Lords Sitting of 11 March 2004

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

Special Advisers
Lord Sheldon Lord Sheldon asked Her Majesty's Government:
Whether, following the ninth report of the Committee on Standards in Public Life, they will establish appropriate boundaries between special advisers and civil servants.
Lord Bassam of Brighton: My Lords, the code of conduct for special advisers sets out the duties and responsibilities of special advisers. It also requires special advisers to uphold the political impartiality of civil servants. In their response to the ninth report of the Committee on Standards in Public Life, the Government proposed an amendment to the code of conduct for special advisers to provide a further clarification of the relationships between special advisers and permanent civil servants.
Lord Sheldon: My Lords, in thanking my noble friend for that reply, I acknowledge his useful contribution to last Friday's debate. But is he aware that in evidence to the Public Administration Committee there was concern that civil servants had been close to being instructed by special advisers? In its ninth report, the Committee on Standards in Public Life called for a Civil Service Act which would include clear statements of what special advisers cannot do and that they must not undermine the political impartiality of civil servants. I think this needs more than just a code. Will the draft Civil Service Bill cover these points?
Lord Bassam of Brighton: My Lords, the noble Lord is aware that only last Friday we had a useful and valuable debate on the Bill proposed by the noble Lord, Lord Lester, and that this was one of the issues that was raised extensively during that debate. We are committed to consulting on a draft Bill. No doubt the issue raised by the noble Lord today—he has raised it many times before—will be one of the issues that will be dealt with and consulted on when the draft Bill is published.
Lord Lester of Herne Hill: My Lords, because he took part in the debate to which he has just referred, the Minister will be aware that the First Civil Service Commissioner, the noble Baroness, Lady Prashar, expressed the hope that that debate would,
"lead to a Joint Committee of both Houses being established to take forward consideration of the most appropriate legislation to reinforce the core values of the Civil Service".—[Official Report, 5/3/04; col. 904.]
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Can the Minister say whether that proposal will be given urgent consideration by the Government and will have a fair wind, with their support?
Lord Bassam of Brighton: My Lords, the noble Lord's question has been raised on a few occasions before in your Lordships' House. He knows that it is one of the issues which is to be considered as part of the process of consultation. The noble Lord made a helpful suggestion only last Friday with regard to the way in which the two Private Members' Bills and the forthcoming draft government Bill could usefully be consulted on. That is something that we are actively considering.
Lord Howell of Guildford: My Lords, the Minister will recall the notorious Order in Council of 7 May 1997 which placed two specific special advisers above civil servants in law. It did a great deal of damage to the Government and was deeply deplored. Subsequently an undertaking was given to rescind it. Can the Minister remind me whether that law has now been rescinded?
Lord Bassam of Brighton: My Lords, I do not know that I consider it to be notorious. My understanding of the position is that it is no different from that which pertained under earlier administrations. There are only three Civil Service posts that have executive powers, only two of which are currently filled. The noble Lord will be aware of the outcome of the Phillis review, the fruit of which was that the replacement for Alastair Campbell no longer has executive powers in the way in which they were exercised before.
Viscount Goschen: My Lords, do the Government accept all the recommendations made in connection with the role of special advisers in the final report of the independent review of government communications published in January?
Lord Bassam of Brighton: My Lords, my recollection is that we certainly accepted most, if not all, of the recommendations, of the first published Phillis review. We are actively considering the recommendations made in the subsequent follow-up report published by Phillis

Police: Special Services
11.5 a.m.
Lord Mackenzie of Framwellgate Lord Mackenzie of Framwellgate asked Her Majesty's Government:
Whether they have any plans to introduce legislation to amend Section 25 of the Police Act 1996 on the provision of special services or to issue a code of practice or guidance on the application of that legislation by police authorities and chief officers of police.
The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, we are currently examining whether there are any suitable future

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legislative opportunities that would enable some amendment to Section 25. Guidance in Home Office circular 34/2000 deals specifically with charging for policing football matches. In response to concerns of the police and football authorities, a joint Home Office and DCMS departmental working group has been examining all the issues.
Lord Mackenzie of Framwellgate: My Lords, I thank my noble friend for that Answer. Is she aware that ancient fairs—some as old as 800 years—are at risk of being driven out of business by savage charging imposed by police authorities? In one case of which I am aware, the charge was £180,000.
While it is understandable for the police to charge for special services on private premises, does my noble friend agree that policing is a public service and that it is unacceptable to charge in respect of ancient funfairs in public places and on high streets, while night clubs and bars proliferate in city centres, causing massive policing problems, with no charges at all? Policing should be free at the point of delivery. After all, the public have only two choices—take it or leave it.
Does my noble friend further agree that the disparity in charging practices by the police amounts to postcode policing of the worst possible kind, which can only further damage the reputation of the police in the eyes of the public?
Baroness Scotland of Asthal: My Lords, I hear what my noble friend says in relation to charging. I do not think I can agree with all the comments that he has made because, of course, what constitutes a special police service must be determined by taking account of all the circumstances of each individual case. It must also be requested by the event organiser and agreed by the chief constable, who will take into account the level of resources required and the deployment available.
I am aware that concern was expressed in relation to one fair as a result of a charge made by the local authority. The local authority asked for policing services, agreed the rate and then passed that sum on to the public. But that happened in one individual case. It is right that the group is looking at this issue. We hope that it will have a fruitful deliberation and fully take into account all that has been said.
Baroness Walmsley: My Lords, does the Minister agree that the Home Office guidance on charging for the policing of football matches, to which she has just referred, could serve as an appropriate model for the charging for the policing of fairgrounds? Is she aware that in Chapter 13 of those notes of guidance it states:
"It is recognised that local circumstances cannot be ignored … In addition, the financial plight of some clubs is a significant consideration and asking for full economic recovery"—
of the cost of policing—
"could lead to problems with recovering the debt and severe financial problems for the club"?
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Does not the Minister agree that the same sort of consideration should be given to some of our ancient charter fairs that some would believe are more part of our culture than football clubs?
Baroness Scotland of Asthal: My Lords, that is a powerful argument. As the noble Baroness will know, there has been a great deal of debate as to whether and to what extent this should be extended. The law at the moment sets out the criteria which should be applied when a decision is made as to whether special measures should be taken in terms of policing. But it is right that the whole amount is not recovered at the moment and these matters are very much under debate.
Lord Hoyle: My Lords, I must declare an interest. I am proud to be an honorary member of the Showman's Guild. Does my noble friend agree that it would be a great pity if we lost some of these fairs which have added to the gaiety and enjoyment of many people, particularly youngsters? And yet they are threatened; not only one authority but four authorities are now looking at this issue. Does not my noble friend further agree that it should not be done in such an arbitrary manner, which puts at risk the efforts of those who work so hard to provide us with this enjoyment?
Baroness Scotland of Asthal: My Lords, I very much support what my noble friend says about the enjoyment of fairs and the ability to participate in them. The difficulty is that some of these very enjoyable occasions are now meted with some not so enjoyable fracas thereafter. People have to assess how such events will be policed, who will pay for the policing and how they are to be managed. I appreciate that such concerns are being considered. Indeed, the Government are undertaking a number of reviews in relation to how we deal with pubs and clubs as well.
Viscount Bridgeman: My Lords, does the Minister agree that the figures produced by the Merseyside Police Authority, showing that Liverpool and Everton football clubs contributed well short of the cost of policing those clubs, are representative of clubs up and down the country? I have in mind the question of the noble Baroness, Lady Walmsley, about the poorer clubs. Will this disparity in costs be addressed in the review of the Police Act 1996?
Baroness Scotland of Asthal: My Lords, I cannot comment on whether the situation of the Everton and Liverpool football clubs is replicated across the country. Some of the conference clubs would be a little anxious about any statement I made in that regard. However, the group that was set up by the Home Office and DCMS, together with the football and policing authorities, is looking at these issues. I cannot foresee what it will come up with, but I know these issues are at the forefront of its mind.
Lord Barnett: My Lords, how is it that a very poor authority such as the House of Lords is charged

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something like £8 million for police? Is that under review as well, and could it be eliminated from our costs?
Baroness Scotland of Asthal: My Lords, I do not think that is something on which I could possibly comment. However, the day that our House gets a crowd of 60,000, I, for one, will celebrate.
Lord Mackenzie of Framwellgate: My Lords, will my noble friend give some indication of when the committee to which she referred will complete its deliberations?
Baroness Scotland of Asthal: My Lords, I am not able to say when the departmental working group will complete its deliberations; it is a matter for its members. However, if I receive further information, I will obviously be happy to communicate it to my noble friend.

Railway Franchises
11.12 a.m.
Lord Bradshaw Lord Bradshaw asked Her Majesty's Government:
What weight is given to past performance when new railway franchises are being awarded.
Lord Davies of Oldham: My Lords, the Strategic Rail Authority must ensure that bids for franchises are evaluated on an objective and fair basis, and that the market is open to new entrants. It therefore concentrates on evaluating bidders' proposals for delivering the SRA's specification, train service performance and service quality on a value-for-money basis rather than simply awarding franchises to operators who have done well in the past.
Lord Bradshaw: My Lords, I thank the noble Lord for that reply, in so far as it goes. When railway franchises were first let, there was no track record. Many were let to companies which have failed, cost the taxpayer large sums of money and come back for more and more. Now that there is a track record, will the Minister please indicate to the House that at least the track record of a company, in delivering services, will be a significant feature in the award of franchises? Otherwise, much of the decision-making is made behind closed doors by the SRA against some very unclear criteria. One has a suspicion that the Treasury wants the lowest-cost franchise rather than the best value.
Lord Davies of Oldham: My Lords, that last suspicion should be laid to rest—best value is the criterion. I reinforce the point that I made in my original Answer: the process seeks to be as objective and fair as possible. In evaluating a company's responses to the questions properly addressed to it regarding the franchise, of course the added valuation of what the company is promising may be affected by its performance in the past. However, the important
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point is that all those applying for a franchise should be evaluated on clear and specific criteria, objective to all.
Viscount Astor: My Lords, will the Minister explain why, as his Government wish to encourage long-term investment by the train operating companies in the railway network, they are limiting the franchises to seven years? That is far too short a period for a company to have long-term objectives. The Government could certainly extend the period of the franchise, subject to strict performance criteria.
Lord Davies of Oldham: My Lords, of the many representations that have been received on the general issue of how we manage the railways—there have been quite a few in the context of the railway review which is currently taking place—the particular point about the seven-year franchise does not come out with great sharpness. A balance has to be struck between the point the noble Viscount rightly makes about how long we should have a franchise in order to promote effective and efficient investment against the obvious point that it is necessary for the travelling public to have guarantees that service will be up to standard over that period of time or there will be the possibility of change.
Lord Monro of Langholm: My Lords, on the West Coast Main Line, which is under the Virgin franchise, will the Minister tell us in what year the track will be upgraded so that trains can be run at full speed from London to Glasgow?
Lord Davies of Oldham: My Lords, the answer is: very soon.
Noble Lords: Oh!
Lord Davies of Oldham: Well, my Lords, everyone is well aware that the delays on work to the West Coast Main Line have put timetables back over the past few years. But we are now at the latter stages of the completion of the West Coast Main Line modernisation. We look forward to the point which the noble Lord emphasised when the new rolling stock, which is of very high standard and high performance, will be running at maximum capacity.
Baroness Platt of Writtle: My Lords, is the Minister aware that there is disappointment in the eastern region that First Great Eastern has not been awarded the franchise for a second time after a very good track record? It is not perfect—there is no perfect railway company—but it is very good. What are the reasons for that, given that the company has a good track record?
Lord Davies of Oldham: My Lords, as I have indicated, the issue was not whether the previous performance was satisfactory; the issue was which of

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the bidders looked to be able to guarantee the best performance in the future against the criteria. Another company was chosen because its bid was superior.
Lord Shutt of Greetland: My Lords, is the Minister aware that there is great concern on the east coast, bearing in mind that the franchise is up for renewal soon? It is generally perceived that GNER has been giving a good service and people are very worried that they will get something inferior in its place.
Lord Davies of Oldham: Well, my Lords, they should not be. Loyalty to existing companies is much to be welcomed, although I would not say it is universal across the railway system. However, the only reason that that franchise would not be won by the existing franchisee is if a superior bid was in place to the benefit of all the travelling public.
Lord Hoyle: My Lords, my noble friend seems very complacent about the West Coast Main Line. When will it be completed, and when will Virgin introduce completely new trains on that stretch, because what it is using at the moment is absolutely disgraceful?
Lord Davies of Oldham: My Lords, if I verge towards the positive and the optimistic, it is only because I am all too aware of the trials and tribulations of all passengers who have been using the north-west line over the past decade. I am struggling to avoid this metaphor, but I see light at the end of the tunnel. However, I am not able to give the exact length of that tunnel at the moment.
Viscount Goschen: My Lords, would the Government like Network Rail to take charge of the operations of more stations, as is reported in today's newspaper?
Lord Davies of Oldham: My Lords, we have received many representations about the quality of station provision, so we are examining that matter. We know that a number of our most significant stations are not up to standard. As the noble Lord will recognise, we are currently involved in a major review of the whole system, which will report in June or July, and that factor will be taken into account.

Overseas Student Visas
11.20 a.m.
Baroness Sharp of Guildford Baroness Sharp of Guildford asked Her Majesty's Government:
Whether any decisions have been made in relation to charges for visa renewal for overseas students.
Lord Bassam of Brighton: My Lords, we are exploring ways in which we might refine the charging system to ensure that it delivers a fair and efficient service for all our customers. Any proposals including differential charging will be included in the formal
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consultation later this year. At this stage, however, we cannot guarantee a reduction in the level of fee charged for particular application types, including students.
Baroness Sharp of Guildford: My Lords. the Minister will recall that, on 4 November, he answered a Question from my noble friend Lord Wallace in which it became clear that there was considerable unease on all sides of the House about the suddenness of the increased charge for student visas from zero to between £150 and £250. Is he aware of that unease? Does he also recall that, because it became clear that little consultation had taken place, he gave a specific commitment that his department would consult the UK Council for Overseas Student Affairs, the British Council, UK universities and further and higher education colleges? Has any consultation been undertaken and, if not, why not?
Lord Bassam of Brighton: My Lords, the noble Baroness's recollection of the Question is the same as mine. There will be consultation on the setting of future fee levels and services as I made plain. We are fully committed to that. It was a feature of the introduction of the fees that consultation had not been as full as we would have liked, but that was in line with the way in which the legislation was set out. We made plain our intention back in 1999. However, I am happy to confirm that there will be continued dialogue and consultation with UKCOSA and the universities.
Baroness Lockwood: My Lords, when this Question was last raised does my noble friend recall that I asked whether consideration could be given to allow students to take out a visa for the whole length of their course if it were not possible for a differential fee to be paid? My noble friend promised to have a look at that proposal at the time; I wonder whether there have been any developments along those lines.
Lord Bassam of Brighton: My Lords, I have looked again at the response that I gave to the noble Baroness on the first occasion on which we discussed this matter at Question Time. It is one of those issues on which there will be consultation, I am sure. There is a problem with differential charging, because to introduce it would require a sophisticated accounting system and the volumes of applications add to that complexity. The feasibility of differential charging, I am advised, will be included in the scope of phase two of the charging project, which will also take account of the fee review itself.
Lord Lewis of Newnham: My Lords, I declare an interest as chairman of the Cambridge Overseas Trust and Cambridge Commonwealth Trust, which are responsible for partially funding more than 800 students from overseas in Cambridge. Is the Minister aware of the urgency of this particular question? In many universities, the majority of students carrying out research for higher degrees are from overseas—in the University of Cambridge, of those studying for higher degrees, approximately two-thirds of those registered are from

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overseas. The cost of this renewal of visas, especially the retrospective nature of this renewal, must act as a deterrent to many students, especially—I stress this—those from developing countries. This a very serious matter that ought to be given a high degree of urgency.
Lord Bassam of Brighton: My Lords, we take the matter that the noble Lord raises very seriously. We are not aware that it acts as a disincentive to foreign students studying in the United Kingdom, although I appreciate the level of concern that has understandably been expressed because of the introduction of the fees last year. I am grateful to the noble Lord for raising the issue in this way and I urge those Members of your Lordships' House who are concerned about this matter to ensure that proper representations are made so that we are as aware as we should be of the impact of any future changes. We should remember, however, that those who apply for a visa now get an extremely good service. We have introduced extremely useful initiatives to speed up the service and ensure that visas are processed quickly.
Lord Steel of Aikwood: My Lords, what fresh instructions have been given to visa officers about being more flexible about the length of the visas that they issue, especially after studies have been completed?
Lord Bassam of Brighton: My Lords, my understanding is that there is greater flexibility so that for very short-term returns immigration officers have some latitude—not a great deal—so that students can return to collect belongings and attend degree ceremonies and so forth.
Viscount Bridgeman: My Lords, following on from that question, has the Minister made a specific assessment of the impact of charges for visa renewal on overseas students making multiple visa applications in order to complete their studies in the UK?
Lord Bassam of Brighton: My Lords, I do not have that information today. I am happy to interrogate the information that we do have and try to provide the noble Viscount with a response that matches his concerns.
Lord Cobbold: My Lords, does the Minister have figures for the total number of overseas students in this country—which is now a large number? Does he agree that it is extremely important to provide a good service and to encourage students from overseas to come to this country?
Lord Bassam of Brighton: My Lords, I entirely agree. As the noble Lord will know, the Prime Minister launched an initiative in June 1999 directed at increasing student numbers from overseas to the United Kingdom. That initiative has been extremely successful. I understand that, in higher education, there were 109,940 in 1996–97. By 2001–02, there were 142,350. In further education during that time, numbers rose from 25,102 to 47,995. We are moving towards the 2005 targets with a high degree of success. Part of the thinking behind
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increasing numbers was to ensure that we had an effective visa system in place able rapidly to respond to applications. We now have that.
Baroness Walmsley: My Lords, does the Minister recognise that students on a three-year course with one-year visas will have to undertake the burden of the cost of renewal? A survey of overseas undergraduates at the LSE last December revealed what appears to be a completely random pattern, with students being given one, two, or three-year visas. Students from the same country were granted visas of different lengths even though the length of their courses of study were exactly the same. The Minister said in your Lordships' House last November that:
"The length that the visa lasts is very much related to the length of course the student is undertaking".—[Official Report, 4/11/03; col. 683.]
Given that, will he explain how that could happen? Clearly, the situation is not as he described it last November.
Lord Bassam of Brighton: My Lords, I hear what the noble Baroness says and I recognise my words from last November—I have reread the Question with care. Other factors may be involved in the applications about which neither the noble Baroness nor myself is aware. The study completed by the LSE is valuable and I urge that its findings and considerations are made available to the review that is continuing. It should form part of the consultation. If issues flow from the study, they are of concern and interest.
Baroness Sharp of Guildford: My Lords, the Minister said that a review was being undertaken, yet, as far as I know, Universities UK has not been consulted on the issue at all. Can he assure us that there really is in his department the urgency behind the issue that has been expressed around the House?
Lord Bassam of Brighton: My Lords, I am slightly puzzled by what the noble Baroness has to say with regard to Universities UK, as my understanding that it is part of the consultation process, as is UKCOSA, which is obviously another important body in that regard. I shall check again to ensure that that is the case, but I would certainly hope that it is.

Anti-terrorism, Crime and Security Act 2001 (Continuance in force of sections 21 to 23) Order 2004
11.30 a.m.
Baroness Scotland of Asthal Baroness Scotland of Asthal rose to move, That the draft order laid before the House on 20 January be approved [6th Report from the Joint Committee].
The noble Baroness said: My Lords. I regret that since last year there has been no reduction in the threat to the United Kingdom from Al'Qaeda and its associated networks; nor, on the information available, is there any indication that the threat is

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likely to reduce substantially in the immediate future. The bombing of the British Consulate in Istanbul on 20 November provided a particularly brutal reminder of the very real threat posed by Al'Qaeda and its associated groups to the United Kingdom and our interests overseas. It also demonstrated graphically the level of sophistication of their operations and the damage that a suicide bomber can inflict.
The outrage demonstrates forcefully that none of those atrocities could have been carried out without the support and assistance of a network of individuals who, while they do not themselves carry out the particular terrorist acts, consciously provide the material and financial support necessary for others to carry them out. Strong intelligence has been received demonstrating the high priority placed by Al'Qaeda and linked Islamic extremist groups to mounting terrorist attacks, including in the United Kingdom. Plans include the use of chemical and biological materials.
Put quite simply, we are aware of the disruption that that causes to thousands of innocent people, but we cannot afford to take the risk. It is clear, from the mass of intelligence and other information that my right honourable friend the Home Secretary and our counter-terrorist allies have seen, that Al'Qaeda and its associated networks retain both the will and ability to carry out further large-scale atrocities. As result of its strong support for United States and other allied action against international terrorism, the United Kingdom and British nationals are, regrettably, potential targets.
To sum up, the action that we have taken reflects the existence of a public emergency threatening the life of the nation, within the meaning of Article 15 of ECHR. That emergency continues. We view the powers in Part 4 as an essential tool in the United Kingdom's counter-terrorist armoury. Detention powers that we took under Part 4 of the Anti-terrorism, Crime and Security Act 2001, in response to that threat, closed a very specific loophole. There are present in the United Kingdom foreign nationals, and a small number of British citizens, who are suspected of being concerned in the commission, preparation or instigation of acts of international terrorism of a sort that resulted in the events of 11 September 2001; being members of organisations or groups so concerned; or having links with member of such organisations and groups—and who are a threat to our national security.
Whenever possible, we will prosecute an individual. Failing that, when it is possible to remove a foreign national suspected terrorist from the United Kingdom, we will make every effort to do so. We will also continue to explore with other governments how they might help us safely to return individuals. Officials in the Home Office and the Foreign and Commonwealth Office are actively pursuing how that might best be achieved. But we must acknowledge that removal, at least in the short term, is precluded for some terrorists because of the ECHR Article 3 prohibition on removal to face torture or inhuman or degrading treatment or punishment.
There is a very difficult balance that we have to achieve between our international commitments and our duty to safeguard the security and population of this country. We have reviewed closely and regularly the need for detention powers and ECHR Article 5(1) derogation, and the feasibility of other possible options. We have done so particularly closely in the light of the Newton committee's comments, but have concluded that we have no responsible alternative but to maintain the powers to detain, and the ECHR derogation.
We have also reviewed closely the application of detention powers to foreign and non-United Kingdom nationals. We believe that they are entirely justified as the threat still comes predominantly, though not exclusively, from foreign nationals present in the United Kingdom whom we are not able to remove, and therefore not able to detain pending removal, and when the preferred course of prosecution is not possible because the evidence needed for successful prosecution is unavailable. It would be deeply damaging if the United Kingdom was seen to be unable to take action and as providing a safe haven, weakening the international fight against terrorism. Unlike United Kingdom nationals, who have the right to be in the United Kingdom, foreigners are ordinarily subject to removal—which remains the intention when possible for ATCS Act detainees—if they represent a threat to national security.
I am aware that there have been suggestions that the threat from British nationals is increasing. We heard that in the debate last week. That is something that we are addressing in our review of the United Kingdom's anti-terrorism powers. But we should not forget that, in the mean time, Part 4 allows us to take action against a significant proportion of those who seek to endanger national security and public safety. Those powers significantly assist our security and intelligence services in doing their job. The Court of Appeal upheld our position on the need for these powers in its judgment in October 2002. The court agreed that the powers are not discriminatory and that they comply with the ECHR. The matter is to go before the House of Lords Judicial Committee later this year.
I now turn to the working of current Part 4 detention powers. I shall deal, first, with the exercise of detention powers; secondly, with the legal processes under the ATCS Act; and thirdly, with the second report of the noble Lord, Lord Carlile, on the working of Sections 21 to 23 of the Act. The Government have used the powers sparingly and proportionately. They are used only as a last resort, when no other action is possible. To date, 17 foreign nationals have been certified under Sections 21 to 23 of Act—eight in December 2001, one in February 2002, two in April 2002, one in October 2002, one in November 2002 and two in January 2003, one in August and one in October last year. Of those, two have voluntarily left the United Kingdom. The other 15 remain in detention, one of whom is held under powers other than immigration.
My right honourable friend the Home Secretary's decision to certify those people as suspected international terrorists is based on detailed and compelling intelligence

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and other material. All those detained have had access to legal advice of their choice throughout the detention period. There is no limit on the number of legal visits that detainees may receive, and special arrangements are in place to help to arrange visits, often at short notice.
The material on which the decisions to certify those people is based has been, and will continue to he, reviewed by the Special Immigration Appeals Commission, as provided for under the ATCS Act. SIAC is a superior court of record equivalent to the High Court. Those detained have immediate right of appeal to the Special Immigration Appeals Commission against certification. All have exercised that right.
The ATCS Act provides for SIAC regularly to review certificates, for the first time six months after final determination by SIAC, giving power to quash them. Detainees also have the right to apply for bail to the commission at any time, and several have done so. I must stress that that is not internment; it is detention pending deportation, and it is open to detainees to leave the United Kingdom at any time. Two have done so.
Appeals of the individual detainees started in May 2003. To date, 13 determinations have been handed down by SIAC. SIAC has upheld my right honourable friend's decisions in 12 of the 13 cases. The one case where SIAC did not accept my right honourable friend's decision was one of two cases handed down on Monday this week. We are obviously disappointed by that decision—my right honourable friend has certified only in appropriate cases—and I can therefore confirm that we are seeking permission for leave to appeal in this case. However, the legislation does not stand and fall on one case, nor does it mean that the legislation is ineffective. Just as in a criminal trial, if someone is acquitted for murder, that does not mean that the offence of murder is ineffective or that the relevant legislation is flawed.
We debated the Newton committee's report last Thursday. It was a stimulating debate, which, although raising a number of issues relating to other parts of the Act, focused heavily on Part 4. I am sure that we all found it extremely helpful to consider those issues in depth. We are here today to decide whether the Part 4 powers should be renewed for one more year. As I have indicated elsewhere in my speech, it is the Government's very strong contention that it should. However, nothing that I say now detracts from the Statement that we made last week about the need to look very creatively at the situation in the future.
The committee led by the noble Lord, Lord Newton, carried out a very thought-provoking review of the Act as a whole and suggested some alternatives to the Part 4 powers for the future. We also have the report of the Joint Committee on Human Rights on the Act, which in many ways reflects the findings of the Newton committee. Finally, we have before us the second annual report of the noble Lord, Lord Carlile, reviewing the operation of Part 4 to inform our consideration. I believe that the publication of my right honourable friend the Home Secretary's options paper on 25 February has contributed significantly to this debate.
The report of the noble Lord, Lord Carlile, was published on 11 February. I would like to place on record the Government's thanks to the noble Lord, Lord Carlile, for his efforts in producing his report. We are very appreciative of the candour that he has displayed in setting out his thoughts. The noble Lord's report will be of great assistance to us today as we debate the renewal of the Part 4 powers. His report lends powerful support to the basic premise of the Act on the need for detention powers to take dangerous suspected international terrorists off our streets.
In particular, we are pleased to note that the noble Lord, Lord Carlile, is satisfied that my right honourable friend the Home Secretary has certified persons under the ATCS Act only in appropriate cases, and that he exercised his independent judgment in each case, having given due regard to advice from officials. I welcome the main conclusions of the noble Lord, Lord Carlile: it remains desirable that the derogation issue should be resolved as soon as possible; SIAC has clarified the "links" provision helpfully and restrictively; the Secretary of State has certified persons as international terrorists only in appropriate cases; and the Secretary of State has exercised his independent judgment in each case, giving due regard to advice from officials. SIAC has dealt efficiently and clearly with substantive cases, and we agree with all those findings.
Further consideration should be given to enable SIAC to continue hearing the merits of appeals against certification where there has been detention and the detainee has left the United Kingdom. The training, role and effectiveness of the special advocates as protectors of the rights of detained persons should be given early attention, and consideration should be given to widening the pool from which they are chosen. Further attention should be given to disclosure issues relevant to SIAC hearings and to other matters raised by SIAC in its first generic judgment. Efforts on an individualised basis should be made to secure the deportation of detainees to third countries willing to respect their rights under Articles 2 and 3 of the ECHR.
Facilities more suitable to the special circumstances of executive detention of persons who have not been charged with any offences having been provided during the past year, it is a matter of regret that none of the detainees has agreed to enter those facilities. Continuing scrutiny should be given to possible alternatives to detention and to the consequences of the sunset provision effective in 2006. Those are, in outline, the noble Lord's findings; we are considering them and the rest of his report in great detail.
The order extends for a further year Sections 21 to 23 of the Act. Those powers will then lapse, unless my right honourable friend the Home Secretary proposes renewal for a further period of up to 12 months, and if that proposal is then approved by both Houses of Parliament. The order was debated in committee by the other place on 26 February, when the Motion was agreed overwhelmingly.
The effect of the order is to continue in force, until 13 March 2005, several powers. The first is the power under Section 21 of the Act for the Secretary of State

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to issue a certificate where he reasonably believes that an individual's presence in the United Kingdom is a risk to national security, and where he reasonably suspects that an individual is an international terrorist. The second is the power under Section 22 of the Act for specified immigration decisions to be taken in respect of such an individual despite the fact that, whether temporarily or indefinitely, his removal from the United Kingdom is prevented by a point of law relating to an international agreement or by practical consideration. The third is the power under Section 23 of the Act to detain such an individual under immigration powers in the Immigration Act 1971, even though that person's removal is temporarily or indefinitely prevented by a point of law relating to international agreement or practical consideration—for example, the country of origin refuses to take the person back, or there is no route via which to return them.
Noble Lords will be aware that the Court of Appeal has issued an interim decision in respect of other matters, on which I do not propose to comment today, as they are sub judice.
Where terrorism is concerned, our paramount responsibility is to ensure public safety and national security. Tragically, the threat is already beyond doubt. I was pleased that, last Thursday, agreement on that point echoed from all sides of the Chamber and we were united in the acceptance of that threat, as terrible as it is. We are certain that the detention powers have had a deterrent and disruptive effect on terrorists. We firmly believe that the powers have also sent a strong message.
Nothing can guarantee 100 per cent security. Those powers are just one, albeit very important, element of our counter-terrorist strategy. They deal with specific threats from foreign nationals suspected of involvement in terrorism of a sort that led to September 11 who we wish, but are currently unable, to remove or deport from the United Kingdom.
We have a tough and targeted framework of legislative measures, which are among the most robust in the world, in place to deal with the overall threat from terrorism, including the Terrorism Act 2000 and the full range of other Anti-terrorism, Crime and Security Act provisions. We also have the Nationality, Immigration and Asylum Act 2002 and the linked practical steps to stop terrorists exploiting the system by posing as asylum seekers and to strengthen our border controls.
In tackling the terrorist threat, we rely on our intelligence, security and police services to identify people who pose a risk, arrest them and disrupt their activities. The task is never complete and I would like to commend the work that those services have done over the years to secure the public's safety and national security.
We believe that it is necessary and proportionate to continue the measures that we currently have in place. I know that the House will want to weigh carefully this important measure. In that regard, I should formally
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confirm that we consider that the provisions of the Act are compatible with ECHR rights. Therefore, I have no hesitation in commending the order to the House.
Moved, That the draft order laid before the House on 20 January be approved [6th Report from the Joint Committee].—(Baroness Scotland of Asthal.)
Lord Holme of Cheltenham Lord Holme of Cheltenham rose to move, as an amendment to the above Motion, at end to insert "but this House calls on Her Majesty's Government to replace Part 4 of the Anti-terrorism, Crime and Security Act 2001 with alternative provisions which do not require derogation from the European Convention on Human Rights."
The noble Lord said: My Lords, in moving this amendment, I am responding to the very clear and persuasive presentation by the Minister. I want to make quite clear what this amendment is not. It is not a fatal or wrecking amendment, nor is it intended to be. At the end of the day, the Government will have the renewal of their powers under Part 4 of the Anti-terrorism, Crime and Security Act for a further 12 months. But this amendment is intended to get a much clearer statement from the Government of exactly what will happen during those 12 months and to apprise them of the consequences should they try to sustain their first blanket rejection of the principal conclusion of the Privy Counsellor Review Committee, which was chaired by the noble Lord, Lord Newton, who I am very pleased to see in his place today.
Despite a full and excellent debate last week, it is worthwhile briefly summarising where we are today and how we got here. As we all know, the Act was passed in haste in 2001 to deal with the threat of terrorism which, if not new, since we have had to deal with threats of terrorism in this country for some time, seemed in its focus—because of the attempts of the malign leadership of Al'Qaeda to mobilise a network of terror from fundamentalist Islam—and in its extent after the awful atrocity of 9/11 to have escalated dangerously. The noble Baroness will recall that, despite the emergency in the autumn of 2001, that Act was heavily criticised in its passage through Parliament on three grounds. The first was that the process was over-hasty, did not allow for full and detailed scrutiny, and did not correspond to the criterion, set out in the Terrorism Act 2000, of properly considered, principled counter-terrorist legislation that should follow the four principles that had previously been set out by the noble and learned Lord, Lord Lloyd of Berwick, who I am also very pleased to see in his place this morning.
I shall remind your Lordships of those four principles because they are relevant to this discussion. First, antiterrorism legislation should approximate the ordinary criminal law as closely as possible. Secondly, additional statutory powers may be justified, but only if they are necessary to meet the anticipated threat and then that they should strike the right balance between the security of the public and the rights and liberties of the individual citizen. Thirdly, such additional powers might imply consideration of additional safeguards and, fourthly, such laws should comply with the UK's obligations in

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international law. During the course of the debate in the autumn of 2001, all those issues figured largely. It is fair to say that doubts were expressed on all of them. At the same time, the scope and efficacy of the measures proposed were questioned.
Secondly, the Bill was criticised because it seemed to import a number of measures into anti-terrorism legislation that did not belong there and which, if they belonged anywhere, belonged in mainstream legislation. It was felt in the House, and in another place, that this piggybacking looked like opportunism, or perhaps a flurry of simulated activity by the Home Office that was designed to impress, rather than a focused approach to a new threat, which we all agreed existed. Thirdly, great concern was expressed about Part 4 of the Bill on the grounds that indefinite detention without proper trial is alien to British tradition and international law, and it was thought to be unacceptable.
Noble Lords will recall that the legislation got through Parliament, and your Lordships' House in particular, only because of the promise of a review by a committee of Privy Counsellors. I think that it is fair to say that the agreement of both Houses was strictly conditional on that committee being established and its conclusions were eagerly anticipated.
The committee, chaired by the noble Lord, Lord Newton, of which I had the honour to be a member, took a lot of evidence. We met as a committee 22 times and we paid 18 relevant visits in smaller groups. Our conclusions have been very well reported and they were, as the Minister said. well debated last week, so I shall not rehearse them again in detail. In summary, although we accepted unequivocally that the threat is serious—that is common ground between the Government, the committee and, I suspect, most Members of both Houses—continuing and needs a special response and we accepted that some of the new powers are well founded and well used, which is something that we looked at carefully, we were nevertheless very critical of the legislative process that created the Act. We found it honeycombed with extraneous provisions, which, if introduced at all, should be in mainstream legislation, and we found the provisions of Part 4 of the Act simply unacceptable.
This amendment refers, as evidence of the unacceptability of Part 4, to the fact that it requires derogation by the UK from the right to liberty under Article 5 of the European Convention on Human Rights. Some people may say that that is not the only thing wrong with it. That is true and I shall remind your Lordships of some of its other flaws in a moment. Some people may say that derogation is not the most important thing wrong with it. Perhaps, but derogation is not to be dismissed lightly. Attempts have been made to say that other European countries have not had such a strict interpretation placed on their emergency provisions as we have. Other people have said or implied that derogation is a small price to pay for the right measures. But we are the only European country that has had to derogate from the right to liberty. In my view, it is a sad day for this country. It is a stain on our reputation as the home of
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individual rights and personal freedom. Moreover, such derogation clearly does not conform to the fourth principle of anti-terrorist legislation of the noble and learned Lord, Lord Lloyd, that it should comply with the UK's obligations in international law.
Part 4 is deeply flawed in other ways. It has bent procedures designed for immigration and asylum matters into a strange shape. It detains people for an indefinite period. The process, to which the Minister referred, although operated properly in the verdict of my noble friend Lord Carlile, is lengthy and, crucially, it treats the threat from foreigners suspected of terrorism in a totally different way from British nationals suspected of being an equivalent threat.
The Government justify this last flaw in Pan 4—the Minister has just repeated the justification in her speech—by saying that the threat comes predominantly from foreign nationals. I understand that that was their original assessment in 2001, and who knew then? That seemed to be a reasonable assumption at the time. But now the Government know better. Not only have there been highly publicised cases involving British nationals, such as the "shoe bomber", but our committee received and published uncontested evidence from the authorities that approaching half of those suspected of terrorism are British citizens. I suppose that that now includes the Guantanamo returnees. Yet the Government repeated their assertion of a predominantly foreign threat on page 7 of their discussion paper last month. Although I thought that the Minister had nuanced it slightly to "primarily" in the debate last week, I see she is back on "predominantly". I simply do not understand the Government's mathematics. May I ask the Minister yet again to set the record straight? We need the understanding and support of the public if we are to fight terrorism effectively, and I do not believe that misrepresentation and xenophobia help in that.
In summary the committee concluded that the shortcomings of Part 4 in terms of both efficacy and principle were such that it should be replaced as soon as possible. At this point, perhaps I may ask the Minister to comment further on why the Government have chosen to appeal the case in which a Libyan national who had been detained under Part 4 was released yesterday on appeal by Mr Justice Collins. Can she say why the Government, who seemed very pleased with the way in which the SIAC procedure operates, would find it necessary to appeal when the verdict goes against them? I really do not understand that. Perhaps she can explain that to the House.
The committee suggested several approaches which in various combinations might assist the Government in their deliberations. We certainly did not purport to have some sort of magic replacement formula instantly available. There are difficult trade-offs to be made, and there are disadvantages to most ways forward. I think that one has to concede that; anyone who has spent any time thinking about it recognises that. Clearly, finding the right alternative will not be easy. However, as the noble Baroness graciously conceded last week, that is the task of the Government, not of the review committee. Now, the Government have not only our ideas to help them; they have the interesting

