman: My Lords, can the Minister assure the House that the Government are taking sufficient steps to target vacancies in the security services among British citizens with mother-tongue knowledge of the languages in which there is currently a shortage of recruits?
Baroness Scotland of Asthal: My Lords, I can. There are a number of opportunities for recruitment to the intelligence and security agencies. They are interested in recruiting a diverse workforce, and vacancies are advertised regularly across a broad spectrum of the press, including the ethnic minority press. The Security Service runs regular recruitment programmes employing recruitment consultants and attending recruitment fairs. It has also notified Jobcentre Plus of its requirements for those with a linguistic skill. Those interested in joining might also visit the Security Service website. So I encourage noble Lords to entertain the prospect.
Lord Smith of Clifton: My Lords, does the Minister agree that in view of the critical situation, the time has come to appoint another Parry-style inquiry into the extent of the provision in this country of overseas centres? I suspect that many of those centres, in Durham and elsewhere, have atrophied over the last three decades. The time has come for something more than having the universities funding council look at the issue.
Baroness Scotland of Asthal: My Lords, I hear what the noble Lord says, and I am sure that my colleagues at the Department for Education and Skills will take it into account. However, I reiterate what I said earlier: a strategic approach has been applied, and it is bearing fruit. The figures are going up—at last, some people will say—and the trend seems to be being sustained. That must be something to celebrate.
Lord Brooke of Sutton Mandeville: My Lords, pursuant to the question of my noble friend Lady Carnegy, since MI5 is a national body, is it really sensible for the Government not to know what resources are available in Scotland?
Baroness Scotland of Asthal: My Lords, it is not that I do not know—I do not answer questions in relation to educational establishments. Noble Lords will know that I am not able to answer for other reasons in relation to the strategies used by the Security Service to get its information and recruits from elsewhere. I cannot, therefore, identify specific matters. I am very happy to write to noble Lords to give such information as I may, in future, be able to disclose with propriety, in due course.

Uganda
3.6 p.m.
The Lord Bishop of Winchester The Lord Bishop of Winchester asked Her Majesty's Government:
What requests for assistance they have received from the Government of Uganda, in the light of recent developments in the campaign of the Lord's Resistance Army across northern Uganda; and what advice or assistance they have offered.
Baroness Crawley: My Lords, the Government of Uganda have not made a direct request for assistance from the UK or the wider international community following recent developments. We are deeply concerned about the deteriorating situation in northern Uganda. The UK provides significant humanitarian assistance. We have disbursed £8.4 million over the past 12 months to meet the emerging needs of the north. At the same time, we continue to urge the Government of Uganda to seek a peaceful solution to the conflict.
The Lord Bishop of Winchester: My Lords, I am grateful to the Minister for that Answer. Does she agree that among the claims of the wide range of political, ethnic and religious coalitions not only among the Acholi but right across northern Uganda, would be that the place should be regarded as a disaster area and that the Government should be seeking outside assistance in a much more organised way?
I welcome the Minister's statement that the Government have been talking about a non-military, political, humanitarian solution. However, when the President was here at the end of January, did the Government raise with him the pressing questions of the continuation of the law of amnesty and the inclusion, or the exclusion, of the LRA in its terms? Have the Government recently raised with Uganda continuing human rights violations and child abduction and use by Ugandan forces as well as by the LRA? Have they talked about the wisdom of creating local militias? Have they talked about the continuing activity in the Congo and the effects of that upon the effectiveness of Ugandan forces?
Baroness Crawley: Yes, my Lords. The Prime Minister raised a number of issues that the right reverend Prelate covered in his meeting with President Museveni on 29 January. The right reverend Prelate will know, from his great interest in the region, that our High Commissioner in Kampala is in constant touch with the Ugandan President on this issue. We have a very open relationship with Uganda—it is not uncritical, but it means that there is a great deal of dialogue. We have said quite openly that we believe that the military option favoured by President Museveni simply is not working. We are encouraging the Ugandan Government to consider all options to resolve the conflict, including dialogue.
Lord Alton of Liverpool: My Lords, will the Minister accept that the depredations of the Lord's Resistance Army are not confined to northern Uganda, but are spreading into the provinces of neighbouring countries? This is not only a tragedy for the victims of the brutal assaults and killings; it is also a stain on the reputation of Uganda at a time when that reputation has been growing within the international community because of the considerable progress that has been made in building its economy and democracy. Therefore, should we not reconsider providing more logistical support, short of sending military personnel? We could at least give advice and support and encourage the process of dialogue to which the Minister referred.
Baroness Crawley: My Lords, we believe that Uganda's reputation has been growing, which is why we have developed a constructive relationship, especially in the areas of health and education. However, we will continue to tell the Government of Uganda that we believe that military intervention is not the only way forward. One great way forward would be to ensure that the local communities affected by this brutal gang of insurgents could become part of the solution. They are the very people who wish the dialogue to take place. We are supporting that dialogue through peace and reconstruction initiatives and initiatives designed to help return former child soldiers to the community. Some of them have taken part in the most dreadful acts of violence. It is therefore a very complex reintegration procedure, but we are doing our best.
Lord Avebury: My Lords, on the role of the local communities, did the noble Baroness note the remarks made by the Catholic archbishop of northern Uganda, John Baptist Odama, that it was dangerous to arm villagers because it would make them targets for the LRA? Is that not precisely what happened on 21 February, when 200 displaced people were atrociously massacred because they were guarded by local militias? Would it not be better, as the noble Lord, Lord Alton, suggested, to help the Ugandans to improve their own military capacity?
What has happened about the donor review of the Ugandan armed forces? Has a meeting been scheduled to discuss the outcome of that review with the Ugandan authorities?
Baroness Crawley: My Lords, it is a sorry fact that military intervention by the Ugandan Government has sometimes led to a response that is dreadful for the people of northern Uganda as far as the Lord's Resistance Army is concerned—it is conflict building on conflict. However, the noble Lord is right, the Ugandan Government have undertaken a comprehensive defence review, which the UK has supported, aimed at defining Uganda's defence priorities and, based on that, the optimum size and capability required for Uganda's armed forces. Indeed, we are encouraging the

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Government of Uganda to discuss implementation of the review's recommendations with the donor community as soon as possible.
Lord Howell of Guildford: My Lords, is it not the position that this war has now been going on for 18 years, with Joseph Kony's terrifying so-called Lord's Resistance Army displacing half a million people and, as the noble Baroness confirmed, committing unspeakable and unending atrocities? Although one recognises that negotiation sounds the best way forward, it does not sound very hopeful against people who commit these sorts of acts.
Is it not also the case that military authorities in neighbouring countries, such as Sudan, are beginning to intervene? Bearing in mind that the Prime Minister's commitment to Africa is one of his highest priorities as regards development, should the Government not be rethinking our policy along the lines suggested by the noble Lords, Lord Alton and Lord Avebury?
Baroness Crawley: My Lords, our response to what is happening in northern Uganda is under continual review. I agree with the noble Lord that Sudan has a key role to play in the resolution of this conflict. The UK's special representative for Sudan, Alan Goulty, has visited the region several times. In August he discussed the LRA question with President Museveni in Uganda and has urged the Sudanese Government to enforce their decision to no longer provide assistance or shelter to the Lord's Resistance Army. That message was reinforced by Hilary Benn in his meeting with President al-Bashir during his visit to Sudan on 10 December. He was assured that Sudan no longer supported the Lord's Resistance Army. Our ambassador in Khartoum is also in regular contact with the Sudanese authorities on this issue.

Business
3.16 p.m.
Lord Grocott: My Lords, later this afternoon, after the two Northern Ireland orders, the duration of which I cannot predict, my noble friend Lord Whitty will repeat a Statement on GM policy.

Budget (Northern Ireland) Order 2004
3.17 p.m.
The Lord President of the Council (Baroness Amos): My Lords, I beg to move the first Motion standing in my name on the Order Paper.
Moved, That the draft order laid before the House on 5 February be approved.—(Baroness Amos.)
On Question, Motion agreed to.

Rates (Amendment) (Northern Ireland) Order 2004
Baroness Amos: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
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Moved, That the draft order laid before the House on 10 February be approved.—(Baroness Amos.)
Lord Laird Lord Laird rose to move, as an amendment to the Motion, to leave out all the words after "That" and insert "this House declines to approve the draft order laid before the House on 10 February".
The noble Lord said: My Lords, the draft Rates (Amendment) (Northern Ireland) Order 2004 is an important piece of legislation for Northern Ireland and my colleagues and I remain in favour of the rating of vacant property. The proposal provides a clear benefit to society as a whole. However, I cannot help but feel that the Government have not fully considered the arguments against the phased removal of industrial derating despite a full discussion of the order in the Grand Committees of both this place and another place. Therefore, as the order stands, it fails to offer the people of Northern Ireland the reform package most suited to its particular economic circumstances.
In its present form, the impact of these legislative proposals would have a severely detrimental effect on many businesses throughout the Province. The Government have simply not given sufficient consideration to the potential impact on employment figures and on Northern Ireland's manufacturing industry. Our fear remains that the Government's calculations on employment figures have been solely based on a study by DTZ Pieda Consulting for the Department of Finance and Personnel. This suggested that the impact on profits that firms generally make would be no more than 2.7 per cent. However, as has been pointed out to the Government on numerous occasions, other stakeholders argue that the impact would be much higher. For example, the CBI Northern Ireland has indicated that the impact of rates could be between 15 and 20 per cent. According to the CBI, the agri-food, clothing, manufacturing, engineering and electronics sectors will be hit hard by these proposals.
The Government have argued that there is no evidence actually to support the argument that I am reiterating on behalf of my colleagues and the relevant stakeholders in Northern Ireland. The Government point out, however, that any job losses would be a matter of great regret, yet jobs are created and lost all the time for a variety of reasons. I feel that it would indeed be a matter of extreme regret if jobs were lost in Northern Ireland as a direct result of the Government's refusal to acknowledge and consider the evidence that my colleagues and I have highlighted, both in this House and in another place.
It is also the Government's view that those who claim that 30,000 jobs will be lost as a result of this legislation are wrong. I am glad that the Government are so eager and confident in their proposals. However, I should be much happier if the Minister would give a guarantee to this House that the phasing-in period will be extended to 10 years to allow for any unforeseen negative consequences, as it will be Northern Ireland's industries that will have to carry the consequences should the Government's calculations be imprecise.
If manufacturing profits do fall by the more negative estimates of 20 per cent, then, of course, we are going to see excessive job losses in Northern

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Ireland. There can be no doubt about this. The Government have admitted that the impact of this move will,
"depend on the circumstances of individual firms and on a range of other factors".
Obviously this indicates that the Government's assertion that there will be no negative impact on Northern Ireland's employment figures is ill founded and that their modernisation programme has not been properly thought out. I am disappointed that the Government have not seriously considered the points my colleagues and I have made. As such, I beg to move.
Moved, as an amendment to the Motion, to leave out all the words after "That" and insert "this House declines to approve the draft order laid before the House on 10 February".—(Lord Laird.)
Lord Glentoran: My Lords, I spoke at some length in Grand Committee and indicated that I was not happy with certain parts of this rates order. In particular, I pointed out both the strength and the fragility of the Northern Ireland economy and its fragility in competition with the Republic of Ireland for inward investment and other matters.
Lord Smith of Clifton: My Lords, we on these Benches will support this order. As I said in Grand Committee, it is an attempt to modernise the rating system in Northern Ireland. It has been introduced with sufficient understanding of the industrial situation in Northern Ireland. At the moment, Northern Ireland is much more prosperous than previously. It is not the worst region in the UK. Now is as good a time as any to introduce this reforming measure. We shall support it.
Baroness Amos: My Lords, this is an issue that we discussed at some length in Grand Committee. I can assure the noble Lord, Lord Laird, that the decision was not taken on the basis of the DTZ study. The policy proposal to phase out industrial derating was subject to a regulatory impact assessment that concentrated on the impact on the manufacturing sector. A separate assessment was carried out on the quarrying sector. Full account was taken of the current economic climate and of the concerns about competition that were raised in the consultation.
A number of figures have been quoted about the percentage of profit that would be lost. The figures include that of the DTZ study, 2.7 per cent, that of Invest Northern Ireland, 8.5 per cent, and the CBI's figure of 15 to 20 per cent. It is our view that the Invest Northern Ireland study is likely to be the best available indication of profit impact but this does not mean that profits will fall by 8.5 per cent as a result of the phasing-out of industrial derating.
The noble Lord, Lord Laird, raised the point of the impact on jobs and the claim that some 30,000 jobs could be lost. The claim does not take account of the fact that rates are being phased in over a prolonged period of time. The noble Lord asked for an extension
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of that period from eight years to 10. There will be ample time during the eight-year phasing-in period continually to look at the impact on the economy in Northern Ireland. If we have to think again, we shall have an opportunity to do that over the phasing-in period. Given the consultation that has already gone on in relation to this order and the fact that the phasing-in has been agreed, it would not be right to move from eight to 10 years at this time.
Rates are but one element of firms' cost structures and cannot be considered in isolation. There is no evidence to support the argument that a large number of otherwise sustainable jobs will be lost as a direct result of having to pay rates in seven years' time. I note the concerns that have been raised by the noble Lord but I hope that, in the light of my explanation, he will feel able to support the order.
Lord Laird: My Lords, I thank the Lord President for her remarks, which I have taken into consideration. I shall look at those remarks in more detail. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Motion agreed to.

GM Policy
3.26 p.m.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty): My Lords, with the leave of the House, I shall repeat a Statement made in another place by my right honourable friend Margaret Beckett.
"With permission, Mr Speaker, I would like to make a Statement on the Government's approach to the technology of genetic modification, including its use in crops.
"The tool of GM has been used for at least 10 years across the world in the production of food and medicines, both human and animal. In the UK, only a handful of foods have been approved for use: GM soya, tomato purée and some forms of maize. The first two were approved under the previous administration and the maize was approved in 1997 and 1998. At present, no GM crop has all the approvals needed for commercial cultivation in the UK. Decisions as to what can be consumed or grown in the EU as a whole have throughout been taken by member states collectively under a regime of safety testing, monitoring and control which itself dates back 10 years.
"This legal framework has recently been substantially strengthened and that much strengthened regulatory regime came into effect in the UK last year. It is firmly based on the precautionary principle as applied on a strictly case-by-case basis. Every GMO for which authorisation is sought must receive a comprehensive prior assessment of any potential risk to human health or the environment.

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"In 1998 this Government decided to go further. We were advised by English Nature of its concern about the effect of current GM herbicide-resistant crops on biodiversity. It was agreed that farm-scale trials would be conducted to assess these risks. Those trials were largely completed and reported by the end of last year and their results referred to our independent advisory committee for its assessment.
"In the mean time, another advisory committee had advised the Government to fund an independently run public debate or dialogue on GM issues. I accepted that advice and in May 2002 announced that the Government and the devolved administrations would sponsor such a dialogue with three strands: the debate itself, a thorough review of the science and an economic costs and benefits study by the Prime Minister's Strategy Unit.
"The public dialogue reported general unease about GM crops and food and little support for early commercialisation of GM crops. People already engaged with the issues were generally much more hostile. Those not so engaged were more open-minded and anxious to know more, but were still very cautious and it was suggested that if they learnt more their hostility deepened.
"The costs and benefits study concluded that the GM crops currently available offer only some small and limited benefits to UK farmers but that future developments in GM crops could potentially offer benefits of greater value and significance even in the United Kingdom.
"The science review concluded that GM is not a single homogenous technology and that applications should continue to be assessed on a case-by-case basis. It reaffirmed that there are some gaps in scientific knowledge and, in particular, that it is important that the regulatory system is kept under review so that it keeps pace with any new developments. But it concluded that there was no scientific case for ruling out all GM crops or products.
"It examined all the concerns generally raised. In particular, it reported no verifiable ill effects from extensive human and animal consumption of products from GM crops over seven years and concluded, too, that current GM crops were very unlikely either to invade the countryside or be toxic to wildlife. The most important environmental issue identified was indeed the effect on farmland wildlife which was the subject of our extensive trials—the largest in the world.
"Our independent advisers have now reported to us on those trials, and on the basis of that advice and having consulted the devolved administrations, I have concluded that the UK should oppose the commercial cultivation of the relevant varieties of GM beet and oilseed rape anywhere in the EU using the management regime tested in the farm-scale evaluations, but that we should agree in principle to the commercial cultivation of GM herbicide-tolerant maize, but only subject to two further important conditions.
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"The first is that restrictions should be imposed on the existing EU marketing consent, which expires in October 2006, so that it can be grown and managed only as in the trials or under such conditions as will not result in adverse effects on the environment.
"Secondly, in response to concerns which have been raised about the phase-out of atrazine in the European Union, the consent holders should be required to carry out further scientific analysis to monitor changes in herbicide use on conventional maize and to submit new evidence if they seek to renew the existing EU marketing consent when it expires in 2006.
"Before commercial cultivation of GM maize can proceed, separate approval will also be required under seeds legislation, and under pesticides legislation for the associated herbicide use. Chardon LL will not be added to the UK national list until the necessary amendments to the EU marketing consent are in place. We also anticipate that coexistence measures will be in place before any GM crops are grown commercially. I do not, in fact, anticipate any commercial cultivation of GM maize before spring 2005 at the earliest.
"The farm-scale evaluations also raised much more far reaching questions about crop management and the environment—questions which, incidentally, reinforced the value of the case-by-case approach. There was no blanket difference between GM and non-GM crops. The trial crop with the 'best' results for the environment was a conventional crop. The one which was 'worst' was also a conventional crop. Yet we have nothing like the influence over the growing and management of conventional crops that we have over GM crops, even though the effects may be just as far reaching. We are giving very careful consideration to these issues.
"I believe that the approach I have outlined today is the right one. It is precautionary. It is evidence-based. In practice, it means licensing one application, which runs until October 2006, and is subject to two further conditions.
"Apart from the scientific decisions that flow from the trials, there is the related issue of GM and non-GM crops being grown in the same area—so-called coexistence. The AEBC has recently produced evidence on this issue. I propose that, as the AEBC advises, farmers who wish to grow GM crops should be required to comply with a code of practice based on the European Union's 0.9 per cent labelling threshold, and that this code should have statutory backing.
"There are particular concerns for organic farming, for which the Government have much increased funding and to which we remain committed. The AEBC argued for a lower threshold for organic farming but could not agree on a figure. We will explore further with stakeholders whether a lower threshold should be applied on a crop-by-crop basis.
"I will also consult stakeholders on options for providing compensation to non-GM farmers who suffer financial loss through no fault of their own.

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But I must make it clear that any such compensation scheme would need to be funded by the GM sector itself, rather than by government or producers of non-GM crops. The Government will also provide guidance to farmers interested in establishing voluntary GM-free zones in their areas, consistent with EU legislation.
"This is a difficult issue bedevilled by confusion. There are many legitimate concerns—concerns about gene stacking, cross pollination, and much else. Reports which combine comment on all of these matters can be misleading. People worry that a GM crop could affect wild relatives and hence the gene pool. Maize, which is the crop we are prepared to license, has no wild relatives in the UK. It is highly unlikely that any stray remaining plant or seed would survive a winter here to raise concerns about a subsequent crop. Equally, there is very little organic maize grown here. So many of the concerns usually raised do not apply. This reinforces the value of a case-by-case approach.
"Some GM crops are already used, though not grown here, for animal feed. Several GM veterinary medicines are in use and much vegetarian cheese is produced using a GM processing aid.
"There is no scientific case for a blanket approval of all the uses of GM. Safety, human health and the environment must remain at the heart of our regulatory regime and rigorous and robust monitoring must be maintained. But, equally, there is no scientific case for a blanket ban on the use of GM. I know of no one who argues, for instance, that the GM tool alone can solve the problem of the developing world. But it is less than honest to pretend, especially against a background of climate change, that GM has not the potential to contribute to some solutions.
"This, too, was part of the outcome of the public dialogue. I thank those who ran it and those who took part. From that process and many other attempts to assess public opinion it is clear that most people believe that the use of genetic modification should be approached with caution. They want strong regulation and monitoring, and in addition farmers want a framework of rules for coexistence of GM and non-GM crops, and customers want a clear regime for traceability and labelling so that they can make their own choices. I believe the rules that we now have and those which we shall put in place in the months ahead meet these criteria as well as being soundly based on the scientific evidence before us. I commend this approach to the House".
My Lords, that concludes the Statement.
3.36 p.m.
Baroness Byford: My Lords, I thank the Minister for repeating the Statement made in another place earlier today. The Government have indeed had consultation; the noble Lord referred in the Statement to the public dialogue exercise and the consultations. Quite rightly,
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he said that the public have expressed great concern about GM products. Up to 90 per cent of the public have expressed such concern.
The three reports on the four trials are in the public domain. However, when will the report on the fourth trial, on oilseed rape, be completed? Why has it been delayed? Was the Minister not concerned by the concern expressed by the Environmental Audit Select Committee? It had great concerns about certain aspects of GM.
We welcome and support the Government's case-by-case approach to the consideration of GM releases. However, what follow-up mechanism will be put in place to keep a check on this GM crop once it can be grown? Moreover, how do the Government intend to solve the cross-border position? As I understand it, Wales and indeed Scotland have shown they are currently not inclined to allow the growing of GM crops.
The Statement includes a section which says that the current GM crop is,
`very unlikely … to invade the countryside or be toxic to wildlife'.
If it is "very unlikely", rather than not possible, what will be our equivalent to the EU's 0.9 per cent labelling threshold? Will it be 1 per cent, or 5 per cent? Do the Government have a figure in mind?
While we are maintaining a GM-sceptical status in the wider domain, as the Minister said, what arrangements will be put in place to ensure the purity of imported seed? Has that been considered?
The ACRE report says that comparison of organic farming methods was not included in the trials. Was that a deliberate decision or an oversight? If it was an oversight, will there be a direct study to address those concerns? We should also like to know why no direct study of species such as earthworms or minute soil organisms was incorporated into the study.
The Minister referred to organic farmers, who obviously have shown concern. I should like to refer also to conventional farmers who are farming under an assured scheme status. The Minister indicated that the Government would not fund any form of compensation in that regard. How will those farmers be protected if there is any cross-contamination in future? I understand that that is not likely to be the case regarding the scheme that we are discussing at the moment, but I wonder to what extent the Government have considered the matter.
As I say, the Environmental Audit Select Committee raised one or two questions. Will the Minister therefore explain why the Cabinet went ahead and approved the growing of GM herbicide-tolerant forage maize 24 hours before that committee unanimously recommended that that should not be done? Is it not the most extraordinary way to treat the recommendations of a Select Committee—not only to dismiss its findings but to do so before even having had a chance to read them? The committee also raised some very serious concerns about the validity of the farm-scale evaluations that have taken place. Have the Government considered that they should conduct new trials to compare the effect of GMHT forage maize with its non-GM equivalent, grown without the use of

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atrazine? The few trials that took place were on too small a scale to produce any conclusive results. When do the Government intend to publish the results of the winter-sown oilseed rape trials?
We welcome the Government's recognition that there needs to be a clear framework governing separation distances and liability before plantings take place. It has been suggested that legislation may be needed to establish the rules. Is that so, and in what framework will that be brought forward? Will it be in the form of an order, or will the Government take advantage of my honourable friend's Private Member's Bill being introduced in another place to debate the necessary safeguards against contamination that we all want to see?
Will the Minister confirm that both the Scottish Executive and the Welsh Assembly have decided that no GM maize planting should take place for the foreseeable future? How, therefore, does he intend to obtain their agreement for the inclusion of GM maize on the national list?
I have two final questions. In the event that anyone plants GM maize following the approval after April 2005, will they have to inform Defra? Is that a part of the planning regulations that Defra envisages? Will Defra monitor what happens to those crops? Is the Minister aware that according to the "Today" programme this morning, farmers on small and medium-sized farms in Canada wish that they had not begun to grown GM maize as over time their yields are not as great as those gained with conventional crops, or are much less than anticipated? What research have the Government carried out on that matter?
I turn to a smaller but still very important point. I have mentioned organic and commercial crops. Have the Government any plans regarding separation distances of GM maize from crops grown on allotments, in private gardens and, of course, in all horticultural enterprises?
Although we welcome the clarification of the Government's position on the matter, I should be grateful for a response to the questions that I raised.
3.44 p.m.
Baroness Miller of Chilthorne Domer: My Lords, I thank the Minister for spelling out the Government's intentions in this regard. However, he will not be surprised to hear that we on these Benches cannot welcome them.
The rationale for taking this decision seems to be lacking. The Statement referred to three strands of government consultation, strand one involving economic benefits. As the Minister said, the Government's report did not disclose strong short-term benefits for this country. The report highlights the benefit of increased knowledge for our knowledge economy. Of course, we agree with that. However, knowledge can be increased by conducting the experiments in a controlled environment. Commercial planting is not required to increase knowledge in that regard. Where is the economic benefit to the knowledge economy? British agriculture is not dependent for commercial gain on prairie-style farming. Indeed, the Curry Commission
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took the view—I believe that the Government support this—that our farming is more likely to benefit from niche markets and the production of specialised quality food, both of which may be threatened by the measure that we are discussing. I shall return to that matter.
Strand two of the Government's consultation concerned the GM public debate. As the Minister said, the public were overwhelmingly cautious and, the more they learnt, the more cautious they became. The Government's decision to undertake this commercial planting will produce deep cynicism in the public that there can be big debates and public conversations, or public debates and big conversations, but no matter what the public say, the Government then seem to do the opposite. To hold such debates and then to appear to take scant notice of them does not do the public a service.
Strand three of the Government's consultation concerns the environment. Here especially the rationale is lacking. The British countryside is being exposed hastily to a scientific experiment of which the field-scale trials have been examined and found to be seriously flawed by the Environmental Audit Select Committee. The findings could not be more damning. They state that "unsatisfactory indeed invalid comparison" was made with regard to the very forage maize that the Government intend to license for commercial planting. We would welcome a decision not to go ahead with the planting of GM oilseed rape and beet. It is a mistake to go ahead with the commercial planting of GM maize. It does not take into account the problems that have arisen with such planting in North America. Have the Government taken those problems seriously? The noble Baroness, Lady Byford, talked about problems arising in Canada in that regard.
I draw to the Minister's attention an article in the Washington Post in February that pointed out that the US supply of ordinary crop seeds has become contaminated with strands of engineered DNA. The purity of our seed supply is likely to be threatened if the measure that we are discussing goes ahead. Given such environmental considerations, I am not clear about the Government's rationale for going ahead with the measure. We are a small island and our biodiversity is dependent on our farmland, as the Minister has often said. Farmland bird indicators have shown how wrongly we have treated the environment in the past. Conclusion 23 of the Environmental Audit Select Committee report highlights the serious implications of the measure that we are discussing. I emphasise strongly that we should not be taking those risks with our countryside when our farmland biodiversity is so dependent on agriculture.
The Government continually perpetuate the myth that the growing of GM crops will help the developing world. However, we would not grow these crops in similar conditions to those that exist in the developing world. The conditions in the developing world are so different that the comparison is not a useful one in the scientific context. I label that assertion emotional blackmail.