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suggestion of my noble friend Lord Carlile of a new offence—"preparatory to terrorism"—and they have invited debate and new ideas during a six-month period which has variously been described as being one of discussion or consultation.
Here we come to the nub of the amendment. Do the Government go into this period of discussion and debate with a genuinely open mind? Are they determined to do their level best not to be here at this time next year, standing pat on Part 4 and asking supinely for its renewal, but determined to come forward with a better alternative? For example—the noble Baroness was somewhat coy about this in last week's debate—will they ensure that they complete their review on the total ban on the use of intercept evidence within the same six months in which the consultation proceeds?
I have to say that the first omens are not encouraging of the Government's determination to do better on this score. The Home Secretary, shooting from the hip, did his level best to wing the Newton report before it got off the ground by disparaging it and misrepresenting its main conclusion. The February discussion paper, which might have represented a more mature reaction to these proposals, must be one of the feeblest and thinnest Whitehall documents ever to be described as a discussion paper. It totally fails to answer most of the points made by the committee. It grasped avidly at the few points where our conclusions are supportive of current government policy. It dismisses, in paragraphs, substantial points of criticism developed over pages of careful argument—our conclusions not only on Part 4, but on many other important issues such as the clear recommendations on the need for proper oversight of the disclosure of information provided for in Part 3 of the Act, which the noble Baroness will recall was an issue raised by the noble and learned Lord, Lord Browne-Wilkinson, in the debate last week.
So, is the Government's position on the forthcoming six-month debate as stated by the Home Secretary when he said:
"The Government's mind is open on the long-term way forward. We are not advocating any particular cause"?
Those are fine, very promising words. Or is the position as the Home Secretary said a few paragraphs earlier in the same discussion document:
"The Government believes that these powers—Part 4—continue to be an essential part of our defences against attack"?
Those two phrases occur within about 10 lines of each other. Home Secretary speak with forked tongue.
I believe that the House needs clarity of intention from Ministers today. If the Government were to give a clear signal that they, too, are looking hard for a fairer, more effective and more even-handed way of dealing with suspected terrorists whatever their origin, and that their hope, intention and expectation is to come back with it to Parliament in good time so that today is the last renewal of Part 4, this amendment would be unnecessary. On the other hand, if the Government are merely playing for time in the face of the unanimous recommendation not only of the
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Newton committee but of the Joint Committee on Human Rights, I believe that they are misreading Parliament badly. This amendment is a necessary and timely warning and a wake-up call, not only on behalf of Liberal Democrats but, I believe, of the whole House, which the Government would be prudent not to ignore. From today, Part 4 is living on borrowed time. I beg to move.
Moved, as an amendment to the above Motion, at end to insert "but this House calls on Her Majesty's Government to replace Part 4 of the Anti-terrorism, Crime and Security Act 2001 with alternative provisions which do not require derogation from the European Convention on Human Rights."—(Lord Holme of Cheltenham.)
Noon
Baroness Anelay of St Johns: My Lords, in debates on orders it would be the usual procedure at this point that the Front Bench spokesmen from this side of the House would put forward their views. I suggest, however, that this is rather an unusual situation and that the House might find it more appropriate if I reserved my remarks until just before the Minister responds, and that instead I might turn to my noble friend Lord Newton, who chaired the committee, to present his remarks at this point.
Lord Newton of Braintree: My Lords, I am grateful to my noble friend on the Front Bench for her courtesy to me, although I should emphasise that I see as no part of that that I am now speaking formally on behalf of the Opposition as distinct from speaking in my capacity as chairman of what was a very non-partisan committee of Privy Counsellors. I saw my noble friend nodding vigorously. I am glad to see that that is accepted.
It is only a week and 10 minutes, almost to the second, since I last addressed the House on what was very broadly the same subject—though. of course, it was a bit wider last week. Therefore, my remarks today will be correspondingly brief. I am aided further in that by the fact that the noble Lord, Lord Holme of Cheltenham, who was an invaluable member of the committee, has made a number of the points that I might have made had I been minded to rehearse what I said last week. However, in passing I observe that—alongside the other difficulties that I spoke about last week, and that the noble Lord has spoken about—I continue to be puzzled at the apparent presumption that, even with the alleged terrorists who can be dealt with under Part 4—and bearing in mind the litany that the Minister produced last week of terrorist acts elsewhere directed at British property and British citizens—the best answer is to get them somewhere else. I continue to have reservations about that.
My principal purpose now is to make clear to the House that neither I personally nor, I think, the committee collectively would wish to oppose this order. That is not because we resile in any way from the concerns which both I and other members of the committee and, indeed, Members of the House at large set out in last week's debate. Indeed, it appears to me that

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those concerns have been underlined and further validated by the various events that have taken place during the week, including the publication of photographs, rather dramatically, of British—UK national—suicide bombers; the return of a number of Britons—UK nationals—from Guantanamo; and the SIAC judgment to which the noble Baroness referred. Nevertheless, those concerns, however valid, do need to be set in the context of two other considerations.
The first, of course, is that none of us doubt that there is a threat; that it is not going to disappear quickly; and that the Government do have a duty to seek to prevent it materialising, even if we do not think that what they have in place strikes an appropriate, effective and sustainable balance between the various considerations involved. The second is that none of us think that finding such a balance is a quick or simple task. It needs careful and thorough consideration, involving careful and thorough consultation, and leading to legislation, if it does, which can be subject to careful and thorough scrutiny. In other words, I, at any rate, would accept that the word "urgently"—which we used in our report to describe the need for a replacement—is not the same as "precipitately".
For reasons we all understand, the legislation that we are discussing was conceived and passed at a speed much greater than, but for the circumstances, anyone, including, I hope, the Government, would have thought desirable. I believe that none of us would wish to create a vacuum which would have to be filled in a similar way, which is what would no doubt happen were the renewal sought today to be refused.
As has been indicated several times, the Government have undertaken to have a further six months of extensive discussion and consultation in terms on which I touched last week and which I do not propose to go through again. As I said then, there appears now to be a much greater acknowledgement of the need to address some of the difficulties we identified than any we detected during the course of the long work of the committee of inquiry. In my judgment the right course now is to let the Government get on with that and to make a further judgment when we know what emerges from it.
Before I sit down, I should obviously say a few words about the Liberal Democrat amendment, not least because it was moved, though not, I think, originally tabled by, the noble Lord, Lord Holme of Cheltenham. I listened very carefully and, I need hardly say, sympathetically, to what he said in view of the noble Lord's membership of the committee of Privy Counsellors. I think he knows that I stand shoulder to shoulder with him on what I take to be his purpose of emphasising the importance that is attached to these issues by the committee and, indeed, I think, the House. There is no difference between us on that. It needs to be made clear that many of us who will have no great difficulty in supporting renewal today would have—if I may use the understated language that I always prefer—much greater difficulty in a year's time if by then there was neither the
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actuality nor the reasonably early prospect of something which better met the concerns that the committee and others have expressed.
That said, I want to refer—the noble Lord, Lord Holme, paved the way for this—to the precise terms of our recommendation. It can be found in various places, but I refer to paragraph 25 on page 11 of our report, which states:
"We strongly recommend that the powers which allow foreign nationals to be detained potentially indefinitely should be replaced as a matter of urgency. New legislation should:

a. deal with all terrorism, whatever its origin or the nationality of its suspected perpetrators; and

b. not require a derogation from the European Convention on Human Rights".

That embraces three concerns because there are two wrapped up in paragraph a. One is that it does not deal with terrorism that cannot be shown to be linked to Al'Qaeda. The other is that it does not deal evenhandedly with terrorists of UK and foreign origin. Paragraph b constitutes the third element—the fact that it requires a derogation.
I am not totally happy about an amendment that asks me to march behind a banner which picks out only one of those considerations and appears to make it paramount. Although I stand shoulder to shoulder with what I take to be the principal purpose of the noble Lord and his party, and do not resile from that.. I am afraid that I would not be able to march through the Lobby behind that particular banner even though, because of my sympathy for what I take to be his main purpose, I would not wish to march through the Lobby against him either. In other words, I should abstain.
Lord Lester of Herne Hill: My Lords, I spoke on 4 March in the important debate on the report of the Privy Council review committee of the noble Lord, Lord Newton of Braintree. Therefore, I must be very brief today. On that occasion the noble Lord, Lord Judd, and I, as members of the Joint Committee on Human Rights, expressed the unanimous concern of that committee and others about the excessive width of the powers given to Parliament under the Anti-terrorism Act, as did many on all sides of the House, and, of course, as did the Newton committee. Indeed, concern was expressed about the unique derogation—unique among European states—that has been entered by the United Kingdom Government.
The Privy Counsellors' committee, as everyone knows, put forward an alternative approach with detailed options of a very important character. Those were at the time peremptorily rejected by the Home Secretary. When I asked the Minister at col. 829 of Hansard whether, for example, the Government would have an open mind about the important idea of being more inquisitorial and using the French juge d'instruction approach—which was one of the proposals of the Newton committee—the noble Baroness gave an understandably equivocal reply and said,
"I cannot say that that has been rejected".—[Official Report, 4/3/04; col. 829].

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But the problem is that it was rejected in the discussion document and so we are left at the moment in an unsatisfactory position because we do not know whether the rejection by the discussion document of all of the main recommendations of the Newton committee really means what it says, or, as my noble friend Lord Holme of Cheltenham asked, are the Government genuinely open-minded? That seems to me to be a critical question in this debate.
May I say—this is not flattery; it is just the plain truth—that I have great respect for the complete integrity of the Minister and for her personal commitment to the rule of law which transcends partisan politics? If I may say so, she is a precious asset for the Government at a time when their commitment to the rule of law, and public confidence in that commitment, is at a very low ebb. Therefore, when the noble Baroness comes to the Dispatch Box to commend these measures in the way that she does, I, for one, regard that as of very great importance indeed because I know that she would not do so if it were against her conscience or conviction.
I would support my noble friend's amendment if he decided to divide the House. There are, of course, dangers in that course as, if the Government were to win a vote, they would no doubt quite wrongly pray that in aid in litigation before the House of Lords or before the European Court of Human Rights as some kind of measure of the proportionality of what is now to be renewed. It is not a matter of arithmetic or who happens to be here at this particular time in the House. Ultimately, it will be a legal question for the supreme authority of the United Kingdom and, if necessary, for the Strasbourg court to decide whether the powers taken and their exercise are, in the words of the convention,
"strictly required by the exigencies of the situation"—
that is to say, for the protection of public safety, public order and the protection of human life against the scourge and evil of terrorism.
The touchstone in answering that legal and political question is whether the means used are necessary to achieve the Government's and Parliament's entirely legitimate aims of combating that great scourge and evil. I have to say that the Government's refusal to apply these measures to British citizens suspected of terrorism on the ground mentioned in the discussion paper—that the powers are so draconian that they should not be applied to British citizens—gravely weakens any argument of proportionality since the scourge of terrorism is not a scourge of foreign nationals' terrorism. It does not make the slightest difference whether the terrorist, or suspected terrorist, has British citizenship or not.
The other great weakness in the Government's case is the fact that all other European states equally threatened by the scourge of terrorism have not found it necessary to introduce such sweeping powers and then to derogate from the convention. I know that the derogation has caused grave concern among senior
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officials in the Council of Europe, who see it as an extremely bad example. However, that is a matter for the courts.
Does the Minister agree that the test of proportionality, as laid down by the Law Lords in recent cases under the Human Rights Act, involves asking and answering the question of whether the means taken by Parliament and the Government are no more than are necessary to achieve their legitimate aims? Is the least sacrifice being made of the basic rights of the detainees in the sense that there is no alternative involving a lesser sacrifice? That was what the House of Lords decided in the Daly case, led by the noble and learned Lord, Lord Steyn.
If that is the test and if the Newton committee has put forward a series of alternatives that are less restrictive of human rights, I believe that the Government will find it difficult in any further litigation to justify the measures taken, according to the test of what is strictly required by the exigencies of a situation; and if Ministers reject a series of proposals by an independent committee of Privy Counsellors that has been established by Parliament with the express purpose of considering the proportionality of the measures that we passed in the statute.
Therefore, my noble friend's amendment is of critical importance, not whether we vote upon it or what the outcome is, but regarding the question he asked. If the truthful answer is that the Government do not have an open mind about every recommendation by the Newton committee and have closed the door to them, I would say as a lawyer—who may often be wrong—that the Law Lords or the European Court of Human Rights would be likely to say that the principle of proportionality and the "least sacrifice" test have not been satisfied. That is why I am so glad that my noble friend has asked that question and why obtaining a specific reply from the Minister is important.
Lord Judd: My Lords, no one in this House underestimates the grave dangers which confront us or the heavy burdens of responsibility that they place upon Ministers, the police and the security services. I pay tribute to them all.
There has been reference to the events of the past week and the release of the United Kingdom detainees from Guantanamo Bay is highly relevant to the debate. When we debated such issues last week I said that I was a layman and, therefore, was always cautious about speaking in debates of that kind, because there was so much legal expertise available. But, perhaps a layman's perspective is valid, because many people are perplexed about how four people who have been detained for over two years have now been released without charge. It illustrates the pitfalls of a lack of transparency and emphasises the public anxiety about what is really going on and the reliability of the information on which draconian steps may be based.
Having mentioned Guantanamo Bay, I hope that I will be forgiven for saying that, in congratulating the Government on their hard work in achieving this result, I wish them well in the work they are doing on the remaining four who are still incarcerated. But, as I

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have said before, let us never forget that our concerns apply to everyone in Guantanamo Bay—to the non-British every bit as much as to the British. The whole principle, if that is not a misuse of the word, on which Guantanamo Bay is operated is wrong and its provocative nature is disturbing, because it drives young recruits into the arms of the extremists.
Derogation has been referred to. As a layman, I am convinced that if the rule of law is to be sustained, there have to be certain absolutes. Therefore, derogation is an extremely serious move. The trouble with derogation is that once it has been used, it can too easily drift into becoming an easier habit. It has to be exceptional for very demonstrable reasons. The difficulty is that as Britain is the only country in Europe that has found it necessary to derogate, it is important to stress—and I hope that my noble friend will forgive me for putting it so bluntly—that the Government have totally failed to demonstrate at any point why something is necessary in this country when it is not necessary in any other country in Europe.
I am a member of the Parliamentary Assembly of the Council of Europe. There I encounter the anxiety of people from all over Europe that a country such as ours, with its reputation as the fortress of the principles of the rule of law, should have introduced this measure when no one else has done so. I do not want to overdo it by pointing out again that I speak as a layman. For those of us who look at the law as laymen, there are certain principles that are extremely important—including the presumption of innocence and the principle of "beyond reasonable doubt", which is different from "reasonable belief or suspicion". There is also the tremendously important principle that justice should not only be done but is manifestly seen to be done. If confidence in the law is to be maintained, those principles should be sacrosanct.
I would argue that it is precisely when the pressures are at their greatest that it is most important to stand by those principles. It is both right and politically prudent, because, if we do not stand by them, the danger is that we give the extremists a victory. We play into their hands, do exactly what they want us to do, and we act as recruiting agents for impressionable young people who move into the arms of sinister, manipulating extremists.
My noble friend the Minister referred to the Special Immigration Appeals Commission and stressed that it should provide some sort of legal reassurance. But, she has to accept that there are great misgivings about it. I cast no aspersions on the members of the SIAC, who I am sure are dedicated and honourable people, trying to carry out the best possible job in a difficult situation. However, there is in fact secret evidence in its proceedings and those about whom secret evidence is given have no opportunity to see or to hear it. There are special advocates who are not allowed to discuss the secret evidence with those they are defending.
There is the evidence of third parties and where that is used in the secret part of the proceedings, there are anxieties that some of it may have been secured under torture from people in other parts of the world. That
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raises the whole issue of the reliability of evidence secured under torture. It is most distressing in terms of our commitment under other conventions to be firm in our stand against torture and there is the danger that inadvertently, by the back door, we are almost condoning torture.
There is the question of intercepted communications and we all know that that is central to the secret part of the proceedings. If other action has to be taken so urgently and quickly, there is also a need to get this part of the operation on side and to use methods within our legal system whereby intercepted communications can become at least part of—possibly never fully—the open proceedings.
I support what has already been said about the implications of "free to leave". Either these people are sinister dangers for whom special provisions overriding the normal operation of the law are necessary, or they are not. If they are, to say that they are free to leave at any moment begs credibility. Flow on earth can we simply say, "They can go at any moment to carry on their dangerous activities anywhere else in the world but we are not worried about that"?
In our deliberations in the Joint Committee on Human Rights, we envisaged the approach of the amendment, but we placed on the provision a time limit of six months. There was a good deal of discussion in the committee about placing that time limit, but the decision to do so was unanimous. We were afraid that without a pressing time limit, things would be kicked into touch or lost in the long grass.
In our deliberations in the Chamber last week, I specifically drew attention to what we, members of the Joint Committee on Human Rights, said in our report. My noble friend the Minister was dealing with a wider debate and although as usual she did an exceptionally good job in summing up, she was unable to refer to the committee's specific recommendations. I hope, therefore, that the House will forgive me if I briefly summarise them.
In paragraph 33, we said:
"We continue to doubt whether the very wide powers conferred by Part 4 are, in Convention terms, strictly required by the exigencies of the situation".
In paragraph 36, we said:
"we are nevertheless certain that a more satisfactory legal framework is urgently required which would be both effective and compatible with the United Kingdom's human rights obligations including full compliance with Article 5 of the ECHR".
In paragraph 37, we said:
"If the Government argue that it is necessary to continue Part 4 in force this should be limited to six months and should be subject to a firm undertaking that the Government will actively seek, as a matter of priority, a new legal basis for its anti-terrorism tactics to be put in place speedily and in accordance with the principles developed in the Newton Committee Report".
Then in paragraph 40, we referred to what the noble Lord, Lord Carlile of Berriew, referred to in his own report, which we felt was most important: that these people have not been charged let alone found guilty and there is real anxiety here about the conditions in which they are being detained. People in that situation

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should be treated with great dignity and respect and the conditions in which they are kept should demonstrate that dignity and respect. Frankly, not everyone is certain—to put it mildly—that, with regard to those in Belmarsh, that is the case.
In conclusion, I find an interesting coincidence in two important considerations whenever I think about this issue. First, what are we defending? We are defending men, women and children of course and we must. But over centuries, our forebears struggled to establish the principles which they believed ultimately were essential to the defence of freedom in our society. Those are enshrined in the European Convention. It is almost impossible to over-emphasise the dangers in lightly putting to one side that story of struggle over centuries.
Tremendous issues of principle are therefore involved, but the coincidence to which I referred is that there is an extraordinary political counter-productivity in what is done. Those against whom we are trying to protect our families and our society want to undermine and irreparably damage the principles of our society and we must deny them that victory. We must deny them an incremental victory, as happens when tremendously important principles are gradually eroded.
It is of course for the noble Lord, Lord Holme, to decide whether to put the amendment to a vote, but I want to thank him for having brought the issue to a head. I accept what the noble Lord, Lord Newton, said about the issue being partial in terms of the total concerns of his committee, but it was important that the noble Lord, Lord Holme, put it so firmly before us. I am determined that I do not want to be part of giving wicked, sinister, manipulative extremists any kind of victory by the erosions of what I believe to be central to the rule of law and the well being of our society.
12.30 p.m.
The Lord Bishop of Southwark: My Lords, your Lordships' House is asked to renew the powers of government to hold foreign nationals without trial. Belmarsh prison lies within my diocese and I know it well. I would not want any person to be incarcerated there for an indefinite period without fair and transparent legal procedures.
The Minister, in her introduction, indicated that she does not envisage the state of public emergency ceasing to subsist. Surely, then, in the event of the public emergency continuing indefinitely, legislation is needed which deals with a situation that is becoming normative. In the mean time, although I do not envy the Home Secretary the weighty decisions he is called on to make, we might observe that where statements are made and decisions are taken which need to be taken on trust, someone somewhere needs to have the evidence on which the core for that trust is based. The country was persuaded to trust Her Majesty's Government and the intelligence services when, not so very long ago, firm assertions were made concerning the possession and deployability of weapons of mass destruction by Iraq. We went to war on that basis.
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If errors were made over weapons of mass destruction, and it seems that they were, is it too implausible to suppose that they may be made over individuals also? As the noble Lord, Lord Judd, said, last night five UK citizens were released without charge after being held for two years at Guantanamo Bay because, I presume, the security services regarded them as a possible threat. Perhaps the security services have changed their minds in those two years. However, in a situation where mistakes can be made, I urge at the very least that, if powers granted to the Government are to be renewed, anonymised information should be published about the detainees.
If governments may err, so, too, may democratic peoples. I believe that we need to balance the safety of society against the honour of society. Those who elect to office people of liberal and noble views and who grant them extensive powers may yet be surprised if those powers are used differently under a government as yet undreamed of. I do not say that that is probable or even likely, but those who enjoy their citizenship in the land of the free and who rejoice in an honourable tradition of welcome to people of other nationalities will be very concerned about jeopardising the freedom of the future in the name of the safety of the present.
If it is anticipated that dangers will beset this country for the foreseeable future, emergency powers are not the appropriate way to proceed. And if Britain is to maintain her human rights record, it is questionable whether ongoing emergency legislation should be used to deny to the citizens of other lands the protection that we afford to those of this country. It is not that protection against a possible terrorist threat is unnecessary but, if it is to be a long-standing threat, perhaps the way forward is to attend to the amendment of the noble Lord, Lord Holme of Cheltenham, and to seek a way to respond to such a threat which does not require derogation from Article 5, or any other article, of the European Convention on Human Rights and which gives due regard to risk, to human rights, to evidence and to the kind of country in which we wish to live.
Baroness Williams of Crosby: My Lords, I intervene briefly to underline the importance that we on these Benches attach to the sentiments expressed by my noble friend Lord Holme of Cheltenham in very powerful and eloquent language.
I want to say, first, that we should not make the mistake of trying to define terrorism in too narrow terms—a point raised, in particular, by the noble Lord, Lord Newton. This morning, a terrible incident occurred in Madrid. It is important to say that it took place in a country which is not related to Al'Qaeda and where terrorism has been one of the weapons chosen by certain groups in society. Following on from what was said by the noble Lord, Lord Judd, it. occurred in a country which has not sought to derogate from the European Convention on Human Rights—perhaps because it has experienced dictatorship and therefore understands deeply how significant it is to hold on to the basic foundations of a just society, the rule of law and democratic ideals.

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Secondly, as stated by the noble Lord, Lord Newton, real concerns arise from the way in which we try to resolve the problem of people who are detained but not tried. As the noble Lord, Lord Judd, pointed out, removal is a very strange way to deal with the issue because we then simply export to other countries which are even less capable of dealing with the matter people who we believe pose a serious threat to society. It is extraordinary that we should have allowed that to happen unquestioned when, undoubtedly, some of those who are said to pose a serious terrorist threat will be sent to continue their dangerous activities elsewhere. That is hardly a sensible approach to global terrorism.
Thirdly, as has been said by a number of noble Lords—not least, the noble Lord, Lord Newton—I believe it is important to underline that we are giving greater consideration to what is accepted by the Minister, the Home Secretary and others as a continuing threat. In the other place on 25 February, the Home Secretary asked the House to,
"retain part 4 for the foreseeable future".—[Official Report, Commons, 25/2/04; col. 306.]
In other words, the Home Secretary concedes that we are likely to see a continuing terrorist threat over many years, and he appears to feel that Part 4 can therefore be sustained by annual extensions. That is not a satisfactory outcome.
My final important point is that we need an absolute assurance from the Minister concerning the reaction of the Government, as expressed in an intelligent and constructive debate on 25 February in another place. Then, the Home Secretary indicated willingness to listen sympathetically to proposals for ways in which detainees could be tried and to a whole range of measures, including that suggested by my noble friend Lord Lester of Herne Hill—the inquisitorial approach. We need a clear indication from the Minister that that will be regarded as something to be pursued urgently in the review. There needs to be a true sense that it is one of the most important things that the Government should do. There can be no question of this measure returning for a further annual extension without the Government having addressed the serious implications of our derogation and the serious implications for our belief in democracy of sustaining a rule in which men and women can be detained for years without ever being tried for what they are said to be suspected of.
12.45 p.m.
Baroness Hayman: My Lords, I am aware that I rise not in the correct order and I apologise for speaking this late in the debate. It means that many of the points that I wanted to make have already been made eloquently, not least by the chairman of our committee, the noble Lord, Lord Newton, and by the noble Lord, Lord Holme of Cheltenham, in putting forward his amendment, the noble Baroness, Lady Williams, and my noble friend Lord Judd. I agreed almost entirely with my noble friend's speech, although I wish to pick up on one point that he made concerning the conditions in which the detainees are being held.
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I visited both Belmarsh and Woodhill to see the detainees and had the opportunity to speak to them. I also had the opportunity, as did other members of the committee, to see the facilities that had been provided by the Home Office following the recommendations of the noble Lord, Lord Carlile of Berriew. I believe we all agreed that they are excellent facilities and we all regretted deeply, as did the noble Lord, Lord Carlile, in his latest report, the decision of the detainees not to take advantage of those facilities. I hope that that provides some reassurance that what we considered to be a totally appropriate regime and environment are in place, should the detainees wish to go there.
Of course, that does not detract from the issue that we are debating today—that is, whether the detention itself is an appropriate measure. On that, I start by saying that, like others who have spoken, I shall be supporting the renewal of the provisions put forward by my noble friend today. I believe it would be irresponsible of this House not to support the renewal of Part 4 unless and until we have in place a replacement set of measures—I believe that it will be a set of measures rather than a single measure—that better balances the eternal difficulty of reconciling the right of all citizens to security and public safety against the right of suspects to what is, in the Home Secretary's words in the introduction to the discussion document, nonnegotiable—the right to a fair trial. Equally, I believe that it would be irresponsible of the Government not to take the opportunity presented to them by a year's renewal.
Perhaps I may say, having been part of its authorship, that the Privy Counsellor Review Committee published a very considered report. We sat for a long time; we heard a lot of evidence; we thought a great deal about the issue; and the report has been not badly reviewed in some areas. In our report—the report of the noble Lord, Lord Carlile of Berriew—there is adequate material on which I believe the Government could take action. Like the noble Lord, Lord Newton, I believe that the crunch will come not on today's renewal debate but were we to be faced with a renewal debate in a year's time without, as he said, satisfactory changes having been made or the prospect of a better package.
So, in spirit I am very much with my colleague and committee member, the noble Lord, Lord Holme of Cheltenham. I have to say that the spiritual may not be echoed by the corporeal as far as voting is concerned, were the noble Lord to push the amendment. The reason for that echoes the words of the noble Lord, Lord Newton. I believe that the balance of the noble Lord's amendment in referring only to the derogation issue is not satisfactory.
The reasons I shall give today for being deeply concerned about Part 4 are not those civil libertarianism issues which have been raised and spoken about eloquently—not that I am not concerned about them—but the efficacy issues. I took very seriously the tenor of the contribution made in another place by my honourable friend Vera Baird QC about not assuming that other countries' regimes were better or less destructive of civil liberties than our own simply

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because they had not gone through the process of seeking a derogation. I think that it is to the Government's credit that they recognise the need for a derogation and were willing to argue the case for it. So I do not think we should assume that everywhere else is necessarily better than ourselves. There was some evidence to the committee about long periods of detention in other countries under other mechanisms—equally unsatisfactory I would suggest in civil liberty terms—but that has not been given the imprimatur of a derogation because the government concerned have never sought it.
Today of all days, when in another European country we have seen multiple deaths from terrorism, is a day to consider the efficacy of these provisions as well as what they do in terms of civil liberties. My concerns are threefold in that area. The first is around the whole issue of identification, policing and disruption. Before anything can be done to a suspected terrorist, we must know that they are a suspected terrorist. That is why in the debate last week I welcomed the additional resources that are being made available to the security services. I hope they will also be made available to Special Branch in the Metropolitan Police and other police forces, because it is enormously important.
We have referred today to the case not of the suspected terrorist but of the known terrorists of UK nationality who were suicide bombers in Israel. The Guardian used the phrase that they were noted by MI5 but not judged to be a security threat. So the first hurdle of identification of people who are a threat apparently was not met. That is the first hurdle before we talk about any measure, whether detention without trial, prosecution or surveillance and disruption.
That is the first issue. For the second issue one can take the same example because of the potent photographs of those two young men kitted up to do their terrible deed. They were pursuing, in their own minds certainly, a cause that was very specific; it was a Palestinian cause. It was a Hamas press release that told us what they had done.
The link with Al'Qaeda, which would be necessary to bring them under the remit of Part 4, would then have to be established with perhaps more or less difficulty, but it would become a link with a link with a link. We categorised it rather jokingly as, "I have danced with the man who has danced with the girl who has danced with the Prince of Wales". But we do have to understand that Part 4 and the derogation allows us to tackle only terrorism that is related to Al'Qaeda. So, if there is a different ideological base or a different base in terms of the organisation, those who pose the threat cannot be captured by Part 4.
Of course the efficacy of Part 4 comes into doubt most clearly and in the most focused way when we deal with UK citizens, whom it does not cover. Many noble Lords have made the point today that I made last week; that is that in anti-terrorist legislation we should be looking for measures that meet the threat appropriately and not measures that are only efficacious against one section of the community; and, as the noble Baroness,
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Lady Williams, said, that efficaciousness is deeply undermined by the defence that is always made by the Government; namely, that these people could leave the country at any time.
I think that it has been generally accepted that if they pose that great a threat, it is not a satisfactory remedy for them to be "at loose" elsewhere and able to adopt another identity and perhaps return to this country to plot against UK citizens or citizens of any other country. If they are not that great a threat—it is not a threat to us that they are walking around—and they are not detained in another country, equally, they could be contained under surveillance noted in this country. So I do not understand the logic of the Government's position concerning that.
It leads us into a situation with the SIAC reviews which, for any of us brought up in liberal traditions and with an understanding of the British legal system, is difficult to accept. SIAC is constructed with great care. Having observed its proceedings and read both the open and closed judgments I have to say that no one could cast aspersions on how the process was undertaken by anyone involved, and I include the Home Secretary, who I believe from what we saw certainly has taken the greatest care with certification.
I made several members of the committee laugh by saying that observing SIAC was like Kafka played by the rules of cricket. That really was the sense you got out of the process; that an enormous lot was being done to try and ensure a scrupulousness in administering something that was fundamentally flawed—fundamentally flawed because those accused did not know what the accusation was and they or their lawyers did not have the right to see the evidence against them.
I know it is not easy to deal with these situations. We should not pretend that it is. There will always be a group of people, of whatever nationality, where the information against them—the mosaic of intelligence, reports and hearsay that has come forward—will make anyone who sees it deeply anxious that they should be stopped from being a threat, but which is not of an evidential standard for a normal prosecution in the criminal courts. That will remain a tremendously difficult issue with which to grapple. There is a range of measures on offer; from looking at offences that could be created—as suggested by the noble Lord, Lord Carlile of Berriew—to looking at the admissibility of intercepted evidence—perhaps the noble and learned Lord, Lord Lloyd of Berwick, may speak about this in a moment; and looking at the possibility of constructing a trial that allowed an investigating judge to look at some of this difficult secret evidence that should not be in open court, should not damage the security services or put them at risk.
There is a way of devising a range of measures and a package of measures that will better balance both giving additional protection to UK citizens and discharging the UK Government's responsibilities, but less undermining the fundamental liberties that we all hold dear on which our liberal democracy is based. I implore my noble friend not to interpret the fact that I am here to, in the immortal phrase used in my time

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in another place, "abstain in person" on the amendment of the noble Lord, Lord Holme of Cheltenham, should he decide to divide the House, in any way as detracting from the urgency of the Government looking to bring forward a better package of measures so that we are not faced with a renewal order next year.
1 p.m.
Lord Lloyd of Berwick: My Lords, it is difficult to measure up to such an eloquent speech as the one that we have just heard. I agree with every word of it. It is not the only eloquent speech that we have heard today. Like others, I support the renewal of these powers. Having heard what the Minister said, there seems to be no question about that; it goes without saying. Like others, I look forward urgently to the day when Part 4 can be replaced, the sooner the better, as far as I am concerned. The noble Lord, Lord Holme of Cheltenham, has done the House a great service by moving his amendment to the Motion.
That seems to be even more so if the Minister is right in the message that I think she was giving, that the threat is not, as we had all hoped in the aftermath of 9/11, one that would soon go away or at least diminish in strength. She gave an extremely gloomy message today, that this threat is likely to continue more or less indefinitely. If that is the case, then surely it is all the more important that we should take the message from the noble Lord, Lord Holme of Cheltenham, very seriously indeed.
The two points I have to make are very pedestrian compared with the points that have been made so far in the debate. As the Minister will remember, a week ago I asked her whether the reason why those who are currently detained without trial is a gap in the substantive law—a gap in the Terrorism Act 2000—or whether it is some evidential difficulty. I think I received the answer this morning when the Minister referred to evidence being unavailable as the reason why they are not being prosecuted. Perhaps she could confirm that what I heard was correct. If so, perhaps she could tell us a little more about the evidential difficulty. Is it a practical difficulty, the practical difficulty of which we are all aware, of producing oral evidence in court, which would put lives at risk, or is it a legal difficulty by reason of the Regulation of Investigatory Powers Act 2000? Or is it perhaps a mixture of both? She ought to be able to give us an answer to that question without giving comfort to the terrorists who we all know may be in our midst.
My second point relates to the recent decision of the Special Immigration Appeals Commission. The noble Lord, Lord Holme of Cheltenham, asked why the Government are contemplating an appeal in that case. I echo that question. Is it because the commission erred in law, in which case I can well understand why an appeal would be necessary? Or is it because the commission reached a decision on the facts with which the Government disagree? Again, I hope that she will be able to answer that question without saying that the
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whole matter is sub judice, which is an easy thing for Ministers to say when they do not want to answer awkward questions.
I was a little surprised. although again I may have misheard her, that the Government had been disappointed by the decision of the commission. Why should they be disappointed? Surely the release of one more person who has been wrongly detained is something to rejoice at? During the first Iraq war, I and two others had the job—we were known as the three wise men, a description that may have applied to the other two and not to me—that is now performed by the Special Immigration Appeals Commission. We were abolished by statute, and that is not the first time that I have had the privilege of being abolished by statute.
My job then was to interview the many people who had been detained in Pentonville prison on the grounds that they were a risk to security. It is an experience that I shall never forget. A lot of people had been, to use a crude phrase, "rounded up" on evidence provided by MI5. Our job was to go to see those people, talk to them and find out what we could about them. Of course, inevitably we found out that many of them were being detained on evidence that was totally worthless, and many were being detained even on the grounds of simple mistaken identity. On those occasions, our job was to go to the Home Secretary, which we did, and say, "You must release A, B, C and D", and the Home Secretary released them. He never once gave me the impression that what I was telling him was disappointing. So why now should the Government be disappointed by the conclusion which the Special Immigration Appeals Commission has reached? They should be pleased.
Lord Lester of Herne Hill: My Lords, I am grateful to the noble and learned Lord for giving way. Is he aware that his point is particularly strong because the European Court of Human Rights decided that he and the other wise men should be replaced by a judicial review procedure, or a proper court procedure? It is particularly strange now for the Home Secretary to express disappointment when that better procedure, more judicial procedure, is used, than when the three wise men did it in a way that did not comply with the full rigours of the convention? Is he aware that that makes his point even more strongly than he has just put it?
Lord Lloyd of Berwick: My Lords, obviously, I am delighted to hear that the point is stronger than I thought it was. I did not entirely follow everything that the noble Lord said because, I am afraid, I have left my hearing aid behind. I am sure that I shall read what he said.
Baroness Anelay of St Johns: My Lords, I can be brief today, first, because the issues have been so eloquently covered by all noble Lords who have spoken and, secondly, because I had the opportunity to take part in the debate on the full range of the

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Newton report last Thursday. The views that I expressed then, reported at cols. 823 to 828 of Hansard, are still relevant to this debate.
We recognise that the threat of terrorism is a real and significant danger. We agree with the Government that, without the powers in the 2001 Act, our defences against terrorism would be weakened to an unacceptable level. For that reason and despite the reservations that I expressed last week about Part 4, we support its continuance for 12 months.
Last week, I made it clear in particular that we considered that the Government should heed the request made in the Newton report and seek an alternative approach as soon as possible, because the provisions of Part 4 are such a serious infringement of civil liberties. I welcomed then the Government's undertaking to consult on Part 4 over the next six months. I pay particular heed to the words used by my noble friend Lord Newton of Braintree, which were echoed in the eloquent speech made by the noble Baroness, Lady Hayman. The reality that they highlighted so well is that, if we are here next year considering a renewal because no progress has been made, the Government may face a very different debate.
For the reasons that I gave last week and having heard the full debate today, I can say that I support the Government in the making of the order without amendment.
1.15 p.m.
Baroness Scotland of Asthal: My Lords, I thank all those who have spoken for making it clear that they support the making of the order. I say that with genuine feeling. I also thank the noble Lord, Lord Lester of Herne Hill, for his kind words about me. They were undeserved, but I say, "Thank you" anyway.
The debate has raised some important issues. The noble Lord, Lord Holme of Cheltenham, asked whether there would be a genuine discussion in the next year, between now and the time when the order comes to be debated—if it comes to be debated—in 12 months' time. The answer to that question is an unequivocal "Yes", but I need to put that in context. In our debate last Thursday, the noble Lord, Lord Holme of Cheltenham, accepted, I think, that the task given to the committee of Privy Counsellors was to consider this Act, not, perhaps, to put forward concrete substitute proposals for what would replace it. We all accepted last week that any proposals to replace Part 4 would need careful consideration, to ensure that the level of security that, we assert, Part 4 currently gives was maintained and that any substitution in procedure would not undermine that security but would give appropriate care to the rights of those who are subject to the procedure, which we all wish to preserve. So, I say right at the beginning that the aspirations of the noble Lord and others in that regard are totally shared by the Government.
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The position that we face today is that Part 4 is the best that we have at the moment. In the past year, it has proven to be robust. The noble Lord, Lord Holme of Cheltenham, said that the Act—particularly Part 4—was created in circumstances that made it over-hasty and did not allow us to have mature reflection on all the issues. Of course, I concede that the circumstances in which we found ourselves at that time were such as to cause us to take emergency action. I hope that noble Lords who have participated in the debate will agree with me that the care that this House and the other place took in crafting the provisions—albeit speedily and against a background of emergency—was very robust. That is why we have the benefit of the report by what I will call in short form the "Newton committee"—I hope that the noble Lord, Lord Newton of Braintree, will forgive me if I call it that. It is why we have the benefit of the review by the noble Lord, Lord Carlile of Berriew, and of two serious and informative debates, last week and today.
I also pray in aid the comments made by my noble friend Lady Hayman. She argued—rightly, if I may respectfully say so—that the Government should be commended for coming before the House and expressly seeking a derogation. I hope that noble Lords are not in any doubt that the Government take any derogation from the European Convention on Human Rights very seriously and do not seek one lightly. The noble Lord, Lord Holme of Cheltenham, indicated, I think, that such a derogation should not be dismissed lightly. I think he said that some would say that it was a small price to pay for the right measures. I must make it clear that the Government do not believe that it is a small price. The Government believe that it is a weighty price but a necessary one.
Lord Holme of Cheltenham: My Lords, the noble Baroness is getting close to the crux of the issue between us, as there is so much that we agree on. In trying to craft what she called a substitute, would it be one of the cardinal aims to remove the need for derogation?
Baroness Scotland of Asthal: My Lords, we must consider whether it is possible to craft something that is equally robust but would not necessitate derogation. If it were, the Government would have done so. Our view, based on the information that we have and our discussion of the issues, is that the situation that we now face can be properly met only by the provisions that we have at the moment.
Baroness Williams of Crosby: My Lords—
Baroness Scotland of Asthal: My Lords, I shall give way in a second. We have the discussion paper and all the issues that were laid out by the human rights committee and the Newton committee. There is also the discussion of the suggestions made in the report produced by the noble Lord, Lord Carlile of Berriew. All those issues will be debated, as a result of those discussions.
Baroness Williams of Crosby: My Lords, further to the point made by my noble friend Lord Holme of Cheltenham, can the Minister say, at least, that the Government will endeavour to bring before the House, before the expiry of the present order a year from now, proposals based on the discussions in another place on 25 February and by the committee of Privy Counsellors for alternative routes to deal with the problem that she outlined, about which the noble Baroness, Lady Hayman, so powerfully argued?
Baroness Scotland of Asthal: My Lords, I say to the noble Baroness that what was said by my right honourable friend the Home Secretary in another place was absolutely his intention: there will be an open discussion of the issues. If, as a result of those discussions, the Government come to the view that that is a course that should properly be taken, it will be taken. I hope the noble Baroness understands that I cannot give any guarantee in relation to timetable because I cannot foreshadow the nature or the extent of the discussions that will take place and what may emerge as a growing consensus as to what may be the way forward.
I take very seriously what has been said in debate. I also take very seriously what my noble friend Lady Hayman said about the nature of this issue. I take seriously what was said by the noble and learned Lord, Lord Lloyd, in terms of the length of time that these provisions may remain in force. There are many considerations that arise as a result of those suggestions. Some noble Lords have said that we may need further or other legislation. Is that right? Would that be a course to go down? Those are all issues that I am sure will excite a lot of attention and discussion.
Lord Lester of Herne Hill: My Lords, I thank the Minister for giving way. As the Minister will be aware, the speeches made by the noble Baroness, Lady Hayman, and others suggest that the robust measures—words used by the noble Baroness four or five times—do not deal with her devastating point that the measures are both under-inclusive and over-inclusive. They are under-inclusive in that they do not deal with some really nasty people who are British citizens; they are over-inclusive in taking unnecessary powers that could be dealt with in a more proportionate way.
Can the Minister give an assurance that the under-inclusiveness—that they do not go far enough—and the over-inclusiveness will be dealt with urgently so that the House has options properly considered by the Home Office back with us well before a year from now? I think that that is what all sides of the House are asking the Minister to tell us.
Baroness Scotland of Asthal: My Lords, I have tried to make it as clear as I can that these issues are included in any discussions that we shall have as a result of the discussion paper. I hope that your Lordships will find that the discussion paper is very open. It does not prohibit any issue being raised by any other party, who may say, "We need to consider the following".
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However, I also need to say that the issue of what we do about our own nationals has always, to date, been dealt with separately because we have an irrefutable problem: we have no capacity to ask our own nationals to leave this country. They will be dealt with within our borders. They are British citizens and they have a right to remain.
Baroness Hayman: My Lords, I thank my noble friend for giving way. I am sorry, but she provokes me on this point, which I made last week. These particular foreign nationals are in exactly the same position as our citizens. In effect, because of the provisions of the European Convention on Human Rights and because we cannot deport them, they must be dealt with within our own country, which is exactly the same as with UK citizens.
Baroness Scotland of Asthal: My Lords, I understand the point that the noble Baroness makes in that regard. I understand that she would say that we have to look very particularly as to the procedure that we therefore adopt in relation to foreign nationals to cure that mischief. I know that the noble Baroness understands that the Government currently believe that one cannot conflate the two. We have made it plain that the discussions we shall have as a result of the discussion document produced by my right honourable friend the Home Secretary will allow us to look now at what other options there may be to address the issues on which we are clearly divided.
I am unable to say what the outcome of those discussions will be. I hope that we could craft something together which everyone would think was robust and which would be supported on all sides, not least because we are all in agreement that, first, there is a threat; secondly, we have to respond proportionately to that threat; and, thirdly, we need to ensure that the ordinary rules that we would expect to apply will not be deviated from unless it is absolutely necessary. Those are things on which we agree. We are therefore saying that that is a discussion which now has to take place, and will take place.
The noble Lord, Lord Holme, asked me a number of questions about timetabling. I shall now turn to those because I need to be clear about what the next 12 months are likely to bring about. The suggestion is that we are going just to kick this into the long grass, come back in 12 months' time and say that we want the provisions to be reaffirmed.
I and, I am sure, all my noble friends will have listened clearly to what this House has said; namely, that we have been put on probation for 12 months and we will be dealt with and sentenced in 12 months' time. I hear that stricture. I reassure noble Lords that it will be heard by anyone who has either listened to this debate or reads it in Hansard.
As your Lordships know, the Government's response to the Newton report was published on 25 February. It formed part 2 of the discussion pa per on counter-terrorism powers. The response indicated where the Government wanted to look further at the committee's recommendations. It also, for example,

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raised the issue of whether any further offences could be created. Your Lordships will remember that the noble Lord, Lord Carlile, suggested a broadly drawn offence of acts preparatory to terrorism. Is that something which could assist us in this regard?
The discussion paper invites further ideas. We have heard many ideas in last week's debate and in today's debate. I remind noble Lords that the consultation period will continue until 31 August. So we have a period to get further ideas that can be scrutinised. We are also looking at whether the restriction on the use of intercept materials should be changed. The review is under way. It will report shortly. The noble Lord asked whether it would report six months from today. I would be bitterly disappointed if we did not have the results of that review available within the next six months.
Can I say, hand on heart, written in stone or blood, that it will be there in six months to the day? The answer is "no". Will we ensure that we do everything to encourage and enable it to be delivered as quickly as possible? The answer is "yes". Noble Lords who have had the advantage of standing at the Dispatch Box, and others, will know that sometimes our disappointment is expressed, but there may be little that we can do about it. That is something which will be energetically pursued.
The noble Lord, Lord Holme, also commented on numbers. I hope that your Lordships will understand when I say that the Government are clear that the threat now comes predominantly from foreign nationals. I am not in a position to go into the details, but that is the clear information that the Government have, and that is the position. In addition, I need to say that numbers themselves are not the determining factor. The powers tackle the adverse effects for the country in meeting the emergency arising from the continuing and unrestricted presence in the United Kingdom of suspected terrorists who cannot be removed to third countries. We think that it is not necessary to extend the measures further to include UK nationals.
Lord Holme of Cheltenham: My Lords, I am sorry to delay the noble Baroness, but have I got what she is saying right? We quoted from evidence given to us by the authorities that approaching half of those suspected of terrorism are British nationals. Is the noble Baroness saying, "Well, if you weight it for the potential seriousness of the terrorism, it is the foreigners who are more likely to do the serious things than the British suspected terrorists"? Is she saying that it is a matter of weighting the quality of terrorism rather than the numbers of suspected terrorists?
1.30 p.m.
Baroness Scotland of Asthal: My Lords, no. That is not what I am saying. Of course, I appreciate that noble Lords have used figures in this debate. I am not able to comment on figures for very obvious security and other
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reasons. I am therefore obliged to indicate to your Lordships that the Government's information makes it clear that the dominant, major threat comes now mainly from foreign nationals. That is our assessment; it is not simply a numbers game. I hope that your Lordships will understand why I cannot go further.
The noble Lord, Lord Holme, and the noble and learned Lord, Lord Lloyd, asked about SIAC. I hope that I have acknowledged, both last week and today, that we believe SIAC is working very well. That does not mean that we unequivocally agree with every decision it makes. There is, of course, a case in point where we do not believe that SIAC have got it right. I know that the noble and learned Lord, Lord Lloyd, was teasing me when he asked whether we were appealing on fact. The noble and learned Lord knows that the only basis on which we could possibly appeal would be a point of law. That is why I say to the noble and learned Lord that on this occasion we believe that SIAC has got the law wrong. Even the most noble and learned judges are not infallible.
The noble Lord, Lord Newton, raised a number of points which were echoed by the noble Lord, Lord Holme. He specifically questioned the issue of exporting terrorism, a theme raised by my noble friend Lady Hayman. It is not an issue that we take lightly. However—it hurts one almost to say so—-our major concern must be the protection of the United Kingdom. I hope noble Lords will understand that we work very closely with all our security colleagues around the world in relation to these issues.
The noble Lord, Lord Lester, and my noble friend Lord Judd asked about the status of other European countries and why they have not derogated. I hope that what I have said and what my noble friend Lady Hayman has said goes in part towards the answer—not least because we have to make an individual assessment of the threat, and that individual assessment has caused us to believe that the derogation was necessary. I absolutely accept that there may be a different view in that regard. I think my noble friend Lady Hayman is right: it may not be that other countries have not derogated in fact; they just have not derogated de jure, in law, whereas we have found it necessary.
It is not a comfortable position in which we find ourselves. But, as I have said, the Government have not closed their mind and we will continue to consider whether this is the best way forward. The noble Lord, Lord Lester, asked a very specific question about whether we accept, or agree with, the Court of Appeal definition or test in relation to proportionality. It is the correct test. However, we do not consider at present that there is any less intrusive measure which would meet the exigencies of the public emergency. That is where, perhaps, there is a difference of view.
That does not mean that we are not prepared to continue to keep these issues under review; it does not mean that we have closed our minds. I tried to make it clear on the previous occasion, and I repeat today, that no solution we come up with is likely to be perfect. We are all trying to get the best solution we can. No matter

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what solution we come up with, many will still feel some anxiety about it. The Government are clear that we need to continue to look at this issue.
I turn now to some of the specific points raised by my noble friend Lord Judd on the whole issue of secret evidence. I hope that noble Lords will not mind me reminding the House that we adopted the SIAC-type process following the European Court at Strasbourg ruling in Shahal. It was adopted precisely in order that we might address the concerns about secret evidence. Again, we have not suggested that it is a perfect solution, but it is the best we have available to us to enable the courts to consider secret intelligence.
As I said earlier, we are looking at whether the restrictions on the use of intercept material could be relaxed. When the review is published we shall, of course, be able to consider that issue further.
My noble friend Lord Judd also asked about SIAC and the issue of the use of torture and interrogation. Your Lordships will know that SIAC has adopted the common law approach to evidence which may have been obtained elsewhere through the use of torture, save for evidence that is obtained from a party—usually the defendant—in a criminal trial, where all the evidence is admissible however unlawfully obtained. However, where material may have been obtained by torture, the means by which that information is obtained will bear on the proper weight to be given to the information.
I turn now to the remarks made by the right reverend Prelate the Bishop of Southwark. He asked about anonymised information on detainees and whether or not it should be published. I can assure the right reverend Prelate that anonymised information is already made available, as recommended by the committee of the noble Lord, Lord Newton, on the Home Office website.
The right reverend Prelate asked about SIAC and the decision that we have made. I hope I have explained why we are appealing that decision. He also referred to the replacement of the temporary nature of the legislation. I hope that I have dealt with that, too, in terms of where we may respond.
The noble Baroness, Lady Williams, asked for a clear indication that the Government will not come back for a further renewal in a year's time. I think that I have dealt with that as best as I am able in terms of the approach that we hope we will be able to take in due course.
I thank noble Lords for the rigour with which they have approached the debate. It is right that there should be a rigorous scrutiny of the measures we are taking into account today. I very much welcome the assent of noble Lords to the continuation of these unfortunately very necessary powers, in the interim and for the next 12 months.
Lord Holme of Cheltenham: My Lords, I thank all noble Lords who have taken part in this short discussion on the amendment I have proposed from these Benches. I am extremely grateful to all who have spoken. It has been an outstandingly valuable debate, as the Minister has acknowledged. Although at the end of the day we may not find ourselves in complete
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agreement, there is a great deal to agree on. It is to the Minister's credit that she has identified some of those points.
Although obviously concerned not to have the potential support in the Lobbies of the Conservative Front Bench, I am very heartened by the fact that the noble Lord, Lord Newton—who will also not be there—will be at my shoulder, and that I shall have the spiritual guidance of the noble Baroness, Lady Hayman, hovering above me. It fortifies me to think that I might be able to survive this ordeal knowing that I have that, let alone the support of both the Church and the law in the shapes of the right reverend Prelate and the noble and learned Lord, Lord Lloyd of Berwick. It is very cheering from the point of view of a minority party proposing an amendment to have mustered such support.
The noble Baroness could not have put it better: the Government are now on probation. I think that she has got the message, loud and clear, from all sides of the House that it would be quite wrong for the Government to assume from here on that they can come back and say, "Renew Part 4", and expect acquiescence from all of us concerned with the problem of terrorism. We are saying, "You have got to do better, and you should do better within the next year".
I particularly welcome what the Minister said about telephone intercepts. It is very good news that she expects to see the conclusion of the Government's review within six months of discussion. I think that will help them to generate an alternative. She was careful to qualify that, by saying that she would be bitterly disappointed if such a review were not completed in time. It would be a very hard-hearted Home Secretary who would want bitterly to disappoint the noble Baroness, but perhaps this one is hard-hearted, so we shall have to keep up the pressure.
That brings me to my conclusion. We could say that we will rest on our laurels; it is clear what the feeling of the House is and it is clear that the Government are moving, under pressure, towards some abandonment of their first rejection of the Newton proposals on Part 4. However, I am afraid I am not able to feel confident about that, for two reasons. First, the noble Baroness was so circumspect about timing that I, for one, was left very unsure whether the Government would come up with new proposals within the year which are necessary for us to have an alternative. I understand her caution, but I cannot agree with it.
Secondly, when it comes to the content, the noble Baroness has, in her usual skilful way, left it rather unclear whether the Government will simply cherry-pick among the Newton proposals or whether they will make a point of reviewing all of them seriously, even those hitherto rejected, in order to try to come up with a combination which does not provide for derogation from the European convention. In the light of that, I think that we shall have to test the opinion of the House.
1.42 p.m.
On Question, Whether the said amendment shall be agreed to?
Their Lordships divided: Contents, 44; Not-Contents, 106.

Division No. 1

CONTENTS

Addington, L.[Teller]

Methuen, L.

Avebury, L.

Miller of Chilthorne Domer, B.

Barker, B.

Morgan, L.

Bradshaw, L.

Northover, B.

Dahrendorf, L.

Oakeshott of Seagrove Bay, L.

Dearing, L.

Rea, L.

Dholakia, L.

Redesdale, L.

Ezra, L.

Rennard, L.

Hamwee, B.

Roper, L.[Teller]

Harris of Richmond, B.

Scott of Needham Market, B.

Hilton of Eggardon, B.

Sharp of Guildford, B.

Holme of Cheltenham, L.

Shutt of Greetland, L.

Hooson, L.

Smith of Clifton, L.

Howe of Idlicote, B.

Southwark, Bp.

Joffe, L.

Steel of Aikwood, L.

Judd, L.

Thomas of Gresford, L.

Laird, L.

Thomas of Walliswood, B.

Lester of Herne Hill, L.

Thomson of Monifieth, L.

Linklater of Butterstone, B.

Tope, L.

Lyell, L.

Walmsley, B.

Maclennan of Rogart, L.

Williams of Crosby, B.

Maddock, B.

Wilson of Tillyorn, L.

NOT-CONTENTS

Allenby of Megiddo, V.

Filkin, L.

Alton of Liverpool, L.

Gale, B.

Amos, B. (Lord Privy Seal)

Gibson of Market Rasen, B.

Andrews, B.

Golding, B.

Anelay of St Johns, B.

Goldsmith, L.

Ashton of Upholland, B.

Gordon of Strathblane, L.

Bach, L.

Gould of Potternewton, B.

Bassam of Brighton, L.

Graham of Edmonton, L.

Bernstein of Craigweil, L.

Grenfell, L.

Billingham, B.

Grocott, L.[Teller]

Borrie, L.

Harris of Haringey, L.

Bridgeman, V.

Harrison, L.

Brooke of Alverthorpe, L.

Haskel, L.

Brookman, L.

Howe of Aberavon, L.

Burlison, L.

Howells of St. Davids, B.

Campbell-Savours, L.

Hoyle, L.

Carter, L.

Hughes of Woodside, L.

Chorley, L.

Hunt of Kings Heath, L.

Clarke of Hampstead, L.

Jopling, L.

Clinton-Davis, L.

Jordan, L.

Cobbold, L.

Kilclooney, L.

Condon, L.

King of West Bromwich, L.

Corbett of Castle Vale, L.

Kingsland, L.

Craig of Radley, L.

Lamont of Lerwick, L.

Craigavon, V.

Lea of Crondall, L.

Crawley, B.

Lipsey, L.

David, B.

Lockwood, B.

Davies of Oldham, L. [Teller]

Luke, L.

Denham, L.

MacKenzie of Culkein, L.

Desai, L.

Mackenzie of Framwellgate, L.

Dixon, L.

Masham of Ilton, B.

Dixon-Smith, L.

Massey of Darwen, B.

Dubs, L.

Merlyn-Rees, L.

Eden of Winton, L.

Molyneaux of Killead, L.

Evans of Temple Guiting, L.

Morris of Aberavon, L.

Falconer of Thoroton, L. (Lord Chancellor)

Morris of Manchester, L.

Moynihan, L.

Farrington of Ribbleton, B.

Palmer, L.

Faulkner of Worcester, L.

Pitkeathley, B.

1368

Ponsonby of Shulbrede, L.

Tanlaw, L.

Puttnam, L.

Temple-Morris, L.

Radice, L.

Tenby, V.

Ramsay of Cartvale, B.

Thornton, B.

Randall of St. Budeaux, L.

Tomlinson, L.

Richard, L.

Triesman, L.

Rooker, L.

Turner of Camden, B.

Scotland of Asthal, B.

Walpole, L.

Sewel, L.

Sheldon, L.

Warner, L.

Simon, V.

Warwick of Undercliffe, B.

Slim, V.

Weatherill, L.

Stone of Blackheath, L.

Whitty, L.

Strabolgi, L.

Williams of Elvel, L.

Strange, B.

Williamson of Horton, L.

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

Business
1.53 p.m.
Lord Bassam of Brighton: My Lords, I beg to move that the Report on the Domestic Violence, Crime and Victims Bill be postponed until after consideration of the Police (Northern Ireland) Act 2000 (Renewal of Temporary Provisions) Order 2004.
Moved accordingly, and, on Question, Motion agreed to.

Police (Northern Ireland) Act 2000 (Renewal of Temporary Provisions) Order 2004
The Lord President of the Council (Baroness Amos)The Lord President of the Council (Baroness Amos) rose to move, That the draft order laid before the House on 12 February be approved [9th Report from the Joint Committee].
The noble Baroness said: My Lords, the order before the House would renew the temporary provisions of the Police (Northern Ireland) Act 2000 which give effect to what is known as 50:50 recruitment and lateral entry for a further three years, keeping them in force until March 2007. I know that some of your Lordships harbour principled misgivings about a measure which is, as the Act itself makes clear, discriminatory.
When the Independent Commission on Policing in Northern Ireland, led by Chris Patten, made its report, it reflected the agreed. principle of the Belfast agreement that the Police Service should be representative of the society that it polices. The Patten report itself pointed out in paragraph 14.2 that:
"real community policing is impossible if the composition of the police service bears little relationship to the composition of the community as a whole".
It continued:
"If all communities see the police as their police, there will be … more effective policing".

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That issue of representation is crucial to furthering that effectiveness, not just the police reforms.
The RUC was a tine police service and it had many strengths to which I am glad to pay tribute. However, despite much effort, it was not representative—only just 8 per cent of its regular officers were Catholic. Many will say that the fact that there were so few Catholics in the RUC was due to intimidation from the IRA and others, and the Government acknowledge that that played a part. However, since the Government's implementation of the Patten recommendations, and with support for the police from the SDLP in particular, there has been an unprecedented response. In six competitions there have been nearly 33,000 applications. The level of applications from the Catholic community has consistently averaged around 35 per cent.
I accept that many qualified Protestant candidates who might otherwise have joined the service have been turned down in part because of 50:50. However—and this is an important point—the number of applications means that, across the board, 96 per cent of all applicants are unsuccessful compared with the one in eight who gets into the police in Great Britain. Indeed, the Chief Constable has had to turn away qualified Catholics as well as qualified Protestants. That is a consequence not of 50:50 but of the quantity and calibre of applicants. As a direct result of the 50:50 policy, Catholics are making up an increasing proportion of regular officers: the proportion has increased from just over 8 per cent at the beginning of the process to over 14 per cent now.
Although some suggest otherwise, that progress simply could not have been achieved without the 50:50 recruitment policy; that policy is producing real results. As the noble Lord, Lord Smith, said during the passage of the principal legislation in 2000:
"Quotas may not succeed, but I have been persuaded … that targets certainly have not".—[Official Report, 23/10/00; col. 122]
I hope that he can now be assured, after more than two years of recruitment, that quotas are succeeding.
Let me make another point clear: no one is appointed unless they pass the qualifying tests—all recruits are there on merit. All the recruits deserve our support. As the Chief Constable wrote in a newsletter on 10 October,
"They are professionals of the highest calibre and I am proud to have them under my command".
He went on to say:
"The aim is to make the police service reflective of the whole community of Northern Ireland. This is what I want to see. It is what my organisation wants to see. And, above all, it is what the vast majority of people living here want to see".
To those who are against the 50:50 provisions, I would say that to remove this key plank of the Patten recommendations would be to undermine the confidence of the nationalist community in the police. For we are now reaching a point when those who might try to say that the police are not "our" police, look, more than ever, like what they are—stuck in a past which bears little resemblance to the reality of today.
Many noble Lords will want to know when the Government plan to bring 50:50 to an end. There is no doubt that, should 50:50 go now, applications to the
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police from Catholics would drop substantially, As set out in the Patten model, our target has always been to reach a proportion of 30 per cent Catholics in the regular service by the year 2010–11. We are on course to achieve that. I would not want to prejudge when the 50:50 provisions should end, but I can say that the Government do not want to continue the practice any longer than necessary. As the then Lord Chancellor said:
"Fifty-fifty recruitment is an exceptional means of addressing an exceptional problem. Because it is exceptional, it will remain subject to regular review".—[Official Report, 15/11/00; col. 296.]
I urge noble Lords to support this order, which is required to deliver better policing in Northern Ireland. I beg to move.
Moved, That the draft order laid before the House on 12 February be approved [9th Report, from the Joint Committee].—(Baroness Amos.)
2 p.m.
Lord Laird Lord Laird rose to move, as an amendment to the above Motion, to leave out all the words after "That" and insert "this House declines to approve the draft order laid before the House on 12 February".
The noble Lord said: My Lords. I rise to propose an amendment to this Motion. In doing so, I say that nobody wants to see a fully representative police force in Northern Ireland more than I do. Nobody has worked harder, in my opinion, than a number of us to return the society in which we live, our children live, our parents live—in which we all live and wish to continue living—to some sort of normality.
We opposed the concept of 50:50 recruitment in 2000, when the Bill came before your Lordships' House. It is no pleasure for me to stand here now and say that everything that we thought about 50:50 recruitment has been proved correct. Despite what the noble Baroness has said, it is our distinct view that 50:50 recruitment is in clear contravention of the Belfast agreement, command paper 4705, dated 10 April. Under "Rights, safeguards and equality of opportunity", it refers to,
"the right to equal opportunity in all social and economic activity, regardless of class, creed, disability, gender or ethnicity".
The concept of 50:50 recruitment, or recruiting people on the basis of their religion, is totally different. What it has done is to produce a lot of hurt, initially in the Unionist community. I have a large file, which I am quite prepared to let anybody see on a confidential basis, of some of the best people in society in Northern Ireland, who spent a lot of time trying to get into the police force but have been turned down in the initial stages because they were members of' the Protestant community. They were kept out for that reason. However, I have a letter here—it is only one of a number—dated last week, in which a Roman Catholic member of our community was refused entry into the PSNI on the grounds of his religion. The letter said:
"You have passed all aspects of the selection process. I regret to inform you that the Chief Constable cannot offer an appointment to those candidates from your community background".

1371
There is an increasing number of people in that situation. The last campaign has got to the stage where it discriminates against my Roman Catholic fellow countrymen.
So it all depends on where you are and what lottery you are in—what pool you are in—as to whether you are in or not. Do you know whether you are there on merit or whether somebody from the other community who did not get in might be better qualified than you? It is a tragic state of affairs. In the Belfast News Letter of 18 February, a widely respected politician in Northern Ireland said:
"Quotas lead to resentment when those who are qualified or passed over because of their religion or race. We are risking a morale-sapping backlash".
That was written by David Ford, leader of the Alliance Party.
The whole objective of the building of the Northern Ireland that we want to see and have put a lot of effort into is to build a Northern Ireland in which somebody's religion is of no importance. But what message is a 50:50 recruitment into the police force giving us? It is a tragedy. The interesting thing is that those people who for 30 years have made an industry out of human rights are strangely silent. All those people, including the so-called Northern Ireland Human Rights Commission, who have argued about human rights for 30 years, are missing today. I might conclude that it is something to do with the fact that what we are talking about here are the human rights of people who wish to join the police force. It is therefore for others to decide their motives.
If we boil it all down, we are really talking about individual rights versus community rights. I am very hesitant to go down the community rights line. Society is built on the rights of the individual; that is why we have courts to decide whether somebody has been dealt with fairly or unfairly on an individual basis. If we ever proceed on the basis of community as opposed to individual rights—and this is the only piece of legislation that I have ever come across in the western world that talks about religious discrimination—we are opening a Pandora's box that could be very dangerous for us all. To take the most awful example of the past 100 years, looking at the rights of the greater good is what the Nazis did in Germany. What I am saying is that we protect the good of us all by going down the individual route.
It is also interesting to put on the record that since the inception of the Northern Ireland state in 1921, not one piece of legislation on the statute book has discriminated against anyone on the basis of their religion. That has been confirmed by Written Answers in this House in the previous parliamentary Session. The first time that any legislation went on to the Northern Ireland statute book that discriminated against anyone on the grounds of their religion was in 2000 with this wretched Bill.
We must be very cautious. This is having an untold effect. The hurt is bad, as is the draining off of some of our best young people, who say they want to be a
1372
policeman or policewoman, and who go off to the Met or some other police force. We cannot afford to lose the best people from Northern Ireland because of religious discrimination. We cannot afford to build up the hurt that has been built up on both sides of the community because of religious discrimination. Have we learnt nothing?
The process is now a lottery. I am highly upset that the Government should think so little of those of us who are rebuilding the Province that they should burden us with this sort of religious nonsense once again, which is exactly the sort of thing that we wish to get away from. Producing a lottery is not the answer. Perhaps the solution would be to hand the whole recruitment to the PSNI over to Camelot and let it run it as a lottery alongside the National Lottery. I beg to move.
Moved, as an amendment to the above Motion, to leave out all the words after "That" and insert "this House declines to approve the draft order laid before the House on 12 February".—(Lord Laird.)
Lord Glentoran: My Lords, I thank the Lord President for bringing the order before the House today. I take as my reference that which I said in the debate on 15 November 2000, when the Bill was under scrutiny in your Lordships' House. In principle we disagree, as we did then, with the 50:50 policy. One does not need to cast the memory or the thinking process back too far to understand that under-representation of Catholics in the police force was 100 per cent a consequence of insufficient Catholic and republican applicants and nothing whatever to do with the recruitment process. There has been legislation in Northern Ireland concerning fair employment, which related to those matters, for many years. It was strictly adhered to and policed. In fact, all recruits to my company and most others had to declare at the time, in a totally confidential envelope, whether they were perceived to be Roman Catholics or perceived to be Protestants. I say that because one has to be a Protestant or Roman Catholic Jew or, in my case, a Roman Catholic or Protestant atheist. That is the way it is and was—I do not believe that it has changed very much.
We on these Benches do not argue with the fact that the republican, nationalist and Roman Catholic population is still under-represented on the police force. What is required is for the leaders of the larger part of that community to join the police force and police board and take a full and active part in the administration and policing of our Province. I know that the SDLP is a very courageous example here and I give it full credit. It is suffering in its own communities on a regular basis. But we need the full weight of the republican movement and Sinn Fein to help to correct this anomaly.
At Third Reading of the legislation on 15 November 2000, the noble Lord, Lord Molyneaux, moved a very reasonable and sensible amendment to this part of the Bill. It placed responsibility on the chief constable to bring in measures to ensure that the composition of the

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police service is representative of the population of Northern Ireland. There was a long debate on that amendment. It will suffice for me to restate what I said on that day:
"I support the amendment".
That was the amendment of the noble Lord, Lord Molyneaux.
"The business of 50:50 recruitment and of reaching the right balance in reflecting the population is necessary, but there is a better way of doing it than the way proposed in the Bill. I hope that the Government will be able to find a way and not be stuck with something that is rather meaningless. As I have said, once we get open season for the nationalist population to join the RUC, we are home and dry".—[Official Report, 15/11/00; col. 286.]
I still believe all that I said four years ago.
I am sad that the Government have found themselves stuck with a heavy and cumbersome tool to solve a delicate confidence-building problem. In her remarks, the Lord President said that to remove the plank of 50:50 would remove the confidence of republicans in the police force. With all due respect to her and the Government, I think, hope and believe that we are well past that day. But I believe that the continual aggravation, the speeches that can be written—some of them instanced by the noble Lord, Lord Laird, just now—and the accusations that can still be made in this political process are wrong. I am getting frustrated with the Government's lack of progress in Northern Ireland. It is high time that some progress was made to rethink this cumbersome and now somewhat old-fashioned and outdated tool. On that basis, I shall support the amendment of the noble Lord, Lord Laird.
I have spoken with a number of people at some length outside the Chamber. A debate has been going on about the "snakes and ladders" process. Recruits find their way up the ladders, get into the pond for selection and fail to be selected, in the manner read out by the noble Lord, Lord Laird, because of the 50:50 rule. They crash to the bottom and have to pick themselves up and start all over again or go to London, or some other place, if they wish to join a police force.
The Lord President was good enough to write to me about this. I read her letter several times and I have forwarded it to my honourable friend in another place, David Lidington. We are not convinced by what she wrote or by her reasons for not looking at this process or changing it. From what she wrote to me, I understand that she is saying that people are basically satisfied with the system and that those who fall to the bottom of the ladders—go back to "Start", so to speak—have a better opportunity to get in if they climb the ladders a second time and score better points on the way up. I am not sure that that addresses the point. I can see the argument, but I do not give it a great deal of credit.
It is sad that four years on we are still stuck with this 50:50 business and that we are still arguing about it. It is even sadder—this may be criticism of myself—that I have not changed my mind nor seen reasons to do so. If the Lord President was going to remind me that at some stage in the past year or so my honourable friend in another place took a somewhat different view over
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50:50, I shall put on record that I never really agreed with him and that the party has looked at the matter again and has returned to its original stance, which I think is fair. I support this amendment.
2.15 p.m.
Lord Smith of Clifton: My Lords, I too thank the Lord President for introducing this order. As she said, the 50:50 recruitment formula was proposed in the Patten report as a technique for redressing the considerable under-representation of Catholics in the police service. The overwhelming preponderance of Protestants in the RUC had been one of the main areas of contention between the two communities. In the view of these Benches, it would be premature to change the formula at this stage.
I welcome the modifications that have been made to render the process more efficient and less irksome for applicants. I also accept the arguments about not providing for a so-called "rollover", which is the kind of thing that the noble Lord, Lord Glentoran, would like to see, that is a rollover for candidates who meet the selection criteria but who are not appointed. All the candidates in each cohort have to be assessed It would not be proper to introduce an element of assessment that compared between cohorts. That would make for an unacceptable degree of inequality. Happily, there is no shortage of applicants for the PSNI at present. When I visited the police training college at Castlereagh, I was very impressed by the quality of recruits coming from both communities and, indeed, from outside Northern Ireland.
The politics of Northern Ireland are currently in a very fragile state. The peace process is all but stalled. At this juncture, an attempt to unravel these relatively recently introduced developments, including the 50:50 formula for police recruitment, is not needed. However, I agree with the noble Lord, Lord Glentoran, that it would be particularly helpful if Sinn Fein would join the policing board. That is one of the biggest problem hurdles in the peace process at the moment. Sinn Fein's intransigence in this regard is extremely unhelpful and counterproductive to its own interests. Having said that, I nevertheless repeat that we shall support the passage of this order and we shall not vote for the amendment.
Lord Dubs: My Lords, in an ideal world there would be no need for 50:50 recruitment for the police. But, sadly, Northern Ireland is not an ideal world. That is why we must have a way to make sure that policing is more representative of all the local communities in Northern Ireland. Whatever the reasons for only 8 per cent of the members of the RUC, as it then was, being Catholics, the fact is that this did not represent policing by consent, policing with the support and approval of local communities. The great tribute to the Patten report is that 50:50 is working. It is increasing the number of Catholics in the police. It is increasing the confidence that local communities have in the police force. It will be judged as one of the success stories of the present time that we are moving towards having a police service that will represent its local communities.