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I turn to buffer zones and insurance. The Statement states that compensation schemes would need to be funded by the GM industry. However, given the degree of concern among conventional and organic farmers that the buffer zones are ill defined and that the scheme has not been spelt out by the Government, those farmers will be very concerned that the measure has been given the go-ahead with no framework having been spelt out. We are talking about forage maize to be fed to cattle. Cattle fed on GM maize is not labelled, of course, so what will consumers in Britain do, if they do not want to eat meat from cattle that has been fed with GM forage maize?
3.50 p.m.
Lord Whitty: My Lords, I thank both spokespeople from the opposition parties for their response. I think that I can summarise it by saying that the noble Baroness, Lady Byford, welcomed the case-by-case approach but queried the basis for the particular decision, while the noble Baroness, Lady Miller, said that she did not welcome the Statement.
It is important that we spell out the basis for the Statement, which is hugely precautionary. It recognises that not only are there some uncertainties in the science, but an important issue of public opinion has to be taken into account. The balance of the evidence indicates that this single crop can be cultivated in a way less damaging to the environment than the conventional equivalent.
I shall immediately move to the accusations made by both the Environmental Audit Committee in another place and some of the press reports. They claim that the trial is not valid because we are comparing the crop with conventional crops treated with atrazine, which is about to be prohibited. In two senses, it is valid. First, parts of the comparator—rather more than the Environmental Audit Committee suggested—were treated with other continuously legal herbicides. Secondly, there is an obligation on the grower—the consent holder, following his consent—to continue to compare the way in which the environment is affected by the use of GM crops with the equivalent current conventional treatment. In other words, there is a continuing requirement that they must show that the GM crop is better for the environment than the conventional method, which will then be atrazine-free. What has been revealed, as the Statement indicated, is that there is a pretty negative effect on the environment from current herbicide use for conventional crops, and we should take that to heart.
Both noble Baronesses raised a number of questions. The noble Baroness, Lady Byford, asked when the fourth study, on the winter-sown oilseed rape, would be available. I cannot give an exact date, but it should be around the turn of the year. That will give us an indication on the matter. She asked several questions that related to the devolved administrations. It is clear that the devolved administrations have been fully consulted and agree with the policy. They have indicated, particularly the Welsh administration, that
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they wish to be restrictive in terms of their public policy and the interpretation of that policy, but that they give us their support.
The nature of the coexistence rules, on which we will consult, will allow the devolved administrations to express a view at that point. The basis for the coexistence rules and for the control of all the regimes will be the EU rule, which is that the final product must not contain more than 0.9 per cent of GM material. That will apply to imported seed as much as to European-grown seed, which answers another question. An argument is still outstanding on whether the threshold for organic produce and its protection should be at a lower level. That is being pursued in consultation here and within Europe. However, it is important that, if we have a differential threshold, it must be verifiable. Some of the figures mentioned are not detectable and therefore probably not verifiable.
I shall state the position on the coexistence legislation that we are proposing. We already have the primary legislative powers to make rules on coexistence. However, the relevant regulations would need to be put before both Houses for consideration. We expect that the rules will have gone through the procedure before any GM maize is grown, which, as I said, is not expected before spring 2005. The position would therefore be one in which both general rules and the constraints applying to the planting of the particular crop were in place.
So far as the impact on assurance schemes is concerned—I know that the noble Baroness wishes to return to the matter—clearly the general requirements on cross-contamination would be those that continue to be sustained through the assurance scheme. Again, particular issues relate to organic produce, but those restrictions would ensure that the assurance scheme's provision on excluding more than 0.9 per cent of GM produce would be maintained.
I return to the report of the Select Committee in another place. As I said, the basis of its main criticism is not valid, so we do not need new trials on the produce.
Both noble Baronesses referred to the existence of differing reports on the success or otherwise of GM crops in various parts of the world. No doubt there are differing reports. Some indicate a very positive outcome—for example, in relation to cotton in China—while others report different outcomes. However, in the main public anxiety—food safety—nowhere in the world is there an indication that GM crops have had a detrimental effect on human or animal health.
It is true, of course, that the public consultation and the strands of inquiry that the Government commissioned indicated that there was no great benefit immediately, in scientific, environmental or economic terms, of growing such crops in the UK. They also indicated a strong unease among the public. Much of that unease is addressed by the combination of the coexistence rules that we are proposing, and the labelling and traceability rules that are in place, but that is not the issue. The issue is whether there is good enough reason to ban this crop. On the basis of scientific evidence, we do not consider that there is. Whether people wish to grow it

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and use it for fodder for animals is, of course, a matter for them, not the Government. However, there is not sufficient reason to ban it.
3.57 p.m.
Lord Williamson of Horton: My Lords, the matter is, of course, for the United Kingdom and the devolved authorities in the European Union context. I note the prudent, not to say cautious, approach of the Government. However, what is happening elsewhere is relevant, particularly because maize is an extremely widely traded product. There will be effects from whatever we do in due course on trade. What percentage of the maize grown in the United States and Canada is already genetically improved? What other people do will in due course affect some interests of the United Kingdom. If the Minister does not have the figures now, I would like to see them.
Lord Whitty: My Lords, I do not have the precise figures now. The noble Lord is correct to say that a large proportion of maize—not the majority—in North America is already GM, as is an even larger proportion of soya. That does not necessarily affect whether we in Europe should accept that such crops are useful to be grown or used here. We need to make our own judgments on the basis of our own scientific evidence.
The Lord Bishop of Worcester: My Lords, I declare an interest as a member of the assets committee of the Church Commissioners, and of the Ethical Investment Advisory Group, which has advised that committee. The precautionary approach that the Minister outlined, which has led to the point that he has reached today, is broadly speaking the one that we have judged it right to follow. However, he will be aware that the matter continues within the Churches to be very vigorously debated.
Will the full background to the Government's decision announced today be made available, particularly to those who have to make decisions in the not-too-distant future about making available land for the plantings that will arise from it? Clearly, the more information that is in the public domain about what led the Government to their conclusions the better. Broadly speaking, the constituency which I represent—the assets committee and so on—will welcome his conclusions, but we would like to know how much of the material behind those decisions will be made public to assist future decision making.
Lord Whitty: My Lords, the results of the farm-scale trials are already in the public domain, as is the view of the advisory committee. The Government's response to the advisory committee is, in essence, being issued today, as well as the Government's response to the public dialogue. Therefore, there is a reasonable amount of information available. Other studies and commentaries that support the decision are also in the public domain.
Lord Livsey of Talgarth: My Lords, what is the precise legal situation regarding the growing of GM
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crops in Wales, where the National Assembly has invoked—and wishes to continue—a ban on growing GM crops, including trials? Will it be prevented doing so through existing EU legislation?
Lord Whitty: My Lords, the United Kingdom has to take a position as a whole on the matter. The Welsh Assembly says that it supports the general policy of approaching the matter on a case-by-case basis, but it wishes to be as restrictive as possible within the terms of the EU legislation regarding its interpretation within Wales. In a discussion of the coexistence rules, there will be scope for voluntary GM-free zones. I will leave the question of whether such a zone could robustly apply to the whole of Wales until we see the results of that consultation. But there is scope for parts of the country to be GM-free, on a voluntary rather than a legislative, basis; and the coexistence rules will cover that option.
Lord Plumb: My Lords, the Minister will be aware that farmers and growers will, at least, he relieved that the Statement from the Secretary of State in the other place has been read here. She has shown some courage in making that Statement, given the tremendous opposition that exists against growing GM crops. I rise to support all of the questions put by my noble friend Lady Byford, some of which the Minister has answered. But the opposition to GM crops is incredible and the disputes will continue. Therefore, I hope that the Minister will accept responsibility for giving answers to all concerns raised on the issue.
For example, I was horrified when I went into the dentist's recently and saw a lady holding a newspaper whose front page said, "Genetically modified crops (Frankenstein food) can cause meningitis". The lady put down the paper, looked at me and asked. "What do you think of all this?", and I gave a politician's reply, saying, "Madam, it is more important that you tell me what you think". She then told me that she was horrified and said that she would not have such food in her house. Looking at me, she said, "I know who you are; we will not have cow's milk in our house, only organically produced soya milk".
When I asked the lady where that came from she said, "Oh, it is British". I replied, "Madam, you say that you know who I am, so I hope you will accept that unfortunately we can't grow soya in this country. Your soya must have come from the United States of America where 90 per cent of soya is genetically modified", although the Minister may dispute that figure. I added, "If I may say so, madam, you look extremely well on genetically modified soya milk". When I saw the dentist, she looked at me and said, "Will you stop upsetting my patients?".
That is an example of how people react to the issue and that is important. My question is: will tighter labelling be used to make sure, when we import such products, that the consumers know what they are buying? If they buy non-genetically modified soya

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milk which is not labelled as such, I shall have some questions to ask, because I fail to see how it can be separated when it is imported in such large quantities.
Lord Whitty: My Lords, I went to the dentist on Friday and it was nowhere near as exciting or as dangerous as the visit made by the noble Lord, Lord Plumb. The lady he met at the dentist's surgery reflects a general public anxiety and there are issues upon which the media seize which raise that anxiety. Every such report has to be taken seriously, which is not always the way that the matter is treated by the media.
I repeat that, so far, there has been no proven ill health effect of GM food compared with conventionally grown food. A huge amount of soya grown in North America and elsewhere is genetically modified. It is still possible to have soya that is GM-free above the 0.9 per cent threshold. It is available and it may well be that the lady referred to by the noble Lord was able to acquire it. It will continue to be the case, as I told the noble Baroness, that thresholds may be imposed on imported soya beans and other materials, in the same way as can apply to crops grown in Europe. It is certainly the case that a significant amount of soya consumed in this country is already, knowingly or unknowingly, genetically modified.
Lord Walton of Detchant: My Lords, will my noble friend accept that 10 years of experience of extensive growing of genetically modified foods in the United States has led scientists there to conclude that there are no consequences of any significance for human health? Is he aware that the British Medical Association's board of science and education, after an extensive inquiry chaired by former Chief Medical Officer for Scotland, Sir David Carter, has just published a supportive report that withdraws reservations that the BMA has previously expressed about the risks to human health of GM foods?
Lord Whitty: Yes, my Lords. I indicated that I am not aware of any proven case of ill health caused by soya or any other GM crop in North America or anywhere else. In general, the same conclusion has been reached by medics in Britain and Europe. There are some unanswered questions in relation to particular cases, which need to be properly investigated, but they should not be treated with hysteria in the way that occasionally happens in the media. However, the issue we were generally addressing was not public health but the less clear question of the impact on the environment. Three of the trials had a negative impact and one had a positive impact on the environment, which is why we have now given this approval.
Baroness Hayman: My Lords, will my noble friend make clear that the Government are not -undertaking commercial planting", as was suggested by one of the Front Bench contributions? That is an important distinction. We are not running huge collective farms that are changing to GM maize production. We are
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talking about the role of the Government as a regulator. It is important that we understand that as a regulator they must be even-handed and that their responsibilities include taking decisions that are based on science. That is why it is important and appropriate that decisions, such as that taken today, are made on a case-by-case basis.
Will the Minister say more about the passage in the Statement that pointed out that, as a regulator, the Government have nothing like the same powers over conventional crops that cause more environmental damage than GM crops? Is it not important that we stop demonising GM production and have a level playing field, where we look across the board at any aspect of health, environment, food or crop production?
Lord Whitty: My Lords, I agree with my noble friend's description of the role of the Government. It will be up to commercial farmers, growers and users to decide whether they want to grow it. On the basis of the scientific evidence, the Government see no reason to ban this crop and we will address others on the same basis.
As regards conventional cultivation, some environmental issues need to be addressed more generally in relation to some of the patterns of herbicide use and its effect on the soil and on biodiversity. The merging at this stage of the two regimes used on GM and conventional crops is probably a step too far because public anxiety about GM crops must be addressed. In that sense, we need double assurance. However, the issue highlighted by the crop trial for maize was the detrimental environmental effect of the way in which we have hitherto conventionally cultivated this crop.
The Duke of Montrose: My Lords, I declare an interest as a farmer. The Minister mentioned the phasing out of atrazine. It was used in the GM trials and it is being phased out because of its overall biological effect. I understand that of the herbicides approved in 2003, nine could be used on maize and that atrazine was one of them. Do the Government have evidence that the other products have a less biological effect? If they found that the other products were more beneficial than appeared in the GM trials, would the Government reconsider their GM approval?
Lord Whitty: My Lords, part of the trial was conducted using not atrazine but herbicides which will continue to be legal. The relative effect as between GM and conventional crops was diminished in that the alternatives were better than atrazine, but there remained an advantage for GM. As part of our consent, we have required that the consent holder will continue to judge the GM cultivation against the current use within the conventional field at any given time. If it were the case that a pesticide regime in the conventional area proved to be better for the environment than the GM, we would

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obviously have to reconsider it. But that is not the situation now and it is not the situation with any of the alternatives to atrazine currently in use.
Lord Palmer: My Lords, I find this whole situation extremely complicated. Will the Minister confirm that the devolved administrations could go entirely their own way and against the policies of Defra? Bearing in mind what was said by my noble friend Lord Walton, the noble Lord, Lord Plumb, and the noble Baroness, Lady Hayman, do we not need a much better informed public debate on the whole GM policy? I am tilled with horror when I read about "Frankenstein foods", because they are far, far from that. Will the Minister ensure that Defra can help to promote the good effects of GM?
Lord Whitty: My Lords, we have put a lot of information into the public domain. I am not sure that the public have entirely appreciated it and information does not always change people's minds. There is an ongoing responsibility on government and other major players to ensure that the facts are brought out rather than hysteria or over-exaggerated claims in the other direction. Therefore, I would accept that responsibility.
The devolved administrations will be applying the same policy. The issue of whether there could be GM-free zones and how they would be operated will be dealt with in the consultation on the coexistence rules and the liability rules which relate to them. We would therefore see the basis on which a GM-free zone could be designated in England or within the devolved administrations.
Lord Soulsby of Swaftham Prior: My Lords, we should welcome the announcement on GM crops. It will it give a tremendous boost to those people working on the modification of crops. Despite the criticism in this country that we do not need these crops in the United Kingdom, there is no doubt whatever that we need them throughout the developing world. Unfortunately, work in the United Kingdom in this area has lagged behind because of the antagonism to GM crops.
This Statement will provide an enormous stimulus for those people working in this area because the whole GM issue has suffered from the antagonism brought against that science. I am sure that many people in plant and animal genetics will greatly welcome the announcement and help to drive forward this research, which is so urgently needed in this country and overseas.
Lord Whitty: My Lords, I accept that the scientific effort here needs to be retained and to operate at the highest level. We have indicated that on the basis of scientific evidence we will take positive decisions. It is to be hoped that the biotech industry, in particular the GM part of it, will continue to see the UK as a good base for that forward research.
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The antagonism to GM is not confined to the UK. If anything, it is greater in parts of Europe. Therefore, the transfer of technology out of this country would not be to the rest of Europe. Equally, we hope that Europe, within its new framework of legislation, can allow that research to continue.
Lord Jenkin of Roding: My Lords, I want to pick up a point made by other noble Lords. One can add to the point made by my noble friend Lord Plumb. The chances are that all of us who are wearing cotton shirts are wearing GM cotton. The noble Lord mentioned China, but the countries which grow cotton have overwhelmingly gone over to GM because they see the advantages.
The noble Lord, Lord Palmer, and to some extent the noble Baroness, Lady Hayman, raised the question of how the public debate was conducted. I welcome the fact that the Government have firmly pinned their flag to the scientific mast, but I hope that they will learn the lesson that when there is scientific advance it is no use trying to catch up afterwards. It is no use trying to catch up afterwards if the genie has escaped in the sense that the propagandists against the new scientific advance are half way around the world before its defenders have got their boots on.
There is a lesson for the scientific community to learn. I pick up the points made in the Select Committee report, Science and Society. The scientific community, whether it is in the universities, business or government, must recognise that if there is to be a proper public debate it must start right at the beginning. It is no use having a public debate when the public are already thoroughly stirred up by "Frankenstein foods" and other nonsense that has appeared in the media. I hope that the Minister will give an assurance that that part of the lesson has been well and truly learnt.
Lord Whitty: My Lords, the timing and nature of public debate are always difficult matters. It is important that the debates are well informed and scientifically based. But it is also important that at all stages the Government recognise public anxiety in the development of certain scientific technologies. It would have been negative if at an early stage the Government had appeared as a propagandist for GM technology and GM crops. Indeed, at one stage they were accused of so doing and acting in the interest of Monsanto and other companies. That would have been hugely damaging.
It is not an easy, straightforward issue. The Government must be seen to be even-handed and to take on board the concerns of the public. After all, at the end of the day our job is not to support one technology or another but to act as a regulator in order to ensure that the anxieties of the public and the dangers to them and the environment are effectively regulated and that decisions are taken within that framework. It is hoped that that will be against a background of rational public debate.
Regrettably—I believe to some extent on both sides in this issue—debate has not been hugely rational. On the one hand, as I have said in this House before,

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people claim that GM crops will save the world. They may make a contribution but they will not do so on their own. On the other hand, people say that they will destroy agriculture and our society as we know it. Neither claim is true. Therefore, we must focus on much smaller decisions—that is, whether a particular crop growing in particular circumstances can be authorised or whether there is a sufficient scientific basis for banning it. That is the Government's role and I believe that we have fulfilled that in the decision made today.

Domestic Violence, Crime and Victims Bill [H.L.]
4.20 p.m.
Baroness Scotland of Asthal: My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.
Clause 4 [The offence]:
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 10:
Page 2, line 29, after "offence" insert "of being responsible for the death of a child or vulnerable adult ("V")"
The noble Baroness said: My Lords, in moving Amendment No. 10, with the leave of the House I shall speak also to the next group of amendments, which stand in my name—Amendments Nos. 11, 15 and 16. I had given advance notice of this intention to the Front Benches and to the Clerk of the House, and it may assist progress on the Bill today if I do so.
Clause 4 creates the new offence of causing or allowing the death of a child or vulnerable adult. Amendment No. 10 would redefine that offence as one of being responsible for the death of a child or vulnerable adult. We now reach one of the most innovative and controversial parts of the Bill, and I believe that it would be helpful if I summarised the general view of these Benches of the objective behind Clauses 4 and 5. I hope that that will save me repeating myself in our later debates today.
In Grand Committee, I made it clear at col. GC 329 of the Official Report of 21 January that I support the objective of Clauses 4 and 5 in as much as we agree with the Government that it is unacceptable that a child's killer should go unpunished. A way should be found to address the problem that exists when a child is killed in a household when more than one person is present and it is not clear which of the carers has directly caused the death of the child. As the law stands, as a result of the Court of Appeal's ruling in Lane v Lane, it is likely that a trial will not proceed beyond a defence submission of "no case to answer" at half time. As a result, neither parent nor carer can be convicted and one or other of them may literally get away with murder.
As the Law Commission points out in paragraph 1.2 of its consultative report No. 279, Children: Their Non-Accidental Death or Serious Injury (Criminal Trials), even though one parent may not have struck the fatal blow or blows, he or she may be culpable through having participated actively in the killing or by failing to protect the child. In many cases of this type, it is difficult or, indeed, impossible to prove beyond reasonable doubt who did what, and therefore no one is convicted. Therefore, I agree that we need to take action, but I am not convinced that the Government have the solution right just yet. I believe that some amendments need to be achieved.
I considered very carefully the Government's responses in Grand Committee and I am grateful to the Minister for meeting me and others on 26 February to discuss Clauses 4 and 5. As a result, I am close to agreeing the drafting of Clause 4, but I am still convinced that Clause 5 is unacceptable and I have tabled later amendments to reflect that view.
Amendment No. 10 tackles the basic issue of the nature of the offence created by Clause 4. I believe that the title given to it by the Government is ambiguous as it refers to:
"Causing or allowing the death of a child or vulnerable adult".
One has to consider the situation where a jury must decide whether a person is guilty of such an offence. The members of the jury will face a very difficult, if not impossible, situation at that stage. How can the prosecution ask a jury to find that the defendant caused or allowed an event to take place? The two are different in meaning and the degree of culpability is, prima facie, quite different in degree. The jury may be able to find that one of the two took place but may not be able to decide which one.
My amendment offers a solution. It makes the offence one of being responsible for the death of a child or a vulnerable adult. That, I think, removes the ambiguity. It makes it clear that this is not a composite offence but a single offence. I believe it assists the jury by giving them a more straightforward opportunity to assess culpability on the evidence. It still achieves the Government's overall objective of making it clear that someone is to blame and that that person should be convicted. For me, it also has the added advantage of ensuring that Clause 5 is then simply unnecessary.
I turn briefly to my other amendments. The objective of Amendments Nos. 11, 15 and 16 is to define more clearly the type of relationship that should lead to someone having a responsibility under Clause 4 to prevent the death of a child or vulnerable adult. Subsection (1) sets out the circumstances under which a person is guilty of an offence of allowing or causing the death of a child. It draws the net very widely and applies to all members of the household who had frequent contact with the victim. It makes the assumption that a person who has had frequent contact should then be responsible for the death.
Amendment No. 11 would redraw the definition of those who can be caught as a defendant by this provision. It states that the contact must be not only frequent but must also be "close personal" contact.

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My concern is as follows. Frequent contact can simply mean that a person visits the house on a regular basis but is not in a position to be aware that there is a problem in the condition of the child or vulnerable adult.
In Grand Committee, I explained that I was particularly concerned about the position in communities where the mode of dress would mean that the child's arms and legs would be covered and therefore it might be difficult, if not impossible, for someone to tell whether that person had been physically abused. In response, the Minister said at col. GC 347 of the Official Report that physical abuse was quite often manifest in emotional disturbance. She said that one may not see the marks on a child's body but one notices the behaviour of the child change. That can be true in some, but not in all, cases. Indeed, as the Minister recognised herself, it is not always the case. One should also take into account that in some cultural groups it would be expected that children would behave in a rather more controlled manner in front of adults than they would in others. It is the old Victorian maxim of "be seen and not heard", which still exists in some cases.
In redrafting my Committee stage amendments, I also took note of the point made by the noble Baroness, Lady Walmsley, at col. GC 345 that one must take care not to exclude from the net some people who arc very often perpetrators of this kind of abuse. By that, she explained that she meant the boyfriends of the mother of the child. I agree with her entirely and I believe that my new amendment meets her point. It resolves the problem by removing references to those terms and referring instead to "close personal con tact".
Amendment No. 16 follows the same line of thought as Amendment No.11 and amends subsection (4) so that a person is to be regarded as a member of a household if he or she has had such close personal contact with the other persons resident in the household that it is reasonable to regard him or her as a member of that household. This tries to resolve the problem caused by the current drafting of subsection (4), which is very wide indeed. It states that someone is to be regarded as a member of a household,
"if he visits it so often and for such periods of time that it is reasonable to regard him as a member of it".
Of course, membership of the household makes a person possibly culpable of the death. In Grand Committee, I pointed out that that will cause problems in deciding how to define what is meant by "so often" and, in particular, how to define "such periods", as the clause is currently drafted.
Amendment No. 15 probes further the definition of the nature of the contact that brings a person into the danger zone and makes him a member of the household. The amendment would alter subsection (4) to state that a person would have to have visited the household,
"within three months of the notification of the death",
so often and for such periods of time that it is reasonable to regard him as a member of the household.
Of course, I recognise that my amendment is defective, just as I allege that the Governments wording is defective. By stipulating a set time, I am simply inviting the Government to ask me why I have chosen a period of three months. It is simply a tool to probe how we may achieve better drafting.
My objective in these amendments is most definitely not to exclude from the new offence those who have a responsibility for the child or vulnerable adult in the usually accepted sense—that is, those who are in a position to know what is going on, who do know what is going on, and who should take action but do not. I beg to move.
4.30 p.m.
Lord Campbell of Alloway: My Lords, my name is to this amendment. I support Amendment No. 10 and should like to speak briefly to Amendments Nos. 11, 15 and 16. I apologise for being rather late on parade, but I did hear the substance of what was said.
The most important of these amendments is Amendment No. 10. When there are other offences referred to in the Bill, such as murder and manslaughter, one has to define the offence. Without pre-empting future discussion—we come to that later—that is my main reason for supporting Amendment No. 10.
I heard my noble friend's comments on the other amendments and wholly support the reasoning When creating a new offence it is important to get the details of the definition correct and tight. The amendments achieve that object without in any way derogating from the purpose of the Bill.
Baroness Walmsley: My Lords, on these Benches we too are generally supportive of the amendment. It is vital that we get right the definition of people who may be guilty of committing the offences. I am grateful to the noble Baroness, Lady Anelay, for ensuring that the category of people to whom I referred during Grand Committee, the boyfriends, who are often the perpetrators, would be included if the amendments were passed.
I have one small question on the wording of Amendment No. 15. The way that it is worded suggests to me that "within three months" could mean three months before or after the death. It would be complete nonsense if that referred to a person visiting three months after the death as clearly that person would not have anything to do with the death. I wonder whether the words "prior to" might be more appropriate when perhaps this is voted on at some stage. Perhaps the noble Baroness, Lady Anelay, could explain.
Lord Donaldson of Lymington: My Lords, I rise to support Amendment No. 10. It is important to underline the fact that this is a single, indivisible offence. Much of the discussion in Grand Committee seemed in a rather novel way to regard it as two offences rolled into one; that a person could be guilty of the two offences and that a jury could be asked to

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say which. That was never intended—at least, I assume that it was not—and Amendment No. 10 makes clear that that was the case.
On the last point regarding the words "prior to", I am sure that it would not matter to insert those words. However, juries are not stupid; nor are judges. I think that most judges would point out that visiting the family for three months after the death was not exactly a good basis for responsibility.
Lord Borrie: My Lords, I entirely agree with the noble and learned Lord, Lord Donaldson. However, what is certainly intended and I thought had been achieved in Clause 4 was the creation of, as he put it, an indivisible offence; that is, an indivisible offence consisting of either causing the death or allowing the death of a child or vulnerable adult as a result of not taking adequate care and seeking to protect that child or vulnerable adult.
As regards the main point, I am glad that the noble Baroness, Lady Anelay, has brought together two sets of amendments for discussion. If she will forgive me, I shall refer also to her Amendments Nos. 12 and 13. I shall not discuss them at length; that would not be right. However, if we were to put together the amendments the noble Baroness discussed and Amendments Nos. 12 and 13 I would be concerned that we would be creating a larger number of difficulties for the success of the prosecution under this indivisible offence than would perhaps be desirable.
The noble Baroness very fairly described what Clause 4 seeks to achieve. The use of the word "responsible" is very helpful. Let us suppose that there is a man, a woman and a child; that it is the child that is killed and that both the man and the woman have a degree of responsibility. One does not know which one killed the child. That is the problem that Clause 4 seeks to address.
The noble Baroness seeks to add to the definition of who is a member of the household; to add not just "frequent contact" but also "a close personal contact" and to delete "ought to have been" in Clause 4(1)(d). I believe that the noble Baroness, Lady Anelay, wants to have cumulatively all those amendments. The purpose of the clause, as she put it, is not to let someone literally get away with murder or at any rate not to let them get away with being convicted of the offence of allowing the death of a child. I fear that by adding those various amendments and putting them all together cumulatively, the task of the prosecution will be made unduly difficult.
Lord Carlisle of Bucklow: My Lords, I rise briefly to support my noble friend Lady Anelay in her Amendment No. 10. It seems to me that adding after "offence" the words,
"of being responsible for the death of a child or vulnerable adult"
does not in any way alter the intention of the clause but clarifies it, as the noble and learned Lord, Lord Donaldson said.
If one were to read it at present, one would read the words
"A person … is guilty of an offence".
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One would pause and ask, "What offence?" Answer: "The offence of being responsible for the death of a child or vulnerable adult". I should have thought from a drafting point of view and because it does not change the intention of the clause, that the amendment is sensible.
Like the noble Lord, Lord Borrie, I have reservations about Amendments Nos. 12 and 13. With great respect to my noble friend Lady Anelay, I believe they substantially affect the intention of the clause. It seems to me that by removing the words "ought to have been" or "ought to have foreseen" one is narrowing the area in which the clause will act. I for one should like to hear the Minister's response before deciding whether we are right to pursue the amendment at this stage or to give it further consideration before Third Reading.
Lord Thomas of Gresford: My Lords, I am tempted to join in the debate, although I had not intended to do so. From a practical point of view it seems that if you state what the offence is at the beginning, it makes it very easy to draw up an indictment saying what the offence is: "Statement of offence: being responsible for the death of a child or vulnerable adult". Otherwise, it is necessary to construe the clause in a particular way. No doubt the editors of Archbold or someone would give a pro forma for it, but surely it is far better from a practical point of view to say what the offence is.
I disagree with the noble Lord, Lord Borrie, on the effect of Amendments Nos. 12 and 13. However, we shall come to that in due course and I shall express my reservations then.
Baroness Scotland of Asthal: My Lords, I am grateful to the noble Baroness and, indeed, the noble Lord, Lord Campbell of Alloway, for tabling the amendment. They are rightly trying to clarify in our debate what the new offence does. I welcome the opportunity to put that clearly on the record.
I shall deal with the amendments in sequence. First, in relation to Amendment No. 10, what the noble Baroness really says is that in Clause 4 "causing or allowing" is in some way ambiguous. That was echoed by the noble Lord, Lord Carlisle of Bucklow; the noble and learned Lord, Lord Donaldson, and, indeed, the noble Baroness, Lady Walmsley, supported by the noble Lord, Lord Thomas of Gresford. I have to say to the noble Baroness that I agree with my noble friend Lord Borrie regarding the cumulative effect of the amendment.
The noble Baroness suggests that the title of Clause 4 is ambiguous because the prosecution will need to prove whether the defendant caused or allowed the death. Subsection (2) makes it explicit that the prosecution does not have to prove which alternative in Clause 4(1) applies. It needs only to show that the defendant must either have caused the death himself or allowed it culpably to have happened. "Causing or allowing the death" is therefore an accurate description.
The offence makes clear who is responsible for the death of a child. Both a person who abuses or neglects a child and a person who fails to take reasonable steps

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to protect a child must bear some responsibility for the subsequent death. I am very grateful for the comments the noble Baroness made in her opening remarks. She affirmed that that would be her desire too. We are very clear about that. I think we all agree about it.
The new offence is intended to extend responsibility for the welfare of the young and vulnerable to household members who have frequent contact with the victim. That reflects our belief that we all have a clear responsibility to take action if we are members of a household in which abuse and neglect takes place and if we have frequent contact with the person at risk from serious harm. If we are aware of a risk or in a position where we should be aware of a risk and we do nothing then we may indeed be held responsible for the harm which ensues. The offence should leave no one in any doubt about their responsibilities and that we intend to hold them to those responsibilities.
However, I am reluctant to agree to Amendment No. 10 in relation to Clause 4. I think that it is an unnecessary addition. It does not add anything to the offence, and it is always better to keep legislation as simple and as clear as possible. Most important are the circumstances in which the offence is committed.
I turn to the next two amendments standing in the name of the noble Baroness. Here again I fully appreciate the reason for these amendments and the desire to pin down the definition of household, but I do not think that they are necessary. They introduce some elements which are not integral to the definition such as personal contact with other household members. They introduce an extra element to prove that is not necessary to the offence. On this issue I echo the comments made by noble friend Lord Borrie.
I shall briefly go through the amendments in turn. Amendment No. 11 would add the need for "close personal contact" with the victim to our definition of the person who is eligible for the new offence. Some difficulty might be caused in deciding what we mean by "close personal contact". It is not the same as a caring role within the family. It is presumably intended to reflect the relationship the defendant had with the victim. But that is difficult to define, too.
The key issue here is the fact of the frequent contact with the victim and the knowledge that the victim is at risk. Such contact might come from being in the same room as the victim on frequent occasions and seeing his bruises, or actually witnessing the abuse. It does not seem necessary for the person, for example, actually to have talked to the victim or, in the case of a baby—and regrettably many of these cases involve babies—carried him, fed him or undertaken any form of care. That would place a limitation on the offence which we do not think would be right.
I understand the concerns which have been expressed that our offence goes too wide in some respects, and in particular in applying the offence to a member of the household who has frequent contact with the victim. One reason for including the term "frequent contact" was that we wanted to ensure that, for example, the mother's visiting boyfriend could not escape responsibility for the death of a child by saying
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that he had no responsibility for that child. I know all noble Lords who have spoken in the debate agree with that.
The scenario of the mother's new boyfriend is quite common. But we are clear that if the boyfriend is in a position to know the child is at risk, he has a responsibility to protect that child, just as much as other members of the household. If we are to include the words "close personal contact" we may be allowing that boyfriend to escape justice, because he may say his "close personal contact" is with the mother and not with the child. Even the lodger, who has no "close personal" contact with the victim, has a duty to protect that child from harm in certain circumstances if he is aware of the risk. And we have drafted the offence to reflect that. So, if one asks: "Am I my brother's keeper?" Our answer is that I am if I am in the same household.
Amendment No. 15 would require that the visitor who is to be regarded as part of the household should have visited it within three months of the death. It is indeed possible that someone who was once a frequent visitor ceases to be so, either because he has split up with the particular member of the family that he used to visit, or because he has moved away, or for other reasons. And it is right that depending on when he ceased visiting, he should not be covered. However, we do not think that we need a special safeguard for this purpose. The provision as drafted states that someone can be regarded as a member of the household,
"if he visits it so often and for such periods of time that it is reasonable to regard him as a member of it".
I understand why the noble Baroness put the period of three months in the amendment to generate discussion—and I do not seek to hold her to it—but I must say that cases will vary greatly. In thinking about the issue it popped into my mind what should we do about service families who are away for long periods and then return. They may be away for a period of three months, but they knew of the difficulty before they went. It did not abate in the three months when they were away, and the child is killed shortly after they come back. It is very difficult to be prescriptive because one size does not fit all. We have to look at the individual facts of the individual case and ask the questions that we set out in the Bill.
Amendment No. 16 would remove the words which would allow a visitor to be treated as a member of the household,
"if he visits it so often and for such periods of time that it is reasonable to regard him as a member of it".
Instead it substitutes a provision which would mean that a person could be regarded as a member of the household if he has,
"close personal contact with other persons resident in the household".
But that is confusing. It introduces a new—and in our view unnecessary—element to the offence. The important point is the contact with the victim, not the other household members, and the awareness of the risk. The relationship with or contact with other household members does not seem to be relevant. It