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The noble Lord, Lord Laird, made a number of comments to which I take exception. I shall come on to those in a few moments. But the fact is there is no evidence that the best people are being lost unless there are that many good people. There has to be a limit to the number that the police can recruit in Northern Ireland. Provided they meet the required standard, we are right to recruit people in a balanced way from both communities. That is what 50:50 seeks to do. There will be a day in the future when that will no longer be necessary, but for the moment it is. It is desirable and proper that that should happen. If, indeed, good people are being turned down by the Police Service of Northern Ireland, that is because there are more than enough good recruits on both sides of the community to fill the places. That is surely a tribute to the attractiveness of policing as a career in Northern Ireland. Despite the difficult history and the difficult circumstances at the present time, we are moving towards having the sort of police force that the people of Northern Ireland deserve.
The noble Lord, Lord Laird, talked about human rights but it is surely an abuse of human rights if people are being policed by members of the other community with very few of their own community around. Surely that is a greater abuse of human rights than the arithmetic argument that the noble Lord, Lord Laird, used, although he did not produce any evidence to back it.
I join in paying tribute to the SDLP. Its presence on the police board and the other bodies across Northern Ireland is a step it has taken to ensure that the nationalist community has the kind of policing which it ought to have. It is a positive stand in favour of good policing and I pay tribute to that body. I hope that it will not be long before Sinn Fein sees that that is the way that it should go as well and that it should take on board its full responsibilities to ensure that all the communities of Northern Ireland are policed in the right and proper way.
I refer to what the noble Lord, Lord Laird, said. He used expressions that I consider unfortunate and he attacked the Liberal Democrats. He referred to Hitler's Germany and Nazism. I hope that, on reflection, he will withdraw those comments both as a general proposition and in relation to the Liberal Democrats. Anyone who knows anything about the history of Europe, Hitler's Germany and Nazism, will realise that the noble Lord's words are so far removed from an accurate description that they are rather offensive. I hope that the noble Lord will see fit to withdraw those comments.
Lord Laird: My Lords, I am most grateful to the noble Lord for giving way. I do not recognise those remarks but they sound like comments that I may have made yesterday. I do not know that I referred to the Liberal Democrats. I did not refer to the Liberal Democrats as Nazis. I was making the very simple point that if you start looking at community human rights as opposed to individual human rights, you are starting down the road that Hitler went down. What
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Hitler did was get rid of the flotsam and jetsam of society. That was deeply regrettable. I refer to the old business about the liberals in Germany. They did not complain; they were pragmatic at the start. Towards the end of the process of infringing human rights, they could not complain because they were either dead or in concentration camps. I do not make any comparison; I am just saying that that is the most extreme example. If you start down a road, it is always very useful to know where you are going. If I have offended anyone, I shall certainly and gladly withdraw those remarks.
Lord Dubs: My Lords, I am grateful to the noble Lord for withdrawing those remarks. He certainly offended me by using them. I accept that he has withdrawn them. It is not my mission to argue on behalf of the Liberal Democrats—they can argue very well on their own behalf. However, we ought to engage in this debate in a sensible and balanced way. Of course there are arguments against 50:50; I understand that. No one—noble Lords or anyone else—has the right to argue that that is not the case. However, the language that we use is important because it could lead to misunderstanding.
I draw my remarks to a close. On two occasions I have seen police training in Belfast. I have chatted with police recruits from both communities. I have been enormously impressed by the high calibre of the individuals, Catholic, Protestant or whatever, who have joined the police. I have been impressed by their dedication and commitment to a task that is still more difficult in Northern Ireland than it is in Britain. I hope that that will not be the case for much longer but it is at the present time. I have been impressed by their dedication, the skill shown in the training and the fact that there are such excellent people committed to serving their communities. If there are so many excellent people in Northern Ireland that some good people are not selected for the police force, that is a good thing in terms of the police service; namely, that more good people want to join than there are places for. I am sorry that some people cannot fulfil their ambitions to serve in the police force, if that is what they want, but in any walk of life where there is competition, some people do not succeed. We have probably all failed at some point in our lives in achieving what we want.
I repeat the tribute that I consider should be paid to the quality of the people in the police force. It augurs well for the future of policing in Northern Ireland. I am sure that the result will be better policing and greater consent by ordinary people for that.
Finally, I am still totally enthusiastic about the Patten report. It marked an important change for Northern Ireland. I believe that when the history of these difficult times comes to be written the Patten report will be seen as a landmark on the way to a peaceful and just Northern Ireland.
2.30 p.m.
Lord Maginnis of Drumglass: My Lords, I wish to preface my remarks on this order by referring to something that happened yesterday evening when the

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noble Lord. Lord Joffe—I have mentioned this to him and I make my comments now without any rancour whatever—said:
"I should mention that, at the same time, a decision was taken that the Bill as it stands specifically excludes reference to Northern Ireland. I am sure that that would interest the noble Lord, Lord Maginnis".—[Official Report, 10/3/04; col. 1324].
I raise that point as I think that it illustrates an attitude of mind that somehow seems to fail to recognise that those of us who have associations with the Ulster Unionist Party are British. We are British to the backbone and our objective is to try to sustain a form of true Britishness in terms of ethos, principle and practice throughout the whole of the United Kingdom. That is something that of late I think our Government have failed to do.
It is not so much what is enshrined in legislation—although that again and again discriminates against the people of Northern Ireland as compared with what the people in the rest of the United Kingdom have come to expect—but rather the knock-on effect of legislation. I shall illustrate that at a later stage. The knock-on effect of legislation that is flawed in so far as it disregards certain principles and practices is serious and significant.
Before I go any further I should indicate that I have been associated with policing in Northern Ireland since 1958—I think that is 46 years ago—when I joined the Ulster Special Constabulary. Later I was associated with policing as a parliamentarian and as an adviser to the RUC Federation. I am associated with the police right up to the present day. As an officer in Her Majesty's Armed Forces, I worked hand-in-glove with the police for 12 years during the recent terrorist activities in Northern Ireland.
At the time of the Patten commission, I discussed with Chris Patten, who I know well, the imbalance in the RUC. About 88 per cent of its membership comes from the Protestant tradition with only about 8 per cent from the Roman Catholic tradition. That had to be addressed. My party and those with whom I would work most closely had no objection to the issue being addressed. But what they said again and again was that if they conceded the suggested 50:50 proposal, it would become a continuous process. At the same time there was a proposal from a Dublin source suggesting that there should be an initial one, or perhaps two, exclusively Roman Catholic intakes of 800, to achieve an immediate boost in order to overcome the confidence problem and the imbalance in the religious make-up of the RUC.
At that time I argued that creating such a stratum—or two—from that single tradition would only succeed in creating a different legacy of imbalance for the following 30 years and would have an undue impact at every level of promotion down the years. I said that it would institutionalise a divided force. I argued publicly, both with my own colleagues, and in evidence to the Patten commission, that the one-off process would be disastrous and that we would be better off with a strict three-year 50:50 policy—although my party, the Ulster Unionists, did not approve. I argued further that it presented difficulties and could not be
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extended ad infinitum. It would require an immediate response from the Roman Catholic tradition and should be seen only as an initial confidence booster to that tradition and nothing more. I argued that it might just be tolerated as an acceptable gesture of good will, but that we could not, and should not, do anything that would institutionalise sectarianism in the RUC.
For the past four years I have lived to regret my generosity in trying to resolve a problem that faced us, because not only do we now find an institutionalised sectarianism, but that the sectarianism is extending to other areas of the administration—pertaining to the RUC and beyond. Institutionalised sectarianism in the RUC is now a day-to-day rule of thumb. Why does it take utter, total and complete precedence over issues of gender, age, meritocracy and, indeed, geographical considerations?
I shall give the Minister an example that strikes close to home for me. All my public life, and before that, I have sought to reconcile the two traditions in Northern Ireland. I believe that there are those of us who, if we have the courage to put our heads above the parapet, are able to carry the community forward on a fair and equal basis. In my public life I have found those people in the SDLP and among independent members of the nationalist community. I found that to be the case particularly during my time as a councillor in Dungannon and South Tyrone Borough Council, where we had an agreeable arrangement of responsibility sharing before there was ever any imposition of the d'Hondt system.
We have been overtaken by d'Hondt. When it came to appointing a district police partnership, we sought to follow instructions and tried to implement d'Hondt but found that Sinn Fein was not prepared to play its part. The outcome is having to re-run d'Hondt—I hope that the Minister will listen to the terms in which I state my case—and one then achieves a political imbalance. Our borough council does not look at whether it is a Protestant or a Catholic who sits on the council; we have abandoned and eschewed sectarian approaches to the problems that we face as councillors.
As a result of our political imbalance, when we came to select the eight independent members we found ourselves—although I contradict myself by using sectarian terms—with 38 applicants, three of whom were from the Roman Catholic tradition. They were good people and we sought a shortlist down to about 25—one more than required—and interviewed them. Before the interviews we received an instruction from the Police Board and its agents, PricewaterhouseCoopers, that we should inject another name, a late applicant. I refused. I was told that the instruction came from the Police Board. I have taken legal advice on that issue and I shall read it to noble Lords. It says:
"The injection of an additional name into the selection process on the 18th December 2002. This would not normally be considered appropriate in fair employment terms but it does not seem to be contrary to the particular process set out herein under the Police (Northern Ireland) Act 2000, the Police (Northern Ireland) Act 2003 and the Code of Practice".

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I have used that illustration to show the insidious nature of imposing something that is narrow and wrong and which highlights the differences within our society, rather than resolving them.
My problem with the DPP has reached a dreadful stage because I have refused to proceed with an extended process that is being imposed upon me. One of my nationalist friends on the council has written to the chairman of the policing board and said, "Look, we are very sorry. We didn't get 4:4"—four nationalists and four unionists—"but we have not done badly because we have the potential for 3:5". He received a condescending letter in reply from Professor Ray, who said, "Dear Councillor, you misunderstand. We require you to appoint seven Roman Catholics out of the eight in order to create balance within your DPP".
In other words, because Sinn Fein refused to participate, members of our community who attend the Roman Catholic church on a Sunday morning are equated with Sinn Fein. I do not believe that they appreciate that and we certainly do not. Therein is the problem. I do not want to detain the House for ever, but I could give examples of existing inequities that would take us through until tomorrow.
I shall move on. Recruitment to date has been encouraging in the RUC. I have the statistics and notice that in Competition 5, there were 62 per cent Protestant and 36 per cent Catholic. In Competition 6, there were 63 per cent Protestant and 35 per cent Catholic. No one has mentioned gender balance or geographical recruitment across Northern Ireland, urban and rural, east and west. If after three years there has been the morale booster which we all sought, the Government should suggest to this House a one-year extension—certainly not a three-year extension which institutionalises sectarianism.
The outcome of events does not resolve any of the problems in Northern Ireland. Statistics may suggest otherwise and the Minister will rely on them. We all know the old saying, "There are lies, damned lies and statistics", and we are suffering from that in Northern Ireland. Does anyone believe that if we transfer the grievances, perceived and real, of one tradition in Northern Ireland to the other tradition, we are resolving anything?
In conclusion, I shall illustrate that by drawing attention to what is happening to the electoral process. For years, the two major parties in Northern Ireland were the centre parties, the Ulster Unionists and the SDLP. They brought us to a point where we had, warts and all, the Belfast agreement of 1998, which I supported unequivocally. It gave us an opportunity to extend what society was willing to tolerate, accommodate and implement. That was replaced by governmental machinations which were less than worthy of what we had then sought to achieve.
The outcome is that my party is not a popular party in Northern Ireland. It is seen as having been unable to deliver its objectives. The same applies to the SDLP. We are now driving society to the two extremes where
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there is no compromise and only tragedy and a slowing down of the coming together that some of us have spent a life-time achieving.
If the Minister and the Government want to move us forward in Northern Ireland, they must stop seeking the easy way forward; the numerical and statistical way forward. They must look at what is honest, principled and will appeal across our traditional divides to all sections of the community. Only that can be a way forward.
I apologise: I have indulged myself in something I feel very strongly about. Your Lordships have been patient and I am grateful. I hope that the Government will understand the sincerity with which I tried to put the case not for one religious or another religious community; not for one political or another political community, but for the people—the 1.7 million people—who live, work and try progressively to get on in Northern Ireland.
2.45 p.m.
Lord Kilclooney: My Lords, as the noble Lord, Lord Maginnis, said, we have been patient as we have listened to his words. But, as he also said, he wanted to emphasise his sincerity on the subject of policing. He has given many years of his life to that in order to help to bring into Northern Ireland a balanced police service for all the people of the Province. That is what those of us who are level-headed want to see. We want to see not only people who are Protestant and Roman Catholic but those who represent the ethnic minorities in Northern Ireland.
When I entered the Chamber, I was disturbed to hear the noble Lord, Lord Dubs, support discrimination on religious grounds. That is a sectarian approach and I resent it. He said that in job applications it was normal that some well qualified people would not be appointed. But they are appointed or not on grounds of merit. We are talking about discrimination on the grounds of religion and the noble Lord, Lord Dubs, should not support sectarianism or discrimination on grounds of religion.
I hope that the Government never again try to renew this order, which perpetuates discrimination on religious grounds. A Labour Government, of all governments, should be ashamed and hold their head low when they support such a policy.
As regards South Tyrone borough council, I declare myself a member of the Northern Ireland Policing Board. It has created 25 district policing partnerships. Only one council has failed to come up with the requirement under the legislation and that was referred to by the noble Lord, Lord Maginnis. I hope that the problem between Dungannon and the Northern Ireland Policing Board can be corrected, because, if not, we know what the legislation states—that the Secretary of State for Northern Ireland can go over the head of the local district council and appoint a district partnership himself.
I want to raise a question relating to ethnic groups. It appears to me that discrimination in the police service takes place not only against Protestants in

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favour of Roman Catholics but also against ethnic members. Apparently, ethnic applicants to the Police Service of Northern Ireland are treated as being non-Roman Catholic and are therefore lumped in with Protestants to be discriminated against. Can the Minister explain to the House the position of black Protestants when they apply to join the police service? Are they discriminated against because they are Protestants or because they are black?
Better still, what is the position of a black Catholic who applies? Does discrimination then take place in favour of that person because his religion is Catholic or does it still go against him because he happens to be a member of a black ethnic group in Northern Ireland? Those issues need to be clarified because the number of ethnic members in the new Police Service of Northern Ireland is very small indeed and, likewise, they feel that discrimination is occurring against them.
I turn to the overall position in Northern Ireland. As one of the three Ulster Unionist negotiators of the Belfast agreement, I am rapidly reaching the conclusion that that agreement is now over. It is finished. First, I fail to see how it can survive in a situation where Sinn Fein/IRA refuse to decommission. That has brought about a complete collapse of support for the Belfast agreement among unionist people.
Secondly, I fail to see how the agreement can survive because, time and again over the years, the Government have rubbed salt into the wounds of the unionist majority. Measures have been taken such as the removal of the Union flag from government buildings. The Belfast agreement stated that Northern Ireland was British and part of the United Kingdom and that that could not be changed without the principle of consent. What did the Labour Government do? Within a year, they removed the Union flag from most government buildings in Northern Ireland. They continued to insult the majority community in Northern Ireland.
However, one of the greatest sores—even now, the Government do not seem to appreciate this—has been the obvious discrimination against Protestant applicants to the Police Service of Northern Ireland. Nothing has done more to undermine unionist consent for the Belfast agreement. I implore the Government to recognise the mistakes that they have made and to recognise that religious discrimination should not be part of government policy because it undermines the future prospects of success of the Belfast agreement.
Baroness Amos: My Lords, I thank all noble Lords who have spoken. This has been a difficult discussion because we are dealing with difficult and sensitive issues. I shall try to deal with the points as they arose. First, in moving the amendment, the noble Lord, Lord Laird, said that he considered the measure to be in clear contravention of the Belfast agreement. I say to the noble Lord that it is clear, and stated, in the Belfast agreement that the police service should be representative of the society that it polices. That is at the core of what the 50:50 rule tries to achieve.
I understand the point made by the noble Lords, Lord Laird and Lord Kilclooney, and others with respect to the hurt felt by those who are turned down.
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But I want to emphasise that those who are accepted are accepted on merit. Those who are rejected are rejected because sufficient qualified applicants from their community background in the merit pool have scored better. It is very important that noble Lords understand and recognise that point.
Lord Kilclooney: My Lords, that is a lovely way of presenting the case. The reality is that some who are rejected are rejected not on grounds of merit but on grounds of sectarian discrimination.
Baroness Amos: My Lords, as I said in my opening remarks, it is most important that we recognise that 96 per cent of those who apply are rejected. That position can occur in any job application. In referring to the 50:50 rule, we are talking about a Protestant pool and a Catholic pool, but those in the pool must pass the test. They must be qualified before they enter the pool and before they can be accepted. Indeed, some people pass the test but are then not accepted because others in the pool have a higher score. That is the reality of recruitment.
Lord Laird: My Lords, I am most grateful to the Minister for giving way. Can she confirm that, in any one campaign, it is possible for a person from one community to score a higher mark and not get in and for someone in the other community who obtains a lower mark to be accepted?
Baroness Amos: My Lords, I am sure that that is possible. It will depend on the number of applicants who pass the test and it will depend on the pool. However—I must emphasise this point—the reality is that everyone who is appointed has passed the test and is there on merit. It would be very wrong of us to undermine the quality of the applicants and those who have been accepted into the Police Service of Northern Ireland because the fact is that they are there on merit.
Lord Glentoran: My Lords, I thank the Lord President for giving way. As I understand what she is telling us and as I understand the situation, the merit principle stops once the pool of applicants who have passed the test is filled. There is a ladder up to the pool from which people are appointed. Once in the pool, the 50:50 rule is then followed and merit ceases.
Baroness Amos: My Lords, I am not sure that I understand the noble Lord. My understanding is that there are more people in the pool than there are jobs. Therefore, a person can enter the pool but still not be appointed. That applies to both communities. Some people, both Catholics and Protestants, pass the test and get into the pool but are then not appointed because there are not enough jobs. Is that clear to the noble Lord?
Lord Glentoran: My Lords, I thank the noble Baroness. Yes, it is absolutely clear. Those who get the jobs do so on the 50:50 basis rather than on a 1:20 merit basis.
Baroness Amos: My Lords, that is absolutely right. The noble Lord, Lord Laird, also said that he wanted us

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to reach the point where religion was of no importance. I cannot agree with that more heartily. Of course, that is what we all want to see, but I hope we all agree that we want to see a police service in Northern Ireland where the people see the police as their police.
The noble Lord raised some questions about equality and human rights. I can say to the noble Lord that the Equality Commission has said that it considers the achievement of a police service which is representative of the whole community it serves to be of prime importance. The Human Rights Commission has said that the provision should be renewed.
The noble Lord, Lord Glentoran, mentioned the fact that fair employment legislation has existed in Northern Ireland for many years. I agree with that. I also agree with the noble Lord when he says that we need community leaders and political leaders to encourage members of their community to apply to join the police service. Again, I endorse that view wholeheartedly. I also agree that if Sinn Fein joined the Policing Board, that would achieve more than anything that the Government or the police could do to encourage applications from republicans.
The noble Lord, Lord Glentoran, my noble friend Lord Dubs and others paid tribute to the role of the SDLP. I believe it is very important that we welcome the significant contribution that it has made. I agree with the noble Lord, Lord Glentoran, that this is a sensitive situation. We have seen good results from 50:50. I think that we are at the stage where it is too soon to get rid of it. Here I agree with the noble Lord, Lord Smith of Clifton, who said that it would be premature to change the formula.
My noble friend Lord Dubs said that he saw so many good people not being selected as a good thing. I can only repeat what I said earlier: we should all be pleased to see such good quality in terms of the calibre of candidates, both Protestant and Catholic, who are applying to join the Police Service of Northern Ireland and, indeed, we should be pleased at the quantity of candidates. I recognise the disappointment felt by those who are not recruited; but, at the end of the day, I think that it is a very positive thing to see so many applications.
The noble Lord, Lord Maginnis, told us that he felt very passionately about these issues. I entirely understand that. In particular, I welcome the experience and expertise that the noble Lord brings to this House on policing matters in Northern Ireland. He raised in particular the issue of the ethos of principle and practice in terms of Britishness. I say to the noble Lord that the Government are working hard to reflect the diversity—a diversity which I think we should welcome—across the United Kingdom. The noble Lord was concerned that we needed to build confidence in the process. I entirely agree with him. As I said in my opening remarks, we will keep this issue under review.
On the point of the noble Lord, Lord Maginnis, about the possibility of creating a divided force, that has not been the experience to date. On listening to the Chief Constable of Northern Ireland that is certainly not the
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experience. Indeed, my noble friend Lord Dubs gave an example of the training days that he had witnessed. I can only repeat that these are special measures for a special situation.
The noble Lords, Lord Maginnis and Lord Kilclooney, raised the situation regarding other forms of discrimination. The Patten report acknowledged that there were issues of community representation at nearly every level in the Police Service of Northern Ireland, but it stated that the religio-political imbalance was the most vital to be tackled if the police were to gain acceptance in the community.
We need to improve female recruitment. The proportion of women in the regulars has increased from 10.88 per cent in 1998 to 16.47 per cent at the beginning of 2004. On the position of black applicants, the application process requires applicants to declare whether they are Catholic or non-Catholic. So, if an applicant is both black and Catholic he will be counted as Catholic; and if he is black and non-Catholic he will be counted as non-Catholic.
With respect to the position on the Policing Board and the divisions which may sometimes arise on it, perhaps I may say to noble Lords that the Policing Board exists to represent the different facets of political and other opinion within Northern Ireland society, and it would be surprising if its members agreed on all issues.
The noble Lord, Lord Maginnis, was concerned that we would institutionalize "sectarianism"—as he called it. I can reassure the noble Lord that although the order deals with continuing the provision for another three years, the legislation is clear that these provisions are temporary. The Government do not want to keep them for any longer than necessary.
Perhaps I may end by saying that the police have made some changes to simplify the process. The process has been rationalised so that non-appointed qualified applicants can omit the initial selection test for the next two competitions. There has also been a change regarding the medical examination to facilitate qualified re-applicants, although it is important to ensure that candidates are and remain fit for appointment.
The Government with the Chief Constable are looking at ways of making the recruitment process less irksome for re-applicants. I know that my right honourable friend the Minister of State is looking to see if there is any further scope to reduce the costs and to facilitate applicants.
I hope that I have addressed the points raised, and I hope that noble Lords now feel able to support the order.
Lord Laird: My Lords, I am grateful to all noble Lords who have taken part and for the clarification from the Minister.
Let me just say that I am determined, as are my colleagues, in the view that human rights cannot be diluted. Some people cannot have more human rights than others. Individual human rights are the most important thing. That is how you build society; that is how you build a future; and that is how we want to

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build our future in Northern Ireland. You cannot have a situation where there is a different set of human rights for different people. That is the basis on which I moved the amendment.
3.7 p.m.
On Question, Whether the said amendment shall be agreed to?
Their Lordships divided: Contents, 45; Not-Contents, 134.

Division No. 2

CONTENTS

Ampthill, L.

Howe of Aberavon, L.

Anelay of St Johns, B.

Jenkin of Roding, L.

Astor of Hever, L.

Kilclooney, L.

Biffen, L.

Kingsland, L.

Blood, B.

Laird, L. [Teller]

Bridgeman, V.

Lucas, L.

Caithness, E.

Lyell, L.

Campbell of Alloway, L.

McColl of Dulwich, L.

Carlisle of Bucklow, L.

Maginnis of Drumglass, L.

Chalfont, L.

[Teller]

Coe, L.

Miller of Hendon, B.

Craig of Radley, L.

Molyneaux of Killead, L.

Denham, L.

Monson, L.

Dixon-Smith, L.

Moynihan, L.

Dundee, E.

Naseby, L.

Eden of Winton, L.

Norton of Louth, L.

Feldman, L.

Park of Monmouth, B.

Fookes, B.

Plumb, L.

Fowler, L.

Plummer of St. Marylebone, L

Glentoran, L.

Saltoun of Abernethy, Ly.

Greenway, L.

Seccombe, B.

Griffiths of Fforestfach, L.

Skelmersdale, L.

Hooper, B.

Wilcox, B.

NOT-CONTENTS

Addington, L.

David, B.

Allenby of Megiddo, V.

Davies of Oldham, L.[Teller]

Alton of Liverpool, L.

Desai, L.

Amos, B. (Lord Privy Seal)

Dholakia, L.

Andrews, B.

Dixon, L.

Archer of Sandwell, L.

Dubs, L.

Ashton of Upholland, B.

Evans of Temple Guiting, L.

Avebury, L.

Ezra, L.

Bach, L.

Falconer of Thoroton, L. (Lord

Barker, B.

Chancellor)

Bassam of Brighton, L.

Farrington of Ribbleton, B.

Berkeley, L.

Faulkner of Worcester, L.

Bernstein of Craigweil, L.

Filkin, L.

Blackstone, B.

Gale, B.

Bledisloe, V.

Gibson of Market Rasen, B.

Boothroyd, B.

Golding, B.

Borrie, L.

Goldsmith, L.

Bradshaw, L.

Gould of Potternewton, B.

Bragg, L.

Graham of Edmonton, L.

Brooke of Alverthorpe, L.

Grantchester, L.

Brookman, L.

Grocott, L. [Teller]

Burlison, L.

Hamwee, B.

Campbell-Savours, L.

Harris of Haringey, L.

Carter, L.

Harris of Richmond, B.

Chorley, L.

Harrison, L.

Clarke of Hampstead, L.

Haskel, L.

Clement-Jones, L.

Hayman, B.

Clinton-Davis, L.

Hilton of Eggardon, B.

Condon, L.

Hooson, L.

Corbett of Castle Vale, L.

Howarth of Breckland, B.

Crawley, B.

Howells of St. Davids, B.

Dahrendorf, L.

Hoyle, L.

1386

Hunt of Kings Heath, L.

Sainsbury of Turville, L

Hylton, L.

Scotland of Asthal, B.

Jordan, L.

Sewel, L.

Judd, L.

Sharp of Guildford, B.

King of West Bromwich, L.

Sheldon, L.

Lea of Crondall, L.

Shutt of Greetland, L.

Linklater of Butterstone, B.

Simon, V.

Lipsey, L.

Skidelsky, L.

MacKenzieof Culkein, L.

Slim, V.

Mackenzie of Framwellgate, L.

Smith of Clifton, L.

Masham of Ilton, B.

Smith of Gilmorehill, B.

Massey of Darwen, B.

Steel of Aikwood, L.

Merlyn-Rees, L.

Stone of Blackheath, L.

Methuen, L.

Strabolgi, L.

Miller of Chilthorne Domer, B.

Tanlaw, L.

Morgan, L.

Taverne, L.

Morris of Manchester, L.

Temple-Morris, L.

Newby, L.

Tenby, V.

Northover, B.

Thomas of Gresford, L.

Oakeshott of Seagrove Bay, L.

Thomas of Walliswood, B.

Palmer, L.

Thomson of Monifieth, L.

Paul, L.

Thornton, B.

Pendry, L.

Thornton, B.

Pitkeathley, B.

Tomlinson, L.

Ponsonby of Shulbrede, L.

Tope, L.

Puttnam, L.

Triesman, L.

Ramsay of Cartvale, B.

Turner of Camden, B.

Rea, L.

Walmsley, B.

Redesdale, L.

Walpole, L.

Rendell of Babergh, B.

Warner, L.

Rennard, L.

Warwick of Undercliffe, B.

Richard, L.

Whitaker, B.

Roll of Ipsden, L.

Whitty, L.

Rooker, L.

Williams of Crosby, B.

Roper, L.

Williams of Elvel, L.

Russell, E.

Williamson of Horton, L.

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

Domestic Violence, Crime and Victims Bill [H.L.]
3.17 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 8 [Restraining orders]:
[Amendments Nos. 38 to 40 not moved.]
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 41:
After Clause 8, insert the following new clause—
"RESTRAINING ORDERS: NORTHERN IRELAND
(1) In Article 7 of the Protection from Harassment (Northern Ireland) Order 1997 (S.I. 1997/1180 (N.I. 9)) (power to make restraining order where defendant convicted of offence under Article 4 or 6 of that Order), in paragraph (1) omit "under Article 4 or 6".
(2) After paragraph (4) of that Article insert—
"(4A) Any person mentioned in the order is entitled to be heard on the hearing of an application under paragraph (4)."

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(3) After that Article insert—
"7A RESTRAINING ORDERS ON ACQUITTAL
(1) A court before which a person ("the defendant") is acquitted of an offence may, if it considers it necessary to do so to protect a person from harassment by the defendant, make an order prohibiting the defendant from doing anything described in the order.
(2) In proceedings under this Article both the prosecution and the defence may lead, as further evidence, any evidence that would be admissible in proceedings for an injunction under Article 5.
(3) Paragraphs (3) to (6) of Article 7 apply to an order under this Article as they apply to an order under that one.
(4) Where the Court of Appeal allow an appeal against conviction they may remit the case to the Crown Court to consider whether to proceed under this Article.
(5) Where—

(a) a county court allows an appeal against conviction, or

(b) a case is remitted to the Crown Court under paragraph (4), the reference in paragraph (1) to a court before which a person is acquitted of an offence is to be read as referring to that court.

(6) A person made subject to an order under this Article has the same right of appeal against the order as if—

(a) he had been convicted of the offence in question before the court which made the order, and

(b) the order had been made under Article 7.""

The noble Baroness said: My Lords, in moving this amendment, I shall speak also to government Amendments Nos. 101, 117, 124 and 125, which stand in my name.
We have debated at length the provisions in the Bill that relate to restraining orders. These orders will give continued protection from harassment following a conviction or acquittal for any offence where the court considers it necessary to make the order to protect a person from harassment.
The Government believe that the same degree of protection should exist in Northern Ireland as in England and Wales. That is why we have tabled Amendment No. 41, which would extend the provisions in Article 7 of the Protection from Harassment (Northern Ireland) Order 1997 to allow for restraining orders to be made on acquittal as well as on conviction, and will apply these to all offences, not just those under the 1997 order. These provisions replicate for Northern Ireland the provisions of Clause 8, which apply only to England and Wales. Amendments Nos. 101, 117, 124 and 125 are all consequential on that change. I beg to move.
Baroness Anelay of St Johns Baroness Anelay of St Johns moved, as an amendment to Amendment No. 41, Amendment No. 41A:
Line 13, 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 this amendment, I shall speak also to Amendments Nos. 41 B to 41 E, if only to explain why at this stage I will not be pursuing them. As the Minister herself said, we had an extensive debate on Tuesday evening with regard to the application of these provisions to England. The Government's amendment, Amendment No. 41, replicates those provisions for Northern Ireland.
When the Government brought forward the clause in Grand Committee, in which noble Lords may not vote, I made it clear that I would be grateful if the noble Baroness would withdraw the government amendment at that stage, simply because it had been tabled so late in the day that it had not been possible to take soundings from my colleagues in another place and from organisations in Northern Ireland.
As with a previous clause relating to Northern Ireland, there are still some concerns about the clause. However, on Tuesday evening, when we debated the provision applying to England, I took the opportunity to test the opinion of the House, as I believed that it would be better to have clarity about the burden of proof in the Bill. In testing the opinion of the House at 10 o'clock on Tuesday night, I found that the troops were not around, and I lost the Division. It would be churlish of me to have a go today on the Northern Ireland provision, when the House had signified its dissent from my view on Tuesday evening. I shall beg leave to withdraw the amendment.
The Deputy Speaker (Lord Ampthill): My Lords, having spoken to the amendment at some length, would the noble Baroness care to move the amendment, in case anybody wishes to reply?
Baroness Anelay of St Johns: My Lords, I should have made it clear that I would withdraw the amendment after the debate. At this stage, I am moving the amendment, but I shall not pursue the matter. I had a full opportunity to air my views on Tuesday evening. I beg to move.
Lord Renton: My Lords, I support the amendment moved by my noble friend Lady Anelay of St Johns. I do so because harassment is a rather vague situation, and there is a lot of it in Northern Ireland.
My noble friend's amendments, especially Amendment No. 41A, would make the nature of the offence of harassment more specific. Amendments Nos. 41B and 41C have the advantage of tying down a witness in the trial. That is an advantage.
I have an open mind on Amendment No. 41D, but I have nothing against it. Amendment No. 41E, which says,
"leave out 'both the prosecution and the defence' and insert the prosecution, the defence and the person against whom it is proposed to make an order under Article 7A(1)",
would make the matter more specific. That is why I support the amendments.
Lord Carlisle of Bucklow: My Lords, I support Amendment No. 41B, moved by my noble friend. I apologise for the fact that I was not here at the end of the debate on the matter earlier this week. The noble and learned Lord the Attorney-General probably dealt on that occasion with the point that I am going to make.
In Committee, I made the point that, if courts are to have the power to make a non-molestation order against a defendant, although he has been acquitted, it

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should be made clear that the power also exists for the court to make such an order in respect of any other witness or the complainant. It may be that the defendant may be shown to require the protection of the order just as much.
I understand that the noble and learned Lord the Attorney-General said that he would consider the matter again. I hope, despite his rather questioning expression, that that is still his intention. It would be sensible to make it clear that the power to make an order on acquittal means that the court can make an order not only in support of the defendant but against anybody who has taken part in the hearing.
Lord Campbell of Alloway: My Lords, I support Amendments Nos. 41A and 41C, for the reasons that have been given. I record that because it is a development that ought to receive further consideration.
Lord Thomas of Gresford: My Lords, we also support Amendments Nos. 41B and 41C, for the reasons given.
Baroness Scotland of Asthal: My Lords, I thank the noble Baroness for making it clear that she does not wish to press the amendment. I shall say a word or two in response to the comments made by noble Lords. To the noble Lord, Lord Carlisle of Bucklow, I say that I know that the similarity between myself and my noble and learned friend the Attorney-General is overpowering, but, in fact, I answered on the matter.
As the noble Lord, Lord Carlisle of Bucklow, knows, the effect of the provisions is that an order can be made in relation to a defendant but not in relation to another witness. The noble Lord will remember that, when we debated the matter last time, we made it clear that the ability of the court to make a bind-over in relation to any other person in the court would still prevail. The noble Lord will also remember that, as a result of comments made by the ECJ, one must be very specific, when making a bind-over, about the precise ambit and the conditions that apply. That route could be used.
The amendments tabled by the noble Baroness, Lady Anelay of St Johns, and the noble Viscount, Lord Bridgeman, would make the same changes to the provisions allowing courts in Northern Ireland to impose restraining orders on acquittal that they sought to make to the corresponding provisions for England and Wales. They are an attempt to make it clear that, when making a restraining order on acquittal, a court must be,
"satisfied on the basis of facts proved on a balance of probabilities".
The amendments would also allow the courts making a restraining order to do so in respect of witnesses in the trial and to specify that the terms of a restraining order could prohibit only acts that would amount to harassment. Lastly, they would give the person against whom it was proposed to make the order the right to be heard.
Having discussed all those issues at some length in Committee and earlier, I hope that your Lordships will agree that it is unnecessary for me to recite all my
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objections to the proposals. To the noble Lord, Lord Renton, I say that we appreciate that there are difficult and different issues in Northern Ireland, but, having considered the two situations, particularly with regard to this field, we feel that there is no distinction in fact to be drawn between the way in which the provisions would operate in Northern Ireland and the way in which they would operate in England and Wales.
Unless noble Lords want me to recite everything that I said on a previous occasion, I shall gratefully accept the noble Baroness's generous approach in accepting her defeat, albeit at 10 o'clock.
Baroness Anelay of St Johns: My Lords, I am grateful to the Minister. I accept that defeat, but I shall keep on trying on other matters. I am a very trying person, as she knows.
For the reasons that I gave, I shall not press the amendment. I am grateful to my noble friends for their support and to the noble Lord, Lord Thomas of Gresford, for his. We did not debate Amendment No. 35—which is the subject of Amendments Nos. 41B and 41C—in any detail. The noble Lord supported it.
There are still issues regarding restraining orders to which we will need to return at Third Reading, but I hope that they will be focused on a narrow range of subjects. At this stage, I beg leave to withdraw the amendment.
Amendment No. 41A, as an amendment to Amendment No. 41, by leave, withdrawn.
[Amendments Nos. 41 B to 41E, as amendments to Amendment No. 41, not moved.]
On Question, Amendment No. 41 agreed to.
3.30 p.m.
Clause 9 [Application by prosecution for certain counts to be tried without a jury]:
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 42:
Page 6, line 30, leave out "following three"
The noble Baroness said: My Lords, in moving Amendment No. 42, I shall speak also to Amendments Nos. 43 to 45. All the amendments are supported by my noble friend Lord Campbell of Alloway and by the noble Lord, Lord Thomas of Gresford.
In this clause, the Government seek to remove jury trial in certain cases. The Government's proposals have been put there to overcome the problem that was caused by the decision in the case of Kidd, which precluded the practice of sentencing on the basis of specimen counts, if those counts were the only ones proved and/or admitted by a defendant.
Some organisations, such as Liberty, oppose the proposals altogether. I respect their views. Liberty is not persuaded that the tests set out in Clause 9(5)—that it would need to be in the interests of justice for certain counts to be tried without a jury—are ever likely to be met. I have therefore kept that view carefully in mind during our debates. It confirmed my

1391
view that the amendments presented today are a minimum required to make these proposals acceptable and workable.
My honourable friend in another place and I have already made clear during debates on the Criminal Justice Act that we would look with favour on any sensible resolution of the Kidd problem. However, it should be noted that at that stage none of us had seen the Government's amendments, but we had received a letter from Judge Alan Wilkie QC, the Law Commissioner, which was circulated to Oliver Letwin, Simon Hughes, the noble Lords, Lord Thomas of Gresford and Lord Dholakia, my noble friend Lord Hunt of Wirral and me.
Judge Alan Wilkie's concern was to highlight the view of the Law Commission that its proposals should not be seen in the same contentious light as those that were then under consideration in the Criminal Justice Bill. He made it clear that,
"It is not our intention by our scheme to reduce the number of jury trials, or the number of counts on an indictment which will be the subject of jury trial".
As I made clear in Grand Committee, our objective is exactly the same. Any proposals in this Bill should certainly not be an assault on jury trial. They should provide a sensible way forward by retaining jury trial in those cases where there is such a large number of counts that there are too many to be accommodated in a single trial and, as a consequence, there would be no jury trial at all.
We also need to consider the Government's concern that proposals could lead to a jury trial on such a limited group of counts that the sentence would not be appropriate to reflect the extent or level of offending. My amendments, which I outlined in Grand Committee and return to today, provide the basis for ensuring that the Government's solution is the most appropriate solution to the problem caused by Kidd.
I offer Amendments Nos. 42, 43 and 44 as the best way forward unless the Government can find a way of reassuring me that Amendment No. 45 would provide a sufficient way ahead on its own. Amendments Nos. 43 and 44 are consequential on Amendment No. 42.
I note that the Law Commission states in its report No. 277 at paragraph 7.6 that:
"although it [this method of trial] will be available for use in certain cases which would attract the sobriquet of 'serious fraud' and will also be capable of being used in non 'serious' fraud and other cases, it will not be available for use in all cases of 'serious fraud'".
My objective has been to ensure that the Government will not try to introduce, through the back door, the proposals that were rejected by this House in the Criminal Justice Act.
Specific undertakings were given in that regard by the Home Secretary. I am extremely grateful to the Minister for the clear undertaking that she gave in Grand Committee. She said,
"nothing in this part is intended to encroach or encroaches on the undertakings given by my right honourable friend the Home Secretary during the passage of what is now the Criminal Justice Act 2003. Those remain separate and apart".—[Official Report, 2/2/04; col. GC 265.]
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As a consequence of that I am therefore able to give today my party's agreement to the principle behind the Government's proposals, but I believe that they still need some amendment to make the detail of them appropriate and workable.
Amendments Nos. 42, 43 and 44 make it clear that the conditions set out in Clause 9 are conjunctive and not disjunctive. The amendment was prompted by a drafting complaint made by some of my noble friends and people outside of the House. The conditions must be met if an application by the prosecution for part of a trial on indictment in the Crown Court to proceed in the absence of a jury is to be successful. Despite the Minister's reassurances in Grand Committee, at col. GC 265 of the Official Report on 2 February, I regret that I was not reassured. I remain of the view that this improved drafting is important.
The amendments also make it clear that all the counts must be of the same type of offence. Amendment No. 44 has an added advantage. It alters the first condition in the Government's subsection (3) where they say that the condition is that the number of counts included in an indictment is likely to mean that a trial by jury involving all the counts would be impracticable. I have replaced that by what I believe to be a stronger test; that is, the number of counts is such that the trial would be so unmanageable that it would not be possible to proceed.
Amendment No. 45 offers the same proposal but as a standalone amendment without the encumbrances of my proposals in Amendments Nos. 42 to 44. I am still open to persuasion on Amendments Nos. 42 to 44, but I cannot as yet see any merit in dropping the intent behind Amendment No. 45. We had a lengthy debate about the concerns behind the use of the word "impracticable" in Grand Committee. I remain of the view that it could allow a concern with the budgetary demands of the Treasury to override the public interest of having a trial go ahead with a jury.
If the Minister remains of the view expressed at col. GC 265 of the Official Report on 2 February that this part of the Bill is not a cost-saving exercise. I do not believe that the Government should have any problem in accepting my Amendment No. 45. I beg to move.
Lord Thomas of Gresford: My Lords, we support Amendments Nos. 42, 43 and 44. We agree with everything that the noble Baroness, Lady Anelay, said. The counts included in the indictment should be for the same or similar offences, which is the material change that Amendment No. 44 makes. We also believe, and said so in Grand Committee, that "unmanageable" is a better word than "impracticable", again, for the reason that we would not wish to see trial by jury being set aside because of cost consideration.
I also speak to Amendment No. 46, which is grouped with these amendments. Clause 9(9) sets out a definition of where a count is to be regarded as a sample of other counts, but it does not lay down very many conditions. It states merely that,
"the defendant in respect of each count is the same person, and … the judge considers that the sample count is a sample of the other counts".

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How many times have I addressed your Lordships on the basis that the discretions should remain with the judge in criminal trials'?
In this area, it is helpful to put some boundary on the judge's discretion by insisting that the evidence in respect of each count is admissible at the trial of the sample count. When that point was raised in Grand Committee, the noble Baroness, Lady Scotland, said that she was tempted to say "yes" to my suggestion that that should be a part of the definition. She went on to say that although she was uncomfortable about giving an unequivocal "yes", she would consider the matter and might return with a similar response or more arguments. We consider this to be a very important way in which the discretion of the judge is put within certain bounds rather more than it simply being the same defendant in respect of each count. That is the reason why this amendment is put forward.
Lord Campbell of Alloway: My Lords, I support Amendments Nos. 42 to 46 for all the reasons that have been given. I do not think that it is appropriate to seek to improve on the reasoning. I just want to say that I am, as are all other noble Lords, very concerned about the jury question and the prospect that somehow they will be surreptitiously removed. I am very concerned about that. I support the amendments really on that assurance.
Lord Borrie: My Lords, if the noble Baroness, Lady Anelay, accepts, as I think that she did in Grand Committee and again today, the good faith of the Government that Clause 9 is not some kind of backdoor way of reintroducing clauses that the Government lost in the Criminal Justice Bill, I have a real difficulty in understanding why she is pursuing this amendment again today, as well as having argued it in Grand Committee.
It seems that Clause 9 is seeking not to reduce the number of jury trials, but to preserve the possibility of a jury trial in cases where, because there are so many small counts on small matters in an indictment, a jury trial would be impracticable or, if she prefers to use the word, unmanageable.
The noble Baroness referred to concern about the conditions laid down in Clause 9. As the clause stands, I cannot read it in any way other than that it allows for there to be a trial by jury on some counts and trial by judge alone on the other counts, with the great advantage of the judge being able to sentence, if there is a finding of guilt, on a whole number of counts and not only a small number of them.
If that is so, each of the three conditions in Clause 9 has to be complied with. I shall not read them out but they are very important conditions. Perhaps the third condition in relation to the interests of justice is the most important. It is not merely a throw-in line; it includes the public interest and the interests of justice so far as concerns the defendant or defendants. Unless the judge is satisfied as to the interests of justice being fulfilled under the Clause 9 procedure, then that procedure would not be available.
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As to "impracticable" versus "unmanageable'', I hear what the noble Baroness says about the Government perhaps wanting to follow a Treasury line and save money by using this procedure. The Government have sought to answer that concern. I do not have a particular view about the two words concerned but, overall, I doubt whether there is a great deal of advantage to justice in the amendment proposed.
Baroness Howe of Idlicote: My Lords, although I am not moved to follow Amendments Nos. 42, 43 and 44, I think there is a case for changing the word from "impracticable" to "unmanageable" for the reasons already expressed. I shall listen to what the Minister says in reply, but I cannot see any reason why the one word cannot take the place of the other to the greater satisfaction of your Lordships.
Lord Carlisle of Bucklow: My Lords, in speaking in support of the amendments I risk the direct and simple criticism that I am raising a matter which should have been raised in Grand Committee at this stage of the Bill. But it has just occurred to me and I ask the Attorney-General—who I think is to reply to the debate—to forgive me for doing so.
As I understand it, the decision to divide is to be taken at a preparatory hearing before the judge prior to the start of the case. That is contained in the first line of Clause 10. The judge, therefore, faced with a large number of counts, decides that it is reasonable for the jury to take counts one to six. He considers that those counts are samples of counts seven to 20 which, depending on the outcome of counts one to six, should then be dealt with without a jury as allowed for in Clause 11.
Clause 11 states:
"where, in the course of the proceedings to which the order relates, a defendant is found guilty by a jury on a count which can be regarded as a sample of other counts to be tried in those proceedings, those other counts may be tried without a jury in those proceedings".
My question is merely this: what if the jury convict, but not of all the first six counts? What if they convict of one count but not of the other five? On the face of it, it appears that that would still allow the judge to try the other counts without a jury because there has been a conviction. But, in those circumstances, one would have thought the jury had made it clear by their decision that they did not look upon the counts as a pattern of behaviour but as an individual offence occasionally.
Some thought should be given to ensuring that it is made clear that there have to be convictions showing that it is accepted by the jury that there is a pattern of behaviour—that is, convictions on all six counts—before dealing with the other counts without a jury. The danger with the present wording of the Bill is that there could be one conviction out of the first six counts, and that would allow the remaining counts to be tried without a jury.
3.45 p.m.
Lord Mayhew of Twysden: My Lords, I intervene perhaps as much to allow the noble and learned Lord the Attorney-General to receive help from his distant advisers as for any other reason.
Less frivolously, I hope that he will look favourably on the substitution of "unmanageable" for "impracticable". I think "unmanageable" gives the flavour of the anxiety with which those concerned will be afflicted. All of us long for shorter indictments, but sometimes it is not possible for justice to be done without a lengthy indictment. But the matter can be dealt with. The inconvenience and difficulty that flows from that can be mitigated by the device embodied in Clause 9. However, it is the manageability which is the test rather than the practicality.
I cannot enlarge on that. The noble and learned Lord the Attorney-General will get his advice very soon anyway and I do not need to say any more. I support all of the amendments, including Amendment No. 46, but that is conditional upon a satisfactory answer to the important technical point raised by my noble friend Lord Carlisle of Bucklow.
The Attorney-General (Lord Goldsmith): My Lords, I thank the noble and learned Lord, Lord Mayhew of Twysden, for his courtesy. I have enough to say before the answer to the question of the noble Lord, Lord Carlisle, arrives—I shall come to that in a few moments—and I shall speak first to Amendments Nos. 42, 43, 44 and 46.
As the noble Baroness, Lady Anelay, said, the same point about "impracticable" and "unmanageable" appears in Amendment No. 45, which is grouped separately. I shall say what I have to say about that at this stage and we shall see whether there is anything more to be said about it when she comes to move that amendment.
I have already detected wide consensus on the fundamental purpose and utility of these provisions. All of us who have practised in the courts before the decision in Canavan and Kidd will recall that it was commonplace that offences were put forward as sample counts; if there was a conviction, the judge would feel able to sentence on the basis of the totality of the criminality for which that sample was said to stand, not simply for the count that was there.
The reason for the decision in Canavan and Kidd—that a court could not sentence for something which was not admitted and of which the person had not been convicted—is, of course, logic which is unassailable. But, as noble Lords know, that has led to the position where someone could be charged with what are, in effect, samples of a series of conduct and without some other mechanism it would not be possible to sentence them for the degree of criminality involved. One good example of the many one could give is that of someone who was engaged in a series of frauds on the Internet, where a
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large number of victims were involved. A relatively small amount of money is taken from each victim but the totality is quite significant. In such a case, you do not want to say that the choice is, on the one hand, to prosecute 1,000 counts of fraud, requiring each victim to come to court; or, on the other hand, to find yourself saying that the defendant has only been convicted of defrauding £5,000—and that is all we can sentence him for—when in fact the totality of his conduct has been £1 million or something of that sort.
I say that because it is right that we should understand the purpose behind the clause. I know that that is accepted and I am grateful for what the noble Baroness said about her acceptance of the principle. I know that the honourable Member in another place, the shadow Attorney-General, made the same point, not only during the passage of this Bill but at the time the Criminal Justice Bill was going through. I do not therefore think I need say anything further to confirm what my noble friend Lady Scotland said about the intention behind this when she spoke in Grand Committee. It plainly is not in order to find a back door to something which was not accepted during the passage of the Criminal Justice Act.
As a matter of precision, let me point out that the provision in relation to jury trial and judge-alone trial in serious fraud was not rejected. It was passed, and remains on the face of the Criminal Justice Act. However, the noble Baroness is quite right that undertakings were given about what steps would be taken before, if at all, that provision was implemented.
My noble friend Lord Borrie makes the point absolutely correctly. This provision does not reduce the number of jury trials. There will still need to he, and there will be, jury trials in these cases. The provision prevents those jury trials being impossibly difficult to handle or impracticable. We will come back to what word we use. It ensures that people are sentenced for the full extent of their criminality.
Having said that, I turn to the specific differences between the proposals in Amendments Nos. 42, 43, 44 and 46 from the clause as it stands. The first change is the requirement which Amendment No. 44 would insert that,
"the counts included in the indictment are for the same or similar offences".
We do not regard that as necessary for two reasons. First, it is, in any event, a requirement of the indictment rules that offences to be inserted into an indictment should meet that test. So making that proposal a statutory requirement would add nothing.
Secondly, it will be necessary for the judge, in making an order, to be satisfied that each count or group of counts which would be tried with the jury can be regarded as a sample of counts. It is difficult to see how a judge could reach the view that something was a sample of counts without regarding the counts that were going to stand for it as same or similar offences. The amendment seems unnecessary for both those reasons.
The second change would be to substitute "unmanageable" for "impracticable". I have heard what has been said about that, not only by the noble Baroness

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but by the noble Baroness, Lady Howe, the noble Lord, Lord Carlisle, and the noble and learned Lord, Lord Mayhew, in particular. Plainly, there is not that much difference between the words—I think that is a matter of consensus. Why, then, change one word to the other? I have two points about that.
First, I reject the suggestion that the reason for using "impracticable" is to allow budgetary considerations to override the public interest. That is the consideration to which the noble Baroness. Lady Anelay, referred. Those were her words—would the budgetary considerations override the public interest? My Lords, they cannot. It is not a test for the Treasury or the Government whether it is appropriate in a particular case—it is a test for the judge. The judge, in our version or the proposed version, has to be satisfied that, as stated in Clause 9(5),
"it is in the interests of justice for an order"
to be made. The same test would be inserted by the noble Baroness. In those circumstances, how could a judge say, "I think the public interest is not in favour of this taking place, but I will allow budgetary considerations to override it"? It is his judgment that it would be in the interests of justice to do it. That seems to be a conclusive answer to the concern raised by the noble Baroness.
My second reason is that I find "unmanageable" not a happy word to use in the context of control and conduct of a trial. Who is it, one is saying, is incapable of managing the trial? If you ask the judge whether he thinks a trial would be unmanageable, are you saying, "You must decide that you are not capable of managing this trial, or that someone else is not capable of managing it"? That is an attack, to some extent, on ability and capability, whereas the test of impracticability does not carry with it the same possible connotation that someone is simply not up to doing what is required.
While I started by saying that I think there is a consensus that there is not an enormous difference between the words, for my own part, I regard "impracticable" as a much happier word to use in the context of a statute, and one which a judge is required to consider.
Lord Thomas of Gresford: My Lords, before the Minister leaves this topic, will he confirm that not only would budgetary considerations not come within the word "impracticable" but also matters of time, the court calendar, and so on, which may tempt a judge to deal with the matter rather more quickly than he otherwise would?
Lord Goldsmith: My Lords, I do not see any judge saying, "I think it is in the interests of justice to do it this way" just because it will mean that the case will finish on Thursday rather than Friday. I do not see that happening. A judge would have to be satisfied that it was appropriate to deal with it. He has to look at the nature of the case and the circumstances, with the appropriate sample counts, and decide whether it is in the interests of justice to do so. In my view, one can trust judges to apply the word "impracticable" properly.
1398
That brings me to the third point—the difference proposed by the noble Lord, Lord Thomas of Gresford in Amendment No. 46. The amendment proposes the addition of a new condition that the,
"evidence in respect of each count is admissible at the trial of the sample count".
It is probable—indeed, it is highly probable—that, given the high degree of similarity that will exist between the sample and the subsidiary counts, much of the evidence admissible in the former would be admissible in respect of the latter. Indeed, it is not only probable, it would also be helpful, for the sake of the efficient trial of the subsidiary counts, to be able to rely upon the evidence, such as evidence of dishonesty, which will have come out in the first trial. However, it will not be at all helpful to use the concept of admissibility as a condition for this taking place, because the judge will have to make a pre-assessment in relation to the counts and the subsidiary counts that this condition will be met.
As the noble Lord and others will know, the current position is that counts can be included on the same indictment, even though the evidence on each of them is not admissible on the other. That sometimes gives rise to issues in the course of the trial, and we have all seen that take place. The way in which this has been dealt with by the courts, particularly by the House of Lords in the well known case of Christou, is to say that the discretion of the trial judge to sever an indictment must be left unconstrained and should not depend upon any strict rules of admissibility of evidence.
That is why I come back to this point: the noble Lord, Lord Thomas of Gresford, and others consistently said during the course of the Criminal Justice Act that we really ought to trust judges more; we should recognise that they are well trained and experienced in using their discretion properly in the interests of justice. I have said that I am also of the view that we can trust judges. In those circumstances, I believe that we can perfectly well trust judges to know what a sample count is, which is what they are being asked to do. They will be very familiar with that concept; they can work it out for themselves. They do not need us to make their job more difficult by saying that before they reach that conclusion, they have to go through all the evidence and make sure it is admissible in that way.
On the three changes that are proposed, it is not necessary to include "the same or similar". Your Lordships have heard why I think that the word "impracticable" should remain as it is. Thirdly, the necessity of including an additional condition of admissibility of evidence is not necessary and makes the judge's job more difficult. We should trust the judges to apply this provision in a sensible way—the way that is intended.
Finally, I turn to the question asked by the noble Lord, Lord Carlisle of Bucklow, who asked what would happen if a subsidiary count was related to more than one sample count and there is a conviction on only one of the samples. That is one way in which

1399
the example that he gave could have arisen. It is unlikely that a subsidiary count would be related to more than one count. The rational basis on which that could happen—when there is an acquittal on one count but a conviction on another—would be because the jury were satisfied that the course of conduct had taken place in relation to only one count. In that event, it would be for the judge to decide how to proceed.
For my own part, taking the example that the noble Lord gave, if there are six counts in the first indictment, only one of which results in a conviction, I would anticipate that the trial judge would take the view that it would not be safe for him to conclude that the jury were satisfied that this was a repeated offence by the offender. It would not be safe to proceed to deal with the subsidiary counts on the basis that they were, broadly speaking, proved by the first count. However, it would be for the judge to decide and one would leave the matter to his discretion.
Lord Carlisle of Bucklow: My Lords, I am grateful to the Attorney-General because what he has said is helpful. He made it clear that one would not expect the judge to use the power he undoubtedly has—since he made the decision prior to the hearing—to try the other cases without a jury unless it is clear on the convictions of the jury as a whole that they have accepted that there was a series of offences rather than an individual offence. He made that clear.
Lord Goldsmith: My Lords, the difficulty of giving a categorical answer is that one would have to look at the circumstances of the trial, which only the judge would know. He would know whether the jury, in the course of the trial, had decided a specific offence in relation to one or two counts, perhaps in the early period. No doubt he would be able to interpret the verdicts. He may say, "What I interpret from this verdict, because of the way the case has been run, is that, although the false statements made in the early period of the trial were innocently false, the jury had obviously not accepted that they were made dishonestly. However, by their verdicts in relation to the later counts it is clear that, at least by April 2001, they are satisfied that he was acting dishonestly". In those circumstances, if the subsidiary counts all relate to that later period the judge could safely proceed on that basis. I offer that as an example of how the judge might interpret the verdict.
Baroness Anelay of St Johns: My Lords, I am grateful to all noble Lords who have supported the amendments that I proposed today. The noble Lord, Lord Borrie, asked why I had accepted the Government's assurance and then still said that changes needed to be made to the clause. Although I accepted the Government's assurance that the principle of what they were trying to do was one with which I concur, the way in which they drafted the provision means that we do not necessarily end up in the situation in which we would all hope to be.
1400
I was not reassured by the assurance in a sense. There still needs to be some tweaking, but not major surgery on this part of the Bill.
On the Attorney-General's rebuttal, he first attacked the issues over "the same or similar offences" and talked about indictment rules. The noble Baroness, Lady Scotland, also referred to the fact that indictment rules should be able to cover this matter. I have a similar approach to this question in Amendment No. 50. I will consider further what the Minister said with regard to my first amendment before we reach Amendment No. 50. I am not convinced by his rejection of my proffered solution of having "unmanageable" instead of "impracticable", because it has the advantages alluded to by the noble Lord, Lord Thomas of Gresford.
Although I do not intend press this amendment, which as I explained in the first instance, is part of a package solution, I still feel that the word "unmanageable" is better for the purposes of this Bill—in narrowing ways in which the jury trial would be obviated—than the word "impracticable". I do not in any way think that it criticises those people who would then be responsible for applying the terms of the clause in the real world. For me, it is not a case of an individual's capability being brought into question—that they cannot do the job—but whether the system as a whole can cope given all the other strains upon it. It is a case not of attacking individuals, but of questioning whether the system itself can always properly cope with the constraints upon it.
Although I will seek formally to withdraw this amendment, I give notice that when we reach Amendment No. 45, which we have covered by the debate on this group, I shall seek to test the opinion of the House. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 43 and 44 not moved.]
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 45:
Page 6. line 36, leave out "impracticable" and insert "unmanageable"
The noble Baroness said: My Lords, I formally beg to move this amendment, and I wish to test the opinion of the House.
4.6 p.m.
On Question, Whether the said amendment (No. 45) shall be agreed to?
Their Lordships divided: Contents, 85; Not-Contents, 90.

Division No. 3

CONTENTS

Addington, L.

Barker, B.

Allenby of Megjddo, V.

Blaker, L.

Ampthill, L.

Bledisloe, V.

Anelay of St Johns, B.

Bradshaw, L.

Astor of Hever, L.

Bridgeman, V.

Avebury, L.

Brigstocke, B.

1401

Brougham and Vaux, L.

Molyneaux of Killead, L.

Burnham, L.

Monro of Langholm, L.

Campbell of Alloway, L.

Monson, L.

Carlisle of Bucklow, L.

Moynihan, L.

Clement-Jones, L.

Naseby, L.

Coe, L.

Newby, L.

Colwyn, L.

Newcastle, Bp.

Cope of Berkeley, L. [Teller]

Northover, B.

Craigavon, V.

Norton of Louth, L.

Dholakia, L.

Oakeshott of Seagrove Bay, L

Eden of Winton, L.

O'Cathain, B.

Elton, L.

Park of Monmouth, B.

Erroll, E.

Perry of Southwark, B.

Fowler, L.

Rawlings, B.

Glentoran, L.

Razzall, L.

Hamwee, B.

Redesdale, L.

Harris of Richmond, B.

Rennard, L.

Higgins, L.

Renton, L.

Hooper, B.

Roper, L.

Hooson, L.

Russell, E.

Howe, E.

Seccombe, B. [Teller]

Howe of Aberavon, L.

Selborne, E.

Howe of Idlicote, B.

Sharp of Guildford, B.

Hylton, L.

Shutt of Greetland, L.

Jenkin of Roding, L.

Simon of Glaisdale, L.

King of Bridgwater, L.

Skelmersdale, L.

Kingsland, L.

Smith of Clifton, L.

Laird, L.

Steel of Aikwood, L.

Linklater of Butterstone, B.

Thomas of Gresford, L.

Lyell, L.

Thomas of Walliswood, B.

McColl of Dulwich, L.

Thomson of Monifieth, L.

Maginnis of Drumglass, L.

Tope, L.

Marlesford, L.

Trefgarne, L.

Mayhew of Twysden, L.

Walmsley, B.

Miller of Chilthorne Domer, B.

Watson of Richmond, L.

Miller of Hendon, B.

Weatherill, L.

Williams of Crosby, B.

NOT-CONTENTS

Alli, L.

Gibson of Market Rasen, B.

Amos, B. (Lord President of the Council)

Gilbert, L.

Golding, B.

Andrews, B.

Goldsmith, L.

Archer of Sandwell, L.

Gould of Potternewton, B.

Ashton of Upholland, B.

Graham of Edmonton, L.

Bach, L.

Grantchester, L.

Bassam of Brighton, L.

Grocott, L. [Teller]

Berkeley, L.

Harris of Haringey, L.

Bernstein of Craigweil, L.

Harrison, L.

Bhatia. L

Haskel, L.

Blackstone, B.

Hayman, B.

Blood, B.

Hilton of Eggardon, B.

Borrie, L.

Howarth of Breckland, B.

Bragg, L.

Howells of St. Davids, B.

Brennan, L.

Howie of Troon, L.

Brooke of Alverthorpe, L.

Hoyle, L.

Brookman, L.

Janner of Braunstone, L.

Burlison, L.

Jordan, L.

Campbell-Savours, L.

Judd, L.

Carter, L.

King of West Bromwich, L.

Clarke of Hampstead, L.

Lea of Crondall, L.

Clinton-Davis, L.

Lipsey, L.

Cohen of Pimlico, B.

MacKenzie of Culkein, L.

Condon, L.

Mackenzie of Framwellgate, L.

Corbett of Castle Vale, L.

Massey of Darwen, B.

Crawley, B.

Morgan, L.

Davies of Oldham, L. [Teller]

Palmer, L.

Dixon, L.

Paul, L.

Dubs, L.

Pendry, L.

Evans of Temple Guiting, L.

Pitkeathley, B.

Falconer of Thoroton, L. (Lord Chancellor)

Ramsay of Cartvale, B.

Rea, L.

Farrington of Ribbleton, B.

Rendell of Babergh, B.

Faulkner of Worcester, L.

Rooker, L.

Gale, B.

Sainsbury of Turville, L.

1402

Sawyer, L.

Tenby, V.

Scotland of Asthal, B.

Thornton, B.

Sewel, L.

Tomlinson, L.

Sheldon, L.

Triesman, L.

Simon, V.

Turner of Camden, B.

Smith of Gilmorehill, B.

Warner, L.

Stone of Blackheath, L.

Warwick of Undercliffe, B.

Strabolgi, L.

Whitaker, B.

Symons of Vernham Dean, B.

Whitty, L.

Temple-Morris, L.

Williams of Elvel, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.17 p.m.
[Amendment No. 46 not moved.]
Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 47:
Leave out Clause 9.
The noble Lord said: My Lords, In moving Amendment No. 47 I shall speak also to Amendments Nos. 48, 49, 53 and 54 in the same group. All the amendments are concerned with the essence of a single point, on which there will obviously be substantial disagreement.
I share totally the concept that discretion on these affairs should be left to judges. I take the point further: judges have a lifetime's experience, so it would be far better to leave them to get on with it. If judges do not do their work satisfactorily—I have not come across many that have not—they should not be there. Therefore, it is a much preferable system to have what in effect has developed from the authority and discretion of the old red judge on Assize and been carried through the years, rather than to have this Byzantine maze of complexity in Clauses 9 to 12.
I think back to the days when I served as a recorder. The last thing that I would have wanted would be to have the Bar say, "Have a look at this", "Have a look at that", and "Have a look at the other". If one does not know how to deal with a multi-count indictment, one should not be a recorder. One can borrow a thought from the remarkable maiden speech of the noble and learned Lord, Lord Cullen of Whitekirk. One has only to look at the maze of complexity in the provision of Clauses 9 to 12 and listen to some of the arguments and analysis made by the noble Lord, Lord Borrie, and my noble friend Lord Carlisle. I am not mocking their analysis. I am not in a position to do that and I would never dream of doing so, but the analysis should be unnecessary. Does not that aura of complexity, to use a noble and learned Lord's wonderful phrase, make your Lordships sigh for the relative simplicity of the past?
I want to be fairly short. At the moment, I think that the noble and learned Lord the Attorney-General and I are in agreement about a fundamental principle, that in essence discretion should be left to the judges. Where we disagree is that there should be a trial by a judge without a jury. That is a serious objection.
This amendment is built upon an adaptation of the extant regime. It deals with what is required in a little more detail and with greater precision. What we propose is written in plain English and I think that, with leave, it should be read. We propose:
"A procedure to reduce complexity and length of trial on multi count indictments in the interests of due and expeditious dispensation of justice on implementation of these provisions shall be introduced by Rules of Court to ensure that appropriate directions as to the form of indictment and on other matters arising on the depositions shall be given by a judge of the Crown Court at a pre-trial hearing subject to review by the trial judge before arraignment".
It is very important to retain that discretion of the trial judge. The way in which it is proposed to work is very simple.
"Before pre-trial hearing a judge of the Crown Court shall have considered whether on the depositions the form of indictment is appropriate in the interests of due and expeditious dispensation of justice, and whether certain directions such as set out in subsection (3) should be given".
I shall come to those directions in a moment.
If he forms the provisional opinion that such directions should be given, he gives notice to the prosecution and the defence and they then attend for a pre-trial hearing. At that hearing, the directions deal with
"severance of … counts with directions for trial on … other counts … designation of sample counts with directions that other counts lie on the file … election as to whether to proceed on substantive counts or on conspiracy counts which replicate the substance"—
on the same depositions—
"provision of particulars of any count … amendment of indictment … disclosure of objections to admissibility",
and so forth.
I added subsection (4) because, in Grand Committee, the noble Baroness, Lady Scotland, surprisingly said that she was rather attracted to this proposal. I suppose that the simplicity of it might have attracted her—I do not know; but she said so. But then she said, "The trouble is, it does not take account of Kidd". Well, my Lords, it does. It was designed and drafted to take full account of Kidd. So, for clarification, I have added subsection (4), which makes it perfectly plain that this does take account of Kidd.
I am not saying that I could hold the noble Baroness to her approval merely because I have taken that subsection, but I do ask the Attorney-General to approach this and the advantage of it with an open mind.
The last subsection makes provision for the panel of judges. Of course, for this pre-trial review, you have to have judges who are fully competent to deal with it. The subsection says that the panel,
"shall be established by the Lord Chancellor in consultation with the Lord Chief Justice".
I hope that there will be no need to have to change that drafting, but I am not too sure. That does not go to the essence of this problem.
It is simply the question of approach. Are you going to leave this to the judges with all their experience, to deal with it in the way that they think right? Are you going to ensure that Kidd is observed? Are you going to ensure that we do not have criminal trials by judge alone? To me—perhaps I am too traditionalist—that seems incredible. There are other ways of dealing with it.
I should be very interested to hear what your Lordships' reactions are to this. On that basis, I beg to move.
Baroness Anelay of St Johns: My Lords, I rise briefly to reflect again the views I expressed in Grand Committee. Although I cannot follow my noble friend down the very careful and enticing path that he prepares for us—because I have given my word that, as a matter of principle, I have accepted the Government's approach—I think that, with his experience, expertise and a lifetime in law, he has prepared here a very credible alternative to the Government's approach. He has done so despite the fact that no one else has been able to come forward with such a good proposition. I think it is very helpful that he has given the Government the opportunity to explain why their approach is so significantly better than his. I suspect that they might find that quite a difficult task.
Lord Renton: My Lords, I warmly support my noble friend Lord Campbell of Alloway in his proposal that we should omit Clauses 9, 10, 11 and 12 from the Bill. They introduce a strange concept of criminal law under the heading of "sample counts". Quite frankly, having studied them closely, I find them vague, ambiguous, unwise and, above all, unnecessary. We have plenty of opportunities within the criminal law of dealing with the kind of cases to which these four clauses would apply.
As to my noble friend's amendment, I respect his motives and I admire the way he has had it drafted but, with deep respect, I am not so sure that it is necessary. This is an unusual Bill altogether. It introduces a number of new concepts of the law. They overlap to some extent with the well established existing law. Above all, I find Clauses 9, 10, 11 and 12 unnecessary.
4.30 p.m.
Lord Thomas of Gresford: My Lords, this amendment goes very much with the grain of the development of criminal procedure over the past few years with its emphasis upon case management and the importance of the trial judge taking charge of a particular case and setting out guidelines for the way in which a case is to be conducted. We should be grateful to the noble Lord, Lord Campbell of Alloway, for dealing with the matter with such clarity.
I was very much tempted to follow the noble Lord along the lines that he sets out here but today and in Grand Committee we heard assurances in relation to the limited role of Clauses 9 to 12; that is, that they are not to be used as a roundabout way of limiting trial by jury, that they are not to be used so as simply to cut down the costs of criminal trials, nor are they to be