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could arguably draw in people who are, in common sense terms, not members of the household but who have contact with the household members outside the home environment, such as the mother's boyfriend who has his own flat and never comes into the family home. It might even draw in the nursery nurse who sees the child's bruises and has a close personal contact with the mother who brings the child to the nursery and picks the child up on a daily basis and perhaps becomes friendly with the nursery nurse in the process. I do not think we want to widen the scope of the offence in that somewhat open-ended way.
I can certainly assure noble Lords that while understanding entirely their anxiety to pinpoint each of these factors precisely we have fully taken them into account. We believe that the provision we have crafted is sufficiently flexible but, by the same token, sufficiently acute and specific to enable us to target those who should properly be held responsible for the death of a vulnerable person or a child in these circumstances.
4.45 p.m.
Lord Campbell of Alloway: My Lords, before the noble Baroness sits down, perhaps I may ask one question. Whether or not Amendment No. 10 is agreed, is not the accused entitled to know, either on the face of the indictment or in a request for particulars of the indictment, whether he is charged with having caused the offence or with having permitted or allowed it? Let us leave aside the semantics and consider the broad principle that the accused must know the substance of what he is charged with. Do not the Government and my noble friend accept that principle? If so, provided that that is adhered to, there would be no problem with this aspect.
Baroness Scotland of Asthal: My Lords, we say that he or she is entitled to know. We have drafted this clause sufficiently explicitly for those cases, because we have made it clear that the person concerned either caused the death himself or herself or allowed it culpably to happen. The very mischief that we must address is that in many cases the only people who will be able to say definitively which part of the clause they fall under are the individuals themselves. Therefore, in this offence we have set out the criteria that would have to be satisfied by the prosecution before they were entitled to ask a jury to find that the offence was proven. We think that, as currently expressed, it has sufficient particularity to do just that.
Lord Campbell of Alloway: My Lords, I thank the noble Baroness. I shall not argue on Report, but the explanation that she has given is wholly unsatisfactory.
Lord Donaldson of Lymington: My Lords, before the noble Lord, Lord Campbell of Alloway, allows the Minister to sit down, perhaps I may seek a little help on Amendment No. 10. As I understand it, the noble Baroness is saying that, if as a lawyer you work your way through Clause 4, it becomes clear that this
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is a single offence with two alternative legs. I agree. But is she also saying that, where experienced practitioners such as the noble Lord, Lord Thomas of Gresford, say that it would be a real help to those drafting indictments and directing juries to have it all in one introductory sentence or even part of a sentence, you cannot move? If so, regretfully, I am reminded of something that I said during the debate yesterday: debates in a Committee of the whole House—we have not had a Committee stage in the ordinary sense—and on Report are a confrontational exercise, which they were never meant to be.
Baroness Scotland of Asthal: My Lords, I hope that in how I have handled the Bill I have sought to avoid confrontation. I believe that all noble Lords who have so far participated in the Bill have only one cause in mind; we are jointly and severally intent on ensuring that appropriate protection is given to vulnerable individuals, some of them children, who are being literally killed without any of us being able to bring those responsible to book. I understand absolutely that that is the sole intent of all those who have spoken so far in any of the debates on the Bill. If I may respectfully say so, that has been one of the joys of the Bill. In our different ways, we are trying to make the legislation as robust, clear and sound as possible. It is very much in that spirit that I welcome the amendments tabled by noble Lords opposite, and look forward to our debates.
Baroness Anelay of St Johns: My Lords, the noble Baroness is right to say that we are all working as one, but that on occasions we come from two different directions in trying to reach the same objective. That is precisely the basis of the debate on this group of amendments. I thank all noble Lords who have taken this matter a good deal further forward in this debate.
The noble Lord, Lord Borrie, wanted to look at the global nature of all my amendments. His concern—which would be justified, if what he said were so—was that the cumulative effect of my amendments would be so to constrict the operation of Clause 4 that those guilty in any normal, accepted sense of causing the death of a child or a vulnerable adult might go free, despite all our best efforts. I assure the noble Lord that that is the reason that I tabled my amendments in different groups. Perhaps I gave the noble Lord extra cause for concern by putting the first two groups together, in an attempt to save a little time on the Floor of the House. By separating my groups of amendments, I was trying to show that I do not want all the amendments on the face of the Bill. I agree with him that if each and every one of them were agreed, the Bill might still be defective. I am trying to search carefully for what might be a common agreed approach. Of the amendments in the groups today, some are essential and others need more than a little tweaking before they would be right. Others would overburden the Bill and make it too weak in its approach to people who cause or allow the death of a child or a vulnerable adult.

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I am grateful to the noble Baroness for the care that she has taken in her response. I shall have to think carefully about her response to Amendment No. 10, about which I feel strongly. I listened carefully to the contributions of my noble friend Lord Campbell of Alloway, the noble and learned Lord, Lord Donaldson of Lymington, and the noble Lord, Lord Thomas of Gresford. In this issue there is the core of something important that we must consider further before Third Reading. We were not able to discuss the matter in Grand Committee, so in a sense we are coming fresh to this way of solving the issues.
I accept entirely that the approach of my other amendments to the definition of "household" has not been successful today. I must confess that I did not expect that they would be, as I recognise that it is extremely difficult to define "household" appropriately. I give notice that I shall need to return to the matter, particularly because I notice, for example, that the Children's Rights Alliance for England, in its briefing to noble Lords, has pointed out that it and other bodies such as the NSPCC think that the Government's definition of "household" in Clause 4 goes far too wide and far beyond what the organisations had originally envisaged would be the definition.
I shall ask the noble Baroness one question, to which I hope she may respond on another occasion. Interestingly, she raised the question of the position of service personnel, where somebody is posted overseas, serves there, and, after their return, there is a death. As I understand it, the Minister's argument is that such a person should be held culpable of that death, if he or she is a member of the household. Perhaps she could consider before Third Reading the position where the death of the child occurs while the service member is serving overseas. As I read the Bill, a service member, even when overseas, could be held as a member of the household and therefore liable for the death of a child. I need to reflect further on the matter and would be grateful if the noble Baroness could consider it before Third Reading. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 11 not moved.]
5 p.m.
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 12:
Page 2, line 38, leave out "or ought to have been"
The noble Baroness said: My Lords, in moving Amendment No. 12, I shall speak also to Amendment No. 13. Both amendments are also supported by the noble Lord, Lord Thomas of Gresford.
The purpose of these amendments is to change the mental element of the offence in Clause 4 so that it is limited to what the defendant actually knew or suspected. The offence in Clause 4 is widely drawn, and while it must be so in order to reflect the offending behaviour, the Law Society has pointed out in its helpful briefing to noble Lords that the clause could be narrowed and still be effective. The Law Society points
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out that there could be some narrowing of those persons who might be caught by the offence. This amendment is one way of achieving that.
The basis of the offence that the Government provide is objective. It applies where the defendant ought to have known and foreseen a risk, rather than just where the defendant actually knew or suspected that something was going on. It is arguable that there should be a positive duty of care on all of us to protect the vulnerable in our society, but it could also be argued that using an objective test in this matter goes too far. To couple this objective test with a definition of household that would include persons who had no involvement or nexus with the child is, it is argued, unnecessarily wide. For example, in the circumstances of a child's death, a jury might consider that a person on the same premises ought to have been aware of family arguments—going back to the lodger argument in Grand Committee—and ought to have been aware of the risks that those arguments posed to the child. In practice, many persons do not make that connection, bin it is those people who might be caught both by the wide definition of household and then by the objective limb of the mental element.
In Grand Committee and today, we have tried to give detailed consideration to the definitions of household and relationship. However, there is still a concern that the drafting of the Bill does not properly reflect current behaviour in relationships and that it will catch people who do not have a real connection with the child or the vulnerable adult. I beg to move.
Lord Thomas of Gresford: My Lords, we support this amendment. The defendant may be guilty on two bases—as we have previously discussed—first, because he caused the death of the child or vulnerable adult, and secondly, because he was aware of the risk, or the act occurred in circumstances of a kind that he foresaw. Then the clause adds,
"or ought to have been, aware of the risk",
and "ought to have foreseen". That introduces an objective element. He may not have been aware of the risk, and he may not have foreseen it, but he is still going to be convicted of an offence carrying 14 years' imprisonment.
We have visited this area of objectivity in criminal law on a number of occasions. I recall well the Caldwell case. That was decided in the early 1980s, and it has taken something like 20 years for that decision to be reversed. There again, an objective test was introduced in the offence of arson and committing criminal damage, and it was all on the basis that the person ought to have foreseen a risk. The House of Lords Judicial Committee overruled that recently, and we are now back in the position where the subjective mens rea is an essential clement of those crimes. Here too, it should be for a person who had actually foreseen something to be found to have the guilty mind that renders him liable to such severe punishment.
As a matter of principle, it is highly objectionable to punish someone for negligence in a criminal court—that is what it is. If we introduce an objective test, as

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this clause seeks to do, we are punishing someone for being negligent, sentencing them perhaps to a term of imprisonment of 14 years because they failed to do something or failed to foresee something that they ought to have foreseen. It is highly objectionable.
Lord Monson: My Lords, I strongly support this pair of amendments. Like the noble Lord, Lord Thomas of Gresford, I think that it is wrong that individuals should be sent to prison for up to 14 years either because they lack common sense, which is something that you either have or do not have, or because he or she was insufficiently alert.
There are professions—for example, train driver, pilot or navigator of a ship or foreman on a building site—for which alertness is a prerequisite. In those cases, failure to remain alert, leading to the injury or death of a third party, can be properly prosecuted, but that cannot apply to the wider public in their own home. The subsection is too draconian.
Lord Campbell of Alloway: My Lords, I support the amendment, not only for all the reasons given, in particular, by the noble Lord, Lord Thomas of Gresford, but because the concept has been brought straight from the civil law into the criminal law and made an ingredient of a criminal offence. It is an act of omission. Although it is an extraordinary situation and one must make some concessions, in order to protect the vulnerable adult or the child, one cannot go to the extent of maintaining the clause in its present form.
Lord Borrie: My Lords, Clause 4 is, as the Minister and the noble Baroness, Lady Anelay of St Johns, have agreed and stated, meant to deal with the mischief of a situation in which, inherently, somebody—the man or the woman—has caused the death of the child, but it is not known which. The noble Baroness, Lady Anelay of St Johns, who wants a clearer definition, as she put it, used the word "responsible". It must be generally agreed that the man and the woman, if they live in the same household et cetera, are joint carers, jointly responsible for the protection of the child. The child has been killed, but one does not know who has caused the death and who has simply failed in their responsibility to give adequate protection.
Presumably, if one gets rid of the words,
"or ought to have been",
the prosecution must prove the mind of the individual man or woman. One does not know whether the man or woman killed the child, and one must get into the mind of that person and say that that person was responsible for the failure to protect the child.
The noble Baroness, Lady Anelay of St Johns, suggested that the way in which Clause 4 is worded might not reflect the degree to which one of the adults was in contact with the child. Why not? If the phrase is, as at present,
"D was, or ought to have been, aware of the risk"—
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the risk to the child of being killed—the words "ought to" surely embraces the degree to which that adult was in contact with the child and with the household. Was the contact occasional? Was it casual? Was it much more frequent and regular? "Ought to" will embrace all those, in relation to the particular "D"—the defendant—that we are talking about.
It worries me that the deletion of "ought to have been" and "ought to have foreseen", as proposed in the amendments, would result in a heavier burden of proof and might well damage the point of the remedy by which the clause intends to deal with the mischief.
Lord Mackay of Clashfern: My Lords, before the noble Lord sits down, perhaps he could help me. He said that "ought to have been" is appropriate. What is the source or nature of the duty which gives rise to the "ought"?
Lord Borrie: My Lords, it is being a member of the same household as the child who is killed.
Lord Mackay of Clashfern: My Lords, it is not a question of being aware of the risk. The duty must give rise to the awareness of the risk. Merely being in the household is not of itself sufficient. There must be some other obligation on the person. I just wonder how the way in which it is defined gives rise to this particular duty.
Lord Borrie: My Lords, I am not the Minister and perhaps I cannot help further. My own view is that the issue depends on this, that or another member of the household. Households are obviously different. In Grand Committee, we discussed how very varied households are in the modern world. I think that the "ought to" very properly must reflect the particular household to which we are referring and the particular relationship between the adults and the child concerned.
Lord Donaldson of Lymington: My Lords. I did hope to support the Minister. I think that half of her problems here arise because she will not put "responsible" at the beginning of Clause 4. I f she did, it would then fall into place. I should have thought that there was no transfer of civil law into criminal law if the relevant offence is being responsible for the death of a child against a background where the person concerned knew or ought to have known.
On a less theoretical basis, I strongly suspect that if "ought to have" is left out, there will be a large number of wide-eyed defendants saying, "Oh dear, oh dear. Of course I never foresaw this. It is all a great tragedy". Of course, they foresaw it. "Ought to have" sweeps that in. I cannot find any problem—.
Lord Thomas of Gresford: My Lords, would the noble and learned Lord not agree that that is the sort of issue that juries try all the time? When a person says, "I did not know", the jury are there to decide whether he did know. That is really the basis of the element of mens rea in almost every criminal offence.
Lord Donaldson of Lymington: My Lords, I appreciate that. But I think that there are many

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conscientious juries who might be really bothered about the difference between their obviously knowing, their almost certainly knowing and, what is really the same thing, the fact that they ought to have known. To that extent, that is really an essential part of this.
The noble Lord, Lord Thomas, said that it is really monstrous that someone who has been negligent, even grossly negligent, should be sent to prison for 14 years. It certainly would be. But it is not the jury who decides the single offence of guilty or not guilty to responsibility; it is the judge who would be concerned with the culpability of it. In a case where it really was "ought to have" but maybe really did not, the sentence would reflect that.
Viscount Bledisloe: My Lords, I come to this Bill as a virtual stranger who certainly has not had frequent let alone close personal contact with it. I am therefore very prepared to be told that what I am saying is even more rubbish than usual. I confess that I am very puzzled that these two amendments are treated as though they are a pair which ought to stand or fall together. I can see why grammatically that is the position, but logically, it does not seem to follow at all.
I see the very strong force of the argument in favour of Amendment No. 12. As the noble Lord, Lord Thomas of Gresford, said, it is wrong to convict someone when the jury does not say, "Oh, of course they knew. They may say they don't, but how on earth did they think that child had cigarette burns over it five times a week for the last month?" or whatever. I see great force in Amendment No. 12.
I confess that I do not see any logical force in Amendment No. 13. Clause 4(1)(d)(iii) refers to a defendant who knew that the child was at risk and failed to take any steps. It states that the person can also be guilty only if,
"the act occurred in circumstances",
which they "ought to have foreseen".
Why should the person need to have foreseen those particular circumstances? A person may have a boyfriend who is violent to a child—burns him, hits him and so on. The boyfriend gets particularly cross with the child, throws the electric fire into the bath where the child is bathing, and the child is electrocuted. The person ought not to have foreseen those particular circumstances. But why on earth should he or she not be guilty anyhow?
5.15 p.m.
Baroness Scotland of Asthal: My Lords, I thank all those who have participated because some of my work has been done for me. I thank the noble and learned Lord, Lord Donaldson, for explaining so cogently why "ought to have been" is necessary, albeit that I take his chastisement that my task would have been so much easier if I had just succumbed to the noble Baroness's lures in relation to her Amendment No. 10.
I was very interested to see this amendment. It is an issue that troubled us and we looked at it very carefully. I fully understand that there may be concerns that a person in a household was not aware of a risk. So why have we done it? I am also aware that
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the offence could therefore impose, as suggested by the noble Lord, Lord Thomas of Gresford, and outlined by the noble Baroness, Lady Anelay, an unfair burden on that household member. He or she may have been too young or naïve to see the signs of risk; may have not been there at crucial times to see the signs; may be out at work for much of the time; or may have chosen not to see the signs.
We must be absolutely clear about the sort of circumstances with which we will usually be dealing in such circumstances. We none of us want to believe that our loved ones are capable, for example, of abusing a child. Still less do we want to persuade ourselves that a close and loved member of the household may pose a grave danger to that child.
We do not of course envisage that a member of the household who could not have reasonably foreseen the risk would be caught by this offence. For example, it may be that an elderly grandmother in the household was too confused to recognise and act on any sign of risk. But I do not think that such a case would fall within the offence. It would be difficult to argue that in her circumstances the confused grandmother could have foreseen the risk, much less ought to have clone so.
The words "or ought to have foreseen" are very important to the operation of the offence, as was recognised by the noble and learned Lord, Lord Donaldson, and, in part, by the noble Viscount, Lord Bledisloe. Whether someone did indeed foresee a danger is very difficult to prove. But that they "ought to have foreseen" it, that they were in a position and had such information that a reasonable person would have foreseen the harm, that can be proved. To limit the offence to those who did not in fact foresee the harm, and can be proved to have foreseen the harm, would leave a very significant loophole. We also have to face the fact that many individuals in those circumstances say nothing at all.
We should remember too that we are talking about "a significant risk of serious physical harm". That is quite a high threshold. The signs of that risk would be very evident. In many cases, the risk of harm is all too evident from previous harm that a member of the household has inflicted on the child or on others. In some cases we know about, the child or vulnerable person has awful and very obvious signs of previous abuse, sometimes inflicted over a long period. I do not think that we are putting an unacceptable burden on the defendant to recognise that risk in these circumstances and to take whatever steps he could reasonably have been expected to take to protect the victim from the risk.
We have identified the mischief we are seeking to cure and we have identified the means that will be adopted. We feel that this is a proper and balanced response. Perhaps I may say to the noble and learned Lord, Lord Mackay of Clashfern—
Lord Northbourne: My Lords—
Baroness Scotland of Asthal: My Lords, I shall give way as soon as I have finished my sentence.

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This is obviously a question of nature and degree. One of the difficulties we face is that no two sets of circumstances will be precisely the same. The families with which we will often have to deal will be very different in nature, the households may be multifaceted and contain large numbers, and they may have varying flows. That is why we have crafted the provision so that the individual circumstances of the case can be looked at when deciding whether any of these criteria have been satisfied. We think that this will enable us to make a clear distinction between those who have responsibility, who knew or ought reasonably to have known that there was something they could do to avoid the risk, and failed so to do.
Lord Northbourne: My Lords, I am most grateful to the noble Baroness. I want to clarify a point. In explaining the phrase, "ought reasonably to have known", the noble Baroness cited the example of a grandmother who was confused. These circumstances do arise in families where one party has learning difficulties. Would they also be excused?
Baroness Scotland of Asthal: My Lords, I do not want to prescribe precisely what would happen in each case, but I must emphasise that it would be absolutely essential to look at the particular circumstances of the individual case and ask the questions that we have clearly set out in Clause 4 before being able to establish any individual culpability. The reason I cited the grandmother is that I felt that that was a clear example of where one could exclude such a person. Many other examples could be given.
Lord Mackay of Clashfern: My Lords, I am grateful to the noble Baroness for dealing with my question. I would like to be as certain as I can be that I have properly understood what she said. I think she said that the word "ought" means that there is a duty to be aware of the risk that arises from the previous experience of the person in question. They know what has happened in the past. Thus the nature of the history that the person charged is familiar with is of such a character as to give rise to a duty to infer that risk may recur.
Baroness Scotland of Asthal: My Lords, that is so. One of the things we looked at was the nature of the cases that, in the main, gave rise to these cases. The feature one saw time and again was that this was a known risk. The signs and indications were there which were either ignored or not acted upon. That is what gave rise to framing the offence in this way.
There are many who say that, by so doing, we do not go far enough because it does not deal with the spontaneous event. We think that it is fair to exclude those cases because the responsibility must rest on the knowledge of what has happened before so that it is
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reasonable to say that the person should have taken a step or steps to avoid the consequence that flowed from their omission.
Lord Mackay of Clashfern: My Lords, I am grateful to the noble Baroness for that clarification.
Baroness Anelay of St Johns: My Lords, I am grateful to all noble Lords, in particular for the many other strands relating to Clause 4 that have been so helpfully brought out in this debate. I can give notice that I shall not need to move Amendment No. 19 later.
I am grateful to my noble friend Lord Campbell of Alloway and the noble Lord, Lord Monson, for pointing out that we now have something borrowed from civil law and put into criminal law. It is perhaps a feature of this Bill and is not something to which I shall object overall. It is a case of: if it happens then we need to be clear about exactly how and why it happens, so providing clarity for those prosecuting these matters and those who will be subject to prosecution.
The noble Viscount, Lord Bledisloe, asked why Amendments Nos. 12 and 13 are together and whether they stand or fall together. The answer is that this was a matter of grouping for convenience. I agree with the noble Viscount that they do not stand and fall together. One can argue that they could stand separately.
I am tempted to say to the noble and learned Lord, Lord Donaldson, that once again he is right. If I could seduce the Minister with my arguments, not only would it solve a lot of my problems, but also those of the Government. However, obviously I have to put more careful arguments on the matter.
I am particularly grateful to the noble Baroness for the way in which she addressed the questions put by my noble and learned friend Lord Mackay of Clashfern. They go to the heart of the matter: from what event or experience arises this duty? I shall have to consider that carefully between now and Third Reading, but at this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 13 not moved.]
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 14:
Page 2, line 43, at end insert—
"( ) For the purposes of subsection (1)(d )(ii), in determining the reasonableness of the steps which D could have been expected to take, the court shall have particular regard to the extent to which D has been subjected to domestic violence or is in fear of being subjected to domestic violence."
The noble Baroness said: My Lords, Amendment No. 14 stands in my name and in those of my noble friend Lord Campbell of Alloway, and the noble Baroness, Lady Walmsley. I have brought this amendment back from Grand Committee to probe further the protection that the Government intend to provide in this part for those who have themselves suffered from domestic violence and who are members of a household where a child or vulnerable adult

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suffers a non-accidental death that results in a prosecution. The full debate is reported in Hansard of 21 January 2004 at cols. 353 to 358, and I do not seek to replicate it. However, it is important to point out that this amendment reflects the greatest concern that has been expressed to noble Lords by organisations outside the House which are devoted to protecting and seeking to protect the victims of domestic violence, both adults and children.
The amendment would provide protection by ensuring that domestic violence is made an explicitly relevant factor in considering the reasonableness of the defendant's failure to act. My concern is that a victim of domestic violence is required under Clause 4 to take reasonable steps to prevent the death. Yet their ability to take what others might consider to be a rational decision and rational action against their partner or spouse could be severely limited by their own experience of or fear of violence against either themselves or against another person in the household, most commonly a fear that violence might be exerted against a child in the household.
There can be a real fear of this if you are the mother of a child who is suffering abuse at the hands of your partner. You fear that if you try to bring in social workers or the police early on, you may cause the behaviour to escalate into something even worse. Nobody would condone actions that allow a child or vulnerable adult to suffer any abuse whatever, but we should try to understand the pressure and stress under which those who suffer from domestic violence live from day to day.
I believe it is important that the protection and clarification afforded by this amendment should be on the face of the Bill. I beg to move.
Lord Campbell of Alloway: My Lords, I support this amendment because the reasonableness of taking steps is the gateway to guilt. Although the court might well be said to take this into account in determining what is reasonable to enter the gateway, one cannot be certain. It is because of the essential importance of the drafting of subsection 1(d)(ii), leading to guilt, that I have put my name to this amendment. I do not think it would be right to assume that without this provision on the face of the Bill, it would be safe.
5.30 p.m.
Baroness Walmsley: My Lords, I rise on behalf of these Benches to support the amendment.
Those who work in women's refuges know that many women who cannot protect themselves from domestic violence are certainly not in a position to protect either a child or a vulnerable adult. Many of the women—and it usually is women—who have been subjected to this sort of abuse have their total confidence destroyed; they are quivering wrecks. They lose confidence in their own judgment as to whether they are making the right decisions about themselves, their household or their children.
I can envisage a situation where a man with a very strong personality might be able to convince the mother that unreasonable chastisement of a child
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could be for the child's own good in order to teach the child how to behave. We know that that is not reasonable but, in circumstances where the mother has been so demoralised by violence from the same perpetrator, one can easily envisage a situation where she was simply not in a position to protect the child.
Without the amendment, the Bill as it stands does not recognise the very close connection between violence against the woman and the child in the same household. Research shows that in up to 70 per cent of cases the same perpetrator abuses both the mother and the child. In the vast majority three-quarters—of cases where children are on the child protection register, there is domestic violence against the mother also present in the household. It is for these reasons that we support the inclusion in the Bill of the proposed new paragraph.
Baroness Scotland of Asthal: My Lords, I thank the noble Baronesses, Lady Anelay and Lady Walmsley, and the noble Lord for the way in which they have approached this issue. I say straightaway that I recognise the description given of the impact that domestic violence can have on women, who are effectively robbed of their sense of self and wellbeing. Although we discussed the matter at some length in Committee, the issue has caused a great deal of concern and it is right that we should return to it.
That concern has quite properly been vested in the difficulties suffered by people who are themselves vulnerable. The noble Baroness referred to domestic violence, but there are other situations which make people vulnerable so that they have less ability than others to be as robust as we would like in the burden that we are placing on them to act or face the possibility of prosecution.
The Bill is about domestic violence in all its aspects. The noble Baronesses, Lady Walmsley and Lady Anelay, are absolutely right that violence against a child may all too often mean there is violence or the threat of violence against the mother too. Anyone living in a violent household is likely to be frightened and dispirited and there will be cases where the defendant is vulnerable, because of violence or for other reasons, and there is very little they could do to protect themselves, let alone protect the victim. They might be the victims of domestic violence themselves, or the defendant might be young and uncertain, unfamiliar with the social services, frightened of the police, mistrustful of teachers or doctors or others in authority, and simply not know where to turn.
We knew that we had to take all this into account when formulating the offence. We had to make sure the offence would not place unjustifiable burdens on people. That is why the offence will only apply when a child or vulnerable person has been killed by someone in the household and the defendant was aware, or ought to have been aware, of the risk and failed to take reasonable steps—I emphasise reasonable steps—to protect the child or vulnerable person from the risk. It is the concept of reasonable steps that is at the very heart of the offence and which is crucial to ensure that

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it does not place an unacceptable burden on other vulnerable people in the household. I shall turn to this in more detail in a moment.
We hope that the offence, together with the procedural measures which accompany it, will help to solve the "which of you did it?" cases. But the new offence goes beyond that. We would not be justified in introducing an offence only for that purpose; it must be justified in its own right. The behaviour which it covers must be sufficiently reprehensible that we would regard it as criminal regardless of the other considerations we have outlined. The Law Commission was very clear on this and we agree with its reasoning.
The offence will change the way in which we view responsibility within a domestic setting and the way in which we deal with it in the criminal law. It makes it clear that it is not acceptable to be a member of a household in close contact with a vulnerable person, knowing that they are at significant risk, and do nothing. It is not an acceptable position for a parent—no matter how vulnerable or fearful they are for themselves—to do nothing for a child who is at risk. The offence of child cruelty or neglect is based partly on this principle: that to stand by and do nothing is not acceptable.
The new offence will make that position even clearer. It makes the responsibility bite on all members of the household who have frequent contact with the child or vulnerable adult and who are, or should be, aware of the risk to it of serious harm. We think that this is right morally and as a matter of law. It is right that people in this position should be liable to prosecution and, indeed, that prosecution should normally take place if the case is made out.
But, as I said earlier, the concept of reasonable steps is fundamental to the formulation of the offence. It is a crucial part of the way in which the offence works and it provides an important safeguard. In deciding whether there is sufficient evidence to prosecute, the Crown Prosecution Service will have to consider what the person did in the light of what they could reasonably, in the circumstances in which they found themselves, have been expected to do. If the Crown Prosecution Service believes that there is a realistic prospect of conviction, it will then be a matter for the jury to decide whether the prosecution has established beyond reasonable doubt that the defendant failed to take reasonable steps.
We talked in Committee about guidance to be issued by the CPS to prosecutors dealing with these cases. We shall return to this when we get to the later amendment about guidance tabled by the noble Baroness, Lady Anelay, and the noble Viscount, Lord Bridgeman. The question of what steps were reasonable for a victim of domestic violence is, of course, ultimately an issue for the jury, albeit that the prosecution will have to identify the steps that the defendant could have reasonably taken as part of the Crown case.
As in all cases, the Crown Prosecution Service will apply the two-step test for prosecution: that is, is there sufficient evidence to afford a realistic prospect of a conviction; and is a prosecution in the public interest. In
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a sense, the offence itself defines the public interest in creating a duty on members of a defined group to protect children and vulnerable adults. The public interest will normally lean strongly towards prosecution. It will be the exception rather than the rule if it is decided not to proceed with prosecution.
I sympathise with the concerns behind the amendment. However, we must be clear that protections and safeguards are in place for victims of domestic violence and others who are vulnerable. We believe that the new responsibility we are creating must be weighed in the balance.
We think, too, that we would be wrong in singling out victims of domestic violence in the way proposed by the amendment; others will be vulnerable. When you single out a particular group in this way you inevitably give the impression that other vulnerable groups are less important. Just as we are saying that the victim will be protected if they are vulnerable for whatever reason, so we must say that those who neglect a clear responsibility will be punished.
We believe that the way in which we have phrased the provision gives enough of a safety net to make sure that the sort of protection that we wish to see will be in place. However, that protection must be given first to the vulnerable child and/or the vulnerable adult who, because of their demise, will have no one else to speak for them.
Baroness Anelay of St Johns: My Lords, I am grateful to all noble Lords who have taken part in this brief debate; it was, of course, foreshadowed by a much lengthier one in Grand Committee. I appreciate what the noble Baroness, Lady Walmsley, said, and her understanding of the situation in which people may find themselves in an abusive household, which was echoed by the Minister. Again, we are speaking with one voice in recognising the appalling difficulties that can be the day-to-day, minute-by-minute experience of people in abusive households. That is why I brought forward the amendment.
I am grateful to my noble friend Lord Campbell of Alloway for his support. As he said, the whole point about the reasonableness of taking steps means that it provides the gateway to guilt. Because of that, I think it vital that we have on the face of the Bill the certainty that inexperience of domestic violence should be taken into account when one is considering how reasonable are the steps that have been taken. I came to that conclusion by listening to people from organisations such as Refuge, Women's Aid and the NSPCC. I listened to them both before Grand Committee, and subsequently, since when they have had the opportunity properly to consider the Minister's response. Therefore, I do not think she will be too surprised if I say that I do not want to use the amendment to prevent others arguing that they had a reason not to take or to take steps. But in a domestic violence Bill, I think there is a special case for saying there should be consideration of those who suffer from domestic violence. On that basis, I wish to test the opinion of the House.
5.42 p.m.
On Question, Whether the said amendment (No. 14) shall be agreed to?
Their Lordships divided: Contents, 149; Not-Contents, 130.