1405
used for the convenience of the court calendar and to save time which might otherwise be expended in a lengthy trial. With the assurances that we have received today, we on these Benches are satisfied that there is merit in the scheme that the Government are putting forward. Although we have not finished with that scheme and will propose further amendments at Third Reading—particularly along the lines that we have discussed today—we commend the noble Lord, Lord Campbell, but I do not think that we can follow him in the detail in which he has set out his proposal.
Lord Goldsmith: My Lords, on one point I can enthusiastically agree with the noble Lord, Lord Campbell of Alloway, and that is on the desirability of judicial case management of all cases. As the noble Lord, Lord Thomas of Gresford, said, that is very much the direction in which we are moving and there is more to say about that topic in the future. The new criminal rules committee, which will come into operation as a result of the passing of the Criminal Justice Act, will be an important vehicle for case management of cases by judges.
Although we enthusiastically agree with the noble Lord on that proposition, I must disappoint him completely on the rest of his amendment. The noble Lord, Lord Renton, asked why any of this was necessary. It is necessary for the reasons that I gave before—that the result of the decision in R v Kidd and others is that there are trials which cannot deal with the full criminality of a particular individual because it would be too much to include all the counts. I give one or two examples. A defendant made 60 fraudulent mortgage applications to various building societies of approximately £200,000 each. To have charged all those offences in a single indictment would have overloaded it. It would have been impracticable. Noble Lords might even think that it would have been unmanageable, but we need not worry about that now. On the other hand, sentencing a defendant for just one or two of those offences, when he had committed 60 of them, may be to constrain the judge's sentencing power.
I can give many other examples. We used to deal with the matter before, because we were content with the idea of sample counts. We are no longer content so that has to be dealt with and is necessary. Why can I not follow the noble Lord, Lord Campbell of Alloway? Much of what the noble Lord proposes in subsection (3) regarding directions that can be given by a trial judge can, and are, given by him already. They include directions on severance of counts, provision of particulars, amendment of indictment, questions of admissibility, exchange of experts' reports and so on. But while his amendment identifies that there is a problem, it does not solve the matter because of a contradiction in the amendment.
The noble Lord proposes that the trial judge should have the opportunity of identifying sample counts—in subsection (3)(b)—but then says in subsection (4) that those can have no effect, because the defendant cannot be sentenced for anything of which he has not been convicted. I am sure that it is what my noble friend Lady Scotland meant in Grand Committee when she
1406
said it did not deal with Kidd. It does not deal with the problem that Kidd has exposed, which is: how does one find a way of convicting on only a few counts, but ultimately being able to sentence on many? Our solution is to say that the defendant must be convicted on those many counts, but it is unnecessary to go through the full panoply of a jury trial when the sample counts really tell what the criminality is. The strong likelihood is that the defendant will plead guilty to those other accounts, but that will be for him to decide.
I regret that while I agree with the noble Lord on the importance of case management, his substitute clause would not be effective in any way to meet the problem with which the House otherwise agrees that we need to deal. While I thank the noble Lord for his thought, I must reject the amendment.
Lord Renton: My Lords, before the noble and learned Lord sits down, in his experience, has he been involved in cases in which there have been many similar counts that have not been mentioned in the indictment, but which I always felt were rightly referred to by the prosecution after conviction? That is certainly within my experience and that of many others who have been involved as prosecution, defence or recorders in criminal cases.
Lord Goldsmith: My Lords, the noble Lord was in good company in thinking that they were referred to rightly—until 1998, when the Court of Appeal said that they could not be. That is what the matter is all about.
Lord Campbell of Alloway: My Lords, I am grateful to all noble Lords who have spoken, particularly the Attorney-General. With respect, I do not agree with his criticism of the subsection, because it does not affect the sample counts upon which they are tried. It affects what used to be counts that lay on the file. However, this is not the moment for me to pick at construction, because it looks as if my own Front Bench has become rather hooked on some kind of assurance and that the noble Lord, Lord Thomas, whether he is hooked or not, has certainly got wind of that. Therefore, I will not get very far with the amendment. In those circumstances, I thank noble Lords, particularly my noble friend Lord Renton, who stood by me in the wilderness, but I must beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 48 not moved.]
Clause 10 [Procedure for applications under section 9]:
[Amendment No. 49 not moved.]
Clause 11 [Effect of order under section 9(2)]:
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 50:
Page 7, line 39, at end insert "but only when the sample count has, at a preparatory hearing before the trial which led to the conviction for the sample count, been linked in accordance with section 9 to the counts which might be tried without a jury"
The noble Baroness said: My Lords, I have certainly never seen my noble friend Lord Campbell of Alloway as being in a wilderness—if so, it is a crowded place. I shall not speak to Amendment No. 52 in the same group, and will not move it when it is reached in the list.
Amendment No. 50 is based on a Law Commission proposal that toughens up the drafting of new rules on judge-alone trials. At paragraph 7.4 of its Report No. 277 on the effective prosecution of multiple offending, the Law Commission stated:
"The judge would decide the guilt or innocence of the defendant in respect only of offences linked to those upon which the jury has convicted. Those linked offences will have been pre-selected and placed in a schedule attached to the indictment. The schedule would reflect the full extent of alleged offending. The offences in the schedule will be listed, as appropriate, in groups and each group linked with a specified sample count in the indictment".
I believe that that was an appropriate recommendation from the Law Commission and it should be clearly on the face of the Bill. When the Minister responded to me in Grand Committee at col. GC 266 on 2 February, she acknowledged that the requirement for the judge to identify which counts are related to which does not form part of the clause. In accepting that, she said that the clause currently reflected what the Government expected to happen; that is, that provisions of my Amendment No. 50 should be there. She was, in effect, saying, "Amendment No. 50 should happen. It is not in the clause, but don't worry, it'll happen anyway". She said that my Clause 9(8) requires the judge in making an order under subsection (2) to specify which counts are to be tried without a jury and it is intended that he or she should also make clear to which sample counts, if there are indeed more than one, those counts or groups of counts are related.
The noble Baroness, Lady Scotland, maintained that she did not think it necessary to put that clarity into primary legislation, but it might be appropriate for rules to cover the point. I hear thundering back at me in an argument from the noble and learned Lord the Attorney-General that the new rules committee might be found by the Government to be a solution to my proposal here.
The Law Commission's position should be clearly on the face of the Bill before we go ahead with the considerable changes the Government are introducing in this part of the Bill. I beg to move.
Lord Goldsmith: My Lords, that is exactly the answer the noble Baroness is going to get. In our view, Clause 9(8) requires the judge, in making an order under subsection (2), to specify which counts are to be tried without a jury. While it does not require him to specify to which sample counts, if there are more than one, those counts or group of counts related, it is likely that that is what he will do. He will make that clear in the course of the discussion whether it is an appropriate case for there to be sample counts. There will plainly be discussion between prosecuting and defence counsel as to whether certain counts will follow from those samples.
1408
I repeat the answer given in Committee by my noble friend Lady Scotland. We do not consider that there is a need for the provision to be put into primary legislation. If the new rules committee—once the Bill is passed, it could be done by the Crown Court Rules Committee—believes it would be helpful to spell out such matters, we can safely leave it to do so at that time.
I understood that the noble Baroness was not speaking to Amendment No. 52 and would not be moving it, so I said nothing about it either.
Baroness Anelay of St Johns: My Lords, I am grateful to the noble and learned Lord for at least saying what I thought he was going to say, even though it did not please me terribly. This is one of a group of amendments which refers to how one deals with sample counts. If we had been able to vote in Grand Committee, it is an amendment that might well have been happily disposed of at that stage. However, we could not do so.
There are other amendments to which we may return at another stage and to which I could give my support if I am able to deal satisfactorily with this one. It may well be that if I am not successful with this amendment—I hope that I shall be shortly—I shall then be able to put the full weight of my party behind Amendment No. 46, to which the noble Lord, Lord Thomas of Gresford, spoke earlier. However, I still hope that my amendment will be agreed to and, on that basis, I wish to test the opinion of the House.
4.44 p.m.
On Question, Whether the said amendment (No. 50) shall be agreed to?
Their Lordships divided: Contents, 63; Not-Contents, 92.

Division No. 4

CONTENTS

Addington, L.

Howe, E.

Allenby of Megiddo, V.

Howe of Aberavon, L.

Anelay of St Johns, B.

Jenkin of Roding, L.

Avebury, L.

Kingsland, L.

Barker, B.

Laird, L.

Bridgeman, V.

Linklater of Butterstone, B.

Brigstocke, B.

Lyell, L.

Brougham and Vaux, L.

McColl of Dulwich, L.

Burnham, L.

Marlesford, L.

Campbell of Alloway, L.

Miller of Hendon, B.

Carlisle of Bucklow, L.

Monro of Langholm, L.

Clement-Jones, L.

Monson, L.

Coe, L.

Moynihan, L.

Colwyn, L.

Newby, L.

Cope of Berkeley, L. [Teller]

Northover, B.

Denham, L.

Oakeshott of Seagrove Bay, L.

Dundee, E.

O'Cathain, B.

Eden of Winton, L.

Park of Monmouth, B.

Elton, L.

Parkinson, L.

Fookes, B.

Phillips of Sudbury, L.

Fowler, L.

Rawlings, B.

Hamwee, B.

Renton, L.

Harris of Richmond, B.

Roper, L.

Higgins, L.

Russell, E.

Hooper, B.

Seccombe, B. [Teller]

Hooson, L.

Selborne, E.

1409

Sharp of Guildford, B.

Thomas of Walliswood, B.

Skelmersdale, L.

Thomson of Monifieth, L.

Steel of Aikwood, L.

Tope, L.

Walmsley, B.

Strathclyde, L.

Watson of Richmond, L.

Thomas of Gresford, L.

Williams of Crosby, B.

NOT-CONTENTS

Acton, L.

Healey, L.

Alli, L.

Hilton of Eggardon, B.

Amos, B. (Lord President of the Council)

Howarth of Breckland, B.

Andrews, B.

Howells of St. Davids, B.

Archer of Sandwell, L.

Hoyle. L.

Ashton of Upholland, B.

Janner of Braunstone, L.

Bach, L.

Jordan, L.

Bassam of Brighton, L.

King of West Bromwich, L.

Berkeley, L.

Lea of Crondall, L.

Bernstein of Craigweil, L.

Levy, L.

Bhatia, L.

Lipsey, L.

Blackstonc, B.

MacKenzieof Culkein, L.

Bledisloe, V.

Mackenzie of Framwellgate, L.

Blood, B.

Massey of Darwen, B.

Borrie, L.

Mishcon, L.

Brennan, L.

Morgan, L.

Brooke of Alverthorpe, L.

Palmer, L.

Brookman, L.

Pendry, L.

Burlison, L.

Pitkeathley, B.

Campbell-Savours, L.

Plant of Highfield, L.

Carter, L.

Ramsay of Cartvale, B.

Clarke of Hampstead, L.

Rea, L.

Clinton-Davis, L.

Rendell of Babergh, B.

Cohen of Pimlico, B.

Roll of Ipsden, L.

Corbett of Castle Vale, L.

Rooker, L.

Crawley, B.

Sainsbury of Turville, L.

Davies of Oldham, L. [Teller]

Sawyer, L.

Dixon. L.

Scotland of Asthal, B.

Dubs, L.

Sewel, L.

Evans of Temple Guiting. L.

Sheldon, L.

Falconer of Thoroton, L. (Lord Chancellor)

Simon, V.

Farrington of Ribbleton, B.

Smith of Gilmorehill B.

Faulkner of Worcester, L.

Stone of Blackheath, L.

Filkin, L.

Strabolgi, L.

Gale, B.

Symons of Vernham Dean, B.

Gibson of Market Rasen, B.

Temple-Morris, L.

Gilbert. L,

Tenby, V.

Golding, B.

Tomlinson, L.

Goldsmith, L.

Triesman, L.

Gould of Potternewton, B.

Turner of Camden. B.

Grantchester, L.

Warner, L.

Grocott, L. [Teller]

Warwick of Undercliffe, B.

Harris of Haringey, L.

Weatherill, L.

Harrison, L.

Whitaker, B.

Haskel, L.

Whitty, L.

Hayman, B.

Williams of Elvel, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.54 p.m.
Lord Goldsmith Lord Goldsmith moved Amendment No. 50A:
Page 8, line 18, leave out from beginning to "time" in line 19 and insert "Where, in the case of proceedings in respect of which an order under section 9(2) has been made, a jury convicts a defendant of a count"
The noble and learned Lord said: My Lords, in moving Amendment No. 50A standing in the name of my noble friend Lady Scotland, I shall speak also to Amendments Nos. 50B, 50C and 50D. These amendments make some improvements to Clause 11. The first amendment deals with a point raised by the noble and learned Lord the Lord Chief Justice.
The purpose of subsection (5) is to provide that where the trial of some counts proceeds without a jury by virtue of an order under Section 9(2), time for appealing against the jury's verdict in respect of the counts which the jury has tried does not run until the end of the non-jury part of the trial.
The difficulty lies with the opening words of the subsection. It states:
"Where the trial of a count is conducted with a jury because of an order under section 9(2)".
Although this is not actually incorrect, it is not a mistake for conducting without a jury, there is no doubt that the present drafting has led to some confusion, which this amendment resolves. For the purposes of an appeal against conviction under Section 18(2) of the Criminal Appeals Act 1968, time runs from the date of conviction—that is, the verdict—not from the date of sentence, if this is later. We do not want to alter that position in Clause 11(5).
In order to give effect to our policy that the proceedings should end where there is a two-stage trial at the date of a conviction or verdict, Amendments Nos. 50B and 50C make clear that the point front which time for an appeal begins to run is the conclusion of the non-jury proceedings excluding sentencing.
Amendment No. 50D is a drafting amendment. The words at the beginning of subsection (6), "Nothing in this Part", are not apt, as the multiple offending clauses do not constitute a part by themselves, and so the amendment substitutes a reference to Clauses 9 to 12. I beg to move.
On Question, amendment agreed to.
Lord Goldsmith Lord Goldsmith moved Amendments Nos. 50B to 50D:
Page 8, line 21, leave out "trial ends" and insert "proceedings end"
Page 8, line 21, at end insert
"(5A) In determining for the purposes of subsection (5) the date on which proceedings end, any part of those proceedings which takes place after the time when matters relating to sentencing begin to be dealt with is to be disregarded."
Page 8, line 22, leave out "Part" and insert "section or section 9, 10 or 12"
On Question, amendments agreed to.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 51:
Page 8, line 22, leave out from "affects" to second "that" in line 26 and insert "the requirement under section 4A of the Criminal Procedure (Insanity) Act 1964 (c. 84)"
The noble Baroness said: My Lords, in moving Amendment No. 51, I shall also speak to the other amendments standing in my name. The amendments seek to introduce a procedural change to the court process for determining fitness to plead under the Criminal Procedure (Insanity) Act 1964. They provide that the decision on whether a defendant is fit to plead to a charge should be taken by the judge hearing the case and not by a jury.
Amendment No. 55 introduces the change that the decision whether the defendant is fit to be tried is to be taken by the court without a jury. This replaces the requirement in Section 4 of the Criminal Procedure (Insanity) Act 1964 that a jury should take this decision. This was a recommendation made by Lord Justice Auld. It seeks to streamline the somewhat cumbersome process where separate juries must decide whether the defendant is fit to plead, and if not, whether he did the act or made the omission as charged. It does not affect the requirement for a jury to decide the facts of the case, or deprive the defendant of the chance to be acquitted by the jury on the facts.
Amendments Nos. 55A, 55B and 55C tabled in the name of the noble Baroness, Lady Anelay of St Johns, would give the jury the responsibility to determine the question of fitness to plead where the initial decision on fitness to plead has been challenged. The defendant may sometimes disagree with the decision on fitness to plead. However, if a decision as to fitness to plead is difficult, I respectfully suggest to the noble Baroness that the defendant is likely to be best served through a judge making the determination. The judge, who is trained and deals with these cases on a reasonably regular basis, would be better placed than the jury to understand the relevance of possibly conflicting professional opinion. Perhaps more importantly, if there was a dispute, the judge would have to give the reasons for his decision. This would not be the case with a jury finding. This would help the defendant if he wanted to make an appeal to the Court of Appeal, either on the grounds that he should have been found unfit to plead or on the grounds that a finding of unfitness should be overturned. Therefore the defendant would be in a less favourable position if a jury were to determine fitness to plead. The remainder of the amendments in this grouping are consequential, to reflect the change of responsibility for determining fitness to plead.
Amendment No. 51 removes the reference to the finding of unfitness being made by a jury from the multiple offending provisions in the Bill that we have just debated. Amendments Nos. 90 and 109 remove the references from Section 11 of the Jurors Act 1974 to the ballot and swearing of jurors for the purposes of the decision on fitness. Amendments Nos. 91 and 110 remove the reference to the jury's role in unfitness from Section 55 of the Supreme Court Act 1981, relating to the constitution of the Criminal Division of the Court of Appeal. Amendment No. 98 removes the reference to the jury's role in finding unfitness from the process for the Criminal Cases Review Commission to refer to the Court of Appeal in Section 9 of the Criminal Appeals Act 1995. Amendment No. 105 removes the reference to a jury's role in finding unfitness from the provisions in Section 48 of the Criminal Justice Act 2003 regarding trial without a jury.
Lastly, Amendment No. 126 changes the Bill's Long Title to include a reference to the changes in the procedure for finding unfitness, as well as a reference to the new proposed disposals to be available to the
1412
court on the finding of unfitness on a verdict of not guilty by reason of insanity. These disposals are the subject of the next grouping. I beg to move.
5 p.m.
Baroness Anelay of St Johns: My Lords, I shall speak to my amendments, which are grouped with government Amendment No. 51. As the Minister pointed out, Amendments Nos. 55A, 55B and 55C are amendments to government Amendment No. 55, and they are all very much probing amendments at this stage.
When I first received the letter from the Government on 23 February saying that they intended to tackle this issue in this Bill, I sought to find out from Mind. Mencap and other organisations which might have a direct interest in these provisions whether they had any view they wished to express. Unfortunately we did not see the amendments themselves until last Wednesday, 3 March. Silence can sometimes be taken by the Government as consent, but there can also be silence quite simply because it is sometimes not possible for a busy voluntary organisation, however large or small, to respond in a short time-frame. That is the position in which I find myself. None of the organisations that I have contacted more than once since 23 February has been able to come up with a response as yet, although they hope to do so by Third Reading on 25 March.
I listened carefully to what the Minister said about the Government's reasons for removing the decision from the jury with regard to unfitness to plead and giving it to the judge alone, and I looked at the proposals in the Auld report. My amendments were tabled in order to try to elicit from the Government why they felt it was important to change the current procedure, particularly where there could be a challenge to evidence. The Minister says one of the great advantages of the change would be that—as we have argued before—as well as the competence of the judge, sometimes one also has to consider the competence of the jury, which has to decide whether or not somebody is telling the truth, and has to make judgments on evidence from expert witnesses.
I appreciate what the Minister says, particularly with regard to reasons. That is something I shall consider carefully before Third Reading. As regards other matters in the family court, I am certainly aware of the level of training that there was for volunteers, such as magistrates sitting in the family court, before they felt confident enough to properly carry out the new rules with regard to giving reasons for decisions in family cases. I know that it is a complex matter. Certainly, there could be an advantage to any person involved in a fitness to plead matter if there were reasons. I thank the Minister for her explanation. This matter must be taken seriously.
Perhaps the noble Baroness has not quite taken into consideration one issue that I consider important. The result of this kind of decision still can be a very serious

1413
matter. It may be one in which it could be thought that a jury has the right to play a part as a matter of public interest. The result of the decision that someone is unfit to plead can be draconian, in a sense. It could be a hospital order without restriction as to time.
I was interested that in the Auld report on page 217, paragraph 213, the point is made that nowadays the consequences of a finding of unfitness to plead are much more flexible than they were. It points out that they could range from a hospital order with restrictions—in practice, it could be without any restriction as to time—to an absolute discharge. That is true, but one must also remember that there still is the possibility that the person will end up with a hospital order without restriction as to time. That is one reason why there might be justification for retaining the jury's role where there are challenges to evidence.
My purpose was to have my concerns put on the record and to have time to reflect properly between now and Third Reading. By then, I hope that I might have further or any response from those organisations which, at their heart, are concerned to act on behalf of those who might be affected by the Government's changes.
Lord Thomas of Gresford: My Lords, we have not heard the justification for this change other than that it appears in the Auld report. As the noble Baroness, Lady Anelay, said a moment ago, the result of the finding of unfitness to plead can result in indefinite detention.
I well recall one of the first trials that I attended in front of Mr Justice Edmund Davies, as he then was. The defendant stood completely mute and was found unfit to plead. Apparently, when taken to the cells he asked the detective in charge of the case, "What does during Her Majesty's pleasure mean?". When he was told, he said. "Get me back in that `blankety-blank' dock as soon as you can". So he was returned to the dock and found fit to plead. I think that he was later sentenced for the offence for which he stood charge. That was an early experience for me.
What comes from it is the fact that there are very serious consequences from findings of that sort. Traditionally, they have been in the hands of the jury. Where there is an issue, very often it depends on the weighing up of conflicting medical reports, subject to the direction of the judge. So far as I am aware, the system has worked perfectly well. I would be grateful if the Minister could outline exactly what is behind Lord Justice Auld's "reform"—I put that word in quotation marks—and whether it is anything more than a desire to speed things along and tidy things up.
Baroness Scotland of Asthal: My Lords, I hope that I have made clear the real mischief that this change seeks to cure. It is a very strong traditional view that was expressed, not just by Lord Justice Auld, but by others, that this is a very cumbersome and very complex procedure which is not necessary.
1414
I remind noble Lords, and reassure the noble Lord, Lord Thomas of Gresford, that the jury would still have to find that the defendant did the act with which he was charged before the court could make a hospital order. As noble Lords will also know, there will still be a right to apply to the tribunal if a hospital order is given.
The difficulty that defendants now of course find themselves in is that if a jury makes a decision in relation to fitness to plead, it is not obliged to give any reason for that decision. Therefore, if a defendant does not agree with the decision taken. it is difficult, if not impossible, for them to challenge it with any ease. The advantage will be that the judge will be obliged to give a reasoned judgment as to why lie has chosen either to adopt the medical evidence produced before him or her, or to reject that evidence, in a way that makes the decision more transparent. The Government have listened to the exhortations of the judiciary and Lord Justice Auld, who thinks it is meritorious, and we believe therefore that the provisions are sound.
I hear what the noble Baroness, Lady Anelay, says about the importance of juries making decisions in relation to fact and that they bring huge experience to the process. We agree. That is why the jury will retain a very significant role. This relates only to a decision as to unfitness to plead.
Your Lordships will know that, regrettably, medical evidence is now becoming more and more complex and sometimes more and more contentious. Knowing exactly what the decision maker took into account when making a decision becomes of greater interest to everyone.
Lord Carlisle of Bucklow: My Lords, among the amendments to which the Minister referred was one which amends, yet again, the Long Title of the Bill. The Bill is now so wide, would it not be better to drop the words "Domestic Violence" from the Title and call it a criminal justice Bill—because that is what it has become?
Baroness Scotland of Asthal: My Lords, I could not disagree with the noble Lord more profoundly. This is the domestic violence Bill and will remain the domestic violence Bill. It has been longed for for 30 years.
Lord Carlisle of Bucklow: My Lords, I am not disputing that. I support it covering the principles of domestic violence. I am making the point that it covers many different things. The whole of the Attorney-General's speech in reply to the previous debate quite rightly referred to what would happen in fraud cases; we have made common assault an arrestable offence. We are extending the Bill in so many ways that it goes far wider than domestic violence. I merely wonder whether we should face reality and recognise that it goes wider than domestic violence.
Baroness Scotland of Asthal: My Lords, I hear what the noble Lord says and I understand why he says it. But I invite him to remember that this is the "Domestic Violence, Crime and Victims Bill". The sections about which the noble Lord has made, not his complaint, his comment, are relatively small parts of a Bill to do with

1415
domestic violence and victims. I know the noble Lord will recognise that I have acknowledged his concern, but I think the Title is an appropriate one for the Bill.
On Question, amendment agreed to.
[Amendments Nos. 52 and 53 not moved.]
Clause 12 [Rules of court]:
[Amendment No. 54 not moved.]
Lord Goldsmith Lord Goldsmith moved Amendment No. 54A:
After Clause 12, insert the following new clause—
"APPLICATION OF SECTIONS 9 TO 12 TO NORTHERN IRELAND
(1) In their application to Northern Ireland, sections 9 to 12 have effect subject to the modifications in Schedule (Modification of sections 9 to 12 for Northern Ireland).
(2) Sections 9 to 12 do not apply in relation to a trial to which section 75 of the Terrorism Act 2000 (c. 11) (trial without jury for certain offences) applies."
The noble and learned Lord said: My Lords, we have debated at length the provisions of Clauses 9 to 12 in relation to England and Wales and we have had clear and helpful statements from the Benches opposite as to their support for those clauses, or at least the principle behind them. Government Amendments Nos. 54A, 70A and 90A, the three amendments to which I speak, provide for those measures to be extended to Northern Ireland.
Amendment No. 54A provides for the application of Clauses 9 to 12 to Northern Ireland; Amendment No. 70A inserts a new schedule to the Bill which sets out the necessary modifications to those clauses in relation to their application to Northern Ireland; and Amendment No. 90A is consequential upon Amendments Nos. 54A and 70A, and provides that a person appealing in relation to a hearing under Section 10(1)(b) may be granted legal aid.
Given the degree of discussion and consensus on Clauses 9 to 12 in relation to England and Wales, I hope your Lordships will agree that I need to say no more in moving the amendment. I beg to move.
On Question, amendment agreed to.
5.15 p.m.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 55:
After Clause 12, insert the following new clause—
"UNFITNESS TO PLEAD: PROCEDURE
(1) The Criminal Procedure (Insanity) Act 1964 (c. 84) is amended as follows.
(2) In section 4 (finding of unfitness to plead), in subsection (5) (question of fitness to be determined by a jury), for the words from "by a jury" to the end substitute "by the court without a jury".
(3) In subsection (6) of that section, for ''A jury" substitute "The court".
(4) In subsection (1) of section 4A (finding that the accused did the act or omission charged against him), for "jury" substitute "court".
1416
(5) For subsection (5) of that section substitute—
"(5) Where the question of disability was determined after arraignment of the accused, the determination under subsection(2) is to be made by the jury by whom he was being tried.'"'
[Amendments Nos. 55A to 55C, as amendments to Amendment No. 55, not moved.]
On Question, amendment agreed to.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 56:
After Clause 12, insert the following new clause—
"POWERS OF COURT ON FINDING OF INSANITY OR UNFITNESS TO PLEAD ETC
(1) For section 5 of the Criminal Procedure (Insanity) Act 1964 (c. 84) substitute—
"5 POWERS TO DEAL WITH PERSONS NOT GUILTY BY REASON OF INSANITY OR UNFIT TO PLEAD ETC.
(1) This section applies where—

(a) a special verdict is returned that the accused is not guilty by reason of insanity; or

(b) findings have been made that the accused is under a disability and that he did the act or made the omission charged against him.

(2) The court shall make in respect of the accused—

(a) a hospital order (with or without a restriction order),

(b) a supervision order, or

(c) an order for his absolute discharge.

(3) Where—

(a) the offence to which the special verdict or the findings relate is an offence the sentence for which is fixed by law, and

(b) the court have power to make a hospital order,
the court shall make a hospital order with a restriction order (whether or not they would have power to make a restriction order apart from this subsection).

(4) In this section—

"hospital order" has the meaning given in section 37 of the Mental Health Act 1983;

"restriction order" has the meaning given to it by section 41 of that Act;

"supervision order" has the meaning given in Part I of Schedule 1A to this Act.

5A ORDERS MADE UNDER OR BY VIRTUE OF SECTION 5
(1) In relation to the making of an order by virtue of subsection (2)(a) of section 5 above, section 37 (hospital orders etc) of the Mental Health Act 1983 ("the 1983 Act") shall have effect as if—

(a) the reference in subsection (1) to a person being convicted before the Crown Court included a reference to the case where section 5 above applies;

(b) the words after "punishable with imprisonment" and before "or is convicted" were omitted; and

(c) for subsections (4) and (5) there were substituted—

"(4) Where an order is made under this section requiring a person to be admitted to a hospital ("a hospital order"), it shall be the duty of the managers of the hospital specified in the order to admit him in accordance with it."

1417
(2) In relation to a case where section 5 above applies but the court have not yet made one of the disposals mentioned in subsection (2) of that section—

(a) section 35 of the 1983 Act (remand to hospital for report on accused's mental condition) shall have effect with the omission of the words after paragraph (b) in subsection (3);

(b) section 36 of that Act (remand of accused person to hospital for treatment) shall have effect with the omission of the words "(other than an offence the sentence for which is fixed by law)" in subsection (2);

(c) references in sections 35 and 36 of that Act to an accused person shall be construed as including a person in whose case this subsection applies; and

(d) section 38 of that Act (interim hospital orders) shall have effect as if—

(i) the reference in subsection (1) to a person being convicted before the Crown Court included a reference to the case where section 5 above applies; and

(ii) the words "(other than an offence the sentence for which is fixed by law)" in that subsection were omitted.

(3) In relation to the making of any order under the 1983 Act by virtue of this Act, references in the 1983 Act to an offender shall be construed as including references to a person in whose case section 5 above applies, and references to an offence shall be construed accordingly.
(4) Where—

(a) a person is detained in pursuance of a hospital order which the court had power to make by virtue of section 5(1)(b) above, and

(b) the court also made a restriction order, and that order has not ceased to have effect,
the Secretary of State, if satisfied after consultation with the responsible medical officer that the person can properly be tried, may remit the person for trial, either to the court of trial or to a prison.

On the person's arrival at the court or prison, the hospital order and the restriction order shall cease to have effect.
(5) Schedule 1A to this Act (supervision orders) has effect with respect to the making of supervision orders under subsection (2)(b) of section 5 above, and with respect to the revocation and amendment of such orders.
(6) In relation to the making of an order under subsection (2)(c) of section 5 above, section 12(1) of the Powers of Criminal Courts (Sentencing) Act 2000 (absolute and conditional discharge) shall have effect as if—

(a) the reference to a person being convicted by or before a court of such an offence as is there mentioned included a reference to the case where section 5 above applies; and

(b) the reference to the court being of opinion that it is inexpedient to inflict punishment included a reference to it thinking that an order for absolute discharge would be most suitable in all the circumstances of the case."

(2) Before Schedule 2 to the Criminal Procedure (Insanity) Act 1964 (c. 84) insert the Schedule set out in Schedule (Supervision orders) to this Act.
(3) In section 6 of the Criminal Appeal Act 1968 (c. 19) (substitution of finding of insanity or findings of unfitness to plead etc) and in section 14 of that Act (substitution of findings of unfitness to plead etc), for subsections (2) and (3) substitute—
"(2) The Court of Appeal shall make in respect of the accused—

(a) a hospital order (with or without a restriction order),

(b) a supervision order, or

(c) an order for his absolute discharge.

1418
(3) Where—

(a) the offence to which the appeal relates is an offence the sentence for which is fixed by law, and

(b) the court have power to make a hospital order,
the court shall make a hospital order with a restriction order (whether or not they would have power to make a restriction order apart from this subsection).

(4) In this section—

"hospital order" has the meaning given in section 37 of the Mental Health Act 1983;

"restriction order" has the meaning given to it by section 41 of that Act;

"supervision order" has the meaning given in Part 1 of Schedule 1A to the Criminal Procedure (Insanity; Act 1964 ("the 1964 Act").

(5) Section 5A of the 1964 Act applies in relation to this section as it applies in relation to section 5 of that Act."
(4) Section 14A of the Criminal Appeal Act 1968 (c. 19) (power to order admission to hospital where, on appeal against verdict of not guilty by reason of insanity, Court of Appeal substitutes verdict of acquittal) is repealed.
(5) Section 5 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (c. 25) and Schedules 1 and 2 to that Act are repealed."
The noble Baroness said: My Lords, Amendments Nos. 56, 57 and 71 would introduce procedural changes to the court process and powers under the insanity legislation. There is a need to amend the court's procedure to bring the range of disposal options available to the court following a finding of unfitness to plead or not guilty by reason of insanity in line with the options available under the Mental Health Act 1983.
Amendment No. 56 seeks to change the disposals available to the court finding of unfitness to plead or not guilty by reason of insanity reached under the Criminal Procedure (Insanity) Act 1964. Previously, the court could make an order for the defendant's admission to hospital, a supervision and treatment order or an absolute discharge. However, the court did not have to be satisfied that the defendant was mentally disordered before ordering his admission to hospital. Therefore, it was theoretically possible for someone who was not mentally disordered to be detained in hospital.
In addition, the admission order relied on the Secretary of State to issue a warrant ordering the defendant's admission to hospital within two months. This caused practical difficulties if the Secretary of State was not informed of the court's decision in time, as it could lead to the order lapsing and no further detention being possible.
The new options are for the court to make a hospital order, with or without restrictions, under the Mental Health Act 1983 in the same way that it could have done if the defendant had been convicted of an offence; for the court to make a new disposal called a supervision order, which is tabled in Amendment No. 71; or for the court to give an absolute discharge.
Amendment No. 56 would make hospital orders apply in the same way as those under the Mental Health Act 1983, with one exception—that the court will be able to order a hospital to admit a defendant. This is to reflect the fact that the court will not have the option of imposing a prison sentence on a defendant who is found not guilty by reason of insanity or unfit to plead. The

1419
application of the 1983 Act means that the court will be able to make a hospital order only if there is evidence that the defendant is mentally disordered.
The new supervision order seeks to provide a disposal to deal with those cases in which the defendant is not mentally disordered—he might be unfit to plead or not guilty by reason of insanity because of some physical disorder such as diabetes or epilepsy—but it is still thought that some intervention is required.
Where the finding is one made on a charge of murder, the court will have to make a restricted hospital order if the conditions as to mental disorder are met. Where they are not, the supervision order is available to provide a structure for whatever treatment is appropriate to address the risk of further harm.
The powers in the Mental Health Act 1983 to remand a defendant to hospital for a report or for treatment and to make an interim hospital order have been extended to cover the situation in which a court is considering which disposal to make following a finding of unfitness or insanity. This power to remand for report or treatment will be useful to the court if, for example, it is unsure whether a hospital order is the correct disposal following a finding of unfitness of a verdict of not guilty by reason of insanity.
Amendment No. 57 would provide a new right of appeal to the Court of Appeal against disposals following a finding of unfitness to plead or not guilty by reason of insanity. Amendment No. 71 would insert a new schedule into the Criminal Procedure (Insanity) Act 1964. It makes provision about the new supervision order which creates a range of powers for the court to dispose of defendants found unfit or insane, but for whom disposals under the Mental Health Act are not justified.
This new supervision order is similar to the existing supervision and treatment order available under the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, which it will replace. However, it is broader in two respects. First, it can include requirements for medical treatment in respect of physical illness rather than simply mental illness. Secondly, it is possible for the order only to provide for the supervision of defendants without including any requirement to submit to medical treatment. It is narrower because it cannot include a requirement for treatment as an inpatient. We think that that strikes the right balance in meeting the needs of the defendant.
Like its predecessor, the supervision order is non-punitive and carries no sanction, there being neither conviction nor evidence justifying medical compulsion. The order enables the court to require the provision of appropriate support and treatment to the defendant to minimise the risk of further harm and provides a means of drawing any problems to the attention of the relevant authorities.
Amendments Nos. 87, 88, 93 and 111 are consequential amendments. Amendments Nos. 93 and 101 also remove the provisions in Section 71 of the
1420
Mental Health Act 1983 requiring the Secretary of State to refer to the mental health review tribunal. Similarly, the amendments also remove the interpretation from Section 79 of the 1983 Act of restricted patients detained under the insanity legislation, since the proposed amendments would enable such persons actually to be detained under the relevant provisions.
Amendments Nos. 95 and 112 amend Section 16 of the Prosecution of Offences Act 1985. Amendment No. 103 inserts a reference into Section 133 of the Sexual Offences Act 2003 to include persons detained under the Mental Health Act 1983. All the other amendments are consequential. I have taken a little time to go through them because I anticipate that those who come to look at these provisions may want to know precisely what we had in mind and how they will fit together. I hope that noble Lords will forgive me for being comprehensive, but I hope that I will never have to repeat the information. I beg to move.
On Question, amendment agreed to.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 57:
After Clause 12, insert the following new clause—
"APPEAL AGAINST ORDER MADE ON FINDING OF INSANITY OR UNFITNESS TO PLEAD ETC
After section 16 of the Criminal Appeal Act 1968 (c. 19) insert—
"Appeal against order 'node in cases of insanity or unfitness to plead
"16A RIGHT OF APPEAL AGAINST HOSPITAL ORDER ETC.
(1) A person in whose case the Crown Court—

(a) makes a hospital order or interim hospital order by virtue of section 5 or 5A of the Criminal Procedure (Insanity) Act 1964, or

(b) makes a supervision order under section 5 of that Act, may appeal to the Court of Appeal against the order.

(2) An appeal under this section lies only—

(a) with the leave of the Court of Appeal; or

(b) if the judge of the court of trial grants a certificate that the case is fit for appeal.

16B DISPOSAL OF APPEAL UNDER S. 16A
(1) If on an appeal under section 16A of this Act the Court of Appeal consider that the appellant should be dealt with differently from the way in which the court below dealt with him—

(a) they may quash any order which is the subject of the appeal; and

(b) they may make such order, whether by substitution for the original order or by variation of or addition to it, as they think appropriate for the case and as the court below had power to make.

(2) The fact that an appeal is pending against an interim hospital order under the Mental Health Act 1983 shall not affect the power of the court below to renew or terminate the order or deal with the appellant on its termination.
(3) Where the Court of Appeal make an interim hospital order by virtue of this section—

(a) the power of renewing or terminating it and of dealing with the appellant on its termination shall be exercisable by the court below and not by the Court of Appeal; and

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(b) the court below shall be treated for the purposes of section 38(7) of the said Act of 1983 (absconding offenders) as the court that made the order.