Division No. 1

CONTENTS

Addington, L.

Hunt of Wirral, L.

Alton of Liverpool, L.

Jenkin of Roding, L.

Anelay of St Johns, B.

Jopling, L.

Arran, E.

Kimball, L.

Ashcroft, L.

King of Bridgwater, L.

Astor of Hever, L.

Knight of Collingtree, B.

Attlee, E.

Laird, L.

Barker, B.

Lester of Herne Hill, L.

Beaumont of Whitley, L.

Lindsay, E.

Biffen, L.

Liverpool, E.

Blackwell, L.

Livsey of Talgarth, L.

Blaker, L.

Lucas, L.

Bowness, L.

Luke, L.

Bradshaw, L.

Lyell, L.

Bridgeman, V.

MacGregor of Pulham Market, L.

Brooke of Sutton Mandeville, L.

Brougham and Vaux, L.

Mackie of Benshie, L.

Buscombe, B.

Maclennan of Rogart, L.

Byford, B.

Maddock, B.

Caithness, E,

Mancroft, L.

Campbell of Alloway, L.

Mar and Kellie, E.

Carlisle of Bucklow, L.

Marlesford, L.

Carnegy of Lour, B.

Marsh, L.

Chadlington, L.

Masham of Ilton, B.

Chalker of Wallasey, B.

Mayhew of Twysden, L.

Chester, Bp.

Miller of Hendon, B.

Clement-Jones, L.

Monro of Langholm, L.

Colwyn, L.

Monson, L.

Cope of Berkeley, L. [Teller]

Montrose, D.

Courtown, E.

Moynihan, L.

Craigavon, V.

Murton of Lindisfarne, L.

Dahrendorf, L.

Newton of Braintree, L.

Dean of Harptree, L.

Noakes, B.

Denham, L.

Northbrook, L.

Dholakia, L.

Northesk, E.

Dixon-Smith, L.

Northover, B.

Dundee, E.

Oakeshott of Seagrove Bay, L.

Eccles of Moulton, B.

Palmer, L.

Eden of Winton, L.

Palumbo, L.

Elton, L.

Park of Monmouth, B.

Falkland, V.

Parkinson, L.

Fearn, L.

Patten, L.

Ferrers, E.

Peel, E.

Flather, B.

Perry of Southwark, B.

Fookes, B.

Powell of Bayswater, L.

Forsyth of Drumlean, L.

Quinton, L.

Gardner of Parkes, B.

Razzall, L.

Garel-Jones, L.

Reay, L.

Geddes, L.

Redesdale, L.

Glentoran, L.

Rees, L.

Goschen, V.

Rennard, L.

Hanham, B.

Renton, L.

Harris of High Cross, L.

Renton of Mount Harry, L.

Harris of Richmond, B.

Rodgers of Quarry Bank, L.

Hayhoe, L.

Roper, L.

Henley, L.

Russell-Johnston, L.

Higgins, L.

Saltoun of Abernethy, Ly.

Holme of Cheltenham, L.

Sanderson of Bowden, L.

Home, E.

Seccombe, B. [Teller]

Hooper, B.

Selsdon, L.

Howe, E.

Sharp of Guildford, B.

Howe of Aberavon, L.

Sharples, B.

Howe of Idlicote, B.

Shaw of Northstead, L.

Howell of Guildford, L.

Sheppard of Didgemere, L.

1166

Shutt of Greetland, L.

Thomas of Walliswood, B

Skelmersdale, L.

Tordoff, L.

Smith of Clifton, L.

Trefgarne, L.

Soulsby of Swaffham Prior, L.

Tugendhat, L.

Southwark, Bp.

Waddington, L.

Stewartby, L.

Wakeham, L.

Stoddart of Swindon, L.

Wallace of Saltaire, L.

Swinfen, L.

Walmsley, B.

Taylor of Warwick, L.

Weatherill, L.

Thatcher, B.

Windlesham, L.

Thomas of Gresford, L.

Wolfson, L.

NOT-CONTENTS

Acton, L.

Hayman, B.

Ahmed, L.

Hilton of Eggardon, B.

Amos, B. (Lord President of the Council)

Hogg of Cumbernauld, L.

Howarthof Breckland. B.

Andrews, B.

Howells of St. Davids, B.

Archer of Sandwell, L.

Howie of Troon, L.

Ashton of Upholland, B.

Hoyle, L.

Bassam of Brighton, L.

Hughes of Woodside, L.

Berkeley, L.

Hunt of Kings Heath, L.

Bernstein of Craigweil, L.

Irvine of Lairg, L.

Bhatia, L.

Janner of Braunstone, L.

Billingham, B.

Jay of Paddington, B.

Blackstone, B.

Jones, L.

Bledisloe, V.

Kirkhill, L.

Boothroyd, B.

Lea of Crondall, L.

Borrie, L.

Lipsey, L.

Bragg, L.

Listowel, E.

Brooke of Alverthorpe, L.

Lockwood, B.

Brookman, L.

Lofthouse of Pontefract, L.

Campbell-Savours, L.

Macdonald of Tradeston, L.

Carter, L.

McIntosh of Haringey, L.

Chan, L.

McIntosh of Hudnall, B.

Clark of Windermere, L.

MacKenzie of Culkein, L.

Clarke of Hampstead, L.

Mackenzie of Framwellgate, L.

Clinton-Davis, L.

Cohen of Pimlico, B.

Maginnis of Drumglass, L.

Corbett of Castle Vale, L.

Mason of Barnsley, L.

Craig of Radley, L.

Massey of Darwen, B.

Crawley, B.

Merlyn-Rees, L.

David, B.

Mitchell, L.

Davies of Coity, L.

Murray of Epping Forest, L.

Davies of Oldham, L. [Teller]

Orme, L.

Dean of Thornton-le-Fylde, B.

Parekh, L.

Desai, L.

Patel of Blackburn, L.

Dixon, L.

Pendry, L.

Donaldson of Lymington, L.

Pitkeathley. B.

Donoughue, L.

Plant of Highfield, L.

Dubs, L.

Prashar, B.

Eatwell, L.

Prys-Davies, L.

Evans of Parkside, L.

Puttnam, L.

Evans of Temple Guiting, L.

Radice, L.

Falconer of Thoroton, L. (Lord Chancellor)

Ramsay of Cartvale, B.

Rea, L.

Farrington of Ribbleton, B.

Rendell of Babergh, B.

Faulkner of Worcester, L.

Robertson of Port Ellen, L

Finlay of Llandaff, B.

Rogan, L.

Fyfe of Fairfield, L.

Roll of Ipsden, L.

Gale, B.

Rooker, L.

Gibson of Market Rasen, B.

Sainsbury of Turville, L.

Gilbert, L.

St.John of Bletso, L.

Golding, B.

Sawyer, L.

Goldsmith, L.

Scotland of Asthal, B.

Gordon of Strathblane, L.

Sheldon, L.

Goudie, B.

Simon, V.

Gould of Potternewton, B.

Simon of Glaisdale, L.

Graham of Edmonton, L.

Smith of Leigh, L.

Grantchester, L.

Stone of Blackheath, L.

Grocott, L.[Teller]

Strabolgi, L.

Harris of Haringey, L.

Taylor of Blackburn, L.

Harrison, L.

Temple-Morris, L.

Haskel, L.

Thornton, B.

Haskins, L.

Tomlinson, L.

1167

Triesman, L.

Whitty, L.

Turner of Camden, B.

Williams of Elvel, L.

Walpole, L.

Warner, L.

Williamson of Horton, L.

Whitaker, B.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
5.52 p.m.
Lord Monson Lord Monson moved Amendment No. 14A:
Page 3, line 5, at end insert "and"
The noble Lord said: My Lords, last Thursday afternoon, while discussing an amendment moved by the noble Lord, Lord Renton, we had a lively dingdong about new modes of drafting, grammar, clarity and the correct use of the English language generally, involving the noble Lord, Lord Renton, the noble and learned Lord, Lord Mayhew, the Minister and others. I hope that this modest drafting amendment is less contentious. It is designed to make subsection (3) of Clause 4 more comprehensible to those who will eventually have to interpret it when it becomes law, whether they be professionals or lay persons.
Subsection (3)(a) stands alone. It is not dependent on subsection (3)(b). However, the reverse is most definitely not true. Subsection (3)(b) on its own is complete nonsense. It is wholly consequential on subsection (3)(a). At first glance, the reason for including subsection (3)(b) in the Bill at all, seems to be to allow for the prosecution of a 15 year-old who happens to be—as sometimes happens—six feet two inches tall and weighs 10 stone, and who was therefore deemed to have no excuse for not intervening when the person causing harm to the vulnerable adult or child is only five feet four inches tall, weighs seven stone and lacks a black belt in a martial art.
The Explanatory Notes categorically state that:
"Subsection (3) provides that only those who are 16 or over may be guilty of the offence, unless they are the mother or father of the victim. Members of the household under 16 will not"—
and I stress the word "not"—
"have a duty of care or be expected to take steps to prevent a victim coming to harm".
If that is the case, and it seems pretty categoric, I can see no reason whatever for the existence of subsection (3) (b). It only sows confusion and muddies the waters.
There may be some arcane reason for the subsection of which I am unaware, but subsection (3) as a whole forms a single sentence and, if read as such, it will be seen how necessary the insertion of the word "and" is. Admittedly, even with the inclusion of "and", I do not think that the subsection will win any awards from the Plain English Campaign—except perhaps the wooden spoon—but it is probably too late at this stage to redraft the entire subsection. At least this amendment makes it more grammatically accurate and, above all, more comprehensible to those destined to study and refer to it in years to come. I beg to move.
Lord Renton: My Lords, I should like to support the noble Lord's amendment. As the Minister will remember well, I was very worried about the drafting
1168
of Clause 4 with its endless references to "V" and "D". However, when I redrafted it leaving out those letters, I tried to keep it as close as I could to the original drafting. Therefore, I did not insert the word "and". However, the noble Lord is quite right to have suggested its inclusion, and I warmly support him.
Baroness Scotland of Asthal: My Lords, I thank the noble Lord for his amendment. The minutiae of drafting are always important and I agree that we need to get them right. I must confess that I have never been tempted by a career as a legislative draftsman, but, if I were, I should want the noble Lord by my side. I understand where his difficulty lies with this clause. Both subsections (a) and (b) are intended to apply when the defendant is not the mother or father of the victim. In other words, the offence will not apply to anyone under the age of 16 except the parents of the child. That reflects the special responsibility that parents have towards their children.
When the defendant's 16th birthday takes place partway through a pattern of abuse, he will not be expected to have taken reasonable steps before attaining that age. Once he is 16, if there are reasonable steps for him to take on or after that date, he will be in the frame for the offence. The noble Lord's amendment is intended to confirm that. However, I respectfully tell him that it is unnecessary. Paragraphs (a) and (b) of subsection (3) both apply when the defendant is not the parent of the victim, but there is no necessary connection between the two propositions.
The next subsection—subsection (4)—is drafted in exactly the same way. This contrasts with subparagraphs (i), (ii) and (iii) of subsection (1)(d) in which an "and" is needed to show that each of those three conditions must be satisfied. It also contrasts with paragraphs (a) and (b) of subsection (5), when an "or" is needed to show that those paragraphs are alternatives. Therefore, invite the noble Lord to withdraw his amendment. I hope that I have made it absolutely clear why the additional "and" is not necessary.
Lord Monson: My Lords, I thank the Minister for her flattering words, but I do not think that subsection (4) (a) and (b) are comparable because they both stand on their own—one or the other could be eliminated and the subsection would still make sense. That could not be done, however, with subsection (3): paragraph (b) on its own would be total nonsense. Obviously, I will not divide the House on this matter, but the clause is pretty incomprehensible. The best thing would be to eliminate paragraph (b) altogether because it seems to be wholly superfluous. It does not make any difference at all. I cannot twist the arm of the Minister on this, but it would be splendid if she would have a look at this wording before the next stage. It would be an improvement if it were changed, not necessarily in the way I suggested with Amendment No. 14A, to make it easier to understand. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 15 and 16 not moved.]
6 p.m.
Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 17:
Page 3, line 21, at end insert—
"( ) No person who is a member of the household as provided by subsection (1)(a) and (b) and (4) above shall be interrogated by the police as to the circumstances in which an offence under this section may have been committed unless cautioned that if charged and tried for such offence an explanation may be required from such person as to the circumstances in which V died; and if so failure or refusal to answer any question as to such circumstances under interrogation shall constitute evidence on which an inference of guilt may be drawn either of having caused the death, or of having failed to have been aware of the risk of serious physical harm of which he ought to have been aware and to have for seen and that no reasonable steps were taken to avoid such risk, subject to such directions as may be given by the trial judge.
( ) No such inference may be drawn unless such caution has been recorded as and when given."
The noble Lord said: My Lords, Amendments Nos. 17 and 18 have been degrouped. Amendment No. 17 is on the form of caution used in a police interrogation of a member of the household who is liable to be charged with an offence under Clause 4, about the circumstances of a death. That offence can be committed only by a member of the household. The amendment has a very limited application and does not affect the form of caution for others interrogated about the circumstances of the death.
It is required because the extraordinary provisions of Clause 4(2) expose the householder, who exercises the right of silence, to the double jeopardy of an inference of guilt on either limb, without knowing on which limb he was convicted—unless the suggestion I made to the noble Baroness is dealt with at some time. At the moment, as I construe the Bill—but I may be wrong—the trial judge is inhibited from seeking a special direction from the jury about the basis on which the householder was convicted. He will never know what he was convicted of unless further steps are taken.
There is no distinction of gravity. On conviction, either limb carries the maximum sentence. As there is no means for the judge to know on which limb the householder was charged or convicted, he will have some difficulty in deciding how to sentence. If the householder did the act, there is the element of intention. If he did not do the act, we have already considered the element of omission. If he ought to have been aware of the risk of serious harm and took no reasonable steps to avoid it, there is, or may well be, an important distinction of gravity about the limb of the offence on which he was charged.
One must accept that we must have this, or some similar, extension of law in these exceptional circumstances, to break the wall of wilful silence of the household. I accept that. But some members of the household may well be wholly innocent, and they have the presumption of innocence. These exceptional circumstances create a situation where the procedures of the general application to the right to silence do not apply to a Clause 4 offence. This is apparent from a letter dated 27 January, written by the right honourable Home Secretary to the right honourable Jean Corston, the chair of the JCHR, which is exhibited in a JCHR report. The risk of an inference of guilt being drawn from silence is greater for a Clause 4 offence than for any other offence.
1170
The complexity of the reasoning affecting an indictment on charges of murder or manslaughter in Clause 4 is quite staggering. In the new scheme, the Clause 4 approach, which affords far less protection to the accused than the ordinary approach, is used as the gateway for there being a case for murder or manslaughter. The justification for the special form of caution proposed by this amendment is that the risk to the householder is so much greater.
I do not want to take time but I must draw your Lordships' attention to two extracts from the Home Secretary's letter, which is in an annex to a JCHR report. In relation to this matter, he says:
"For an adverse inference to be drawn, in relation to a charge of murder or manslaughter, under clause 5, the prosecution will have to establish that there is a 'case to answer' on a charge of the new offence of causing or allowing the death of a child or vulnerable adult (clause 4). To establish a 'case to answer' on the clause 4 offence, the prosecution must have evidence to show that the defendant was a member of the same household as, and in frequent contact with, the victim, and that either the defendant caused the death or he was aware of a significant risk of serious physical harm being caused to the victim and failed to take steps to protect the victim. We believe",—
that is, the Minister—
"this situation calls so clearly for an explanation, that it is fair that adverse inferences may be drawn, where it is proper to do so, not only on the clause 4 offence where the case to answer has been established, but also on any accompanying charge of murder or manslaughter, where this may not yet be the case but where the existence of a case to answer on the clause 4 offence is itself a significant factor. I should make clear that an inference would only be proper, as is the case under the current law, where the only sensible explanation for the defendant's silence was that he had no explanation or none that would stand up to cross-examination".
Really, that is far from an accurate, sensible or, frankly, intelligible explanation. The letter continues:
"This means that the strict requirement of Cowan"—
that is a case—
"which held that before drawing an adverse inference from silence at trial, the jury must find a case to answer on the prosecution evidence, does not apply in these circumstances. This is because we do not consider that in all circumstances, there need be a technical 'case to answer' for it to be fair to draw an adverse inference".
I do not know how a "technical case to answer" differs from a case to answer. I do not understand the reasoning in the letter. I do not accept it as an accurate explanation of the situation save as to this. First, it is totally clear that it is being maintained that an extraordinary situation is arising as regards an inference of guilt against the householder, which is different from that which arises as regards anyone else. In those circumstances, it is suggested, it is only fair that the householder should be put on express notice, as proposed by the amendment, of that extra risk in these extraordinary circumstances. I beg to move.
Baroness Anelay of St Johns: My Lords, I am grateful to my noble friend for bringing forward this amendment and—when he comes to it—the subsequent amendment, Amendment No. 18, which has been degrouped. I think that the amendment builds upon the debate we had in Grand Committee and takes us further forward in discussing the difficult relationship between Clauses 4 and 5. As he rightly says, we are going into new waters here. I am interested

1171
in the solution he tries to put forward, which is the need for a special caution. I am also grateful to him for raising the questions he did on the Fourth Report of the Joint Committee on Human Rights. I hope that the Minister will be able to take us further forward by addressing those questions.
Lord Renton: My Lords, I have not seen the ministerial correspondence to which my noble friend referred, so it is rather difficult for me to comment on the drafting of his amendment. However, I think that he has pointed out circumstances in which offences may be committed, and which should be covered within the Bill. I hope that the Government will respect his attempt to cover those circumstances.
Lord Donaldson of Lymington: My Lords, I think that this amendment is most unfortunate, because it assumes that Clause 5 will be accepted by the House, and Clause 5 is a monstrosity. There is no justification for this amendment unless Clause 5 survives. The ordinary position is that if someone is being questioned under caution, they are told that if they do not answer the question an inference of guilt might be drawn. So it might. It would be an inference of guilt of an offence under Clause 4. I return to my original point. Clause 4 is a single responsibility offence. One cannot use Clause 4 to inquire whether the accused killed or did not do the things he ought to have done—there is no need to elaborate them again—in paragraph (d). It cannot be done.
It is Clause 5 that starts grafting on something that is contrary to every normal canon of law. There is justification for the amendment only if that clause sticks. I therefore respectfully suggest that the thing to do is not to press this amendment now. However, let us get rid of Clause 5. I hope that the noble Baroness, Lady Anelay, in summoning the troops for a much less important amendment, will not have exhausted her good will.
6.15 p.m.
Baroness Scotland of Asthal: My Lords, there is a caution, if ever I heard one.
The noble Lord, Lord Campbell of Alloway, made it plain in Committee that he would bring back Amendment No. 17 at Report stage albeit with a revised form of wording. I thank him for that. The amendment would place a statutory obligation on the police to give a special caution to a suspect when investigating the new offence proposed in Clause 4. I am grateful to him for raising the issue again and allowing us to explore whether the amendment might be useful. However, I still do not think that we will be able to accept the amendment. We still do not think that it is needed.
I set out in detail in Committee my reasons for coming to that conclusion. That can be found at Hansard for 28 January, vol. 657, at cols. GC138 to GC141. I do not want to detain your Lordships unnecessarily by covering all that ground again. I notice the noble Lord, Lord Campbell of Alloway,
1172
nodding his assent in the usual way, for which I am most grateful. I do not think that it would necessarily help if I outlined how we see the adverse inference because the position has not changed from that which I outlined in Committee.
I hear what the noble and learned Lord, Lord Donaldson, says about Clause 5, which I think he described as "a monstrosity". I regret to tell him that, on this occasion, I cannot agree with him either in his description or the import of his comments. We think that Clause 5 is sound.
When we come to debate Clause 5—which we soon will when we debate Amendments Nos. 20 to 25—I anticipate that we will be dealing extensively with the Joint Committee on Human Rights and other matters. I wonder whether the noble Lord, Lord Campbell of Alloway, would find it convenient if I responded to some of the detail on those matters when we have reached that stage. I notice that he has degrouped Amendment No. 18. Perhaps that, too, could fall within the discussion that we will shortly have in that regard. I think that Amendment No. 18 would render ineffective the procedural measures we are proposing in Clause 5. As such, I will, unfortunately, not be able to accept that amendment either. However, I can see that it would be very beneficial for us to have what I anticipate will be an extensive debate on Clause 5.
Lord Campbell of Alloway: My Lords, I am grateful to the noble Baroness and to the noble and learned Lord, Lord Donaldson. Of course, I expect that he appreciates that, in effect, this amendment survives in its present form only if Clause 5 survives. I agree with the noble and learned Lord. I thought that was apparent from all our discussions and everything else in Grand Committee. He could have taken it for granted that there would be a Division and the Question would be whether Clause 5 should stand part. Against that, this is inevitably a probing amendment and must be treated as such. I certainly propose to treat it as such. In those circumstances, I will deal with certain matters, at the invitation of the noble Baroness, Lady Scotland, in the debate on Amendment No. 18, when I have moved it. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 18:
Page 3, line 21, at end insert—
"( ) Trial of an offence under this section shall be conducted according to procedures of general application; such offence may not be tried on an indictment on which charges of murder or manslaughter are laid on which a submission of no case to answer may not be made before the close of all evidence at the trial."
The noble Lord said: My Lords, this amendment is again in essence a probing amendment. If Amendment No. 26—which seeks to leave out Clause 5—were accepted, Amendment No. 18, certainly in its present form—and much the same applies to Amendment No. 17—would not be retabled. Originally I was the sole name to Amendment No. 26. I am grateful to my noble friend Lady Anelay of St Johns who will open the discussion on that amendment, and to the noble

1173
and learned Lord, Lord Donaldson of Lymington, who put his name to it quite recently and who will support it.
As regards Amendment No. 18, subsection (2) of Clause 4 recognises that "D" may wear two hats and also provides that the Crown does not have to prove which applies for the purpose of conviction. I have already mentioned the following matter so I shall do no more than refer to it—that it must be made plain in some form or another what the accused is charged with. He is entitled to know the substance of the case that he has to meet. Supposing he were charged with an indictment that contained the wording set out in Amendment No. 10, he would be entitled to ask the particulars of the offence and whether he was being charged with doing the act or permitting the act to be done. As a matter of plain justice, in some way or another before he goes into court, he has to know exactly what he is charged with.
Before a person is convicted, the judge has to direct the jury that it must be satisfied beyond all reasonable doubt that the accused is guilty as charged. One cannot leave this matter in a state of limbo and say, "Oh, it is all a very extraordinary situation and we have to make this concession and that concession, or this or that alteration to procedure". Certain alterations may be made, but never the fundamental derogation from the right of an accused to know what he is being charged with and convicted of.
My next point, or the effect of it, is referred to in the amendment—that the Crown should have to elect whether to charge the accused with murder or with a lesser offence under Clause 4. You should not have both offences on the same indictment. The same consideration applies to a charge of manslaughter. If the accused is charged with murder, the jury may, of course, if properly directed, convict him of manslaughter. The effective election here would be between murder and the offence under Clause 4. If the Crown has any doubts about what to charge the accused with, or whether to charge him with murder, it should not charge him with murder. If there were such doubts, the charge under Clause 4 should be laid. That would have been the case in the old days certainly if there had been a Clause 4 offence then. Regarding the circumstances set out in the depositions, one will have to elect which offence to charge the accused with. That form of direction is still available to be given by trial judges today and is often dealt with on pre-trial hearings.
Those are the reasons that I give in support of the amendment. In those circumstances I wish merely to treat it, as I say, as a paving amendment pending resolution of Amendment No. 26. I beg to move.
Baroness Scotland of Asthal: My Lords, I very much appreciate the way in which the noble Lord expressed those comments. They very much form part of the whole debate that we shall have on Clause 5. I believe that I made clear in Committee why we believed strongly that Clause 5 was merited. Noble Lords will know that the assent of the Joint Committee on Human Rights in relation to these provisions seems to
1174
be supportive. I shall seek to address those issues when I reply to the main debate that we shall have in a very short time. I hope that the noble Lord will be content with that way of dealing with things.
Lord Campbell of Alloway: My Lords, I am very content. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 19 not meted.]
The Deputy Speaker (Lord Carter): My Lords, before I call Amendment No. 20, I should inform the House that if it is agreed to. I cannot call Amendments Nos. 22 and 23 on the ground of pre-emption.
Clause 5 [Evidence and procedure]:
6.30 p.m.
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 20:
Page 3, line 35, leave out subsection (1).
The noble Lord said: My Lords, we come to the monstrous clause. I speak to Amendment No. 20. Grouped with it is government Amendment No. 21, which is an attempt to improve the wording of Clause 5. Amendments Nos. 22 to 25 in the name of the noble Baroness, Lady Anelay, are also an attempt to improve the wording of the clause as it stands. Amendment No. 26 seeks to leave out the whole of the clause. That amendment of the noble Baroness, Lady Anelay" is supported by the noble Lord, Lord Campbell of Alloway, the noble and learned Lord, Lord Donaldson of Lymington, and myself, and we have added our names to it.
We on these Benches support the need for a new offence as set out in Clause 4. There are very rare circumstances—but they do occur—where within a household it is impossible to say who has been responsible for the death of a child or another victim. In such circumstances where all parties in the household remain silent, it is very difficult to prove who is responsible for the death. Murder cases have therefore failed, so we support the need for an offence, as set out, of causing or allowing the death of a child or a vulnerable adult. However, we disagree with some of the wording and have tried to improve it. No doubt we shall return to that task.
Clause 5 is an entirely separate and different matter. The title—"Evidence and procedure"—is a misnomer, to start with. It does not deal with evidence and procedure specifically related to Clause 4—in other words, on how Clause 4 is to be proved and what procedures are to be adopted. Actually, it extends Clause 4 to murder and manslaughter. As I said in Committee, it seeks to create a new form of murder or manslaughter to be proved by different rules and under different procedures. I should like to develop my theme from Committee that, in Clause 5, the Government have simply extracted the solution that the Law Commission put forward in its draft Bill to deal with the problem of silence within the household. However, that was only for the scheme of that Bill and not in any wider context.
Adverse inferences of guilt may be drawn from silence in an ordinary case where the defendant has no answer to the prosecution's case that has been made against him—the noble Lord, Lord Campbell of Alloway, made the point a short time ago—or that will stand up to examination when he is interrogated by the police or cross-examined at trial. If he says nothing to the police or at trial, providing that a case is made against him it is possible for the jury to draw the inference that he cannot answer that case. It can then draw the further inference that, as he has not chosen to answer the case, he is guilty of the offence.
The problem that arises in the circumstances with which Clause 4 is concerned arises because there may be no case against a defendant at all. As I pointed out, it may be impossible to say whether one or the other of two partners in the household is guilty or responsible for the death of a child. In my experience and as a matter of common sense, silence can derive not simply from guilt, but from a sense of loyalty or love and affection between partners in the household. Alternately, it can arise from intimidation. We referred to all those matters earlier.
The Law Commission was concerned to work out a way in which silence could be used to establish guilt, even though there was no other case against an individual, so that it could be compatible with Article 6 of the European convention and the concepts of the fair trial. If noble Lords will forgive me, I think it helpful to go to the Law Commission's report to indicate how it drew narrowly the circumstances that, under its scheme, would give rise to a proper inference of guilt. At paragraph 5.52, it stated:
"If the defendant chooses not to give evidence, the questions are whether it could be fair for the jury to draw an adverse inference from his or her failure to do so and whether a jury could be relied upon to approach the matter fairly".
That second limb is important, because the death of a child is a highly emotive affair. One is constantly concerned to deal with the prejudice that simply arises from the photographs, the facts and the pathologist's report, which may apply to a baby or a small child.
The Law Commission went on:
"As to the fairness of permitting the jury to draw an inference, the hurdles which the prosecution must surmount before the scheme—
its scheme—
"applies are onerous. They must establish that a crime has been committed, that the defendant from whose silence at trial an adverse inference may be drawn is a person with responsibility for the child and that they can narrow the field of suspects to a known group of individuals. In many cases this will involve narrowing it down to one or both of two.
"We have noted above that the court sill, no doubt, wish carefully to consider whether the evidence which narrows the field places the defendant so close to the offence that it is proper for an inference to be drawn and, if so, whether a jury could properly convict. We reject the contention that the court will permit this to occur almost routinely … We consider that a person who is close to the commission of the offence and is responsible for the child. could be expected to give an explanation for their involvement or non involvement such that its absence may constitute an 'eloquent silence' from which in the absence of any plausible innocent explanation an adverse inference could properly be drawn".
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Whereas in the ordinary case guilt may be inferred because a person cannot answer the case on interrogation or at trial, in the circumstances of the offence that the Law Commission was concerned to develop the inference could be drawn in the absence of a plausible innocent explanation from a person who is close to the offence and responsible for the child. It is in those very narrow circumstances that the Law Commission put forward the proposal in its scheme.
Clause 5 seeks to extend a mechanism that was devised for a particular scheme, where persons were designated as responsible and were close to the offence, to ordinary murder and manslaughter charges. Clause 5 means that a person may be convicted of murder or manslaughter simply from his silence. There is no justification whatever for attempting to convict a person of murder or manslaughter by drawing inferences in one type of case that could not be drawn in all the other types of murder or manslaughter that arise in the courts.
Proposed new subsection (2) in government Amendment No. 21 states:
"Where … a court or jury is permitted, in relation to the section 4 offence, to draw such inferences as appear proper from the defendant's failure to give evidence or refusal to answer a question, the court or jury may also draw such inferences in determining whether he is guilty".
The inferences that may appear proper in relation to a Clause 4 offence are not necessarily proper inferences in relation to murder and manslaughter. They arise in a different way. As I said, they arise from the closeness of the offence and the responsibility of the individual.
We were all grateful to the noble Baroness when she explained that the use of "ought" in Clause 4, which we criticised, indicated that a person who had knowledge of the history of abuse that may have taken place was a person who ought to know the risk and ought to foresee the circumstances in which harm happened to the victim. That was a very important concession, and we will be considering it very carefully in relation to whether to pursue the criticisms that we made earlier. That type of inference may be acceptable within this very limited and specific type of offence. What is so objectionable about Clause 5 is not even that its terms confine a charge of murder or manslaughter to the particular offence or death, but that, in the wording of the Clause, all one has to do in a murder or manslaughter case is to add a section 4 offence and then convict a person simply as a result of his silence.
In Amendment No. 20 I have simply excluded subsection ( I ), but I am fully behind the noble Baroness, Lady Anelay, in her Amendment No. 26 to leave out the whole of that clause. We hope that the Government will consider the matter further. I beg to move.
Baroness Anelay of St Johns: My Lords. I rise to support the noble Lord, Lord Thomas of Gresford, in his Amendment No. 20, to which I have added my name. Grouped with it is my Amendment No. 23, which is intended to have the same effect—different drafting but the same result. Also in the group is my Amendment No. 25, to which I shall refer only briefly, because government Amendment No. 21 tries to

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resolve the mischief that I have raised with Amendment No. 25. So, I shall leave that issue to be covered by the Minister when she speaks to her Amendment No. 25.
I entirely agree with all of the arguments used by the noble Lord, Lord Thomas of Gresford, so noble Lords will be grateful that I shall not repeat them. One could either say that there is a need to tidy up the drafting of the clause or that the clause is beyond redemption. My amendments try to take both of those approaches, on the basis that I want to test how the clause might be improved so that it is acceptable, while saying that I have not yet been convinced by any arguments that the clause could be acceptable.
I note that the Minister and the Government have been in correspondence with the Joint Committee on Human Rights, for whose work I am grateful. They have addressed themselves specifically to the question of whether Clause 5 would give rise to incompatibility with Article 6 of the ECHR. They passed the clause—but they did so in intriguing circumstances. They acknowledged, in paragraph 2.12, that in jury trials,
"it will be impossible to be sure that a conviction is not based wholly or mainly on an inference of guilt drawn from a failure to give evidence, in breach of the right to a fair hearing under ECHR Article 6/".
The committee then says, I am sure to the Government's relief, that there is protection enough in the trial judge not being able to invite a jury to draw an adverse inference unless there is a case to answer for the defendant on a charge of causing or allowing the death to occur.
My problem is that I then find myself wholly behind the arguments put by the noble Lord, Lord Thomas of Gresford, and say that that is no answer to the problem, the mischief, in Clause 5, because it would still do damage to those people who should not be charged under Clauses 4 or 5. So Clause 5 is unnecessary in trying properly to solve the evil of people escaping punishment for causing a death. There is a mischief in it that the House should not be tempted to accept, and we should be in a position to amend Clause 4 to provide a sufficient solution to the problem.
I am still in listening mode, because I do not wish to excise from the Bill any provision that might be necessary if there was no other course for solving the problem of the killing of children and vulnerable adults. But if the clause is broader and more improper than is acceptable, and if it could be applied more extensively in future, it would breach a principle to which so far we have held regarding inferences drawn from silence—and I would be very concerned. There is still time for the Government to give their arguments, but they have a steep mountain to climb.
6.45 p.m.
Lord Renton: My Lords, I rise only in the hope of trying to shorten the proceedings, because it is agreed by both sides that subsections (1) to (3) of Clause 5 should be left out. The only question that arises is whether Amendment No. 21, moved by noble Baroness, Lady Scotland, to replace subsections (1) to
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(3) is acceptable. My noble friend Lady Anelay and the noble Lord, Lord Thomas of Gresford, have already suggested some reasons why we should not accept all of the new subsections (1) to (3) moved by the Minister. I do not wish to take up further time, I simply point out that our task is quite simple.
Baroness Anelay of St Johns: My Lords, I assure my noble friend that I am always happy to try to shorten proceedings, but I ask, with regret, whether he agrees that the Government's amendment is not satisfactory—because at the end of their new subsection (2) there is still reference to an inference being drawn from silence, even when there would otherwise be no case for him to answer. I hope my noble friend will not think that I am trying to extend proceedings when he is trying so valiantly to shorten them. My initial reservations about the clause remain.
Lord Donaldson of Lymington: My Lords, I shall try to clear the undergrowth. I do not believe that it really matters whether the issue is contrary to ECHR. It is contrary to all the precedents of English criminal law. That is what matters, because it would be a great mistake if we were to turn the Human Rights Act upside down by saying that anything that is not prohibited by the convention is acceptable—it was never drafted from that point of view.
I am quite happy to address, for our purposes, the Minister's Amendment No. 21. Subsection (2) says:
"Where by virtue of section 35(3) of the Criminal Justice and Public Order Act 1994 (c.33) a court or jury is permitted, in relation to the section 4 offence"—
that is, the offence of responsibility—
"to draw such inferences as appear proper from the defendant's failure to give evidence or refusal to answer a question, the court or jury may also draw such inferences in determining whether he is guilty … of murder or manslaughter … or any other offence".
It probably could draw an inference of manslaughter. One can think of plenty of circumstances in which one cannot pinpoint for certain—or with sufficient certainty—whether murder/manslaughter, or merely neglect or failure to protect, which is the second limb, is involved. That involves the offence of responsibility. The prosecution's evidence could well be such as to entitle the jury at that stage in the absence of any explanation to draw an inference of manslaughter. There would be much more difficulty in drawing an inference of murder. But manslaughter—gross negligence leading to the death—seems to be a perfectly intelligible proposition.
However, the amendment then goes on to provide:
"even if there would otherwise be no case for him to answer in relation to that offence".
If apart from this clause there would be no case to answer, what on earth are we playing at? It is a monstrous clause. At one stage I thought that the noble and learned Lord the Attorney-General had come in to tell the Minister that she could not go on with it, but my hopes were dashed by his disappearance.
Baroness Whitaker: My Lords, I apologise for not being able to be in Grand Committee. However, as the

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proposer of the original amendment with my noble friend Lady Gould, who I am happy to see in her place, I want to support Amendment No. 21, but not as a lawyer. We put forward the first cockshy amendment so that, as the noble Baroness, Lady Anelay, said, a child's killer should not escape justice. We were aware that this was innovative law, but we had the basis of the Law Commission proposals to give us confidence.
Reservations were rightly aired and the Government have met them. They have satisfied the Joint Committee on Human Rights that Clause 5 is not incompatible with the Human Rights Act or the European Convention on Human Rights. The noble Lord, Lord Campbell of Alloway, is a member of that Joint Committee.
I am relieved that the Government have put forward a provision which makes it possible to convict the killers of children. It puts right a long-lasting injustice against the most vulnerable members of our society. If we lose Clause 5, we have lost all that.
Lord Carlisle of Bucklow: My Lords, we had a long debate on this matter in Grand Committee. I have done my best to read what was then said, in particular what the Minister said in reply. I realise the difficulty that exists. If one chooses to try murder, together with an offence under Clause 4, it is arguable that Clause 5 is inevitably required, as the Minister has argued.
However, as the noble and learned Lord, Lord Donaldson, said, Clause 5 is contrary to any other provision of that nature in the criminal law of this country. The real question is: are we not asking this Bill to do too much? We began with the agreed intention of evading the present situation in which a child can be killed and because it is impossible to say which of two people committed the offence both walk totally free of any offence.
Clause 4 tries to deal with that situation by saying that the child is dead and one of two people may either have caused the death or been responsible in the way set out there. It goes on to say that rather than both of them walking free at the halfway stage, and although the prosecution has been unable to prove which of them committed the murder, both are guilty—if there is evidence against both—in the death of that child.
If that is so—if Clause 4 is aiming to create a new offence—tried alone there becomes no need for Clause 5 and the normal rules of law, of submissions at the halfway stage and of inference drawn by silence can relate, provided that there is no attempt to join together the offence of Clause 4 with the offence of Clause 5.
I know that I am putting the case badly, but ultimately we must return to the basic issue of what we are trying to do. If we are trying to show that although we cannot prove which of the two people committed the murder, they should not both be able to walk completely free and the court should have power to convict them of the new offence of responsibility, with a maximum sentence of 14 years, that is one thing. But if we go further and say that although the prosecution
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cannot say which of the two committed the murder, it will ask the jury to say who did it, we will get into all the problems created by Clause 5 and the need to change the general law of this country in the way proposed.
I ask the Minister to consider whether we need Clause 5. Should we not accept that the purpose of the Bill is to create the new offence of responsibility for the death either because the person caused the act or for the other reasons set out in Clause 4? We should go no further and should not attempt to say that by means of changing the rules of procedure the prosecution is trying to get a verdict of murder when it is not in a position to say which of the two people committed the murder.
Lord Borrie: My Lords, I agree entirely with what the noble Lord, Lord Carlisle of Bucklow, has said, particularly in emphasising that the most important provision in this part of the Bill is Clause 4 and the way in which the indivisible offence—as the noble and learned Lord, Lord Donaldson, called it—is set out there. It has the possibilities and deterrent value that we discussed at length in Grand Committee and on Report.
However, the noble and learned Lord stopped short of one matter. Let us suppose that in the course of the case and in the course of any proper inferences that may be drawn from failure to answer questions, it appears that, and it is proper to put to the jury that, one of the adults concerned may be guilty of murder or manslaughter. Although guilt and a conviction under Clause 4 is a serious offence and a substantial maximum punishment is therefore attached to it, it is none the less not quite the same as a conviction for murder. I therefore felt that what the noble and learned Lord said was missing something; namely, that if someone is sufficiently culpable to be labelled a murderer, that possibility should in certain limited circumstances be available. That is what Clause 5 provides.
7 p.m.
Baroness Scotland of Asthal: My Lords, a number of important questions have been posed and, clearly, they need to be answered. The noble Lord, Lord Carlisle, asked whether we need Clause 5 and will not Clause 4 suffice to cure the mischief which we have all identified and which we all agree needs to be cured. To the first part of his question, I have to give an unequivocal "yes", and I am afraid that I shall take some time in explaining the reason.
I accept that the noble Baroness, Lady Anelay, says that the provision presents an uphill struggle and that she wishes to hear fully the Government's argument for it. I hope that I may even be able to persuade the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Donaldson, that Clause 5 is not the monstrosity that they fear it to be.
My noble friends Lord Borrie and Lady Whitaker put their finger on the issue. We must all decide whether we consider it right and proper to allow

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people to get away with murder, because that is precisely what we are talking about. We are not talking in terms of a colloquial saying but in terms of fact. The truth is that, after proving the case to the halfway point—the prosecution on a Clause 4 offence—it is possible that each of the defendants will choose to give evidence at that stage. They may give evidence one against the other and, by their evidence, there may be clear information upon which the jury, properly directed, can rely in order to find either or both of them not simply responsible for the Clause 4 offence but responsible for, culpable in law and properly culpable of, murder. The question with which we must grapple is: are we content that they should avoid such a charge if such a charge is proper?
Before going into the detail, as I shall have to do in order to satisfy noble Lords, I also remind your Lordships that it would still be possible at the end of the hearing of the evidence for the judge, if he or she believed it to be right, to withdraw from the jury the options of the offence of murder or manslaughter if there were no evidence upon which the jury, properly directed, could safely rely in coming to a decision on guilt or innocence. We are not expunging that from the framework.
Therefore, the spectre that noble Lords must consider is: are they content with the scenario that I have described—that is, that of the parties going into the box and giving cogent evidence which demonstrates the guilt of one or either of them in relation to murder? Are they content that the only offence for which the parties will be held responsible will be that of Clause 4? Our answer is that that would not be just or proper and it is not what we set out on this journey to deliver.
I have listened with interest to the debate. Amendment No. 20 in the names of the noble Lords, Lord Thomas of Gresford and Lord McNally, and the noble Baroness, Lady Anelay of St Johns, would, with others that have been tabled, fundamentally dilute our proposals, and I have to tell your Lordships that I cannot accept them. Our scheme aims to stop those who kill children and vulnerable adults in a domestic setting from escaping justice as they are currently able to do. That is something upon which we all agree.
With leave, I shall speak also to my Amendment No. 21. This amendment meets some of the concerns which noble Lords raised and which, I expect, other amendments that have been tabled seek to address. Where my amendment achieves what I believe to be the same aim as another, I shall endeavour to draw noble Lords' attention to that fact. I also want to acknowledge the sense of discomfort echoed by both the noble and learned Lord, Lord Donaldson, and the noble Lord, Lord Thomas of Gresford, about changing a system to which we are accustomed. We are all more comfortable with things with which we are familiar.
I begin the detail of my response by explaining why I tabled this amendment, which is intended to replace subsections (1) to (3) of Clause 5 as they currently appear in the Bill. As I shall explain in more detail in due course, this amendment contains an important
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change, which I hope will meet some of the concerns expressed by noble Lords when we last met to debate these measures. We have taken this opportunity to clarify and simplify the drafting of the clause as a whole.
The new offence will help to ensure that more people who have caused or allowed the death of a child or vulnerable adult are brought to justice. But we also hope that it will help to solve the "which of you did it?" cases. We believe that that can be achieved only by the new offence under Clause 4 and the procedural measures included in Clause 5 working together.
Where charges on counts of murder or manslaughter properly reflect the culpability of the defendants in cases where a child or vulnerable adult has been unlawfully killed, we believe that we should aim to pursue them in order to ensure that justice is truly done. I sincerely believe that we cannot do so without the scheme that we are proposing.
We have linked our procedural measures closely to the circumstances of our proposed new offence. This we believe, produces a coherent and effective package of measures targeted at the core cases of familial homicide. The aim is to allow more charges of murder or manslaughter to be safely left to the jury in these difficult cases. It is both desirable and necessary to pursue that aim
In its fourth report of this Session, the Joint Committee on Human Rights noted that a failure to take the steps necessary to identify those responsible for causing death might,
"violate the rights of the victim and his or her close relations'',
under Article 2 of the ECHR, which, as noble Lords will know, sets out the right not to be intentionally deprived of life,
"by making it systematically impossible to carry out an inquiry into the death which will establish the cause of death and allow the guilty party to be punished".
The noble Lord, Lord Thomas of Gresford, raised various points about the new procedures and the duty of the state to ensure that the child's death can be fully investigated under Articles 2 and 3 of the ECHR. In that context, it is important that we remember what the Law Commission argued. It stated that the fact that new rules of procedure have been proposed in order to remove a present obstacle for the proper conviction of the guilty must be a legitimate matter for the legislature to consider if the procedure adopted can result in a fair trial.
When we last met to debate these measures, some noble Lords expressed concern that we were making major changes to fundamental principles underpinning criminal trials. This evening, the noble and learned Lord, Lord Donaldson, said, "Well, it's all very well to satisfy the ECHR, but what about our common law? I am not going to besmirch that by simply satisfying other criteria". My answer to that is that we are not besmirching it but are asking for changes to do what the common law has always done. The common law has always sought to give justice to the people of this country, and that is a tradition of which we are all rightly and properly proud.

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Change often prompts an outcry. In 1967, the late Lord Jenkins of Hillhead—then Home Secretary—put forward a proposal to allow majority jury verdicts. That was roundly condemned as an unacceptable incursion into civil liberties which would lead to gross injustice. There is no evidence that that has happened. A similar reaction greeted the proposal of another distinguished former Home Secretary, the noble Lord, Lord Hurd of Westwell, to put an end to the right of pre-emptory challenge to jurors. Again, the claim that that change would undermine the criminal justice system and result in a serious reduction in liberty has not, subsequently, proved true. I remember it well—it was almost said by the criminal Bar at that time that it would be the end of the world as we knew it, but not much has changed.
For the reasons I have set out, we are proposing significant changes to proceedings. We believe that these particular crimes demand it. But the fundamental principles of hearings being fair, defendants having a proper opportunity to have matters tried against them and being presumed innocent until proven guilty remain totally undisturbed.
In its fourth report of this Session the Joint Committee on Human Rights concluded that with regard to the right to a fair hearing and to being presumed innocent until proven guilty, Clause 5 is sufficiently limited to be unlikely to give rise to an incompatibility. Although I had every confidence that it would, nevertheless I confess to your Lordships that I was delighted that the Joint Committee endorsed our view, which is based on the conclusions reached by the Law Commission.
I turn to the detail of the amendment, including the important changes we have made, and illustrate how we intend the evidential and procedural measures included in Clause 5 to work. As my noble and learned friend Lord Goldsmith has returned to his place, I should assure the noble and learned Lord, Lord Donaldson, that he does so in support, not in censure.
Clause 5 contains, in short, two procedural measures. The first would enable the jury, in considering its verdict on a count of murder or manslaughter, to draw such inferences of guilt as appear proper from the failure of the defendant to give evidence or to answer any question without good cause, even if the prosecution has not led evidence which would suffice to found a conviction if no inference is drawn. This measure is limited by the requirement that for such an inference of guilt to be drawn in relation to the charge of murder or manslaughter, the provisions of Section 35 of the Criminal Justice and Public Order Act 1994 must permit such inferences to be drawn in respect of the Clause 4 offence.
The second measure would postpone determination of a submission of no case to answer until after all the evidence on behalf of the prosecution and all the defendants has been given. I emphasise that the opportunity to make such a submission is postponed, not expunged.
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Our proposed new subsection (1) will make it explicitly clear that the procedural measures included in the clause apply to the trial of a defendant on a count of murder or manslaughter only when the defendant himself or herself is also charged in the same proceedings with the new offence. The amendment narrows slightly the range of individuals that are caught by the scheme as currently drafted. We are talking about only those people who are in the closed household who really should give an explanation for what happened.
Where a defendant remains silent in circumstances that clearly call for an explanation from him or her, we believe that the jury should be able to draw an adverse inference from the defendant's silence where it is proper to do so. I emphasise the words "proper to do so". That is why we have linked the drawing of an adverse inference on the charge of murder or manslaughter to the circumstances of the new offence.
For the inference provision in Clause 5 to apply, the prosecution must already have established that there is a case to answer on the Clause 4 offence; that is to say, the prosecution will have adduced evidence that a crime has been committed and that the death of the child or vulnerable person was not accidental and that the death was caused by a member of the victim's household who had frequent contact with the victim.
A noble Lord: Or by the defendant.
7.15 p.m.
Baroness Scotland of Asthal: The noble Lord says, "or by the defendant". The prosecution will also have produced evidence showing that the defendant was such a member of the household and evidence to show that the defendant either caused the death of the victim or was aware of a serious risk to the victim and had failed to take reasonable steps to prevent the death. We believe that that situation so clearly calls for an explanation that it is fair to draw an adverse inference on both the new offence and an accompanying charge of murder or manslaughter if the defendant fails, without good cause, to provide any explanation.
Because we believe that subsection (1) makes the position explicitly clear, we do not think that Amendment No. 22 tabled in the name of the noble Baroness, Lady Anelay of St Johns, would add anything to it. I can assure the noble Baroness that the Bill already provides for what she seeks through that amendment.
We have also decided that the postponement of the decision on a submission of no case to answer should also be linked to the circumstances of the new Clause 4 offence being made out, not just in relation to any of the defendants in the proceedings (as was our position previously) but in relation to the defendant himself or herself. That will mean that those who are charged only with murder or manslaughter and against whom the prosecution cannot establish a case to answer in its own time will be acquitted at that stage. So, where someone cannot come within Clause 4, is not part of the same household, and cannot therefore

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be caught by the new responsibility to give an explanation, that person will not be in a position where one could postpone "no case to answer". In effect, they would be allowed to leave the proceedings even if subsequently on giving evidence on Clause 4 matters further or other evidence indicated that they may have a level of culpability.
We have listened very carefully to the concerns raised on that point by the noble and learned Lord, Lord Donaldson, and, indeed, by the noble Lord, Lord Thomas of Gresford. We wrestled with whether or not this should be changed and have come to the conclusion that it should. This would achieve what we believe is being sought in another way by Amendment No. 25 tabled by the noble Baroness, Lady Anelay, the noble Viscount, Lord Bridgeman, and the noble Lord, Lord Campbell of Alloway.
The detail of the procedural measures is set out in Amendment No. 21 in a revised form in subsections (2) to (3A). However, I can assure noble Lords that the changes come with very clear and effective safeguards to ensure that hearings remain fair. Where counts of both murder or manslaughter and counts under Clause 4 appear on the indictment together, subsection (3) prevents the charge of murder or manslaughter proceeding to trial where the charge under Clause 4 has been dismissed. That is necessary because in our scheme, to tackle the problem of "Which of you did it?", the case against the accused on the charge of murder is founded upon there being evidence of a Clause 4 offence calling for an explanation. Similarly, at half-time—
Lord Donaldson of Lymington: My Lords, I thank the noble Baroness for giving way. She has twice said that if the prosecution makes good the various criteria in Clause 4, it calls for an explanation. Surely, that is not right. If you do not give an explanation you may well be found guilty of responsibility, but it certainly does not call for an explanation in that sense. That is the difference between that and what the Law Commission had in mind.
Baroness Scotland of Asthal: My Lords, with respect, I do not agree with the noble and learned Lord and have tried to make clear why that is. We have some very powerful circumstances. We have a situation where there is a dead child; evidence that that was an unlawful killing; there is evidence that the child died as a result of something done by someone in the household in which that child lived, and further, evidence that each of the defendants were members of that household. I respectfully suggest that that calls for an explanation.
Lord Carlisle of Bucklow: My Lords, in fact the ingredient of the offence under Clause 4, which every one agrees should be part of the Bill, is the responsibility or the child's death either by causing the murder or on the terms set out. What the Minister is really saying is that, while we can prove that, if the person is charged only with murder he goes completely free although he would have been responsible for an
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offence under Clause 4. Is she not attempting to use Clause 4 merely as a second charge to a charge of murder—which she accepts she cannot prove, because if it was brought on its own the person would be acquitted—so as to get from the jury a verdict of murder which the prosecution does not have the evidence to prove?
Baroness Scotland of Asthal: My Lords, what we are saying is that the prosecution prove a Clause 4 offence which calls for an explanation. At that stage, in order for the defendants to differentiate between their participation, if any, it may well he that they will choose to give evidence at that point, and further and other evidence will be led or may be led. Until the close of the defence case it will be impossible to make an assessment of whether there is sufficient safe and satisfactory evidence on the charge of murder or manslaughter to leave that issue to the jury. At the end of the case for the defence it may be that it would be absolutely proper at that stage for an application to be made of no case to answer in relation to the murder or manslaughter because counsel would argue that no further evidence had been led and that the inference sought to be drawn was insufficient on its own to justify the murder or manslaughter.
At that stage it would be for the judge to determine whether the inference for all those reasons—with all the safeguards I have already outlined in some detail—could be properly left to the jury. If he does consider that it is proper to leave the matter to the jury the jury would then be entitled to make a determination.
I am saying that similarly at half-time proposed new subsection (3A) in Clause 5 would make the trial judge duty hound to direct the jury to acquit the defendants of murder or manslaughter, should be decide that in relation to the Clause 4 offence there was no case to answer and direct an acquittal on that charge. Proposed new subsection (2) allows inferences from silence to be drawn in circumstances which. hitherto, have not been possible. However, Section 38(3) of the Criminal Justice and Public Order Act 1994 will still apply in these cases. That means that if there is any possibility that an adverse inference may form the sole basis for a conviction of the defendant, the judge could not safely leave the charge of murder to the jury.
Under our scheme the prosecution would have had to establish a case to answer in relation to the charge of causing or allowing the death of the child contrary to Clause 4 before the inference from silence could be used to help to establish a case to answer in respect of the charge of murder. As the Joint Committee on Human Rights states in its report, and we agree:
"In this important respect, there is a protection against conviction of murder or manslaughter wholly or mainly on the basis of an inference from silence … the trial judge will not be able to invite a jury to draw an adverse inference unless there is a case for the defendant to answer on a charge of causing or allowing the death to occur, and that is a suspicious circumstance which, taken together with the other safeguards attaching to inferences from silence, should be sufficient, in our view, to rein in any tendency a jury may have to draw an inappropriate inference from silence in relation to the charge of murder or manslaughter".
We unreservedly agree.

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Proposed new subsection (2) also extends the provision to draw adverse inferences to cover those occasions where the jury decides upon an alternative verdict to murder. This brings the provision to draw an inference by virtue of this clause into line with the provisions on inferences under Section 35 of the Criminal Justice and Public Order Act 1994.
Without the measure included in Clause 5, cases will fall at half-time and the killer of vulnerable people will escape. We believe that that would not be true justice. I would therefore ask noble Lords not to press their amendments and to support our Amendment No. 21.
Lord Thomas of Gresford:My Lords, I am most grateful to all noble Lords who have spoken in this very important debate. I am grateful to the Minister for her explanation and for the attempted rewrite of this clause.
Perhaps I may take up a point made by the noble Baroness, Lady Whitaker. She said that she supports a measure that will make it easier to convict a child killer. I am paraphrasing, but she used words to that effect. Certainly this measure will make it easier to convict a defendant. But is that defendant a child killer? That is the whole issue.
The prosecution under these provisions has no case against the defendant. The jury cannot convict on the evidence but only on the silence of the defendant. It is easier to convict the defendant—that is the whole point of our objection—but it does not mean that the defendant is the person, the one of two or three members of the household, who is charged with an offence under Clause 4.
I entirely accept what the noble Lord, Lord Carlisle of Bucklow, said about this Clause 5. It is doing too much. There is a problem to be resolved. Clause 4 does it—perhaps not ideally in the way that it is phrased—in dealing with the situation that arises.
The noble Lord, Lord Borrie, was supportive of everything said by the noble Lord, Lord Carlisle, but he posed the situation where a cut-throat defence occurs towards the end of a case. It emerges in the cutthroat defence that one party blames the other. He is informed by his counsel, "If you are silent the jury may draw an adverse inference". What is more likely than that to induce one party to blame another? The jury believes one as opposed to the other party, or the other party remains silent. Why should a murder conviction not follow?
That is an argument for my Amendment No. 20, which would leave out subsection (1) of Clause 5. It is an argument to maintain the position set out by the noble Baroness, Lady Scotland, in proposed new subsection (3A) in Amendment No. 21; that is, leaving the question whether there is a case to answer to the end of all the evidence. If during the defence case, induced by all sorts of pressures put upon him, one defendant starts blaming the other, then of course there is a case to answer.
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That position, which I can understand, is not addressed at all by proposed new subsection (2) of Amendment No. 21. It is not concerned with where a cut-throat defence arises and where one defendant blames another defendant. Proposed new subsection (2)—that to which we have objected and have objected from the very beginning—deals with convictions based on silence, not on cut-throat defences.
There would be a case for a person to answer if one defendant gave evidence against another defendant. Therefore, proposed new subsection (2) has nothing to do with the situation postulated by the noble Lord, Lord Borrie, and adopted or perhaps expanded upon by the Minister in her later reply. Subsection (2), under which a person can be convicted of murder and manslaughter even when there is no case against him or her, simply because he or she does not give evidence, is objectionable at common law, as the noble and learned Lord, Lord Donaldson, said, and under the convention. Nothing that the Minister has said in her reply or in her redrafting of the clause deals with that fundamental point.
Baroness Scotland of Asthal: My Lords, I do not want to stop the noble Lord in his flow, but I think that he says that proposed subsection (2) refers only to silence. I invite his attention to the third and fourth lines, which state that a court or jury is permitted,
"to draw such inferences as appear proper from the defendant's failure to give evidence or refusal to answer a question".
Lord Thomas of Gresford: My Lords, if the defendant refuses to answer a question, he is silent. I do not understand the Minister's intervention.
Baroness Scotland of Asthal: My Lords, the defendant may give evidence; he may then choose not to answer certain questions when giving evidence, and one would be entitled to draw an inference from his refusal to answer those questions.
Lord Thomas of Gresford: My Lords, it still amounts to convicting him because he has failed to answer the question; he has remained silent in response to a question that has been put to him in the course of the trial. That is the basic, fundamental point. If there is no case to answer on murder or manslaughter under subsection (2), the defendant may be convicted because of his silence. That is fundamentally opposed to principle; nothing that the Minister has said can alter that.
I do not propose to press Amendment No. 20 at this stage. I hope that we will have further discussion. The noble Baroness can be assured that we accept Clause 4, but Clause 5 goes too far. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Speaker (Lord Haskel): My Lords, I must tell noble Lords that if Amendment No. 21 is agreed, I cannot call Amendments Nos. 22 to 25.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 21:
Page 3, line 35, leave out subsections (1) to (3) and insert—
"(1) Subsections (2) to (3A) apply where a person ("the defendant") is charged in the same proceedings with an offence of murder or manslaughter and with an offence under section 4 in respect of the same death (-the section 4 offence").
(2) Where by virtue of section 35(3) of the Criminal Justice and Public Order Act 1994 (c. 33) a court or jury is permitted, in relation to the section 4 offence, to draw such inferences as appear proper from the defendant's failure to give evidence or refusal to answer a question, the court or jury may also draw such inferences in determining whether he is guilty—

(a) of murder or manslaughter, or

(b) of any other offence of which he could lawfully be convicted on the charge of murder or manslaughter, even if there would otherwise be no case for him to answer in relation to that offence.