(4) The fact that an appeal is pending against a supervision order under section 5 of the Criminal Procedure (Insanity) Act 1964 shall not affect the power of the court below to revoke the order, or of a magistrates' court to revoke or amend it.
(5) Where the Court of Appeal make a supervision order by virtue of this section, the power of revoking or amending it shall be exercisable as if the order had been made by the court below.""
On Question, amendment agreed to.
Lord Goldsmith Lord Goldsmith moved Amendment No. 57A:
After Clause 12, insert the following new clause—
"PROSECUTION APPEALS
(1) In section 58(13) of the Criminal Justice Act 2003 (which defines "applicable time"), for "start of the judge's" substitute "time when the judge starts his".
(2) After section 58(13) of that Act insert—
"(14) The reference in subsection (13) to the time when the judge starts his summing-up to the jury includes the time when the judge would start his summing-up to the jury but for the making of an order under Part 7.""
The noble and learned Lord said: My Lords, by providing for trials to take place without a jury in the circumstances identified, Clauses 9 to 12 would have an incidental effect on the prosecution appeals provisions in Part 9 of the Criminal Justice Act 2003.
I move swiftly to make this point: it is intended that the prosecution right of appeal under Part 9 should be available in both stages of a two-stage trial provided that the conditions in Part 9 are met. The amendments will allow for those provisions to be modified in order adequately to deal with the particular differences that arise in a two-stage trial. One example of the interaction that we need to clarify is the point up to which the right of appeal is exercisable. Noble Lords will recall that the existing reference, which is before the start of the judge's summing up to the jury, would not be apt when there are two stages in the trial and the second stage does not include the jury.
Amendment No. 57A is an amendment to Schedule 4. It enables the Home Secretary to resolve such points by making modifications to Part 9 by order rather than including complicating modifications on the face of the Bill. In the example that I have given, the problem could be solved by a modification along the same lines as that which Amendment No. 105A would make to Section 58(13) of the Criminal Justice Act 2003. The need for this amendment arises not from Clauses 9 to 12, but from the provisions for non-jury trial in Part 7 of the 2003 Act. The current definition of applicable time in Section 58(13) means that the definition of the point beyond which the prosecution right of appeal cannot be exercised is inappropriate when there is no jury. Alternative provision ought to have been made in last year's Act, but, by an oversight, was not.
The amendment substitutes a formula which does the trick in cases which are conducted without a jury under Part 7. In order to bring Amendment No. 105A within the scope of the Bill, it is necessary—and I say this in the presence of the noble Lord, Lord Carlisle of Bucklow, in anticipating what his comment might
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be—to insert a reference to its purpose in the Long Title. That is what Amendment No. 127 does. I beg to move.
On Question, amendment agreed to.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 57B:
After Clause 12, insert the following new clause—
"INTERMITTENT CUSTODY: AMENDMENTS OF PART 12 OF THE CRIMINAL JUSTICE ACT 2003
Schedule (Intermittent custody: amendments of Part 12 of the Criminal Justice Act 2003) (Intermittent custody: amendments of Part 12 of the Criminal Justice Act 2003) has effect."
The noble Baroness said: My Lords, the Criminal Justice Act 2003 introduced a new sentence of intermittent custody, which is currently being piloted. The pilot has highlighted two areas in which the legislation creates outcomes that are unintentionally inconsistent between those offenders sentenced to a term of intermittent custody and those serving custody plus. These are technical amendments to address the inconsistencies.
Amendments Nos. 57B, 71A, 100A, 121A and 128 concern offenders sentenced to more than one term of intermittent custody, ordered to be served concurrently, and the definition of the required custodial period under which HDC—home detention curfew—release dates are calculated. Before becoming eligible for release on home detention curfew, an offender must be serving a minimum custodial period of 42 days and must have served a specified portion of the custodial part of the sentence. Prisoners must have served at least half the required custodial days and a minimum of 28 days in custody before release on HDC is possible. I hope that your Lordships are still with me.
Currently the 2003 Act states that for those sentenced to intermittent custody, "the required custodial days" for home detention curfew purposes equals the "aggregate" of the number of custodial days ordered to be served. That has had the unintended effect that, when there are two concurrent intermittent custody sentences, the custodial periods are added together and it is the total that defines the required custodial period. That is inconsistent with custody plus sentences that are to be served concurrently. Here the required custodial period is defined as the actual custodial days to be served and not the aggregate of the number of custodial days.
In order to remedy that inconsistency, Amendments Nos. 57A and 71 B provides that, when an offender has been sentenced to concurrent terms of intermittent custody, the required custodial days for home detention curfew purposes is the aggregate of the custodial days less the number of days to be served concurrently. That will have the effect that the required custodial period for those serving concurrent sentences of either intermittent custody or custody plus will be identical. The amendment does not make any changes to the release dates on intermittent custody sentences where there is no early release on home detention curfew.
Amendment No. 71 A also concerns the length of the period an offender sentenced to intermittent custody has to spend on licence. Currently, in providing for consecutive sentences of less than 12 months, the Act does not specify clearly the licence arrangements for those sentenced to consecutive terms of intermittent custody. In order to remedy that omission, there needs to be inserted Amendment No. 71A. That amendment will ensure that those sentenced to consecutive terms of intermittent custody will, for the purposes of release and licence, be treated consistently with those serving consecutive sentences of custody plus. That is, the offender will serve a period equal to the aggregate of the custodial period and on completion will then be on licence for a period equal in length to the longest remaining licence period for any one of his sentences.
Your Lordships will remember that when we debated the matter in 2003, we said that the pilots would be extremely useful to identify inconsistencies—and here we are. I beg to move.
5.30 p.m.
Baroness Anelay of St Johns: My Lords, I am not going to take us back to those happy days of debating Part 12 of that legislation—although I forget which part prosecution appeals ended up being in, as the Bill changed in many respects as it passed through this House.
The Minister has given us a very careful and helpful explanation of why the amendment is required, as a result of the experience of the pilots. I recall having tabled several amendments on intermittent custody, trying to work my way through some of the consequences of the provisions and asking questions around the very issues that the noble Baroness has dealt with today. I shall look carefully at the explanation that she has given. I certainly hope that there will be no need to return to the matter at Third Reading. It will probably take me until then to understand the explanation. The Minister has raised a serious matter: the value of pilots is to ensure that we can have just such a change.
Having said that I agree that changes are sometimes needed, I thought that I ought to wait until now before coming in on a point that my noble friend Lord Carlisle of Bucklow has raised, as I did not want to abuse the rules of Report. My noble friend is right to draw the House's attention to occasions on which the Government repeatedly change the Long Title. The noble Baroness says that this is the Domestic Violence, Crime and Victims Bill—that is absolutely right; I have agreed with her on previous occasions. However, my noble friend is right to draw the House's attention to the continual changing of the nature of the Bill in that, increasingly, outside organisations have said to me, "This appears now to be less of a domestic violence Bill than a general crime Bill".
The serious nature of that is simply that, when practitioners seek to find particular legislation, they will not necessarily direct themselves to this Bill as the source of that information, because it is being referred
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to in a general sense simply as the Domestic Violence Bill. That is one of the difficulties that arise with this rather small but composite Bill. In that respect, I support my noble friend's continued reminders.
Lord Carlisle of Bucklow: My Lords, I support what my noble friend Lady Anelay has said. This is yet another example of the point that I have made. I am not complaining at all; indeed, as the Minister knows, I welcome Part 1, which deals with domestic violence. But the scope is becoming so wide that, when one is suddenly asked, "Are you going to go on sample cases because of Kidd?", one must say to the judge, "Although the case is on fraud, if your lordship would be good enough to look at the Domestic Violence Act". It makes it more difficult to follow things through when provisions are scattered among different Acts.
Does the amendment that the noble Baroness has just moved mean another amendment to the Long Title? If, as threatened, at a later stage, major changes regarding the whole Criminal Injuries Compensation Board are to be made by means of the Domestic Violence Bill, will that require a further amendment to the Long Title?
On a point of nostalgia, I must confess that I look back with a good deal of happiness on a certain parole review that I once recommended and that was accepted. It was recommended that in sentences of up to four years, an individual spent half of the period in custody and half on parole, with the risk of being recalled if he committed any further offences. Happily, that report was implemented very quickly by the then Home Secretary, but since then we seem to have moved away increasingly. We now get different dates and different times. I yearn slightly for the simplicity of the proposals made at that stage.
Baroness Scotland of Asthal: My Lords, of course I note what the noble Baroness, Lady Anelay, and the noble Lord, Lord Carlisle of Bucklow, have said, and I take my wigging with good grace.
On Question, amendment agreed to.
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 58:
After Clause 12, insert the following new clause—
"COMPOUND ALLEGATIONS
(1) The Crown Court Rule Committee shall make rules of court under section 84 of the Supreme Court Act 1981 (c. 54) (power to make rules of court) to make provision for the trial of compound allegations and, in particular, the rules shall provide for—

(a) a definition of "continuous activity" suitable to be tried as a compound allegation;

(b) a procedure for informing the sentencer in the Crown Court of the true extent of the guilt of a defendant who is found guilty by the jury of the compound allegation.

(2) The definition referred to in subsection (1)(a) shall include the same conduct occurring on a series of separate occasions or the same repeated conduct which, looked at in the round, may properly be regarded as one activity.

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(3) The procedure referred to in subsection (1)(b) shall provide that the procedure may only be applied—

(a) where the allegation involves two or more similar offences connected by time and place of commission or common purpose (typically, the same act committed against the same victim), so that—

(i) they can fairly be recognised as forming part of the same transaction or criminal enterprise; and

(ii) having regard to the allegations made and the defence put forward that, save for particular marginal issues, it may fairly be said to be an all or nothing case; and

(b) where the case has been identified at a preparatory hearing as appropriate for the use of a compound allegation.

(4) The procedure referred to in subsection (1)(b) shall include provision that—

(a) in order to convict of the count containing the compound allegation, all (or at least 10) of the jury must agree that they are sure that the defendant committed the alleged offences on at least one (the same) occasion;

(b) in order to acquit, all (or at least 10) of the jury must agree that they are less than sure that the defendant committed the alleged offence on any occasion at all;

(c) if the jury is unable to attain the level of agreement either to convict or acquit, then there may be a retrial;

(d) if, but only if, the jury had convicted in accordance with paragraph (a) then the jury must be asked, for sentencing purposes, to clarify the extent of the offending by identifying any occasion or occasions of alleged offending where it is unable, by a sufficient majority, to agree that it is sure of guilt, and any occasion so identified is to be discounted by the judge in measuring the appropriate sentence.

(5) The rules to be made under subsection (1) may also provide for—

(a) directions for the judge to follow at a preparatory hearing under subsection (3)(b), including but not limited to the appropriate scope and form of an indictment for a compound allegation; and

(b) directions for the judge as to the summing up and direction of the jury at the end of a trial of a compound allegation.

(6) The Crown Court Rule Committee shall make rules of court under section 2 of the Indictments Act 1915 (c. 90) (powers of rule committee) and section 84 of the Supreme Court Act 1981 (c. 54) to provide that offences under the Protection of Children Act 1978 (c. 37) may be tried as compound allegations, and for the purpose of this subsection, the Rule Committee may by order amend or repeal provisions of the 1915 Act."
The noble Baroness said: My Lords, I tabled this amendment in Grand Committee on 2 February, as reported at col. GC 281 of Hansard. I did so because I thought that it was important to ask the Government to put on the record why they have rejected the Law Commission's recommendation in paragraph 6.9 of its Report No. 277, The Effective Prosecution of Multiple Offending. The technical explanation of the text of the amendment was given at col. GC 281. As this is a follow-up amendment to ask the Government where they have got to, it would not be proper to go fully into the detail of the text on Report, particularly as noble Lords present suffered with all of us through several days in Grand Committee. In response to my arguments then, the Minister said that the Government were still
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considering the detail of the Law Commission's recommendations in respect of compound allegations and that the Government would,
"consider further the extent to which, if at all, it might be necessary to resort to primary legislation"—Official Report. 2/2/04; col. GC282.
Therefore, in order to get a kind of progress report since then, my questions are as follows. When do the Government expect to conclude those further considerations? Will that be in time for Third Reading on 25 March? Why do the Government still believe they need Clauses 9 to 12 if changes in the indictment laws can solve the problem of charging and sentencing for downloading thousands of child pornography images? Why can they not solve the problem of dealing with other multiple offending by this method? Do we need to press ahead with judge alone trials to solve the problem of Kidd? I beg to move.
Lord Goldsmith: My Lords, I am happy to respond to those questions. The noble Baroness asked first why the Government have not accepted the recommendation of the Law Commission. She also asked this in Grand Committee in a debate that was short, I think because of the hour. It is right to point out that the Law Commission did not recommend that there should be any legislation. The Law Commission's statement at paragraph 6.9 of its report was not a call for legislation. It was a statement of view that certain offending—it identified the downloading of pornographic material involving children satisfying certain conditions—
"is capable under the present law of being charged by way of a compound allegation".
It was saying that certain offences are already capable of being charged as what it describes as a "compound allegation". It went on to say:
"If it is thought appropriate to crystallise these principles so as to make them clearly applicable to offending other than theft or fraud it may be achieved by a change in the Indictment Rules".
It was not recommending primary legislation. It was saying that such offences can be dealt with under the existing law but that if it is necessary to clarify this, it could be done by means of changes to the indictment rules. We agree that the existing common law permits the charging, in appropriate circumstances, of what may be viewed as a series of individual offences or as a continuous transaction involving several elements.
I turn to the next question asked by the noble Baroness about when the Government expect to conclude their consideration. My belief is that the Government have concluded their consideration and that what I am now saying is the result of that consideration.
The third question—this is the substantive question—was why we need Clauses 9 to 12 in those circumstances. There are different categories of case with which one can be concerned. The Law Commission identified, particularly by reference to a case called Barton, circumstances where one can get into difficulties if one applies the idea of compound allegation to particular kinds of transactions.
I shall give an example, as I tried to do in the earlier debate, of where Clauses 9 to 12 would operate. If somebody had defrauded many different victims in a

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similar way over a period of time, I doubt that it would be appropriate to charge that as a single count of a continuous activity or a compound allegation, whichever one wants to do. They are individual crimes, committed on different days, on different people. That is a very good example of where the new procedure in Clauses 9 to 12 would be appropriate.
In fact, we are now not so sure that the example of downloading indecent pictures of children is such a good example of where Clauses 9 to 12 would be used. That may well be an example—this is what the Law Commission is saying—of something which is a continuous offence, or possibly, depending upon the period of time over which it took place, of several continuous offences because sometimes it will make sense to divide the period into a number of blocks and to charge a count in relation to each of them.
The Crown Prosecution Service has been consulted in relation to that category of conduct. It sees that it should be possible under the existing law to charge a series of elements of downloading of indecent photographs in a single count rather than charging each image separately. Plainly, no one can bind a particular judge's discretion if he thinks that, in a particular case, that is an appropriate way to proceed. Obviously, I cannot give any guarantees in relation to that.
The fundamental point is that we see, importantly, room not only for circumstances in which it is proper under the existing common law to charge what might be described as a number of elements—but is actually a single continuous activity or a compound allegation—but in which, at the same time, it is necessary to have the provisions in Clauses 9 to 12 so that we can deal with matters which would not properly fall within that sort of concept as individual counts, although without the need to have each individual count tried in front of a jury.
I should add that that is why we would not be in favour of the amendment, because it would necessarily involve—I give this as an example but there are other issues, too—introducing a procedure for special verdicts by a jury. We have not had those for a very long time. It is a quite complicated and cumbersome procedure. It is certainly not something to which the Government think it necessary to resort in order to deal with what is otherwise the Kidd problem which we discussed earlier.
I hope that those explanations are helpful to the noble Baroness. In short, however, we do not consider that the amendment is necessary. Indeed, we would be concerned that it could tie the hands of the judiciary and the rules committee in how they can apply the existing common law. Therefore, I resist the amendment.
Baroness Anelay of St Johns: My Lords, the noble and learned Lord the Attorney-General has indeed taken the proposal much further forward. He was right to say that it was not debated at any length in Grand Committee. At that stage, in speaking to an earlier group of amendments, the Minister gave me a nod and
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a wink that she would be saying something that might be helpful—which she did, which was to say that the Government were thinking about it. The noble and learned Lord has said that they have thought about it. And this was the result today. I am grateful.
The basis on which I originally raised the issue was that the Government—in putting forward their proposals in the Bill, and in press releases and interviews before we entered into discussions on the Bill—were using the case of the downloading of multiple images of child pornography as an argument for the necessity for Clauses 9 to 12. It was when I saw the Law Commission's view that in fact it might not be necessary that I thought it was important for the Government's view to be tested.
I certainly am grateful to the noble and learned Lord for his further explanation with regard to the conversations he has had with the CPS, for which he has departmental responsibility, and the view that has been expressed to him that it can cope with the child pornography cases under existing procedures—subject, as he says, of course, to any decision by a judge. Certainly in the light of the explanation that the noble and learned Lord has given today, I am content to withdraw the amendment and not to return to it at another stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 13 [Code of practice for victims]:
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 59:
Page 9, line 5, leave out subsection (1) and insert—
"(1) Victims of criminal conduct shall be entitled to services provided by persons appearing to the Secretary of State to have functions relating to—

(a) victims of criminal conduct, or

(b) any aspect of the criminal justice system.

(2) The Secretary of State must issue a code of practice as to the services to be provided under subsection (1)."
The noble Baroness said: My Lords, in moving Amendment No. 59 I shall speak also to Amendment No. 62. I can say now that, to assist progress, I shall not move or speak to Amendments Nos. 60 and 61.
I have tabled these amendments as a result of the briefings that I have received from Victim Support both before Grand Committee and subsequently. The amendments have been redrafted to take account of the responses given in Grand Committee by the Minister to my original amendments.
I am very grateful to Victim Support for its briefing given to me and to other noble Lords throughout the progress of the Bill. It has been invaluable. Victim Support makes the point that the rights of victims of crime arc not listed as such in the Bill. The organisation therefore suggested Amendment No. 59 to ensure that there is in the Bill an entitlement to services for those people who are victims of criminal conduct. The services would be provided by those persons who appear to the Secretary of State to carry out functions that cover,
"(a) victims of criminal conduct, or
(b) any aspect of the criminal justice system".

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The Secretary of State would be required to,
"issue a code of practice as to the services that should be provided"
by these persons or organisations.
Amendment No. 62 provides a definition of "services" to which victims have a right. In Grand Committee the Minister found fault with my drafting at col. 420, in that that amendment did not cover the right to give personal information. That omission has been remedied in my Amendment No. 62.
In July 2003, the Government strategy, A Better Deal for Victims and Witnesses, recognised that the majority of victims have needs outside the criminal justice system. In fact, Victim Support has calculated that only 3 per cent of victims go through the court process. An additional 1 per cent receive criminal injuries compensation. We shall certainly return to that issue in detail on a later occasion when the Government—if they do—introduce their changes in another place. Victim Support argues that everything in the draft code currently is there only for those 4 per cent.
Many victims have other needs such as those relating to health, housing, insurance, financial matters, employment and education issues. The Government have said that they wish to take this further and that they want to improve matters in that area. In this Bill they create the commissioner for victims and witnesses, who is to be responsible for a range of departments beyond those dealing only with criminal justice. Therefore, Victim Support's hope is that in future the victims' code's remit will be extended to those other departments. However, it wants to ensure that everyone knows what kind of services should be involved. Therefore, Amendment No. 62 begins by clarifying that the services provided should be,
"protection, personal support, to receive and provide information and to receive explanation".
Noble Lords will be aware that services such as these are already provided by Victim Support, which is a national standard bearer for quality of services to victims of crime. I beg to move.
5.45 p.m.
The Deputy Speaker (Baroness Ramsay of Cartvale): My Lords, I must inform your Lordships that if Amendment No. 59 is agreed to, I cannot call Amendment No. 60.
Lord Borrie: My Lords, I hope that I may raise one or two queries about the amendment. Clause 13 as it stands provides that in so far as people, organisations or whatever provide support services to victims of crime, a code of practice issued by the Secretary of State will apply. Clause 15 states that failure to comply does not in itself create any liability, criminal or civil, but is admissible in evidence. In Grand Committee my noble friend the Minister gave examples of industrial tribunal unfair dismissal proceedings where that might be so.
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Amendment No. 62 seeks to define "services". That seems to me helpful although I had, as it were, assumed that that was just the kind of thing that was intended. However, Amendment No. 59 purports to create an entitlement of the victim to support services—but I am not sure from whom. How does one pursue that entitlement? How is it enforced? Does it mean an entitlement from one organisation or, if there are several providing services of various but perhaps similar overlapping kinds, does it mean entitlement from each and every one of them?
I apologise to the noble Baroness, Lady Anelay, as she has not yet discussed her amendment, which is also in the name of the noble Lord, Lord Campbell of Alloway, in which she does not intend that the code of practice should itself be more than guidance and should not render anyone liable in criminal or civil proceedings, but elaborates somewhat on how it might be admissible in proceedings, which is not all that different from what the Bill already provides for.
I am puzzled to know, if the amendment were passed and there was an entitlement, how would that be enforced and against whom? Therefore I am doubtful whether the amendment should be accepted.
Baroness Scotland of Asthal: My Lords, I agree with my noble friend and I shall deal with the second batch of amendments in a moment. We discussed these issues previously in Grand Committee, as the noble Baroness indicated, and I see that the amendment has been revised so that the proposed definition of "service" has been broadened. However, I still feel that the principle of providing a definition could potentially lead to precisely the kind of inflexibility that we are seeking to avoid. When I say "we", I know that the noble Baroness does not wish to provide inflexibility and neither does Victim Support, I understand. There will be far more opportunity to develop new and innovative "services" for victims if we do not provide a narrow definition now.
As to the presentational amendment to make absolutely clear that victims have entitlements to services, we are not convinced that it improves the drafting in any material way, as my noble friend Lord Borrie has made clear. In fact, it might cause confusion as to the status of rights under the code. The intention is that the code should not give rise to rights which are enforceable in the courts. We think it is more appropriate for the code to be policed by the Parliamentary Ombudsman. The amendment suggests that services provided under the code are legal entitlements and would cast doubt on Clause 15, which states explicitly that failure to comply with the code does not give rise to any criminal or civil liability.
I understand why the noble Baroness has phrased her amendments in the way that she does, but we believe that they are unnecessary.
Baroness Anelay of St Johns: My Lords. I am grateful for those responses which have pulled my amendment apart and contrasted it with my amendment to Clause 15. My purpose, of course, was to try and take further the probing amendments that I tabled in Grand Committee—we have done that.

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Against that background the noble Lord, Lord Borrie, says this amendment seems to be, or is, in contradiction with my amendment at Clause 15. My difficulty with the Government's drafting is that they have the worst of both worlds. They are not providing victims with an entitlement to services that some organisations believe is right, because the Government are rightly trying to ensure that we do not create an open season in the courts for people to sue if they do not receive a particular service, at a particular time and at a particular level.
I sympathise with the Government for not wanting that, but the difficulty is that they have raised the expectations of victims that services will be provided and those organisations that represent victims are asking: why, if there are to be services, can there not be an entitlement to them? So, I was happy to take the amendment forward on that basis. However, we will debate the amendments to Clause 15 later. There I have real problems—although I agree with what the Government say they are trying to do on Clause 15, I do not believe that their drafting achieves it.
As this amendment was tabled as a consequence of discussions with Victim Support, I will consider carefully with it whether there is anything which can be brought back at Third Reading that the organisation would find helpful. If its advice is that the matter has been taken as far as it can, the issue will not return in this or any other form. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 60 to 62 not moved.]
Clause 14 [Procedure]:
Viscount Bridgeman Viscount Bridgeman moved Amendment No. 63:
Page 9, line 39, leave out "and the Lord Chancellor" and insert ", the Lord Chancellor and the Commissioner for Victims and Witnesses as appointed under section 17(1)"
The noble Viscount said: My Lords, in moving Amendment No. 63, I shall speak also to Amendments Nos. 64 to 68 and 75 in my name and that of my noble friend Lady Anelay. We are grateful for the support of the noble Lords, Lord McNally and Lord Thomas of Gresford. They refer to the obligation to consult the commissioner for victims and witnesses in any revision of the code of practice. They follow on Amendment No. 62, to which my noble friend Lady Anelay has just spoken and I note the Minister's reply.
Amendment No. 63 would ensure that the new commissioner for victims and witnesses is fully consulted if and when the Secretary of State revised the code of practice. Clause 18(1)(c) places the commissioner under a statutory duty to keep the code of practice under review, yet the Bill does not accord the commissioner a role in the process of revising the code commensurate with his duty to review the code. The amendment would plug the gap.
Clause 18(2) already provides for the commissioner to make ad hoc proposals to the Home Secretary either at the Home Secretary's request or on the commissioner's own initiative. This is very useful as it provides a flexible way for the commissioner to share ideas with the
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Secretary of State at any time. But Clause 18(2) does not establish or form part of a formal consultation process for revising the code of practice.
If and when the Home Secretary revises the code under Clause 14(8), the Bill provides in Clause 14(2) to (7) for public consultation on the revision. In addition, the Bill gives the Lord Chancellor and the Attorney-General special provenance in the revision process. There is no mention of the commissioner.
If the Bill passes into law as it stands, the commissioner will most probably make representations to the Home Secretary during the public consultation period. However, the revision process would be greatly enhanced if legislation provided that the commissioner had a named role in the process together with the Lord Chancellor and the Attorney-General.
Formally including the commissioner will enhance the process in several ways. Whereas the Attorney-General and the Lord Chancellor have wide remits, the commissioner's remit will be confined to victims and witnesses. The prime function of the Attorney-General and the Lord Chancellor will be to champion the rights of victims and witnesses, but they will also be under a duty to keep the code under review. The commissioner will, it is hoped, have built up a wealth of knowledge in the field of victim and witness policy. Surely, in the course of the acquisition of that knowledge, he will be aware of any deficiencies in the code of practice which need to be rectified or improved.
It seems logical that the commissioner should be formally included in the revision process for those reasons. This amendment would help enable the Home Secretary to make fuller use of the commissioner's expertise and improve the effectiveness of the revision process.
Furthermore, victim and witness policy will not stand still and at some point in the future the code is bound to be revised. The Bill gives the commissioner a remit that reaches beyond the sphere of criminal justice into health, housing and so forth. My noble friend Lady Anelay made that point.
It is quite foreseeable that the commissioner may make proposals under Clause 18(2) touching on these and other policy spheres which fall outside the remit of the Home Secretary. If the Secretary of State wished to pursue such proposals in the interests of victims and witnesses, it is clear that the commissioner will need to be placed at the centre rather than at the periphery of the drafting. This will promote effective joined-up government.
Finally, I want to make a practical point. It will surely be an effective use of public resources to use the commissioner and his staff as much as possible during the drafting and revision process to ease the burden on government departments and to ensure that any amendments are workable in the long run.
I turn to Amendment No. 65. The Bill currently permits the commissioner to make proposals for amending the code of practice to the Secretary of State under Clause 18(2)(a). As the commissioner will be under a duty to review the code, the commissioner's power to make proposals provides the commissioner

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with some of the necessary means for raising issues arising out of such a review. However, it is suggested that providing the commissioner with the facility to initiate a revision of the code will help to ensure that the code remains effective in ensuring good quality services to victims and witnesses.
In certain circumstances, it may make more sense for the commissioner rather than the Home Secretary to use the knowledge gained under Clause 18(1)(c) to initiate a revision process; for example, if the revisions in the code relate to health or housing. The amendment seeks to provide for such a situation and it aims to introduce greater flexibility and make better use of the resources deployed to the commissioner.
The amendment draws on the Race Relations Act 1976, which enables the Commission for Racial Equality to initiate revisions in its own code of practice. While I acknowledge that the role of the commissioner for victims and witnesses is not entirely analogous with that of the Commission for Racial Equality and other equality commissioners in so far as he will not have commensurate policing or enforcement powers, I suggest that, in the interests of victims and witnesses, statute should afford the commissioner a degree of analogous independence.
Under the amendment, if the commissioner initiates a redraft, he will be required to consult the Home Secretary, the Attorney-General and the Lord Chancellor. A similar process to the one provided by subsections (2) to (7) of Clause 14 would then be set in train. However, importantly, the Secretary of State will retain the power to reject the revised code in the same way as the Home Secretary may reject the codes of practice of the Commission for Racial Equality. In that way, any draft initiated by the commissioner will not only be subjected to the same consultation as one issued by the Home Secretary but will also be subject to the ultimate authority of an elected representative of Cabinet rank before being put to Parliament.
Amendment No. 67, proposed by the Solicitors' Family Law Association, reinforces the points that I have just made covering the line taken by Victim Support; that is, that the role of the commissioner for victims and witnesses must be taken seriously by the Secretary of State. Clause 18 enables the commissioner to put proposals to the Secretary of State to amend the code of practice. He or she can do so either on his or her own initiative or if the Secretary of State asks the commissioner to make proposals to him. It seems strange that there is no requirement in the Bill for the Secretary of State to take account of such proposals or reports, nor to give his reasons if he then rejects any recommendation made by the commissioner. The amendment seeks to remedy that perceived deficiency. I beg to move.
6 p.m.
Lord Thomas of Gresford: My Lords, your Lordships may recall that at Second Reading I questioned the role of the commissioner and the purpose of having a commissioner at all. I suggested that it might be a smokescreen—that is, to seem to be doing something not very effectively for victims.
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I believe that this afternoon's debates have rather underlined that point. When the last amendment, to which my name is attached, was moved, we were told that victims are not to be entitled to services as that would be wrong; nor were those services to be specified. Therefore, the force of Clause 13 is completely disseminated by a lack of a clear purpose—a clear granting of the right to victims.
The commissioner has all kinds of vague functions, such as promoting the interests of victims and witnesses, and they are set in a very broad sense. However, in this amendment the Government may be revisiting the point that he should have the obvious task of playing a part in preparing the code of practice for victims set out in Clause 13. If he has no part in preparing it initially, why does he have a part in reviewing and revising it and making suggestions at a later stage? I commend the amendment because it gives the commissioner something positive to do—something that he can get his teeth into at the very beginning.
I should also say about the commissioner that by Clause 20 he is not allowed to exercise any of his functions in relation to a particular victim or witness. That means that he cannot deal in any way with individual cases. So he has the broadest, vaguest territory to cover without any specific role set out in this legislation. He would immediately have something to do if he, at least, played a part in setting up the code of practice.
Lord Renton: My Lords, while supporting my noble friend Lord Bridgeman on the amendment he moved, perhaps I may ask the noble Baroness whether, in replying to the amendments, she can give us some indication of the responsibility to provide treatment for victims. Victims are necessarily people who will have been injured or have suffered in some way. Of course, one hopes and believes that the code will make arrangements for dealing with those injuries and suffering. Will she confirm that?
Baroness Scotland of Asthal: My Lords, I am happy to deal with all the issues raised by noble Lords. We expect the commissioner to be independent. On victims, the witnesses policy is very unlikely to stand still. We believe it will not stand still. The commissioner will have a very important and persuasive role. His or her specialist knowledge will be influential, but not determinative. Of course responsibility for making decisions which may directly impinge on the allocation of resources will be properly discharged by the ministerial officers and their colleagues along with the Secretaries of State who will be entrusted with that task.
I understand that the amendments spoken to by the noble Viscount, Lord Bridgeman, seek to increase the power of the commissioner for victims and witnesses so that he must be consulted on the code. The amendments also give him the power to produce a draft revision of the code which must be laid before Parliament. If it is not laid before Parliament, the Secretary of State must explain why.

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I strongly resist the amendments. It would be inappropriate for the commissioner to have such a large role to play in relation to the code of practice. The commissioner will be able to offer his comments and amendments to the Secretary of State; and his suggestions will be given very serious consideration by the Government.
I must say that the situation we now envisage in respect of the commissioner is very different from that of the Commission for Racial Equality. The comparison with the Commissioner for Racial Equality is not apposite because of course each will have very different roles with very different powers. The CRE has enforcement powers as the noble Viscount, Lord Bridgeman, said. Its codes are generally applicable to the public at large. Therefore, they apply to all employers—in both private and public sectors—who are required to avoid discrimination. It is very different for a commissioner to amend a code like this which will have resource implications for public bodies.
Lord Thomas of Gresford: My Lords, I am sorry to interrupt the noble Baroness, but I do so while she is talking about resource implications. There was a suggestion that we were going to have inserted into the Bill at some time the question of compensation for victims. The press have trailed the possibility that the Criminal Injuries Compensation Scheme would bring forward revisions which would result in its costs being halved and the cost of injuries to some victims being thrown upon employers. Will we see that provision in this Bill before we finally leave it?
Baroness Scotland of Asthal: My Lords, I am happy to repeat what I have said on at least two, if not three, previous occasions. The provisions are out to consultation. It is not envisaged that we will be likely to spend less money than we currently spend on the Criminal Injuries Compensation Board. The consultation, as the noble Lord will know, because I am positive that he will have read it, preserves the majority of the categories. There are now two or three categories that it is suggested may need to be changed. In that consultation document, a broad range of suggestions is put out for consideration as to changes that we may make. The statutory charge is but one of them. All those matters will come back.
What the noble Viscount, Lord Bridgeman, has highlighted is important; namely, that we hope that it will not just be the criminal justice system that will be within the eyesight of the victims commissioner. Noble Lords will know that through the Victims' Advisory Panel we are already working with other departments to look at a number of issues that impinge on victims and witnesses, and other departments' interests. For instance, the noble Lord, Lord Renton, indicated a responsibility to provide health provision and treatment for victims and the arrangements for that. Of course, that treatment is already provided by the National Health Service. Your Lordships will know that in a number of contexts we are looking carefully at what additional help and assistance victims will
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need. For instance, there is a pilot in Cardiff hospital where the accident and emergency providers are working with Victim Support on domestic violence, to see how they can identify better ways of dealing with victims. All these issues are important. We hope that the commissioner will have much to say about them.
As the noble Viscount, Lord Bridgeman, has mentioned, there are also questions in relation to housing. If we take domestic violence, there are new provisions in respect of what local and other authorities may do to provide housing together with other non-governmental agencies and governmental agencies. All these important issues go across departments and rely on the provision of resources.
We see the role of the commissioner as an extremely important, independent and persuasive role, but it would not be appropriate to recast that role in the way that is currently proposed. I assure noble Lords that in accordance with everything that is proper, full and proper consideration would be given to any recommendation made by the commissioner, because the whole point of creating such a commissioner is that he or she will be able to provide cogent, helpful advice to government on how to better meet the needs and provide services for victims.
Lord Campbell of Alloway: My Lords, before the noble Baroness sits down, in a sense this is where we came in on the first day of Report. Will the commissioner have the power to introduce, by regulations or subsidiary legislation, machinery to collect compensation in the way that we discussed on the first day and asked if we could have a recommittal? I am not sure where we are going.
Baroness Scotland of Asthal: My Lords, the provisions as they currently stand do not include a provision for the commissioner to provide those roles. I am happy to repeat again that the consultation paper is out, and we will consider the response to that consultation. Once we know what decisions are made, we will be able to make any application in relation to the amendment. It is not proposed that any further role for the commission in that regard will currently be included, until and unless we have the outcome of that consultation.
Viscount Bridgeman: My Lords, I am most grateful for the support of the noble Lord, Lord Thomas of Gresford, and my noble friends Lord Renton and Lord Campbell of Alloway. I am sorry that the Minister feels unable to give the commissioner a further statutory or formal role when his role is already substantially enshrined in the statute. I would like to study the Minister's words carefully and talk to the organisations that briefed us.
On that point, my noble friend Lady Anelay of St Johns mentioned the support that we—on these Benches, certainly—have received from Victim Support and the Solicitors' Family Law Association. I suggest that they might find it useful if the Minister

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found time to speak to them before Third Reading. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 64 to 68 not moved.]
6.15 p.m.
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 69:
Page 10, line 19, leave out "and" and insert "or"
The noble Baroness said: It is with great pleasure that I note that the Minister has also put her name to the amendment. Therefore, I can be brief.
I tabled the amendment in response to our debates in Grand Committee. The Government had tabled an amendment to try to meet in full a request from Victim Support. The only query was whether the drafting of the Government's amendment fully met the needs of victims. There was concern that the drafting of Clause 14(9)(a) could allow a reduction in the quality of service alone, because it refers to,
"a significant reduction in the quality and extent of the services to be provided under the code".
Victim Support asked whether that should instead read "quality or extent". We are all familiar with "and/or" debates, but, on this occasion, it seems to be a significant matter.
I am grateful to the noble Baroness, Lady Scotland of Asthal, who wrote to noble Lords on 17 February, saying that the Government would go back to the draftsman to check whether the provision could be construed in that way and to see whether they could make the drafting clearer. She said that the Government would be in a position to offer an amendment or further explanation on Report.
I waited a little while, and, when I saw no amendment, I put this one down, to see what would happen. I was gratified to see that the Government acknowledged that there was such a need for further clarification and that the noble Baroness had added her name to the amendment. It is with pleasure, therefore, that I beg to move the amendment.
Baroness Scotland of Asthal: My Lords, it is with great pleasure that I accept the amendment. I felt like mischievously suggesting that I would resolutely resist the noble Baroness's amendment and press my own. The noble Baroness beat us to the mark—probably by minutes—and I am glad that she did. I have pleasure in agreeing with her that the phrase "quality or extent" makes the position explicit.
As I made clear on the previous occasion, there is no disagreement between us. The amendment will ensure that future revisions of the code of practice cannot reduce either the extent or the quality of the services provided to victims by those with obligations in the code. That is our joint intent, and I am pleased that the noble Baroness's drafting was as immaculate as that of parliamentary counsel.
On Question, amendment agreed to.
Clause 15 [Effect of non-compliance]:
Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 70:
Page 10, line 24, leave out subsections (1) and (2) and insert—
"(1) The code of practice issued under section 13 is for guidance as to the conduct of services as therein provided.
(2) Failure to comply with such guidance shall not render persons who administer such services liable to criminal or civil proceedings save as provided by subsection (3) but shall be admissible and may be taken into account on determination of any question arising on such proceedings.
(3) On any inquiry or determination concerned with dismissal, suspension or reprimand on grounds of failure to comply with such guidance and on judicial review of any such decisions, the code shall be admissible as evidence."
The noble Lord said: It is not a particularly good time for me to move the amendment. It is rather technical, and we are at the end of a long day. None the less, the amendment is important.
The title of Clause 15 is "Effect of non-compliance". In fact, it is the trigger clause that gives the quality of legal efficacy to the code. One must be technical about that, because such matters go right up through the courts to the Appellate Committee of your Lordships' House.
The code is introduced in Clause 13(1):
"The Secretary of State must issue a code of practice as to the services to be provided",
which relates to "victims of criminal conduct" and so forth.
Clause 15 states:
"If a person fails to perform a duty imposed on him by a code issued under section 13, the failure does not of itself make him liable to criminal or civil proceedings".
The words "not of itself" in a statute are words of limitation and they must be construed as such. As I construe them and, I think, any court would construe them, faced with a negligence action where one of the helpers who was operating the code, probably voluntary, was sued for negligence, this would afford no stop to that.
Clause 15 continues:
"the code is admissible in evidence in criminal or civil proceedings and a court may take into account a failure to comply with the code in determining a question in the proceedings".
At Second Reading, I said that there was a self-contradiction. I did not use that word: I used oxymoron. I said that a self-contradiction is being woven into the fabric of Clause 15, which will create very considerable difficulties.
I must admit that although I know a little bit about codes of practice, I have never come across what I have produced in this amendment. It is a totally novel approach. If it is tight, there is no objection to it. Subsection (1) of Amendment No. 70 states:
"The code of practice … is for guidance as to the conduct of services as therein provided".