(3) The charge of murder or manslaughter is not to be dismissed under paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998 (c. 37) (unless the section 4 offence is dismissed).
(3A) At the defendant's trial the question whether there is a case for the defendant to answer on the charge of murder or manslaughter is not to be considered before the close of all the evidence (or, if at some earlier time he ceases to be charged with the section 4 offence, before that earlier time)."
On Question, amendment agreed to.
[Amendments Nos. 22 to 26 not moved.]
Lord Davies of Oldham: My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion I suggest that the Report stage begin again not before 8.34 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Women
7.33 p.m.
Baroness Gould of Potternewton Baroness Gould of Potternewton rose to ask Her Majesty's Government what progress has been made on the status of women in the United Kingdom.
The noble Baroness said: My Lords, I am pleased that, once again, we have the opportunity to have a debate on the status of women to coincide with International Women's Day. Last year, we had a wide-ranging debate covering many aspects of women's role and participation in society, and I am sure that we will again today. I thank all noble Baronesses—all the speakers are noble Baronesses—for coming to speak tonight, although I would have appreciated some views from our male colleagues and perhaps a little more participation from the opposition Benches. I thank, in particular, the Minister, who is foregoing her dinner break in order to reply to this debate, having spent many hours on the Domestic Violence, Crime and Victims Bill.
I wish to concentrate my remarks on the practical issues of employment, pay, pensions and access to services. Before doing so, I shall refer to two achievements over the past year, both designed to improve the lives of women and girls. The first is the
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enactment of the Female Genital Mutilation Act 2003, which took effect last week, on 3 March, and which we hope will reduce the misery and pain of many young girls under threat of FGM. The second is the Domestic Violence, Crime and Victims Bill, which is now, I hope, in its final stages, and steered so effectively by my noble friend the Minister. Again, it is a Bill to protect against the threat and fear of violence. However, I have one concern: research shows that one in five men and one in 10 women believe that violence towards a partner is acceptable in some situations. Such perceptions must be challenged and changed, so I ask my noble friend what actions are planned to do just that?
Over the past year we have also seen the biggest review of our equality institutions and an announcement of the new Commission for Equality and Human Rights to tackle discrimination and to promote equality and diversity. I await with interest the White Paper, which is due out at any time now, on the detail of how the commission will function. However, at present, one essential element is missing. Throughout the many meetings in which I have participated on the establishment of the commission, I have constantly argued for consistent equality legislation across all strands. I appreciate that the Government are taking a strand-by-strand approach, but I would like to hear from my noble friend that, by not applying the same legislative framework to gender as to race and disability, sex discrimination will not be downgraded.
Consistency of legislation is particularly necessary in respect of access to services, in which we recognise that women still have different needs and life experiences from men, and different strategies may be required. I shall cite just two examples. On crime, men's greatest fear is vehicle theft; women's is rape and physical attack. On health requirements, there are considerable gender differences in the access to primary healthcare that needs to be built into mainstream services, performance targets and monitoring strategies. A public sector duty built into legislation would ensure that those differences of need would be met.
The Government recognise the difference, because in their report, a very helpful document, Delivering on Gender Equality, they state:
"The Government needs to tackle inequalities in every area of life. We will only do this successfully if we are honest about gender inequalities where they exist, and then take specific action to tackle them".
The document goes on to acknowledge that women's opportunities are still constrained by their caring responsibilities, the lack of affordable childcare, the scarcity of flexible working options, assumptions about traditional women's work and the continuing unacceptable level of the pay gap, at 18 per cent.
I appreciate that low pay has been improved marginally by the Government's introduction of the minimum wage, but that has not had an effect on part-time workers, where the gap stays stubbornly at 40 per cent, unchanged for 25 years. The reasons for the pay gap are complex and inter-connected. Key factors include differences in skills and training, the length of work experience, part-time working and occupational segregation.
I shall look first at the latter point. The Equal Pay Task Force identified that employment in the UK remains strongly delineated by gender, involving both horizontal and vertical segregation. What do we mean by that? Horizontal segregation concentrates women in low-paid occupations and limits their access to other roles. Vertical segregation is the career barriers to women's individual development, the glass ceiling. That ceiling may have cracked in some cases, but it seems somehow to be made of toughened glass and remains shatterproof. That is not to say that there have not been some improvements. The number of women MPs has risen from 5 per cent to 18 per cent, although it has taken 20 years to achieve that, and almost a quarter of top management positions in the Civil Service are held by women. But only 13 per cent of local authority chief executives are women, even though nearly three quarters of the workforce is made up of women. Women's average representation at the top of business remains at 11 per cent. Last week, the Fawcett Society published its findings on the judiciary and the role of women, which showed that there are only five women out of 43 chief constables, only 31 women out of 138 prison governors, and that only one sixth of chief Crown prosecutors are women. We must not forget the real breakthrough in your Lordships' House, with the appointment of the first woman Law Lord.
Overall, women's progress is still blocked at all levels by prejudice and misconceptions. Horizontal segregation ensures that women are concentrated in the five lowest-paid employment sectors, and 60 per cent of women continue to work in just 10 occupational groups. That is no improvement on the figures that I identified last year. At the same time as there is a serious skill shortage in engineering, science and technology in this county, only 9 per cent go into skilled trades.
There is continuing sex stereotyping in schools, which places young women on a path to lower-paid occupations and the prospect of pay inequality. Some 34 years ago, I had a row with my daughter's physics master, who said, "Science is not for girls". Of course, I had taken sciences myself. That divide, which is created in schools, continues into apprenticeships. Only 4 per cent of girls go into engineering; 21 per cent become computer analysts and programmers and, surprisingly, 14 per cent become primary or nursery teachers. There is an urgent need for improved advice to girls on non-traditional career choices by careers advisers, teachers, employers and directly by the Government.
Some 43 per cent of women employees work part-time, as opposed to 9 per cent of men. The reasons for the necessity to work part-time could be overcome if more employers were prepared to provide flexible working. The Employment Act 2002 introduced a new duty for employers to consider requests for flexible working, but much of Britain's business is still missing that opportunity, and is still trying somehow to shoehorn workers into outmoded practices. Farsighted employers, using flexible working to meet their own and their employees' needs, understand that
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family-friendly policies will reduce the cost of absenteeism, often resulting from stress-related sickness or from employees taking unauthorised time off for caring responsibilities. A more relaxed atmosphere can also increase motivation, loyalty and productivity. Flexible working must not bring with it the fear of lower pay, less job security and less access to promotion, which is currently too often the case for the 42 per cent of women who work part-time.
Many women could more easily balance work/life responsibilities if they were confident about their security in retirement. Being poor in paid life almost certainly guarantees being poor in retirement, creating a lifetime of income inequality. There is no question that pensioner poverty is a women's problem. The current system is clearly not providing security and comfort for many women in old age. This is a clearly identified discrimination in the present system, and a reform of the national insurance system must be considered for women to be able to have a pension in their own right.
I am conscious of the time, although I do get 10 minutes as opposed to everyone else's three. In the time allowed, I have been able only to skim the surface of the question of women's inequality in training, in the workplace and in pay. It is absolutely clear that a great deal more needs to be done to break down the barriers and remove the burdens that women still face. Only then, when that has been achieved, can we truly celebrate international women's day and say that we have come to the end of a journey started many years ago by the women who began this struggle. I hope that that time will not be too long away.
7.44 p.m.
Baroness Dean of Thornton-le-Fylde: My Lords. I thank my noble friend Lady Gould of Potternewton for initiating this debate, and I express my admiration for the significant ground that she covered in the 10 minutes. It is grace for all of us who have three minutes, because she covered much of what we would have wanted to say.
We have made progress—there is no doubt about that—as the content of my noble friend's contribution to the debate shows. We have a wide agenda, and we have good frameworks in place. We come from a proud history. One of my heroines, Barbara Castle—now deceased, of course—brought in the Sex Discrimination Act 1975. On the Front Bench tonight is a Minister who is equally committed. We all feel proud of that, but it does not come down to women Ministers and the departments looking after women's issues: it comes down to every government department.
I must suggest something constructive that the Government could do with public money in one area. I was chairman of the Housing Corporation. Of the 100 largest housing associations in the country, 13 had women chief executives. Yet, over 50 per cent of their tenants and residents were women. That is not facing up to the issues, and it is that kind of instance that I am talking about. We may have frameworks in place, but we must make them work. Clearly, they are not working across the board at the moment.

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I grew up in an era when we challenged for equal pay and equal opportunity. It is testimony to the progress that we have made that we now talk about a range of issues, of which the Bill that we were considering before this debate is one. We have made progress, but there is still a long way to go. Today, there are many good role models for young women, something that we did not have years ago. We cannot lose sight of the fact that we must ensure that, in schools, the aspirations of young women are continually raised.
Having said that, I must raise one negative point. It is not something that the Minister or the Government can deal with: it relates to the House's Administration Committee. I am ashamed to say that that committee has refused to agree to the erection of a statue dedicated to Sylvia Pankhurst. There is one for her mother and one for her sister. The committee in the House of Commons has agreed, and Westminster City Council has given planning permission. It is being held up by the Administration Committee of this House. Members, myself included, have written letters on the subject and have been told, "No", but I do not think that we will leave the issue there.
7.47 p.m.
Baroness Gale: My Lords, I also thank my noble friend Lady Gould of Potternewton for bringing this important matter before us. I declare an interest in that I represent the Women's National Commission as commissioner for Wales. I shall speak about Welsh women tonight.
One of the joys of having a devolved Assembly is that it has given women a chance to serve in a way that no other Welsh institution has. The first elections to the Welsh Assembly in 1999 saw a record number of women elected. They did even better in 2003. For the first time in any democratic legislature in the world, 50 per cent of the Members elected were women. Women form a majority in the Cabinet. Does that mean that Welsh women have, at last, achieved equality? The answer is "No". Since 1918, only seven Welsh women have been elected to the House of Commons and, at present, there are only four women in that House.
Have women fared better in other areas? Again, the answer is "No". In a recent poll, nine women featured in the top 100 Welsh heroes. Catherine Zeta Jones, the highest woman on the list, came at number 16, and Tanni Grey- Thompson came at number 21. The only woman politician on the list was Megan Lloyd George, who came 81st.
Yesterday, the Western Mail had a 16-page insert to mark International Women's Day, devoted to the position of women in Wales. I congratulate the paper on its efforts. One of the articles was headed "Who runs Wales?". It made interesting but gloomy reading. It listed many professions and showed that women were in the minority in all of them. Such inequalities in society cannot continue if Wales is to become a modern 21st-century country. We lead the world, with so many women in the Assembly, but we are way behind in other matters affecting women. Is the glass
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ceiling over Wales unbreakable, or will Welsh women prove that they will no longer be stifled by the traditional values that have held them back for centuries?
The Government of Wales Act 1998 has a unique clause. Clause 48 states that the Assembly has to give,
"due regard to the principle that there should be equality of opportunity for all people".
Is the Minister contemplating any legislation of this nature for Westminster? I am sure that she will agree that women benefit from that approach. I believe that the Assembly will eventually bring about a Wales where we have true equality for its people. The women in Wales should then be able to break through the glass ceiling in the way that women politicians in the Assembly have.
7.50 p.m.
Baroness Billingham: My Lords, I, too, thank my noble friend Lady Gould for initiating the debate. We have three minutes per speaker. What a challenge to make any case at all. As a former MEP, I have haggled over one minute to speak in the Hemicycle in Strasbourg. Three minutes would have been an exquisite luxury. In that time I could have made the case for the single currency and for the reform of the common agricultural policy, and still had time to spare.
Tonight, looking at the status of women in the UK, the widest of possible topics, perhaps it would be sensible for me to focus on just one facet. That facet is to look at women in a sporting context. But I must say to my sisters and one brother that it makes miserable reading.
A noble Baroness: Two.
Baroness Billingham: The facts speak for themselves. Half as many women as men take regular physical activity. Girls and women enjoy fewer opportunities in every sector, whether statutory, voluntary or commercial. They have a much narrower range of activities than men. Stereotyping in the home still puts girls at a sporting disadvantage. Media coverage is appalling. A mere 5 per cent of sports coverage is given to women.
Where there is coverage, it is often sexist and dismissive. Anna Kornikova takes one-third of the websites dedicated to women's sport, and she has barely hit a serious tennis ball in the past three years. Male dominance prevails. We can remember how appalled we were when Sepp Blatter, the president of FIFA, suggested that female football players should,
"wear tighter shorts to promote 'a more female aesthetic
More likely a cheap thrill for nasty old men like him!
In brief, that is the daunting problem facing any government. What can be done to redeem the situation'? Of course, we welcome the new initiatives, which start in primary schools with better teaching and better facilities; the promotion of positive images of sport and sportswomen, particularly our heroines, such as Paula Radcliffe, and the role models who can make real impact. I applaud the additional funding to Sport England and the CCPR. Much is being achieved in the

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"Girlsport Project". The high profile publicity of healthier lifestyles and lifelong participation in sport is welcomed.
The Government can and do influence the output from the media. Perhaps there is a case for greater balance from our public service broadcasters. The BBC could help us more in the future. The very evident government support for the 2012 Olympic bid can and should be a huge stimulant to focus attention on sport by both men and women.
Other countries have used proactive measures. Title IX in the USA is a bedrock for a fair balance of funding in schools and colleges. New Zealand has pioneered an agenda in women's sport. We can and should learn from others. But the reality is that in the UK, sport is still run by men for men. A whole area of employment for sport and leisure has been hijacked for them. The objective is clear. Let women have the same opportunities and incentives to have a lifelong involvement in sport, with all the benefits of health and enjoyment that follow that lifestyle.
Finally—I am looking at the clock—do not let anyone forget that the single most powerful influence that children have (both boys and girls) to help develop a lifelong participation in sport is a physically active mother. What greater incentive could there be to galvanise our Government into even more ways of promoting the involvement of women in sport in our society? Much has been achieved, but there is still a long way to go.
7.54 p.m.
Baroness Greengross: My Lords, I, too, congratulate the noble Baroness on securing the debate. It is very important that we all recognise how fortunate we are as women to live in this country and not in many other parts of the world. But there are still many issues: in my three minutes, I shall concentrate on older women. They are the majority of older people in this country, but they suffer quite a lot of discrimination.
The pioneering work of the feminists in the 1960s and beyond—the sisterhood—was composed of younger women who concentrated on the situation of younger women. Fortunately, for many of us here, they are now older. They are part of the baby-boom generation that is doing so much to change the image of older people generally. They are determined that the sort of conditions that they had to fight against will change.
However, there are still many things that need to be done. A recent report produced by Age Concern and the Fawcett Society demonstrated that one in four single female pensioners lives in poverty. There were some sensible and limited suggestions for reform; for example, something must be done to change the fact that if a person pays national insurance contributions for 10 years or fewer, it counts for nothing towards a state pension. Eighty-eight per cent of those affected are women. In addition, in this country, for every pound that a man receives from a pension, a woman receives only 32p. That is quite unacceptable.
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We also know that the changing social and family circumstances, which our demographic profile changing so rapidly is making inevitable, is altering the role of women in middle age and beyond. We now have a beanpole family situation. In many families, there are women caring for women caring for women for four or even five generations. At the age of about 50, a poor woman sandwiched in the middle often has to cope with two generations of older family and two generations of younger family. That caring responsibility is quite unprecedented.
I hope that the Private Member's Bill now in the other place will for the first time produce a duty on local authorities regarding carers. I am sure that my noble friend Lady Pitkeathley will say much more about that. That Bill would make a difference because, for the first time, it recognises that women who care are people and need that other life as well, whether it is to work, to have leisure, or other occupations. Sometimes a caring life ends, and the carer is still alive and needs to enjoy life.
Equality also has very wide implications that go beyond gender. It is excellent that there will be—I hope that there will be—an equality commissioner before too long. That is very important. Many older women can be discriminated against on many criteria. For example, they can be discriminated against through age, gender, race, a hidden disability or sexuality without people realising. It is dreadful to have to go from one commission to another to get help. We need one-stop shops. I very much hope that this debate will add to the pressure to make those a reality as soon as possible.
7.58 p.m.
Baroness Massey of Darwen: My Lords, after thanking my noble friend Lady Gould I want briefly to explore how women's writing has influenced the status of women. Women's writing, whether it be fiction, non-fiction, crime or poetry is now totally on a par with men's writing. Bookshops are packed with women's writing. Your Lordships' House boasts two of the finest crime writers today: that is, my noble friend Lady Rendell and the noble Baroness, Lady James.
In my view, which of course is very subjective, the finest novelist of today is a woman—Margaret Atwood—and the finest poet is a woman—Carol Ann Duffy. The first woman writer that we hear about is Aphra Behn, who was born in 1640 and was a well-travelled spy in Antwerp for Charles II. She produced satire and caricature of politics, arranged marriages and bawdy adventure stories.
Jane Austen, in the early 1800s—the House can see what a gallop this is—described herself as writing on a small piece of ivory with a fine brush: little of the tumult of the wide world, but brilliant depictions of life and satire of the gothic novels of the day. The Brontes—of course Charlotte had to write as a man in the beginning—produced gripping romantic fiction and poetry.

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That magnificent storyteller and unusual woman, George Eliot, discussed class, religion, politics, the professions and the distrust of outsiders with a searing emotional honesty. She wrote a lot of this at the kitchen table. Mrs Gaskell described the social realism of the industrial scene, relationships between employers and employees, and oppression.
Already by the mid-1800s we have women who were not only brilliant users of language, but also social commentators. And we should not forget the women who wrote to describe their own lives, as in the delightful Diary of a Farmer's Wife, written in 1796, where the making of pansy wine, the price of piggies and the dust on the legs of the chairs in the big house are featured.
The new women's fiction of the late 19th century is scarcely known, but represented a great deal of social change. In the mid-1900s Virginia Woolf—here I confess to a total obsession—experimented with new writing forms, discussed cultural processes, sexuality, and made feminist pleas in the most exquisite prose. A character in one of her essays states:
"We are the indications of a development of womanhood which as yet is not recognised. It has, so far, no ready-made channels to rim in".
How powerful and how true. The numerous women writers of today in Britain and abroad owe much to these pioneers. Each adds her own genius.
I end with one example of a modern woman's perceptions of male/female relationships: realistic, pragmatic, humorous. The poet Wendy Cope describes the loss of a lover:
'The day he moved out was terrible—
That evening she went through hell.
His absence wasn't a problem
But the corkscrew had gone as well".
Jane Austen might have written it; the romantics would not. Women's writing, with its diversity, perceptions and subtlety, has contributed to giving women a very special status. Women have significantly influenced, as well as been influenced by, the social, moral and political climate.
8.2 p.m.
Baroness Howells of St Davids: My Lords, I shall address my three minutes to black women, and it is not all doom and gloom. Black women have made advances in many areas and we are grateful for small mercies. I recall the words of Prime Minister Harold Wilson. He was very pleased about the record number of women in his Cabinet as this gave the government a feminist perspective and a better reflection of society. Until then, there had been no black women present.
The Labour Government that began in 1997 saw the greatest ever number of women Members. Nevertheless, only two black women were included in government. Diane Abbott entered Parliament in 1997. Having explained and followed her colourful career starting in the Home Office and advancing as a grassroots activist for the Labour Party, but serving first as a city councillor in Westminster from 1982 to 1986, an MP asked, "Who is she? Where did she come from?".
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Black women were unknown. The year 1987 saw the first wave of people from the Caribbean and Africa taking their places in Parliament. Harold Wilson can be quoted again. He said that having a mixture of backgrounds in government lends a far more balanced set of views from all areas of British society.
A researcher at the left-leaning Institute for Public Policy Research wrote:
"After all, unlike Parliament, 80" of society is not made up of white men".
One serving politician was moved to say that the House of Commons is seen as illegitimate by a lot of black and Asian people simply because there are so few black or brown faces elected to it. In his view, it is "shameful and disgraceful".
To date, your Lordships' House has certainly done much better under a Labour Government, with at least two Ministers, one the Leader of the House. And I have to say that the black community is extremely proud of the progress they have made.
In other areas, black women have made impressive advances, in particular in the professions. In sonic areas, since the Second World War they have come to form as much as 28 per cent of the workforce. Despite the double discrimination of racism and sexism, black women have risen to heights once the preserve of white men.
I end by adding my thanks to my noble friend Lady Gould for initiating this debate. I hasten to add that I could speak for another 20 minutes on black women.
8.6 p.m.
Baroness McIntosh of Hudnall: My Lords, I add my congratulations to my noble friend Lady Gould on introducing this debate. She and other noble Baronesses have left few stones unturned for a tail-end Charlie. I hope that I shall not lower the tone too much.
The brilliant, if somewhat wayward American humourist, Dorothy Parker, was asked to produce an aphorism containing the word "horticulture-. She came up with the following:
"You can take a whore to culture but you cannot make her think".
The House may wonder on what basis I can possibly introduce this rather dubious reference into a serious debate. Part of the reason is that it makes me laugh and it has been a long day. But, more seriously, it wraps into one elegant turn of phrase the two issues I briefly want to touch on. They are the negative images of women and the power of language to perpetuate them.
We might choose to believe that the classic Madonna-or-whore stereotyping of women is well in the past, but in the past 24 hours I have come across two striking examples of how it continues. One was an article in yesterday's Guardian entitled "Attack the Rap", about young women in the USA and the UK fighting back against the routinely negative and sexually aggressive language of rap lyrics. One is quoted as saying:
"I am tired of guys calling us 'just a piece of ass"—

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I am sorry, I know that that is rather unparliamentary language. She went on to say,
"Music is so influential and it's made this stuff very fashionable, but now it's time for a different fashion".
The other example was a discussion on this morning's "Today" programme between the academic Bonnie Greer and Ann Widdecombe MP, in which Bonnie Greer, an American by birth and a long-term resident of the UK, expressed her irritation at the way in which women of all ages in this country are constantly referred to as "girls". Ms Widdecombe, strangely enough, did not seem to mind that much, but I think the point was well made.
My point is this. We have come a long way and we have achieved a great deal since the days when all actresses, for instance—people amongst whom I have spent many of my working days—were whores and the mark of respectability in women was ignorance. But our culture still all too often constructs women negatively through the casual use of derogatory or demeaning language. It is very easy to sound po-faced on this subject, as Ann Widdecombe pointed out to Bonnie Greer on the "Today" programme this morning—not that she was put off in the slightest—but we should not lose sight of' how powerfully undermining negative stereotyping can be, however wittily it is wrapped up.
8.9 p.m.
Baroness Pitkeathley: My Lords, I think that on this occasion I should address the House as "my Ladies". It will come as no surprise to you, my Ladies, that I want to talk about the status of women as carers. I thank my noble friend for giving me the opportunity to do so. I am bound to say that if anyone had any doubts about the richness of female talent in the House, the range and quality of the debate will have dispelled them.
The House will know that 6 million people are carers in this country and that women still carry the bulk of caring responsibilities, with 58 per cent of all carers being women. They are also much more represented in the heavy end of caring. So if you are caring for more than 20 hours a week you are more likely to be a woman.
Caring has a significant impact on your financial situation, on your health and on your well-being. Statistically, women are much more likely to experience a caring episode and, because they are women, the assumption is made that they will care. By the age of 60, women have a 50:50 chance of being a carer, whereas men reach the age of' 74 without having a 50:50 chance of becoming a carer.
A great deal of progress has been made for carers, much of it under the Government. There has been new legislation through Private Members' Bills which give carers the right to an assessment; the earnings limit on the carer's allowance was increased to the level of the lower earnings limit; carers who receive carer's allowance for a full year are credited into the state second pension scheme, allowing them to protect their second tier state
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pension; and the right to take a reasonable time off for emergencies was introduced in December 1999. Although it was unpaid and the time would amount only to a day or two, it was the first time in law that carers who work are given employment rights specifically because of their caring responsibilities.
I want to draw your Ladyships' attention to the Carers (Equal Opportunities) Bill, a Private Member's Bill sponsored by Dr Hywel Francis in the other place. The Bill will be debated in Standing Committee tomorrow and it seeks to do several crucial things. It promotes equality of opportunity for carers; it intends to break down institutional barriers that exist for carers in accessing work, training, life-long learning and leisure activities, so that they can lead, in the words of one carer, "an ordinary life"; it would place a duty on local authorities to inform carers of their rights, to promote carers' health and to plan jointly information provision for carers.
So a lot has been done—we should be joyful about the progress that has been made—but there is much that still could be done. A review of the carer's allowance, currently the lowest benefit of its kind at approximately £43 per week, is urgently needed. We should consider the introduction of a tax credit that helps financially, rather than hinders, carers who provide substantial amounts of care to combine paid work with caring. We need more carers' rights at work and more flexible working policies; continuation of funding for carers' breaks after 2006 when the carer's grant finishes; and a focus on health promotion by health bodies.
Many people wish to care for their relatives—most people want to be carers—and it is clear that society could not cope if they did not. However, in doing so, there is no reason why they should face poverty, social exclusion, lack of choice, opportunity and ill-health as a result of that caring.
8.12 p.m.
Baroness Thomas of Walliswood: My Lords, I join with other noble Ladies—my sisters—in congratulating our friend and colleague on introducing the debate. She seems to have cornered the market in women's day debates. Sitting on this side of the Chamber, it is an extraordinary sight for me to look across at the absolute mass of women—all able to express themselves lucidly, intelligently and very often amusingly—sitting on the Labour Benches. I wish that I had the same brilliant collection behind me at the moment.
I had prepared a witty speech to sum up the debate. I then realised I had only three minutes and so, like everyone else, I am reduced to making one point. My one point is this: that welcome as the creation of an equality body is, we desperately need a single equality Act.
We have a mass of inconsistent legislation which affects different groups in society differently and can cause enormous problems for lawyers. For example, if a black pregnant woman has been discriminated against, they need to find out under which section of the law she is best represented.

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What should this single equality Act consist of? First, it should cover all the groups of people who shall not be discriminated against—women, people from racial minorities, people of different nationalities, people of different ethnic types, people of different sexual orientation, people who are older and people who have undergone gender reassignment. We would have to include everybody who can be and is discriminated against under the same heading.
Then we would have to ask ourselves whose behaviour has to be affected by such legislation. There is a wide range of bodies which must not discriminate against the groups of people covered by the Act. In addition to the public sector, that includes companies involved in selling or providing services to the public, employers conducting employment policy, people selling property or providing education or healthcare. Almost every activity that we can think of must be covered so that no one can escape.
Is simply not being discriminatory enough'? No, it is not. We must oblige all these people to take a positive attitude towards the promotion of equality, not simply to avoid legal penalties for discrimination but positively to promote equality of treatment among every individual in the country. When we reach this wonderful state, we will have no more need for an Equality Commission.
8.16 p.m.
Baroness Seccombe: My Lords, I applaud the noble Baroness, Lady Gould, for initiating this broad debate on the status of women. In my three minutes, I wish to focus my comments on one particular area not mentioned this evening—the choice for mothers in today's society between returning to paid employment and staying at home to bring up their children. There are two different perspectives here: one is the public perception and the other is practical—financial viability and the provision of childcare.
First, let me focus on perceptions. Equality in the workplace is to be encouraged, but I am concerned with the fashionable perception in the last 10 years or so that all mothers should strive to return to paid employment. I mention specifically a Government report by the Women and Equality Unit of the DTI which said that any mother who stayed at home did not "benefit the nation" and was "failing to pay the state back for the cost of time at school or at university".
It appears that society today does not recognise or value the unpaid work which mothers do in raising their families. A recent study from Full Time Mothers has shown that women too often feel that self-respect and the respect of society are dependent on a job title. The Maternity Alliance, in a survey of over 2,000 mothers, found that only 1 per cent would have chosen to return to full-time work after the birth of their baby. A third was happy to work part time and two-thirds would rather have stayed at home to raise their children.
I turn briefly to the practicalities. In order to encourage mothers to return to work, the Government are currently pursuing a childcare strategy that subsidises
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non-family care through care funding and the childcare credit. Families using registered daycare can receive up to £7,000 a year towards childcare. This may be laudable, but families in which one parent looks after the children cannot claim any similar benefit, despite the fact that he or she has sacrificed their earnings to do so.
In other cases, for middle-income families, the extra earning of a working mother is simply swallowed up in childcare costs. It is fair to say that, broadly speaking, the tax and benefit systems in place in the UK are biased against mothers who stay at home to raise their children.
I believe that the job of bringing up the next generation is extremely important. Women who decide to take the financially difficult choice to stay at home need our support and should not be seen as taking the easy option and shirking employment.
Finally, I should know more than most that many women do not have the luxury of making that choice. Life is not that simple and all of us have to make those hard decisions which benefit our families most.
8.20 p.m.
Baroness Scotland of Asthal: My Lords, it has been an undiluted privilege and delight to participate in this debate. I warmly congratulate my noble friend Lady Gould on exercising such skill in delivering a gargantuan task in dealing with all the issues on which other noble Baronesses subsequently ably supported her. We have had everything, and I agree wholeheartedly with my noble friend who made it clear that, if anyone wanted to see the quality of women, they had only to participate in this debate. We have had the delight of having substance, charm, intelligence, wit and the passion of the noble Baroness, Lady Thomas of Walliswood, and the sage reminder of the noble Baroness, Lady Seccombe, that women's roles are diverse and must be valued in whichever form they come. I can certainly reassure the noble Baroness that the Government have taken direct action in this regard. The Government want to give families choice. That is why we have introduced the new rights, which are making a huge difference.
We touched on so many matters tonight. I have been given 10 minutes, and I hope that I will be able to follow my noble friend Lady Gould with a quick gallop through some of the issues that she so ably raised. This event gives us a chance to remember a time when women throughout the world were still demanding the right to vote, work and hold public office. Although I am pleased to tell noble Baronesses that we have come a long way since then, I recognise that we still have a long way to go. However, it is right to celebrate that a debate such as this can take place, and that a real song of women's voices has echoed. I am pleased to see the noble Lord, Lord Kingsland, in his place. We would have welcomed male voices to sing in harmony with ours.
My noble friend Lady Gould raised the important issue of violence. Noble Lords will know that today we are dealing with the Domestic Violence, Crime and

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Victims Bill. It is depressing that so many people feel that violence is still acceptable. As a Government we are tackling this issue at the school level. The Ministers for Women have produced a document, Does Sex Make a Difference?—an equality resources pack for those working with young people. It challenges stereotypes including occupational segregation, equal pay and women's representation in public life. That is very important work that is making the difference.
Another comment was strongly made not only by my noble friend Lady Gould, but by the noble Baroness, Lady Thomas of Walliswood, who made a cri de coeur for a single piece of legislation to deal with equality. The Government are very much aware of the demand for a single equality Act but do not see this as an essential precursor to the creation of a Human Rights and Equality Commission. Noble Lords and noble Baronesses know how hard we have had to fight to craft this new commission. We will eat this elephant one bite at a time. There is no reason to think that the commission could not operate pragmatically within the current framework. Partnership is a huge matter.
I add my voice to that of my noble friend Lady Dean, who made a point about the House of Lords Administration and Works Committee having refused to allow a statue of Sylvia Pankhurst on Abingdon College Green. As a mere Minister, I could not possibly comment on that committee, but I suggest that it is perhaps mistaken in thinking that Mrs Pankhurst has no connection with the House of Lords that would justify such a prominent site. Quite the contrary, I add my support to those questioning this decision. Sylvia Pankhurst was one of the most prominent suffragettes and clearly deserves this recognition which is long overdue.
That leads me smoothly on to the triumph of my noble friend Lady Gale, who again regaled us tonight with the victorious triumph of the Welsh women who have managed to achieve 50 per cent in a way that has not been achieved by others. We must not be discouraged. Although women currently make up just 18 per cent of the other House, 16 per cent of the House of Lords and 24 per cent of the European Parliament, about 28 per cent of elected councillors in England and Wales are women, although just 2.5 per cent of councillors are from a minority ethnic background.
As noble Lords will remember, the Government introduced the Sex Discrimination (Election Candidates) Act in 2002. In Scotland and Wales, where positive measures have been introduced, the numbers of women elected have increased to 40 per cent and 50 per cent respectively. The National Assembly in Wales is the first legislative body in the world to achieve this level of parity, proving that positive measures do work. It can be used as an exemplar. I would just remind my noble friend sitting on the Liberal Democrat Benches that this was achieved without proportional representation.
Women in public life have featured largely in this debate. As noble Baronesses have already pointed out, just over one-third—36 per cent—of public
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appointments are held by women and just under 2 per cent are held by women from minority ethnic communities. The Government have set a target for every department so that by 2005 women should hold about half of all appointments.
I am pleased to say that in the Home Office, where I have the privilege and pleasure to be a Minister, women already hold 44 per cent of the seats on our public bodies. In 2002, we travelled around the country and talked to more than 2,000 women to encourage them to take up public appointments at a regional and national level. Change is possible and we are making it.
A number of noble friends raised the pay gap. Women are playing an increasingly important part in our economy, but still face an average pay gap of 18 per cent if they work full time, as a number of noble Baronesses mentioned. If we look at the median figure, which measures earnings in the middle of the range, the pay gap drops to just under 13 per cent. In 1997, it was 16 per cent. So legislation has helped. But it is not enough on its own. The Government have been working with the EOC to promote equal pay reviews and have provided trade unions with funding to train workplace representatives. We have undertaken pay reviews in the Civil Service, introduced an equal pay questionnaire and will streamline the complex rules of procedure relating to equal value cases. We plan to introduce new regulations in October this year.
The noble Baroness, Lady Greengross, alluded to the pay gap that varies by age, from 2 per cent for 18 to 20 year-olds to 34 per cent for women over 50. This reflects the increasing educational achievements of young women.
We are still very concerned about the lack of girls going into non-traditional areas of work, such as engineering and technology. I am pleased that this matter was alluded to by noble friends because we have a challenge. I quake to think of the physics master—as he must have been—who now has to deal with the comments that have been levelled against him in this debate. I am sure that he will not do that again.
If we look at the stakeholder pension, we have made a huge difference in the way that older people have been able to take advantage of the increased support that we have given. The pension credit was introduced last year for today's poorest pensioners and guarantees single pensioners an income of at least £102 per week. For future pensioners, the state second pension extends second tier pension rights to people without earnings but with caring responsibilities. Not surprisingly, almost all the carers who will benefit are women. My noble friend Lady Pitkeathley was right to highlight the difficulties and the benefits that flow from the changes that we have made and to argue for more. We hear what she has to say. We have introduced stakeholder pensions that are flexible enough to accommodate the employment patterns of women. Research shows that 40 per cent of

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stakeholder pensions have been bought by women. We now have pension sharing on divorce—something for which we have fought for a very long time indeed.
As I indicated, the pay gap varies by age. However, we are still very concerned about the issue. The EOC is undertaking a general formal investigation to look at how men and women end up in these traditional gender roles. But that is not to say that things are not improving. Over the 10 years to 2002, the percentage of female graduates in science, engineering and technology increased by more than half. The Government recently announced that they were setting up a new UK research centre for women to help support them.
It is important that we have flexible working for raising the crucial issue of work/life balance for women. Women do five times as much domestic work as men, and it is still overwhelmingly women who are responsible for looking after the children or arranging childcare facilities. Yet over the past 25 years the number of women in the work force has doubled, and projections show that, in 10 years, they will fill most of the 2 million extra jobs on offer. That is why, last year, the Government gave parents of young children the right to work flexibly, improved and simplified maternity leave and pay and introduced paid paternity and adoption leave.
I was intrigued by the exposition on women in sport from my noble friend Lady Billingham. I reassure her that women's football is the fastest growing sport in the UK. Despite the concerns about women in sport, more men than women are overweight. Some 47 per cent of men are overweight, but only 33 per cent of women. And women live almost five years longer than men.
My noble friend Lady McIntosh of Hudnall made some very powerful points about the negative image of women and how words can be so important. The Government introduced citizenship education into secondary schools in September 2002, and pupils are taught about the origins and implications of the diverse national regions, the religious and ethnic identities in the UK and the need for mutual respect and understanding. So what we may not have achieved for this generation I hope we will achieve with the next.
I also commend what was said by my noble friend Lady Howells of St Davids. She rightly raised the issue of minority ethnic women in this country and how things have changed. We all rejoice in the new complexion of our House and the other place because it gives us a spice and a diversity that might not have been there hitherto.
On literature, I cannot but commend everything that was said by my noble friend Lady Massey of Darwen with such wit and vim. More should have been in the House to benefit from her erudition and also her literature. I hope that all will read this debate and rue the moment that they did not participate in it.
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I commend all noble Baronesses for having so participated. It was worth not having supper.

Domestic Violence, Crime and Victims Bill [H.L.]
8.33 p.m.
Consideration of amendments on Report resumed.
The Attorney-General (Lord Goldsmith)The Attorney-General (Lord Goldsmith) moved Amendment No. 27:
After Clause 5, insert the following new clause—
"EVIDENCE AND PROCEDURE: NORTHERN IRELAND
(1) Subsections (2) to (4) apply where a person ("the defendant") is charged in the same proceedings with an offence of murder or manslaughter and with an offence under section 4 in respect of the same death ("the section 4 offence").
(2) Where by virtue of Article 4(4) of the Criminal Evidence (Northern Ireland) Order 1988 (S.I. 1988/1987 (N.I. 20)) a court or jury is permitted, in relation to the section 4 offence, to draw such inferences as appear proper from the defendant's failure to give evidence or refusal to answer a question, the court or jury may also draw such inferences in determining whether he is guilty—

(a) of murder or manslaughter, or

(b) of any other offence of which he could lawfully be convicted on the charge of murder or manslaughter, even if there would otherwise be no case for him to answer in relation to that offence.

(3) Where a magistrates' court is considering under Article 37 of the Magistrates' Courts (Northern Ireland) Order 1981 (S.I.1981/1675 (NJ. 26)) whether to commit the defendant for trial for the offence of murder or manslaughter, if there is sufficient evidence to put him upon trial for the section 4 offence there is deemed to be sufficient evidence to put him upon trial for the offence of murder or manslaughter.
(4) At the defendant's trial the question whether there is a case to answer on the charge of murder or manslaughter is not to be considered before the close of all the evidence (or, if at some earlier time he ceases to be charged with the section 4 offence, before i hat earlier time).
(5) An offence under section 4 is an offence of homicide for the purposes of the following provisions—

Article 17 of the Criminal Justice (Children) (Northern Ireland) Order 1998 (S.I. 1998/1504 (N.I. 9)) (mode of trial of child for indictable offence);

Article 32 of that Order (power and duty to remit children to youth courts for sentence)."

The noble and learned Lord said: My Lords, in moving government Amendment No. 27 in the name of my noble friend, I shall also speak to the government amendments grouped with it.
The amendment brings the evidence and procedure for trials for the Clause 4 offence—which your Lordships discussed in detail in the earlier part of the Bill; of causing or allowing the death of a child or vulnerable adult—in Northern Ireland into line with those for England and Wales. I am well aware that your Lordships have debated at length the provisions in the Bill relating to familial homicide. Those measures will address a particular loophole which has been discussed at some length. The Government's view is that the same provision should apply in Northern Ireland.
When my noble friend moved this amendment in Committee, the noble Baroness, Lady Anelay, and the noble Lord, Lord McNally, requested that the amendment was debated but withdrawn to allow for consultations and soundings to take place in Northern Ireland. We hope that there has been sufficient time for that to take place.
Amendment No. 27 provides a procedure in Northern Ireland for dealing with the evidence and procedure in relation to offences under Clause 4. It mirrors what applies in England and Wales with the exception that it does not refer to trial by jury because of the different system that applies in Northern Ireland in relation to the so-called Diplock courts—judg-ealone courts—and therefore the possibility that someone may not be tried by a jury for the offence under Clause 4. I beg to move.
Baroness Anelay of St Johns: My Lords, the noble and learned Lord the Attorney-General is right in two respects. We had a full and productive debate on Clause 5 before the dinner break. I certainly welcome him to the Dispatch Box, not that I wished to see the noble Baroness, Lady Scotland, depart, but I was rather shocked that she might be expected to respond to this debate and to the dinner break business. I am glad that the noble and learned Lord has stepped into the breach.
The noble and learned Lord is also right to say with regard to this amendment that I requested that the Government should not press it in Grand Committee where amendments may be made only with the consent of all noble Lords present. The amendments had been tabled at the deadline for tabling amendments in Grand Committee and I did not consider that I had had sufficient opportunity to consult on them. I confirm that I have contacted colleagues in another place and organisations that represent interests in Northern Ireland. I am aware that there are many concerns in Northern Ireland regarding the issues that we have raised in Clause 5 as they affect England. Therefore, although I shall not object to the amendment being made, as I did not object to the Government's Amendment No. 21 to Clause 5 being made, between now and Third Reading we shall consider very carefully the fuller explanation given by the noble Baroness, Lady Scotland. I still take exception to subsection (2) of the new clause in government Amendment No. 27. However, it ends with the words,
"even if there would otherwise be no case for him to answer in relation to that offence".
Lord Thomas of Gresford: My Lords, I accept what the noble Baroness said regarding the position in Northern Ireland.
Lord Goldsmith: My Lords, I understand entirely what the noble Baroness said, but I wish to press the amendment.
On Question, amendment agreed to.
Lord Goldsmith Lord Goldsmith moved Amendment No. 28:
After Clause 5, insert the following new clause—
"EVIDENCE AND PROCEDURE: COURTS-MARTIAL
(1) Section 5(1), (2) and (3A) has effect in relation to proceedings before courts-martial with the following adaptations.
(2) A reference to an offence of murder or manslaughter or an offence under section 4 is to be read as a reference to an offence under—

(a) section 70 of the Army Act 1955 (3 & 4 Eliz. 2 c. 18),

(b) section 70 of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19). or

(c) section 42 of the Naval Discipline Act 1957 (c. 53). for which the offence referred to in section 5 is the corresponding civil offence (within the meaning of that Act).

(3) A reference to the court or jury is to be read as a reference to the court."
The noble and learned Lord said: My Lords, this is another government amendment standing in the name of my noble friend Lady Scotland of Asthal. It relates to courts-martial. It is in the same vein as the previous amendment and applies the evidence and procedure provisions in Clause 5 to trials by court-martial.
It is right to remind your Lordships that courts-martial have the power to try persons subject to service law for civilian offences. They do not have jurisdiction to try murder or manslaughter offences committed in the United Kingdom, but they do if the offence occurs outside the United Kingdom. The purpose of the amendment is to ensure that if a court-martial is required to try a case involving a Clause 4 offence, the evidential and procedural provisions of Clause 5 apply to the extent necessary for that trial. I beg to move.
Lord Thomas of Gresford: My Lords, I have before the Judicial Committee of the House attacked Section 70 of the Army Act and Section 70 of the Air Force Act; I will not weary noble Lords with that litigation, which is still ongoing. Is it intended that Clause 4 may be tried by court martial if the offence occurs in this country?
Lord Goldsmith: My Lords, I shall have to write to the noble Lord about that. I infer that the answer is yes, but I shall write to him and copy that to other noble Lords who have taken part in our debates.
Lord Thomas of Gresford: My Lords, that would cause something of an anomaly, because murder and manslaughter would be triable in the ordinary courts in this country. If Clause 4 were to be tried by court martial, it would be very unusual.
Lord Goldsmith: My Lords, the noble Lord will be aware that there are arrangements for a concurrent jurisdiction in certain cases, in which particular offences or alleged offences can be tried either under court martial or in the domestic courts when the offence has taken place in the United Kingdom. I am aware of that myself because, on some occasions, it is for me to direct where a trial should take place. I hope that he will forgive me for not being in a position to answer straightaway, but my letter will deal with that issue. Particularly given what has been said—that it

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would be desirable to see a Clause 4 offence and murder or manslaughter coming together—I understand what lies behind his question.
On Question, amendment agreed to.
Clause 6 [Establishment and conduct of reviews]:
Lord Goldsmith Lord Goldsmith moved Amendment No. 29:
Page 4, line 23, leave out from "which" to end of line 24 and insert "the death of a person aged 16 or over has, or appears to have, resulted from violence, abuse or neglect by—"
The noble and learned Lord said: My Lords, Amendment No. 29 is a further government amendment. When Clause 6, which relates to the establishment and conduct of homicide reviews, was debated in Committee, a question was raised by the noble and learned Lord, Lord Donaldson. I am sorry that he is not in his place to hear what I wanted to say, but he made an extremely helpful intervention. He pointed out that the clause could prevent such a review taking place before there was a finding of fact that the homicide had taken place as a result of violence, abuse or neglect by a relative, someone with whom the deceased had an intimate personal relationship, or a member of the same household.
The Government believe it important that reviews take place as soon as possible after the deaths so that lessons can be learned and implemented quickly. That is a key reason behind the provision for the reviews. We would not want to prevent such reviews taking place before the conclusion of a criminal trial if appropriate—I emphasise "if appropriate"—but we do not want to prevent reviews taking place where no trial takes place either. Obviously—it is why I emphasised "if appropriate"—it is important that any criminal proceedings are not prejudiced as a result, and the guidance which will be prepared will make that perfectly clear.
The amendment will allow homicide reviews to take place in circumstances where the death has, or appears to have, taken place as a result of violence, abuse or neglect by a relative, someone with whom the deceased had an intimate personal relationship, or a member of the same household. It gives me particular pleasure to have taken this amendment on, as it is very much as a result of the work of my right honourable friend the Solicitor-General—my deputy, Harriet Harman—that such a provision finds its way into the Bill. I beg to move.
On Question, amendment agreed to.
8.45 p.m.
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No.
30: After Clause 6, insert the following new clause—
"JUDICIAL DIRECTIONS AND INTEGRATED COURT
Provisions of this Act concerning domestic violence shall be applied according to interim judicial directions given, and such as may be given, pending establishment of an integrated court with civil and criminal preventative and remedial jurisdiction."
The noble Lord said: My Lords, the noble Lord, Lord Campbell of Alloway, has asked me to move the amendment on his behalf, as he is not able to remain here for personal reasons.
We discussed this issue at length in relation to Clause 1 of the Bill, namely that it is desirable that, if there are to be criminal and civil remedies provided for breaches of non-molestation orders, an integrated court should be established with both civil and criminal preventative and remedial jurisdiction. One of the criticisms of Clause 1 that has been made in the House is that the non-molestation order is made by a civil court and by a civil judge. Making a breach of the order a criminal offence means that the order has effectively to be transferred to a criminal court, decisions have to be taken by the Crown Prosecution Service and the matter is placed in the hands of another judge.
There are pilot schemes in parts of the country where an attempt is being made to integrate civil and criminal jurisdiction, but I am told that they tend to be civil one week and criminal the next. While there are no doubt valuable experiences to be gained in that way, it might be better for an individual case to rest in the hands of one judge, whether he is involved in granting the non-molestation order, the civil remedy or dealing with the case as criminal offence. I beg to move.
Lord Goldsmith: My Lords, the intention behind the amendment is somehow to produce the establishment of an integrated court, with both criminal and civil jurisdictions and remedies in domestic violence cases. A similar amendment was debated in Grand Committee on 19 January. On that occasion, the noble Lord, Lord Campbell of Alloway, in whose name this amendment stands, cited Lord Justice Thorpe's judgement in Lomas v Parle in support. I wanted to mention that for the benefit of noble Lords who have not seen the judgment, because it urges the Government to reconsider the present dual system of criminal and civil courts, and to,
"look into the possibility of integrated courts to see if they might avoid the problems which now arise".
The Government are working to improve the handling of domestic violence cases in court. My noble friend Lady Scotland said much about the matter on the last occasion and I shall not repeat that. Regarding Clause 1, criminalising breaches of non-molestation orders is already going to ensure that future breaches will usually be heard in a criminal court. That will eliminate one of the problems identified in Lomas v Parle.
In addition, my right honourable friend the Solicitor-General and the President of the Family Division, Dame Elizabeth Butler-Sloss, with the support of the Deputy Chief Justice, have recently established the Family-Criminal Interface Steering Committee. It has been established to take a role over-viewing the co-ordination of current work in England and Wales to improve the connecting points, the interface, between the family and criminal jurisdictions and to identify areas which have not been addressed. The noble Lord, Lord Thomas, was right in

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saying that there are important issues in the relationship between family, civil and criminal proceedings. It is intended to seek to meet the need identified in relation to child protection, domestic violence and private and public family law issues. Anyone with experience of those areas knows that frequently one or more of them come together in the same family or relationship. There may be an issue about child protection, an issue about domestic violence and issues about family law more generally.
The Steering Committee will look at the existing legal framework, structures and procedures, including the primary and secondary legislation; identify what changes it may be appropriate to introduce to improve these relationships—for example, how easy it is to pass information between one court and another which may be important for another set of proceedings; and to recommend changes to be acted on.
It is likely, or at least possible—this is why I have raised the matter—that the work of the committee will touch further on the idea of integrated courts and how they might work in practice. In addition, as the noble Lord, Lord Thomas, said, a number of specialist domestic violence courts have been up and running for some time. Croydon recently established another such court and is considering how it might develop into a more integrated system. There is more to it than simply that the court will sit one week on civil cases and one week on criminal cases.
In summary, the idea of specialist courts is being developed and their effectiveness is being evaluated. The President of the Family Division—the Government and I are extremely grateful to her—and the Solicitor-General are working with others to improve the relationship between the two jurisdictions. We are working with Croydon to try to develop a fully integrated domestic violence court. Because that work is already being done, we say that the amendment is unnecessary.
However, the amendment is also unclear. While understanding what lies behind it, the establishment of an integrated domestic violence court by primary legislation would require detailed legislative provisions on jurisdiction, judiciary, evidence and timeframe, all of which are lacking in the amendment. Therefore, the amendment as drafted would have no practical impact on the work that is already being undertaken.
For those reasons, I cannot accept the amendment, but I hope that what I have been able to say in addition to what my noble friend said in Committee is of interest and will be supported by those concerned about the issue.
Lord Thomas of Gresford: My Lords, I am grateful for that response. I have been sent a paper on the integrated domestic violence courts of New York State. An integrated domestic violence court sounds better than the interface referred to by the noble and learned Lord. It is interesting that the IDV courts in New York State hear criminal cases, such as violation and misdemeanour domestic violence cases and matters involving violations
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of orders of protection. That issue is very much part of this Bill. They also hear family court cases, such as family offences, custody and visitation disputes and support proceedings; and supreme court cases—specifically, contested matrimonial actions. Under the court model, for a family's case to be eligible there must be at least a domestic violence criminal case and one additional matter in another court.
Some of the advantages of such courts set out in the paper I have are, for example, that they are developing procedures for screening domestic violence criminal cases against available databases to determine whether there is an overlapping family or matrimonial case. There is also the provision of specialist counsel. Assigned counsel panels and public defender organisations are all part of that. Furthermore, they have specific provisions for protection of victims and witnesses. The paper states:
"IDV Courts should provide a safe and secure environment in which to adjudicate family related civil and criminal court proceedings".
It states that the following should be addressed: sufficient security personnel; clear and visible signs directing litigants to needed services and waiting areas; safe waiting areas; and planning for court-house safety. Therefore, this is an interesting model which could perhaps be considered by those who are involved in such matters in this country.
Lord Goldsmith: My Lords, I thank the noble Lord for allowing me to intervene. I am fairly confident that that model has already been examined. Some of the ideas that people in this country have are based on considering that model and, indeed, models in other countries.
Lord Thomas of Gresford: My Lords, I am most grateful, and I am sure that the noble Lord, Lord Campbell, will appreciate that response. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 [Common assault to be an arrestable offence]:
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 31:
Page 5, line 30, at end insert—
"( ) In section 6(3) of the Criminal Law Act 1967 (c. 58) (trial of offences) at the end insert ", save that where the jury find him not guilty of the offence of assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861 (c. 100) (assault occasioning bodily harm) or of the offence of racially or religiously aggravated assault occasioning actual bodily harm or common assault contrary to section 29(1) of the Crime and Disorder Act 1998 (c. 37) (racially-aggravated assaults), the jury may find him guilty of the offence of common assault notwithstanding that it is a summary offence by virtue of section 39 of the Criminal Justice Act 1988 (c. 23) (evidence of persons under 14 in committal proceedings)."
The noble Baroness said: My Lords, in Grand Committee I introduced this amendment with a considerable amount of detail, which noble Lords will be pleased to hear I do not intend to repeat verbatim.

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That introduction appeared at col. GC 233 of the Official Report for 2 February. For once, it was genuinely a friendly Christmas-tree amendment. Its objective was to make a non-partisan offer to the Government to resolve a problem highlighted in the Court of Appeal by Lord Justice Rose. I made it clear that he was not the person who drafted the amendment; its defects are all mine, or, at least, those of a person close to me.
The briefest explanation that I give for the problem this evening is simply that there have been a number of cases where prosecutors and judges have overlooked the necessity of including a specific count of common assault if the jury was to be invited to consider that as an alternative verdict. As a result, convictions for common assault when no specific count was on the indictment have had to be quashed by the Court of Appeal and the defendant has gone scot-free.
In the detail that I entered into on the previous occasion, I recognised that that was not because of any inefficiency, incompetence or ill will by anyone; it is simply that one of those things can happen. I was just trying to resolve that mischief.
I also made it clear that I would certainly not consider pressing the amendment. The reason that I have brought it back is to invite the Government to say whether they have been able to consider my little presents between Grand Committee and Report. I beg to move.
Lord Renton: My Lords, I support my noble friend on this amendment. One was always brought up to believe that common assault was not a very serious offence. However, it can be, and when it is committed within a household or a family, in my opinion, it is far more serious. Having searched for the law which should be made relevant to the circumstances of the Bill, I believe that my noble friend's amendment is necessary. I refer, in particular, to its last words, which read,
"the jury may find him guilty of the offence of common assault notwithstanding that it is a summary offence by virtue of section 39 of the Criminal Justice Act".
I believe we must all face up to the fact that assault within a family or household is more difficult to detect, it has a more serious effect and it should be dealt with in the way that this amendment seeks to do.
Lord Goldsmith: My Lords, I read what the noble Baroness said in Grand Committee, and the Government's view is that this was a very useful ornament on a Christmas tree. I do not believe that it is right to describe it as a complete Christmas tree in itself, but it is certainly a useful gift on it.
The noble Baroness is right to say that there are some circumstances, although not all circumstances, in which the verdict she would like to see available in certain cases—namely, a verdict of common assault—will simply not be available to a jury because of the way in which the case has come to court. It is not necessary tonight for me to go into the circumstances of where that may happen.
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The Government are persuaded by what the noble Baroness said on the last occasion and has repeated tonight that in some cases there may well be advantage in leaving that kind of verdict available to the jury, provided, obviously, that the jury has been properly directed by the judge.
It follows from that that we are well disposed towards the amendment, which I hope the noble Baroness will be glad to hear. However, we are still considering possible amendments or improvements to it including, in particular—I give notice of this now in case anyone wishes to comment on it—the addition of a reference to assault occasioning grievous bodily harm under Section 20 of the 1861 Act. If the noble Baroness and the noble Lord, Lord Renton, who also spoke in the debate, are content, we shall return to this matter at Third Reading.
Baroness Anelay of St Johns: My Lords, I am grateful to the noble and learned Lord for that indication and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9 p.m.
Clause 8 [Restraining orders]:
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 32:
Page 5, line 34, at end insert—
"( ) In subsection (1) of that section after "an order under this section" insert—

"(a) if the prosecutor asks it to do so, or

(b) if the court thinks it is appropriate to do so"."

( ) After subsection (2) of that section insert—
"(2A) For the purpose of deciding whether to make an order under this section, the court may consider evidence led by the prosecution and the defence.
(2B) It is immaterial whether evidence led in pursuance of subsection (2A) would have been admissible in the proceedings in which the offender was convicted."
( ) After subsection (3) of that section insert—
"(3A) An order under this section takes effect on the day on which it is made, but the court may provide in any such order that such requirements of the order as it may specify shall, during any period when the offender is detained in legal custody, be suspended until his release from that custody.""
The noble Baroness said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 34 and 39. We now reach Clause 8 which extends the circumstances in which a restraining order can be made under the Protection from Harassment Act 1997 following criminal proceedings. I have tabled my amendments on this clause in four groups.
This particular group, which is strictly a group of probing amendments and would not be pressed, was tabled in response to a thought-provoking letter from Mr Neil Addison, who is a practising barrister and a former senior Crown prosecutor. He is an expert on protection from harassment orders and restraining orders. He strongly supports the proposals in the legislation but believes that they need tidying up if t hey are to work properly and avoid legal challenges and complicated procedures for police, CPS and the courts.
The issues raised in these amendments have been detailed in a letter which has also been sent to the noble Baroness, Lady Scotland, and Mrs Harriet Harman, the Solicitor-General. I tabled the amendments in this group to give the Government the opportunity to give a considered response to the points he raised and to put such response on the record. I believe that his recommendations merit serious reflection and that the Government have given them serious reflection.
The main problem appears to be that the proposals as currently worded do not follow the wording for making anti-social behaviour orders on conviction as set out in Section 6 of the Anti-social Behaviour Act 2003. In that Act it was made explicit that the CPS has the power to ask for anti-social behaviour orders on conviction under Section 1C of the Crime and Disorder Act 1998, and has the power to put other evidence before a court in support of such an application whether or not evidence would have been admissible in a proceedings in which the defendant was convicted.
The amendments would therefore amend Section 5 of the 1997 Act so as to mirror the wording of Section 1C of the Crime and Disorder Act 1998 as amended by Section 86 of the Anti-social Behaviour Act 2003 and are designed to ensure consistency between the law and procedures relating to anti-social behaviour orders on conviction and restraining orders on conviction.
The drafting of the other amendment is based on Section 86(6) of the Anti-social Behaviour Act 2003 with amendments to take account of the provisions of Section 5 of the Protection from Harassment Act 1997 and Section 104 of the Sexual Offences Act 2003. The question that has been posed is whether the Government agree that if this is not done, defence lawyers could legitimately be able to object to the CPS applying for restraining orders and would be able to point out that the CPS has not been given the power to make such applications while it has been given the power to apply for anti-social behaviour orders in conviction cases.
The concern is that the potential clearly exists for confusion and legal challenge. The argument is that these concerns could be avoided by incorporating into Section 5 the same wording as is used in Section 1C. The amendments I have tabled propose to do that.
It would then not matter whether the CPS was applying for an anti-social behaviour order on conviction or for a restraining order on conviction. The CPS's power to make the application and the courts' powers to hear evidence would be the same in both cases. I beg to move.
Lord Renton: My Lords, I was hoping to put this point before my noble friend sat down. But now that she has sat down I have to make my only allowed speech on Report.
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My noble friend referred to Amendment No. 32 as a probing amendment. If I may say so with deep respect, I think that it is of greater value than that. With it are listed Amendments Nos. 34 and 39, each of which would have in my opinion considerable legal and practical value. I hope that the Government will bear in mind the desirability of considering those three amendments—Nos. 32, 34 and 39—because they are relevant and strengthen Clause 8 of the Bill.
I hope that I am not asking too much if I mention to the noble and learned Lord the Attorney-General that it would be of great value if the Government could consider at Third Reading, if they are not prepared to do so this evening, the effect of those three amendments which really strengthen Clause 8.
Lord Goldsmith: My Lords, I deal first with Amendment No. 34. It is not the first amendment to which the noble Baroness, Lady Anelay, referred. Its purpose is to give any court sentencing or otherwise dealing with a defendant for breach of a restraining order the power to revoke the original order and replace it with a new order. I am very grateful to the noble Baroness for raising that point. It certainly is one that needs to be considered further. It will be and we will come back to the House on it.
I turn back to the principal point raised, which is Amendment No. 32. The decision under the Protection from Harassment Act 1997 to impose a restraining order on a person convicted of harassment or putting someone in fear of violence is taken by the court in parallel with the sentencing process.
The fact is that at the moment the prosecution often reminds the court that it can make an order, but does not apply for one. It is said that the procedure works well. Certainly the figures indicate that the courts make restraining orders in more than half the cases where a person is convicted under the 1997 Act.
As Clause 8 of the Bill is drafted, the same procedure would apply to courts sentencing someone convicted of any offence or when dealing with someone on acquittal for any offence. So the procedure would apply, and in the latter case both the prosecution and defence would be able to inform the court's decision by leading additional evidence admissible under the civil evidence rules.
The effect of Amendment No. 32 would be to alter the mechanism for making a restraining order on conviction so that it mirrors the procedures for antisocial behaviour orders following conviction. In those cases Section 86 of the Anti-Social Behaviour Act 2003 enables the Crown Prosecution Service to ask the court to make an order and allows the prosecution and defence to lead additional evidence.
Those changes were made in the 2003 Act because experience showed that there was a need to clarify the role of the Crown Prosecution Service in proceedings and to ensure a more consistent procedure across the country. They were also necessary to avoid the

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problems that arose when some courts refused to hear applications for orders on conviction made by local authorities on the grounds that they had no standing before the courts. I was involved in the decision to make that change. Plainly, a number of issues and considerations flowed from it, including, as always, the question of what may be the implications for the resources of the Crown Prosecution Service.
It has been believed that those problems were specific to anti-social behaviour orders. As I said, the procedures for restraining orders on conviction work well and therefore I doubt that any change is necessary. Certainly it has been believed that making restraining orders available on conviction for any offence will not pose insurmountable problems. Courts are already familiar with the concept of harassment; they made more than 1,500 restraining orders in 2002 and are unlikely to experience significant difficulty appreciating which cases might call for an order. As I made clear at the outset, the CPS is always able to remind the court of its power to make a restraining order.
The Government's view has been that it is not necessary to make that change. However, having regard to the way in which the noble Baroness has pressed the case and the additional observations made by the noble Lord, Lord Renton, it would be churlish of me to say that there is no scope for looking again at the issue. In saying that, I do not want to hold out any promise at all, other than that, as the Minister responsible for the Crown Prosecution Service, I want to look carefully at what has been said. The noble Baroness has already said that she does not intend to press the amendment today. Therefore, I anticipate that she will be content with what I have said.
Amendment No. 39 is consequential; it is necessary to make Amendments Nos. 32 and 35 work. Giving the Crown Prosecution Service a power to apply for a restraining order would require an amendment to the Prosecution of Offences Act to make applying for such orders a formal part of its remit. The amendment would stand or fall with Amendments Nos. 32 and 35. Therefore, there is no need to deal with it separately. It would also give the CPS a formal role in applying for sexual offences prevention orders under the 2003 Act. Again, however, a corresponding amendment to the 2003 Act would be needed to allow the CPS to apply for such an order. That idea was discussed as part of the work on the then Sexual Offences Bill, but, because there was no evidence of any problems with how it works, and as it was felt that the same effect would be achieved by strengthening guidance to prosecutors, such a provision was deemed unnecessary. As the amendment will not be pressed, I need not say anything further.
Baroness Anelay of St Johns: My Lords, I am very grateful to the noble and learned Lord for the constructive manner in which he has responded to the amendments. His offer to look again at Amendment No. 34, on the issue of revoking and replacing an order, poses a hopeful way forward. I am grateful for his offer
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to look again also at Amendment No. 32, although I recognise that perhaps that will be at a lower level and he may not be able to come back on it.
It has been made clear to me that the reason that restraining orders have worked without controversy so far, while the anti-social behaviour orders on conviction encounter some technical difficulties, is that, until now, restraining orders have been made on conviction for only two very precise offences. The proposal to open them up to a much broader range is the reason that the concern was raised with me about the matters that form the basis for the amendments. I am grateful to the noble and learned Lord and look forward to seeing how Amendment No. 34 might blossom in the future. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.15 p.m.
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 33:
Page 5, line 36, after "heard" insert "on the making of an order under this Act"
The noble Lord said: My Lords, in moving Amendment No. 33 I speak to Amendment No. 36, and my noble friend Lady Thomas of Walliswood will speak to Amendment No. 38B.
My amendments deal with the power for a person to be heard on the making of an order under the Protection from Harassment Act 1997. Clause 8(2) provides that a person may be heard on the variation, termination, or discharge of an order, but not on the actual making of the order. That seems to be something of an anomaly. It may well be that the victim is in court at the time when the court is seeking to exercise its power under the Protection from Harassment Act 1997. When we discussed the matter in Committee, the Minister suggested that prosecuting counsel may have a role in discussing the situation with the victim and in presenting her views to the court. That is not satisfactory. If that person has a right to be heard at later stages involving the order, surely they must have a right to be heard when the order is made in the first place.
The amendment relating to subsection (3) is to insert the words,
"arising out of domestic violence".
One of the problems with this Bill is that the Government have consistently refused to define domestic violence in any satisfactory way. We have tried in a number of ways, and my noble friend Lady Thomas of Walliswood will again seek to put in a variation of what she had previously advanced in Committee. Domestic violence is what this Bill is about. It is curious to have it called Domestic Violence, Crime and Victims Bill, without anyone having a clear idea how far domestic violence extends; who may be parties to domestic violence; who may not be; what type of conduct is regarded as domestic violence and whether it covers psychological harm. All sorts of things come into the proposition.
As subsection (3) is drafted, the court may make an order prohibiting the defendant from doing anything described in the order—absolutely anything—providing they are acquitted of an offence. That could be anything—it could be a driving offence. It does not need to have any connection with the purposes of this Bill at all. That is far too wide. The proper way of proceeding under this Bill is to confine it within the limits of the Bill itself, which is essentially to protect victims of domestic violence. For that reason, we propose this amendment. I beg to move.
Baroness Thomas of Walliswood: My Lords, I rise to speak to Amendment no. 38B. The purpose of this amendment is twofold. First, it amends the Protection from Harassment Act 1997 as amended by this Bill, and makes special provision for the handling of restraining orders in cases where the defendant has been acquitted or convicted of an offence arising out of domestic violence. Secondly, it provides a definition of domestic violence. We are greatly indebted to the Solicitors' Family Law Association, among many others, for its assistance in drafting this amendment. As the noble Lord will know, there is a strong demand outside this House for a definition of domestic violence to be included in this Bill.
Clause 8(3) amends the 1997 Act to ensure that courts may make restraining orders to prevent a defendant from further harassing the victim, not only when the defendant has been convicted, but also when he or she has been acquitted. Our amendment makes further provision for dealing with restraining orders imposed on convicted or acquitted defendants when the offence in question arises out of domestic violence. It proposes that in such cases the order should be temporary; that the further proceedings should be adjourned to the family proceedings court or county court; and that the person or persons for whose benefit the restraining order has been made may then be heard at the adjourned hearing, have the benefit of specialist legal assistance and present any evidence which would be admissible in proceedings under Section 3 of the 1997 Act. Section 3 deals with civil remedies for breach of Section 1 of the Act, which prohibits harassment.
The effect of the amendment is to ensure that the question of whether or not a restraining order should be made would be dealt with by a court properly trained and qualified to consider the implications of any such order on all aspects of family proceedings, and to include any issues over contact with children, any housing issues, and so forth. That is why the hearing should take place either in the family proceedings court before a properly constituted family Bench or in the county court before a district judge trained and qualified to deal with family issues. Of course, the criminal court would still be able to make a temporary order of a short duration until such time as the matter could be fully considered by a family court.
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Turning briefly to the definition of domestic violence in subsections (3), (4), (5) and (6) of the amendment, I shall not rehearse the whole argument in favour of such an amendment in the way that I did in Grand Committee. First, I hope that noble Lords agree that the way in which these subsections are written clearly does not describe a crime as such, but rather the particular nature of certain behaviour, which indicates that domestic violence is, as it were, the setting for the crime that has been committed.
Secondly, the phrase at the beginning of subsection (4), which states:
"Domestic violence may include, but is not restricted to",
is directed at the anxieties expressed by the Minister and others that any definition will be too restrictive.
Thirdly, the characteristics of domestic violence are more comprehensive than in the previous definition presented in Grand Committee. In particular. subsection (4)(e) of the amendment refers to,
"unwarranted restriction of or interference with access to money",
and so forth. That responds to concerns expressed by the noble Baroness, Lady Anelay, in Grand Committee. The aspects of domestic violence described in subsection (4)(d), (e) and (f) of the amendment, taken together, go a long way towards expressing the power play that is so characteristic of a domestic abuser's treatment of his victim.
Finally, the particular aspects of domestic violence listed in subsection (4)(e) and (1) of the amendment are exercised by a person towards the cohabitant, relevant child or associated person such as defined in Section 62 of the Family Law Act 1996—possibly, that should now include the words,
"as amended by this Act"—
and may be single or repeated acts. Subsections (5) and (6) repeat our earlier item on the position of defendant and victim where a child has been called or enabled to witness the abuse of the victim. I hope that this amendment will prove more acceptable to the Minister than our previous effort.
Baroness Anelay of St Johns: My Lords, I welcome the opportunity that has been given to us by the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Thomas of Walliswood, to return to this debate, which, primarily for me, is about the definition of domestic violence. First, I must refer to Amendment No. 33 moved by the noble Lord, Lord Thomas of Gresford. It goes down an avenue where I cannot follow him because it would confine the operation of Clause 5 to a relatively narrow band of offences. That is primarily because I am unsure how, ultimately, it would be workable, but also because I am not following the same line of approach in Clause 1 either. On that basis, I am trying to be as consistent as I can.

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With regard to Amendment No. 38B, I am very grateful to the noble Baroness, Lady Thomas, for taking on board some of the questions that I posed in Grand Committee and for taking such care in the way in which she has developed her amendment. I, too, would like to thank the Solicitors' Family Law Association for its careful and helpful briefing. I hope that she will forgive me for saying that I am so pleased to see that she has addressed my point about financial abuse in her amendment. At the same time, however, I have more questions to ask, although I do not want to be difficult.
I refer first to the fact that the case is to be transferred to the family court of the County Court. If that is the case, who will be the parties to the proceedings to ensure that they actually take place? The CPS would be out of the picture by then because the case would no longer be in the criminal court. The CPS would instigate the proceedings in the criminal court, so how would this work? Would an order be made for the alleged victim to bring the proceedings, or would it be another witness in the case? I am not sure how that would be dealt with.
What would be the position regarding funding for legal representation? I think that the answer to that question would be a resounding "yes" from the noble Baroness because we may well be in complete agreement on this matter. However, does she agree that it is important for both the victim and the alleged defendant to have access to properly funded legal advice?
So far as concerns legal advice, I note that subsection (3) states that the,
"person … for whose benefit the temporary order has been made shall be entitled to be … represented by a family lawyer at the adjourned hearing".
Here I am trying to think of the proper lordly language to use. I am interested to know how that would be defined because I am not clear that, in the professional sense, there is such a thing as a "family lawyer". Perhaps the noble Baroness can explain that further. I wonder how such lawyers would be defined as a class.
I note also that subsection (6) would absolve the alleged victim from all blame with regard to abuse that has been caused to a child. I understand the reasons why the noble Baroness has put this forward. The very fact that I looked at these issues in Clause 4 when I pressed an earlier amendment tonight—I wanted to address the problem of those who are themselves the subject of domestic abuse and how they should be treated within the context of that clause—is relevant. I said earlier that one cannot be absolved entirely from blame because one has suffered from domestic abuse. However, it is something to be taken into account when judging whether one has taken a reasonable course of action. Here the noble Baroness has gone one stage further in seeking completely to absolve them. That is where I find it difficult to follow her.
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This amendment makes an admirable attempt to take our debate on the definitions of domestic violence further and I hope that the Government will be able to take up the challenge posed by the noble Baroness on how we shall deal with it.
I think that it is right too that the definition proposed by the noble Baroness should refer to children. The Home Office definition excludes children, which I find intriguing. There may be a good reason for that, but it would be interesting to find out what it is. On the other hand, I notice that the Crown Prosecution Service does include children in its amendment. We have had the benefit of the noble and learned Lord, Lord Goldsmith, for the past hour or so. He has disappeared just as he was about to get a plaudit. I shall not add any subtext to that which could be misconstrued. The plaudit is that the website of the Crown Prosecution Service is remarkably good and clear. So many government websites appear to want everything with bells on, so much so that they collapse and you cannot get to the information. The search engines are dreadful. The Crown Prosecution Service website keeps it simple and is most effective.
Also effective is the CPS definition. It states that the definition it adopts when applying its policy on dealing with cases of domestic violence is:
"Any criminal offence arising out of physical, sexual, psychological, emotional or financial abuse by one person against a current or former partner in a close relationship, or against a current or former family member".
That is an admirable starting point, but it seems odd that the Home Office and the CPS should apply different definitions. I wonder whether the Government propose to resolve that difference.
Lord Renton: My Lords, I always have great respect for amendments moved by the noble Lord, Lord Thomas of Gresford, and I warmly support Amendments Nos. 33 and 36. But I am a bit mystified by the need for Amendment No. 38B, which goes very far.
Subsection (4)(b) states that:
"Domestic violence may include, but is not restricted to—

(b) intimidation, harassment or stalking".

I have never known human beings go in for stalking each other—they go in for stalking animals; that is a well known activity—but it may be that my ignorance has misled me.
Quite frankly, in my opinion, some of the restraining activities mentioned in Amendment No. 38B go a little far. I very much hope that the noble Baroness, Lady Thomas of Walliswood, although she may wish to modify the amendment and bring it back at Third Reading, will not press it today.
9.30 p.m.
Baroness Thomas of Walliswood: My Lords, I am disappointed but I do not think that I would be in order if I responded to the comments that have been made.
Lord Bassam of Brighton: No.
Baroness Thomas of Walliswood: My Lords, that being the case, I shall not respond to them.
Baroness Scotland of Asthal: My Lords, as regards the definition, the noble Baroness will know that our position is that it is not something that we would seek to put into the Bill. I have made it clear on other occasions that the Domestic Violence Ministerial Working Group is considering a working definition for all practitioners and others who participate in this field. We are looking for a comprehensive definition which will be acceptable to all. I cannot comment on all the differences but I should inform the noble Baroness that others operate on definitions different from the Home Office and the CPS. It is important that we get a clear definition so that we are all singing from the same hymn sheet.
As I said when we discussed this topic in Committee, the Government's intention when drafting subsection (2) of Clause 8 was to deal with one of the issues raised in responses to the Safety and Justice consultation paper and the need for victims to be kept informed when an application is made to vary or terminate a restraining order that is protecting them. At present, the first the victim may know of the order's variation or termination is when the respondent turns up on the doorstep. The intention of Amendment No. 33, tabled by the noble Lords, Lord Thomas of Gresford and Lord McNally, is to extend the right to be heard when the court first makes a restraining order.
I can understand why the noble Lords suggest that that would be appropriate but the effect would be to overturn the existing procedures under the Protection from Harassment Act 1997, where the court makes its decision in parallel with the sentencing process on the basis of the evidence it has already heard. Not only is the defendant present and legally represented, but the person protected by the order will almost invariably be in court for the proceedings. CPS lawyers see it as their duty as officers of the court to make known the victim's views on a restraining order, and the responses to Safety and Justice revealed no dissatisfaction with these arrangements.
Similar considerations apply in the case of our proposals for restraining orders on acquittal, where both the prosecution and the defence will be able to lead additional evidence, an issue to which we referred earlier in our deliberations. Under those circumstances the Government do not believe that a separate statutory right to be heard is necessary. In addition, it is possible that giving defendants as well as victims a right to be heard on the making of an order will lead to adjournments that may well delay the protection that orders provide.
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Finally, the text of the amendment still appears to be missing the "and" that would be necessary to make sense of the revised Section 4A that the amendment proposes.
I turn now to Amendment No. 36. When we last discussed this amendment the noble Lord, Lord Thomas of Gresford, expressed surprise that the proposals for restraining orders on acquittal extend to defendants acquitted of any offence. The Government have always been clear that this is the case. I believe that I said as much at Second Reading. I reassure your Lordships that the Government share the noble Lord's determination to ensure that restraining orders are made only to maximise protection for victims, while in no way undermining the status of acquittal. I would be very alarmed indeed if they were doing any such thing.
It is precisely for that reason that the clause is drafted so that a court can impose restraining orders on acquittal only,
"if it considers it necessary to do so to protect a person from harassment by the defendant".
We believe that this first safeguard fulfils the noble Lord's intention of restricting the availability of restraining orders to a specific category of cases, many of which will be domestic violence cases. I understand the noble Lord's resistance to anything that would depart from that.
So when in Committee the noble Lord, Lord Thomas, suggested that the clause would allow a court to impose a restraining order on someone acquitted of a road traffic offence, he was correct up to a point, but only in cases where the court had heard evidence that pointed to a need to protect a person from harassment. Regrettably, the noble Lord probably knows better than anyone that there are road traffic incidents which end up as road rage incidents. The parties get very exercised with each other, very aggressive, and it may be appropriate, in a given case, for some protective order to be made.
In their response to Safety and Justice, many domestic violence organisations stressed that many offences, including, for example, criminal damage, can be part of a campaign of harassment. Limiting the availability of restraining orders on acquittal in the way suggested by the amendment would create a lottery of protection and might even encourage certain types of harassment on the grounds that an acquittal could not result in a restraining order. It would also deny protection to other categories of victims, such as victims of stalking but not domestic violence. We mentioned this evening the difficulty presented by stalking. The Government do not believe that such victims are any less deserving of protection.
The amendment raises two further difficulties. First, although it would limit the availability of restraining orders on acquittal to cases,
"arising out of domestic violence",
it fails to define such cases. I note that Amendment No. 38B includes a definition of domestic violence, and I shall deal with that in the context of that amendment specifically, although I think I have already alluded to what my answer is.

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The second difficulty stems from trying to tie restraining orders to the offence of which the defendant has been acquitted—in other words, to the offence that the defendant has been found not to have committed. The Government's proposals are designed to avoid this; they allow the court to draw on the evidence of the defendant's conduct that emerges during the trial. To relate the restraining order to the specific offence of which the defendant had been cleared, as Amendment No. 36 does, would undermine the status of the acquittal.
Amendment No. 38B, tabled by the noble Baroness, Lady Thomas of Walliswood, is similar to several we discussed in Committee which sought to make restraining orders on acquittal temporary in nature and then remit them to the family court for further consideration. The present amendment goes further in that it covers both restraining orders on conviction or acquittal for an offence arising out of domestic violence. It would make such orders temporary and remit them to the family proceedings court or the county court. If I may respectfully say so, the noble Baroness, Lady Anelay, asked some very telling questions in relation to how that would work.
The person for whose benefit the temporary order was made would then be entitled to be heard and represented by a family lawyer and lead any evidence that would be advisable under Section 3 of the Protection from Harassment Act 1997, which provides a civil route for protection against harassment. Of course, there are family lawyers who are members of the Solicitors Family Law Association or the Family Law Bar Association, but given the generic term "family law", it would be rather unfair to restrict access. Others who had become specialist in areas of crime would feel slighted or excluded, and I know that that is not the noble Baroness's intent.
The objections that I set out in Committee remain and are, if anything, stronger now that the amendment includes restraining orders on conviction. My principal objections are that restraining orders made on conviction have always covered a wide range of cases, some involving domestic violence, others not. The orders are made in parallel with the sentencing process following a criminal conviction, and are designed to provide protection from harassment, rather than deal with a range of family law matters. The courts have found no difficulty in operating this scheme. Indeed, the stalking cases came specifically out of stranger harassment, which was not capable of being identified in any other way. I cannot see what extra protection is offered to victims or defendants by treating domestic violence cases differently, as the amendment proposes, and remitting those cases to a family court when the question of protection from harassment has already been dealt with by the criminal court.
Similarly, I cannot see the justification for remitting restraining orders made on acquittal in domestic violence cases to the family court. The restraining order will have been made following evidence heard in the criminal case which leads the court to conclude that it is necessary to make an order to protect the victim from harassment, even though the criminal case
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ends in an acquittal. That is a matter that the criminal court can properly consider and decide. It does not raise issues that are the unique preserve of the family courts, although many cases may fall within that ambit. Rather, it raises issues of protection from harassment, with which the criminal courts have been dealing successfully since the Protection from Harassment Act 1997.
Amendment No. 38B also includes a definition of domestic violence as a way of filtering out those cases that should be remitted to the family court. We have had several debates on the question of a definition of domestic violence, and the amendment demonstrates many of the problems of a definition. It is relatively easy to find a way of defining the relationship between the parties—by reference to the associated person criteria in the Family Law Act 1996, for example, as the amendment proposes. Much more difficult is defining the violence element. The definition leaves the court to determine when an offence has arisen out of domestic violence and offers no guidance on which offences are included.
Furthermore, there are some elements where it is difficult to see what kind of offence could arise from the circumstances listed—for example, unwarranted interference with personal items or restriction of access to potential sources of support. Overall, the amendments would damage the way in which the 1997 Act currently works, offer no real additional protection for victims of defendants alike, and leave the courts with an unworkable definition of domestic violence. The whole import of what we are trying to do is to allow continuity and protection—protection for future action when the court will have the opportunity hear all the evidence and take the necessary steps. From the information that we have and from the letters that have been written, it is clear that there are cases in our courts today that would benefit from these provisions. I understand why the noble Baroness and the noble Lord are concerned about this matter, but I hope that I have been able to go some way towards reassuring them that their anxiety is not perhaps entirely well founded.
Lord Thomas of Gresford: My Lords, I am happy with the very full explanation that the Minister gave in relation to Amendment No. 33. However, on Amendment No. 36, we are left with a power for the court to prohibit,
"the defendant from doing anything".
The defendant has been acquitted, so by definition he is not guilty of that with which he was charged and we can regard him as an innocent person. The court may prohibit him from doing anything in order to protect any person—not a witness or a complainant, but any person—and the offence of which he has been acquitted may relate to anything. It is the widest power imaginable. At the moment, all we are doing is trying to find some way in which this wide power can be put within reasonable bounds. The only qualification, the only way in which it is limited, is that the court must consider it necessary to protect a person from harassment by the defendant. It may not be on evidence that has been produced in that case because

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there may be evidence at a later stage. It may be for any reason. I shall continue to look at this subsection to see if there is some acceptable way in which we can limit it to a degree.
As for the explanation relating to domestic violence, my noble friend's amendment, I am interested that the Home Office is working on a definition of domestic violence. Is it not possible to use that as a definition, without giving it statutory force? Is it not possible simply to say that in the Bill domestic violence means what the Home Office at some stage says it means, whether by judicial decision or whatever? Can we not use domestic violence in the Bill as shorthand for something that can be flushed out by the Home Office when it has come to its conclusions?
9.45 p.m.
Baroness Scotland of Asthal: My Lords, perhaps I should explain that we have had the benefit—a real benefit—of having an inter-ministerial group on domestic violence. Many departments that are affected, or that participate in this matter, are able to contribute, for instance, the Office of the Deputy Prime Minister, the Department of Health, the Department for Education and Skills and the Crown Prosecution Service, represented by the Solicitor General. Virtually every department is represented on the working group that is trying to craft a working definition. It will not be the Home Office definition or any department's definition. It will be one working definition that we can share with all the practitioners in the field who are trying to work in partnership. It brings home how difficult it is to nail down a definition, to put it in stone, because it changes as our understanding of domestic violence changes.
I thought it important for the House to know that we understand the necessity for clarity because we are asking practitioners across departments to work together from the same "hymn sheet", so that they understand what they are collectively trying to do. I understand the noble Lord's invitation to share once we have settled on something but, having listened to the debate, I am strongly of the view that it is not appropriate to have even an agreed definition in the Bill because it may very soon become obsolete or need amendment.
Lord Thomas of Gresford: My Lords, I am very grateful for that even fuller explanation. It ought to be possible to use a definition like that as shorthand at some stage. Perhaps that is for the future. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 34 to 36 not moved.]
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 37:
Page 6, line 4, leave out "considers it" and insert "is satisfied on the basis of facts proved on a balance of probabilities that it is"
The noble Baroness said: My Lords, in moving Amendment No. 37, I should explain that for the same reason as I did not move Amendment No. 35, I shall
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withdraw Amendment No. 38 before the next sitting and I shall not bring Amendments Nos. 32 and 34 back at Third Reading. All of these were primarily based on a particular approach to drafting in relation to other legalisation. I am content to follow the indications given by the noble and learned Lord the Attorney-General that the Government will consider these matters. I accept that there was no undertaking but that it is a possibility that amendments will be introduced, if not in this House at Third Reading, then perhaps in another place. Therefore, before the next sitting, Amendment No. 38 will be withdrawn.
But Amendment No. 37 has a different provenance. It is something to which I referred in Grand Committee. We are still with Clause 8. There has certainly been opposition to the clause's proposals for the power to have a restraining order even where there has been an acquittal, on the basis that it is wrong to impose sanctions on a person who has been cleared of criminal charges. I carefully considered all the representations we received, and I determined that we would be prepared to accept the measures in subsection (3), but with some amendment. I made it clear in Grand Committee that I thought that one such necessary amendment was to make it clear on the face of the Bill that the civil standard of proof is required to be met before a restraining order could be imposed on an acquitted person in the very wide circumstances of this new power, as the noble Lord, Lord Thomas of Gresford, explained in speaking to the previous group of amendments.
When I moved this amendment in Grand Committee the Minister said, at col. 250 of the Official Report, that it is unusual in legislation to define the standard of proof that the court should adopt in making its decision. I have considered further, and I think that it is necessary to make it clear in this case where we are introducing a very broad measure that has courted some controversy.
I was even more convinced of that after the noble Baroness's response in Grand Committee, because she said that there are cases where the court will have to apply a higher version of the civil standard in deciding whether past conduct is proved, depending on the nature and severity of the conduct alleged. The reason why it worried me is that it means that the Government's drafting does not give certainty of application of this new measure. It will be left to the court to decide which standard of the civil proof should be decided from case to case. I had hoped to make clearer on the face of the Bill that the ordinary civil standard should be applied. That is the reason behind my amendment. It would at least introduce the requirement that facts be proved. I beg to move.
Lord Renton: My Lords, I warmly support this amendment; I think it is a rather important one. The "balance of probabilities" is not a phrase normally used in criminal law. Here, however, we are dealing with restraining orders on acquittal, and therefore a different concept and burden of proof is necessary. I hope that the noble Baroness, Lady Scotland, will regard the amendment with sympathy.
Baroness Scotland of Asthal: My Lords, I think that I should make it clear that what I was describing in Committee is the ordinary civil standard of proof, on the balance of probabilities. The amount of evidence that one has to produce to satisfy that balance of probabilities will differ in accordance with the gravity of the assertion that one wishes to establish. So it is the ordinary standard—not a new standard, but the ordinary civil standard.
I will not weary your Lordships by repeating verbatim my remarks on that occasion, but it might be useful if I repeated the main points. Before I do so, I should like to pick up on a point made in Grand Committee by the noble Lord, Lord Thomas of Gresford, that he had misunderstood the scope of the clause. I hope that we have always been clear about the scope of Clause 8.
The Explanatory Notes say that a restraining order may be made on conviction or acquittal for any offence, where the court considers it necessary to do so to protect the victim from harassment. Although this is a Bill dealing with domestic violence, it covers other issues. Clause 8 sits in Part 2, which deals with criminal procedure, not Part 1, which deals with domestic violence. Restraining orders under the Protection from Harassment Act 1997 are civil orders, using the civil standard of proof. The criminal courts are used to making such orders and using the relevant standard of proof. There is, therefore, no need to spell this out on the face of the Bill.
Also, by specifying the standard of proof, the courts would not have the flexibility they need. There are cases where, as I say, even though the court is making a civil order, it might need to apply a higher version of the civil standard in deciding whether past conduct is proved, depending on the nature and severity of the conduct alleged. I am sorry if I in any way disconcerted the noble Baroness or she came away with the view that I was saying that I was departing in any way from that civil standard. The amendment would make the flexibility that is inherent in the civil standard more difficult to achieve. I do not believe that the amendment would clarify the clause.
I hope that I have been able to explain why the noble Baroness need not be anxious about the matter. I hope that for the reasons I have set out she understands why I cannot accept the amendment.
Baroness Anelay of St Johns: I assure the noble Baroness that she does not disconcert me. In Grand Committee I understood her remarks in a different way from how she intended. However, I certainly understand the explanation that she gave today. As regards the amendment being unnecessary, the noble Baroness will be aware that I accepted the full ramifications of Clause 8 with some discomfort. I made it clear that I thought there ought to be at least some rather modest clarity on the face of the Bill. I was grateful to the noble Baroness for making clear at the briefing meeting before Grand Committee that there would be a requirement for a civil standard of proof in this matter for someone who has been acquitted of a criminal offence. However, in this instance I consider
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that it is important as a matter of principle to make it clear that clarity is needed. I wish to test the opinion of the House.
9.56 p.m.
On Question, Whether the said amendment (No. 37) shall be agreed to?
Their Lordships divided: Contents, 28; Not-Contents, 36.

Division No. 2

CONTENTS

Anelay of St Johns, B.

Montrose, D.

Astor of Hever, L.

Northbrook, L.

Attlee, E. [Teller]

Norton of Louth, L.

Bridgeman, V.

Redesdale, L.

Cope of Berkeley, L. [Teller]

Renton, L.

Dundee, E.

Roper, L.

Fookes, B.

Shaw of Northstead, L.

Hamwee, B.

Shutt of Greetland, L.

Hayhoe, L.

Taylor of Warwick, L.

Hunt of Wirral, L.

Thomas of Gresford, L.

Kingsland, L.

Thomas of Walliswood, B.

Laird, L.

Thomson of Monifieth, I.

Lamont of Lerwick, L.

Wakeham, L.

Mackieof Benshie, L.

Walmsley, B.

NOT-CONTENTS

Ahmed, L.

Gordon of Strathblane, L.

Andrews, B.

Gould of Potternewton. B.

Borrie, L.

Graham of Edmonton, L

Brennan, L.

Grantchester, L.

Brookman, L.

Grocott, L. [Teller]

Campbell-Savours, L.

Harris of Haringey, L.

Carter, L.

Layard, L.

Clark of Windermere, L.

Lockwood, B.

Clinton-Davis, L.

Macdonald of Tradeston, L.

Crawley, B.

Mackenzie of Framwellgate, L.

Davies of Coity, L.

Massey of Darwen, B.

Davies of Oldham, L. [Teller]

Pendry, L.

Dean of Thornton-le-Fylde, B.

Pitkeathley, B.

Evans of Parkside, L.

Ramsay of Cartvale, B.

Evans of Temple Guiting, L.

Rendell of Babergh, B.

Farrington of Ribbleton, B.

Rogan, L.

Faulkner of Worcester, L.

Sainsbury of Turville, L.

Goldsmith, L.

Scotland of Asthal, B.

Resolved in the negative, and amendment disagreed to accordingly.
Baroness Farrington of Ribbleton: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly and, on Question, Motion agreed to.

Mersey Tunnels Bill
Bill reported from the Select Committee without amendment and a special report made; the Chairman of Committees directed pursuant to Private Business Standing Order 121(1)(b) that the Bill be not recommitted to an Unopposed Bill Committee; it was ordered that the special report be printed.
House adjourned at seven minutes past ten o'clock.