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One should remember that a lot of those services are voluntary, and we live in a highly litigious community. The amendment continues:
"Failure to comply with such guidance shall not render persons who administer such services liable to criminal or civil proceedings save as provided by subsection (3) but shall be admissible and may be taken into account on determination of any question arising on such proceedings".
The amendment proposes a blanket protection from an action of negligence at common law for these people acting in good faith to try to operate the code and somehow slip up. Then the high street solicitor trots along, we get legal aid and off we go. That simply is not on.
I have inserted a special requirement in subsection (3) that,
"On any inquiry or determination concerned with dismissal, suspension or reprimand on grounds of failure to comply with such guidance and on judicial review of any such decisions, the code shall be admissible".
In other words, I am not preventing the workers from facing a charge which would warrant a reprimand, suspension or dismissal.
I do not want to continue for much longer because the question is really quite simple: does the noble Baroness, Lady Scotland of Asthal, accept that, as it is drafted, the trigger clause—Clause 15—is unsatisfactory in that it has words of limitation woven into it? Does she also accept that it fails to protect the workers—the people who render their services—and also fails to protect the victims when those people qualify for reprimand, suspension and so on? That is the essence of the matter. I beg to move.
Baroness Anelay of St Johns: My Lords, I can be very brief. I am very firm in my support of my noble friend. We are trying to ensure that the Government's clause is drafted in such a way that it delivers the assurances given by the Minister in the letter that she kindly sent to noble Lords after Grand Committee. She was trying to reassure me that legal proceedings would not be undertaken as a result of any breach of the code in circumstances that went beyond a specific number of examples—one might call them "employment breaches".
My original concern had been that, as Clause 15 is currently drafted, one might end up with a case in a criminal court having a verdict found one way or the other because, during the course of the case, someone who was an alleged victim said, "I did not receive the service to which I believe I was entitled in any respect".
My noble friend is trying to redraft the clause so that it more properly meets what we all agree should be the Government's pronounced objective.
Baroness Scotland of Asthal: My Lords, I hoped that I had made clear on the previous occasion—and, from the comments of the noble Baroness, perhaps I did—the Government's intent in bringing forward Clause 15.
The noble Lord, Lord Campbell of Alloway, asked specifically whether I believe that Clause 15 is drafted in such a way as to make it unsatisfactory in that it has
1440
words of limitation woven into it and fails to protect workers and victims when those people qualify for reprimand. The short answer is no, I do not believe it to be unsatisfactory. Neither do I believe it will create the confusion the noble Lord fears.
Let me state, very shortly, why I believe that is so. I understand what the noble Lord's amendment seeks to do. It is crafted so that the circumstances under which the code of practice is admissible as evidence are very restricted. Following our exchanges in Committee, I am grateful for the attempt of the noble Lord, Lord Campbell of Alloway, to clarify the circumstances in which the court code may be admissible. Although I remain unpersuaded that it is necessary to restrict the code in this way, I commend the noble Lord for his efforts.
The amendment contains three subsections. Subsections (1) and (2) do not alter the content of Clause 15, and we feel that they are unnecessary. Subsection (3), however, significantly alters the content of the clause; it would allow the code to be admissible as evidence only in very limited circumstances, in which the proceedings are civil and relate to dismissal, suspension or reprimand on grounds of failure to comply with the code and on judicial review of any such decisions. However, even the judicial review is limited to those very narrow provisions set out in it.
We believe that it is far too limiting, and that the code of practice should be admissible as evidence in civil or criminal proceedings where it is relevant. The main use of the code will undoubtedly be in civil cases, and I do not perceive that it is necessary or even helpful to clarify specific circumstances. There may, inevitably, be circumstances that we would miss if we sought to define them all within this section.
The amendment effectively limits the admissibility of the code to proceedings relating to employment law. However, it is our intention that the code should be admissible in other civil proceedings, such as judicial review of the actions of one of the bodies which provides services under the code. The code will be relevant to determining whether or not a body has acted reasonably under general public law principles or has breached a person's human rights. An example might be where an offender claimed that disclosure of information about him breached his right of privacy under Article 8 of the European convention. The fact that a body had or had not complied with the code would be relevant to deciding whether it had acted proportionately.
It is also important that the code can be used in criminal cases if the need arises, however few those occasions may be. In most cases, Clause 15(2) will have no impact on criminal proceedings. The code will not create new defences or change the shape of the criminal law in any other way. If a defendant wanted to argue, as a defence or in mitigation, that he had committed an offence because he had not received services to which he was entitled under the code, he could do so regardless of whether or not the code was admissible in evidence.

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There are other circumstances in which compliance with the code might be of relevance. For example, it could be a factor in determining whether a person has committed a criminal offence under the Data Protection Act 1998. I must therefore resist this amendment, as I prefer to keep a broad definition of proceedings where the code can be used in evidence, in order to cover these exceptional cases.
The noble Lord raised the issue of negligence action. Your Lordships will know that in order to bring a negligence action, the claimant must establish a duty of care. The courts normally impose a duty of care only where it is in the public interest. On the whole, the courts have not found that criminal justice agencies owe a duty of care within the current framework to victims in the type of situations covered by the code. However, if there were a duty of care, it might be that the code should be taken into account in determining whether there is negligence. It does not change things but it may be a tool that the court would want to take into account when making its decision whether someone had or had not complied. We think that that would be proper—it does not, of itself, create new responsibilities or difficulties in a way that would be improper.
6.30 p.m.
Lord Campbell of Alloway: My Lords, I thank the noble Baroness, Lady Scotland of Asthal, for the way in which she has dealt with this. It was entirely my fault, inevitably, that she gave a highly technical response to my highly technical opening.
This is a highly technical matter. I am afraid, with deference and much respect, that I do not think that our minds are engaging on this at all. This is not the occasion to try repetition or persuasion. I think that I mentioned that I may have the privilege of meeting the Minister to discuss this matter to see if there is any possibility of making an arrangement that seems sensible to both of us. However, I think not, because she wants to keep the liability very wide and I want to keep it very small for these voluntary people. Therefore, I do not think that it is likely that we can, on this occasion, make much accommodation. Obviously, this is an important matter and I would like to read what has been said and, in any event, deal with the matter with a fairly full House. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendments Nos. 70A, 71 and 71A:
Before Schedule 1, insert the following new schedule—

SCHEDULE
MODIFICATION OF SECTIONS 9 TO 12 FOR NORTHERN IRELAND
1 For section 10 substitute—
"10 PROCEDURE FOR APPLICATIONS UNDER SECTION 9
(1) An application under section 9 must be determined—

(a) at a preparatory hearing (witnin the meaning of the 1988 Order), or

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(b) at a hearing specified in. or for which provision is made by, Crown Court rules.

(2) The parties to a hearing mentioned in subsection (1) at which an application under section 9 is to be determined must be given an opportunity to make representations with respect to the application.
(3) Article 6(1) of the 1988 Order (which sets out the purposes of preparatory hearings) is to have effect as if the purposes there mentioned included the purpose of determining an application under section 9.
(4) Article 8(11) of the 1988 Order (appeal to Court of Appeal) is to have effect as if it also provided for an appeal to the Court of Appeal to lie from the determination by a judge of an application under section 9.
(5) In this section "the 1988 Order" means the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988.
10A APPEALS IN RESPECT OF HEARINGS UNDER SECTION 10(1)(B)
(1) An appeal shall lie to the Court of Appeal from the refusal by a judge at a hearing mentioned in section 10(1)(b) of an application under section 9 or from an order of a judge at such a hearing under section 9(2) which is made on the determination of such an application.
(2) Such an appeal may be brought only with the leave of the judge or the Court of Appeal.
(3) An order or a refusal of an application from which an appeal under this section lies is not to take effect—

(a) before the expiration of the period for bringing an appeal under this section, or

(b) if such an appeal is brought, before the appeal is finally disposed of or abandoned.

(4) On the termination of the hearing of an appeal under this section, the Court of Appeal may—

(a) where the appeal is from an order, confirm or revoke the order, or

(b) where the appeal is from a refusal of an application, confirm the refusal or make the order which is the subject of the application.

(5) In section 31(1) of the Criminal Appeal (Northern Ireland) Act 1980 (c. 47) (right of appeal to House of Lords) for "Act or" substitute "Act, section 10A of the Domestic Violence, Crime and Victims Act 2004,".
(6) In section 35 of that Act (bail) after "appeal under" insert "section 10A of the Domestic Violence, Crime and Victims Act 2004,".
(7) The Secretary of State may make an order containing provision, in relation to proceedings before the Court of Appeal under this section, which corresponds to any provision, in relation to appeals or other proceedings before that court, which is contained in the Criminal Appeal (Northern Ireland) Act 1980 (subject to any specified modifications).
(8) A statutory instrument containing an order under subsection (7) is subject to annulment in pursuance of a resolution of either House of Parliament.
10B REPORTING RESTRICTIONS
(1) Sections 41 and 42 of the Criminal Procedure and Investigations Act 1996 (c. 25) are to apply in relation to—

(a) a hearing of the kind mentioned in section 10(1)(b), and

(b) any appeal or application for leave to appeal relating to such a hearing, as they apply in relation to a ruling under section 40 of that Act, but subject to the following modifications.

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(2) Section 41(2) of that Act is to have effect as if for paragraphs (a) to (d) there were substituted—

"(a) a hearing of the kind mentioned in section 10(1)(b) of the Domestic Violence, Crime and Victims Act 2004;

(b) any appeal or application for leave to appeal relating to such a hearing."

(3) Section 41(3) of that Act is to have effect as if—

(a) for "(2)" there were substituted "(2)(a) or an application to that judge for leave to appeal to the Court of Appeal", and

(b) after "matter", in the second place where it occurs, there were inserted "or application".

(4) Section 41 of that Act is to have effect as if after subsection (3) there were inserted—
"(3A) The Court of Appeal may order that subsection (1) shall not apply, or shall not apply to a specified extent, to a report of—

(a) an appeal to that Court, or

(b) an application to that Court for leave to appeal.

(3B) The House of Lords may order that subsection (1) shall not apply, or shall not apply to a specified extent, to a report of—

(a) an appeal to that House, or

(b) an application to that House for leave to appeal."

(5) Section 41(4) of that Act is to have effect as if for "(3) the judge" there were substituted "(3), (3A) or (3B), the judge, the Court of Appeal or the House of Lords".
(6) Section 41(5) of that Act is to have effect as if for "(3) the judge" there were substituted "(3), (3A) or (3B), the judge, the Court of Appeal or the House of Lords"."
2 In section 11(3) after "enactment" insert "(including any provision of Northern Ireland legislation)".
3 In section 11(4)(b) for the words from "section" to "etc)" substitute "section 16(1) of the Criminal Appeal (Northern Ireland) Act 1980 (notice of appeal or application for leave)".
4 In section 11(5) for "section 18(2) of the Criminal Appeal Act 1968" substitute "section 16(1) of the Criminal Appeal (Northern Ireland) Act 1980".
5 For section 11(6) substitute—
"(6) Nothing in this section or section 9, 10, 10A, 10B or 12 affects—

(a) the requirement under Article 49 of the Mental Health (Northern Ireland) Order 1986 that a question of fitness to be tried be determined by a jury, or

(b) the requirement under Article 49A of that Order that any question, finding or verdict mentioned in that Article be determined, made or returned by a jury."

6 For section 12(2) substitute—
"(2) Without limiting subsection (1), rules of court may in particular make provision—

(a) for time limits within which applications under section 9 must be made or within which other things in connection with that section or sections 10 to 11 must be done;

(b) in relation to hearings of the kind mentioned in section 10(1)(b)."

7 In section 12(3)—

(a) after "section" insert "or section 10(1)(b)";

(b) after "enactment" insert "(including any provision of Northern Ireland legislation)"."

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Before Schedule I, insert the following new schedule—

SCHEDULE
SUPERVISION ORDERS ON FINDING OF INSANITY OR UNFITNESS TO PLEAD ETC
The following is the Schedule inserted before Schedule 2 to the Criminal Procedure (Insanity) Act 1964 (c. 84)—

SCHEDULE 1 A
Section 5A
SUPERVISION ORDERS PRELIMINARY
1 (1) In this Schedule "supervision order" means an order which requires the person in respect of whom it is made ("the supervised person") to be under the supervision of a social worker or an officer of a local probation board ("the supervising officer") for a period specified in the order of not more than two years.
(2) A supervision order may, in accordance with paragraph 4 or 5 below, require the supervised person to submit, during the whole of that period or such part of it as may be specified in the order, to treatment by or under the direction of a registered medical practitioner.
(3) The Secretary of State may by order direct that subparagraph (1) above shall be amended by substituting, for the period for the time being specified there, such period as may be specified in the order.
(4) An order under sub-paragraph (3) above may make in paragraph 11(2) below any amendment which the Secretary of State thinks necessary in consequence of any substitution made by the order.
(5) The power of the Secretary of State to make orders under sub-paragraph (3) above shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

PART 2
MAKING AND EFFECT OF ORDERS
Circumstances in which orders may be made
2 (1) The court shall not make a supervision order unless it is satisfied that, having regard to all the circumstances of the case, the making of such an order is the most suitable means of dealing with the accused or appellant.
(2) The court shall not make a supervision order unless it is also satisfied—

(a) that the supervising officer intended to be specified in the order is willing to undertake the supervision; and

(b) that arrangements have been made for the treatment intended to be specified in the order.

Making of orders and general requirements
3 (1) A supervision order shall either—

(a) specify the local social services authority area in which the supervised person resides or will reside, and require him to be under the supervision of a social worker of the local social services authority for that area; or

(b) specify the local justice area in which that person resides or will reside, and require him to be under the supervision of an officer of a local probation board appointed for or assigned to that area.

(2) Before making such an order, the court shall explain to the supervised person in ordinary language—

(a) the effect of the order (including any requirements proposed to be included in the order in accordance with paragraph 4, 5 or 8 below); and

(b) that a magistrates' court has power under paragraphs 9 to 11 below to review the order on the application either of the supervised person or of the supervising officer.

(3) After making such an order, the court shall forthwith give copies of the order to an officer of a local probation board assigned to the court, and he shall give a copy—

(a) to the supervised person; and

(b) to the supervising officer.

(4) After making such an order, the court shall also send to the designated officer for the local justice area in which the supervised person resides or will reside ("the local justice area concerned")—

(a) a copy of the order; and

(b) such documents and information relating to the case as it considers likely to be of assistance to a court acting for that area in the exercise of its functions in relation to the order.

(5) Where such an order is made, the supervised person shall keep in touch with the supervising officer in accordance with such instructions as he may from time to time be given by that officer and shall notify him of any change of address.

Requirements as to medical treatment
4 (1) A supervision order may, if the court is satisfied as mentioned in sub-paragraph (2) below, include a requirement that the supervised person shall submit, during the whole of the period specified in the order or during such part of that period as may be so specified, to treatment by or under the direction of a registered medical practitioner with a view to the improvement of his mental condition.
(2) The court may impose such a requirement only if satisfied on the written or oral evidence of two or more registered medical practitioners, at least one or whom is duly registered, that the mental condition of the supervised person—

(a) is such as requires and may be susceptible to treatment; but

(b) is not such as to warrant the making of a hospital order within the meaning of the Mental Health Act 1983.

(3) The treatment required under this paragraph by any such order shall be such one of the following kinds of treatment as may be specified in the order, that is to say—

(a) treatment as a non-resident patient at such institution or place as may be specified in the order; and

(b) treatment by or under the direction of such registered medical practitioner as may be so specified; but the nature of the treatment shall not be specified in the order except as mentioned in paragraph (a) or (b) above.

5 (1) This paragraph applies where the court is satisfied on the written or oral evidence of two or more registered medical practitioners that—

(a) because of his medical condition, other than his mental condition, the supervised person is likely to pose a risk to himself or others; and

(b) the condition may be susceptible to treatment.

(2) The supervision order may (whether or not it includes a requirement under paragraph 4 above) include a requirement that the supervised person shall submit, during the whole of the period specified in the order or during such part of that period as may be so specified, to treatment by or under the direction of a registered medical practitioner with a view to the improvement of the condition.
(3) The treatment required under this paragraph by any such order shall be such one of the following kinds of treatment as may be specified in the order, that is to say—

(a) treatment as a non-resident patient at such institution or place as may be specified in the order; and

(b) treatment by or under the direction of such registered medical practitioner as may be so specified; but the nature of the treatment shall not be specified in the order except as mentioned in paragraph (a) or (b) above.

6 (1) Where the medical practitioner by whom or under whose direction the supervised person is being treated in pursuance of a requirement under paragraph 4 or 5 above is of the opinion that part of the treatment can be better or more conveniently given in or at an institution or place which—

(a) is not specified in the order, and

(b) is one in or at which the treatment of the supervised person will be given by or under the direction of a registered medical practitioner, he may, with the consent of the supervised person, make arrangements for him to be treated accordingly.

(2) Such arrangements may provide for the supervised person to receive part of his treatment as a resident patient in an institution or place of any description.
(3) Where any such arrangements are made for the treatment of a supervised person—

(a) the medical practitioner by whom the arrangements are made shall give notice in writing to the supervising officer, specifying the institution or place in or at which the treatment is to be carried out; and

(b) the treatment provided for by the arrangements shall be deemed to be treatment to which he is required to submit in pursuance of the supervision order.

7 While the supervised person is under treatment as a resident patient in pursuance of arrangements under paragraph 6 above, the supervising officer shall carry out the supervision to such extent only as may be necessary for the purpose of the revocation or amendment of the order.

Requirements as to residence
8 (1) Subject to sub-paragraph (2) below, a supervision order may include requirements as to the residence of the supervised person.
(2) Before making such an order containing any such requirement, the court shall consider the home surroundings of the supervised person.

PART 3
REVOCATION AND AMENDMENT OF ORDERS
Revocation of order
9 (1) Where a supervision order is in force in respect of any person and, on the application of the supervised person or the supervising officer, it appears to a magistrates' court acting for the local justice area concerned that, having regard to circumstances which have arisen since the order was made, it would be in the interests of the health or welfare of the supervised person that the order should be revoked, the court may revoke the order.
(2) The court by which a supervision order was made may of its own motion revoke the order if, having regard to circumstances which have arisen since the order was made, it considers that it would be inappropriate for the order to continue.

Amendment of order hr reason of change of residence
10 (1) This paragraph applies where, at any time while a supervision order is in force in respect of any person, a magistrates' court acting for the local justice area concerned is satisfied that the supervised person proposes to change, or has changed, his residence from the area specified in the order to another local social services authority area or local justice area.
(2) Subject to sub-paragraph (3) below, the court may, and on the application of the supervising officer shall, amend the supervision order by substituting the other area for the area specified in the order.
(3) The court shall not amend under this paragraph a supervision order which contains requirements which, in the opinion of the court, cannot be complied with unless the supervised person continues to reside in the area specified in the order unless, in accordance with paragraph 11 below, it either—

(a) cancels those requirements; or

(b) substitutes for those requirements other requirements which can be complied with if the supervised person ceases to reside in that area.

Amendment of requirements of order
11 (1) Without prejudice to the provisions of paragraph 10 above, but subject to sub-paragraph (2) below, a magistrates' court for the local justice area concerned may, on the application of the supervised person or the supervising officer, by order amend a supervision order—

(a) by cancelling any of the requirements of the order; or

(b) by inserting in the order (either in addition to or in substitution for any such requirement) any requirement which the court could include if it were the court by which the order was made and were then making it.

(2) The power of a magistrates' court under sub-paragraph (1) above shall not include power to amend an order by extending the period specified in it beyond the end of two years from the day of the original order.

Amendment of requirements in pursuance of medical report
12 (1) Where the medical practitioner by whom or under whose direction the supervised person is being treated for his mental condition in pursuance of any requirement of a supervision order—

(a) is of the opinion mentioned in sub-paragraph (2) below, or

(b) is for any reason unwilling to continue to treat or direct the treatment of the supervised person,
he shall make a report in writing to that effect to the supervising officer and that officer shall apply under paragraph 11 above to a magistrates' court for the local justice area concerned for the variation or cancellation of the requirement.

(2) The opinion referred to in sub-paragraph (1) above is—

(a) that the treatment of the supervised person should be continued beyond the period specified in the supervision order;

(b) that the supervised person needs different treatment, being treatment of a kind to which he could be required to submit in pursuance of such an order;

(c) that the supervised person is not susceptible to treatment; or

(d) that the supervised person does not require further treatment.

Supplemental
13 (1) On the making under paragraph 9 above of an order revoking a supervision order, the designated officer for the local justice area concerned, or (as the case may be) the Crown Court, shall forthwith give copies of the revoking order to the supervising officer.
(2) A supervising officer to whom in accordance with subparagraph (1) above copies of a revoking order are given shall give a copy to the supervised person and to the person in charge of any institution in which the supervised person is residing.
14 (1) On the making under paragraph 10 or 11 above of any order amending a supervision order, the designated officer for the local justice area concerned shall forthwith—

(a) if the order amends the supervision order otherwise than by substituting a new area or a new place for the one specified in the supervision order, give copies of the amending order to the supervising officer;

(b) if the order amends the supervision order in the manner excepted by paragraph (a) above, send to the designated officer for the new local justice area concerned—

(i) copies of the amending order; and

(ii) such documents and information relating to the case as he considers likely to be of assistance to a court acting for that area in exercising its functions in relation to the order;
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and in a case falling within paragraph (b) above, the designated officer for that area shall give copies of the amending order to the supervising officer.

(2) Where the designated officer for the court making the order is also the designated officer for the new local justice area—

(a) sub-paragraph (1)(b) above does not apply; but

(b) the designated officers shall give copies of the amending order to the supervising officer.

(3) Where in accordance with sub-paragraph (1) or (2) above copies of an order are given to the supervising officer, he shall give a copy to the supervised person and to the person in charge of any institution in which the supervised person is or was residing.""
Before Schedule 1, insert the following new schedule—

SCHEDULE
INTERMITTENT CUSTODY: AMENDMENTS OF PART 12 OF THE CRIMINAL JUSTICE ACT 2003
1 The Criminal Justice Act 2003 is amended as follows.
2 In section 244 (duty to release prisoners), in subsection (3)—

(a) in paragraph (c), for the words from "which is not" to "section 183(3)" substitute "which for the purposes of section 183 (as read with section 263(2) or 264A(2) in the case of concurrent or consecutive sentences) is not a licence period";

(b) in paragraph (d), after "consecutive sentences" insert "none of which falls within paragraph (c)".

3 In section 246 (power to release prisoners on licence before required to do so), in the definition of "the required custodial days" in subsection(6)—

(a) in paragraph (b), after "custody" insert "which are consecutive";

(b) at the end of that paragraph insert ", or

(c) in the case of two or more sentences of intermittent custody which are wholly or partly concurrent, the aggregate of the numbers so specified less the number of days that are to be served concurrently;".

4 In section 249 (duration of licence), at the end of subsection (3) insert "and subsection (2) has effect subject to section 264A(3) (consecutive terms: intermittent custody)".
5 In section 250 (licence conditions), in subsection (7), for "and section 264(3) and (4) (consecutive terms)" substitute ", section 264(3) and (4) (consecutive terms) and section 264A(3) (consecutive terms: intermittent custody)".
6 In section 264 (consecutive terms), in subsection (1), after paragraph (b) insert ", and

(c) none of those terms is a term to which an intermittent custody order relates."

7 After that section insert—
"264A CONSECUTIVE TERMS: INTERMITTENT CUSTODY
(1) This section applies where—

(a) a person ("the offender") has been sentenced to two or more terms of imprisonment which are to be served consecutively on each other,

(b) the sentences were passed on the same occasion or. where they were passed on different occasions, the person has not been released under this Chapter at any time during the period beginning with the first and ending with the last of those occasions, and

(c) each of the terms is a term to which an intermittent custody order relates.

(2) The offender is not to be treated as having served all the required custodial days in relation to any of the terms of imprisonment until he has served the aggregate of all the required custodial days in relation to each of them.
(3) After the number of days served by the offender in prison is equal to the aggregate of the required custodial days in relation to each of the terms of imprisonment, the offender is to be on licence until the relevant time and subject to such conditions as are required by this Chapter in respect of any of the terms of imprisonment, and none of the terms is to be regarded for any purpose as continuing after the relevant time.
(4) In subsection (2) "the relevant time" means the time when the offender would, but for his release, have served a term equal in length to the aggregate of—

(a) all the required custodial days in relation to the terms of imprisonment, and

(b) the longest of the total licence periods in relation to those terms.

(5) In this section—
"total licence period". in relation to a term of imprisonment to which an intermittent custody order relates, means a period equal in length to the aggregate of all the licence periods as defined by section 183 in relation to that term;
"the required custodial days", in relation to such a term, means the number of days specified under that section."
On Question, amendments agreed to.
Clause 18 [General functions of Commissioner]:
Viscount Bridgeman Viscount Bridgeman moved Amendment No. 72:
Page 11, line 13, after "practice" insert ", including not causing further distress,"
The noble Viscount said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 73 and 74.
The code of practice aims to ensure effective delivery of services to victims, witnesses and those who experience the negative effects of crime. We believe that agencies have a positive duty not to cause further distress to such people. The commissioner should therefore have a vital role to play in preventing organisations from causing further distress to victims and witnesses. A term is used by organisations working to help victims and witnesses when statutory, voluntary and private sector organisations inadvertently cause further distress to victims. It is known as secondary victimisation. I shall quote an excerpt from the European Forum for Victim Services publication, The Social Rights of Victims of Crime published in 1998. It states:
"Research and professional experience shows that secondary victimisation, generated either by institutions or individuals, is often experienced by victims in the aftermath crime. Secondary victimisation involves a lack of understanding of the suffering of victims which can leave them feeling both isolated and insecure, losing faith in the help available from their communities and the professional agencies. The experience of secondary victimisation intensifies the immediate consequences of crime by prolonging or aggravating victim's trauma; attitudes, behaviour and acts or omissions can leave victims feeling alienated from society as a whole".
Victim Support suggests that the following case study is an example of secondary victimisation. I know that the hour is late, but I hope that your Lordships will permit me to mention this, because it is pertinent to this amendment. A woman who happened upon a street fight and intervened to stop the perpetrators of violence and protect the victim was herself attacked by the perpetrators. After the attack she went to the police to report her injuries and the attack. The police
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explained that there was nothing they could do because they believed that they would not be able to apprehend the perpetrators of the crime.
The police failed to take a statement, record the time, refer the victim to the health service or victim support services or to explain that under the Criminal Injuries Compensation Scheme she may be entitled to be compensated for her injuries. The victim felt dissatisfied with the service provided. She also felt very hurt and confused by the agency's offhand response. That aggravated the effects of the crime on her. It is suggested that the commissioner should also have a role in preventing this type of secondary victimisation.
We believe that including the duty to work towards "preventing further distress" goes hand in hand with the commissioner's Clause 18(1)(a) duty to promote the interests of victims and witnesses. The amendment seeks to ensure that the commissioner plays an effective role in preventing organisations committing acts or making omissions that aggravate the effects of the crime on victims and witnesses.
The objective of Amendment No. 73 is to probe further the role and remit of the commissioner and his status. It would ensure that one of the duties of the commissioner would be to pay particular regard to the sufferers of domestic abuse and their children. We have remarked in earlier debates about the nature of domestic violence—that definitions sometimes erroneously miss out a reference to children. The amendment also raises questions about how the commissioner will work with the other commissioners, particularly with the Children's Commissioner in this case. We referred to that point in the previous group of amendments.
So far, we have only the Children's Commissioner in Wales, but the Government propose to extend the work of commissioners for children to other parts of the United Kingdom. There is a danger that the bureaucracy will get out of hand. One sign of good practice in such matters is a good liaison between the commissioners, who have similar powers and objectives. It is for that reason that Amendment No. 73 requires the victims' commissioner to liaise with the children's commissioner about the needs of children who may be witnesses or victims. I would welcome an assurance from the Minister that the Government anticipate that the Children's Commissioner will liaise closely with the Victims' Commissioner.
Amendment No. 74 concerns the general function of the commissioner to keep legislation under review. Again, it refers to the joined-up role that the commissioner will have. Since some victims' rights are already enshrined in legislation elsewhere and the commissioner's remit goes beyond both the current code of practice and the criminal justice system, we hope that the commissioner is also able to ensure delivery of victims' rights in accordance with legislation currently in effect.
A particular example has just been handed us by Victim Support, in relation to the current legislation that enshrines victim's rights between the Housing Act

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1996 as amended by the Homelessness Act 2002. The Homelessness Act extended the duty on local authorities to accept people made homeless through violence as being in priority need. That is an example of Parliament legislating to enhance victims' rights, where Victim Support has voiced concern that implementation is currently lagging behind statute. The commissioner will be well placed to draw attention to areas such as that, where legislation has not been fully implemented and victims' rights are not being fully observed. I beg to move.
Lord Renton: My Lords, although the amendments introduced by my noble friend at first sight look rather technical, they are worthy of acceptance by the Government, especially Amendment No. 73. I sometimes feel that when legislating, we should pay particular attention to the need for the protection and treatment of children. That is what Amendment No. 73 aims at. It is really rather important.
6.45 p.m.
Lord Eden of Winton: My Lords, I am inspired to intervene simply because the comments of my noble friend on the Front Bench rang a bell regarding an experience that I had. I hope that it is reasonably relevant to the amendments under consideration, although I realise that it does not trespass upon matters dealing with the commissioner.
In the light of the story that my noble friend told about a person who went to the aid of the victim of an assault and was in turn assaulted, I emphasise that attention must be given, particularly in court proceedings, to the position of the victim who testifies at the trial of the accused. I went through a similar experience, so I can tell noble Lords that it can be very confusing if a victim turns up to give evidence at a trial, having been invited to do so by the prosecution, only to find himself or herself subjected to fairly heavy cross-examination. Certainly, in my case, that cross-examination made me feel that I was almost in the position of being the accused.
Where a victim goes forward to give evidence describing the circumstances of the incident—in this case, an assault had taken place—that person should not be treated as a hostile witness in the court. Touching obliquely on my own case, although I believe that the accused had been correctly identified in a video parade, and despite the fact that the detailed circumstances of the assault had been given very carefully under cross-examination, on two separate occasions the jury was not able to come to any conclusion.
There is also the case where the accused advises lawyers who are able to protract proceedings, extending them over more than one trial—at considerable inconvenience to the victim who is ready to give evidence. All those matters must be borne in
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mind when considering the position of victims of crime. Courts would be well advised to take that into account.
Baroness Scotland of Asthal: My Lords, we very much understand that. Regrettably, a victim is a victim not only when the incident occurs; he or she can sometimes feel victimised by the process, if it is not handled appropriately and well. For that reason, the Government have made strenuous efforts to ensure that victims are given the sort of support and preparation that may assist them to deal with the process. From the noble Lord's description, often the worry is that the victim does not know what will happen or what might happen.
We have created a website that victims and witnesses can access to look at the process. We are also providing, with the help of voluntary agencies including Victim Support, a support system that will take people through the system, from the very beginning when they report and afterwards. Sometimes the effect on the victim will last long after the case is over, sometimes well after the offender has served the sentence. I reassure the noble Lord that we very much understand that.
I welcome the opportunity provided by this amendment to state categorically that we too believe that the prevention of or, at the very least, the reduction of, secondary victimisation is likely to be high on the list of the commissioner's priorities. Too often—it is a matter of regret—agencies are insensitive to the needs of victims. We believe that we are tackling this through the terms of the code of practice with its key themes of information, advice, protection and support. But there are other areas, such as those highlighted by the noble Viscount, Lord Bridgeman, where clearly more still needs need to be done, and the commissioner will have an important role in promoting and spreading good practice and, quite frankly, rooting out bad practice.
However, we take the view that we do not need to specify this on the face of the Bill. Clauses 18(1)(a) and 18(1)(b) already refer to the commissioner's general duty to promote the interests of victims and witnesses and to take appropriate steps to encourage good practice. We believe that this is sufficient to enable the commissioner to address this issue actively.
I hope that this will be sufficient reassurance for the noble Viscount, and that he will feel able to withdraw the amendment.
I turn to Amendment No. 73, also spoken to by the noble Viscount, regarding the specific mention of victims of domestic abuse, child victims and witnesses. The noble Lord, Lord Renton, is right to say that matters regarding children will always excite the keenest attention among us all. I need to be clear that the intention of this legislation is to introduce rights for all victims of crime. We are not looking to create a hierarchy of victims, attaching greater importance to some types of victims than others. There is no doubt that victims of domestic violence and child victims are especially vulnerable but victims of sexual assault or

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bereaved families can be seen as equally or, at times, more vulnerable. We see the commissioner's role as championing the cause of all victims. To introduce reference to victims of specific crimes is unnecessary and potentially divisive.
I agree, as I acknowledged when the matter was raised at Second Reading, that the commissioner should establish effective links with the planned new children's commissioner and that remains the policy intention. Given that the victims' commissioner is likely to liaise with a number of bodies, and on the same principle as not wishing to identify particular groups of victims, we do not think it is necessary to refer specifically to the children's commissioner in the legislation.
As for the victims' commissioner reviewing the operation of legislation affecting victims and witnesses, this is a role that we anticipate that he or she will carry out but, again. we consider it unnecessary to spell this out on the face of the Bill. The functions of the commissioner are broadly set out in Clause 18(1) and (2), and we believe that this is sufficient detail to enable the commissioner to draw up an effective work plan when he takes office. We think that that breadth is helpful. We would not wish improperly to impede the proper investigation and comment that the victims' commissioner may choose to make. I reassure noble Lords that we want the victims' commissioner to be active. I am sure that whoever is appointed is bound to be vocal. We want to be very careful to listen to everything that is said by such a commissioner on behalf of all victims.
On these grounds, I must resist these amendments, if I have not made that absolutely clear.
Viscount Bridgeman: My Lords, I am particularly grateful to the Minister for specifically saying that the Government are aware of the duty of the victims' commissioner to liaise with the children's commissioner. I shall read what the Minister said very carefully. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 73 to 75 not moved.]
Clause 23 [Disclosure of information]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 75A:
Page 13, line 28, leave out subsection (7).
The noble Baroness said: My Lords, Amendments Nos. 75A and 76A seek to remove subsection (7) and amend subsection (8) of Clause 23, about the disclosure of information between criminal justice agencies for the purposes of compliance with the victims' code of practice and other duties listed in subsection (2).
Subsection (7) was originally included as its intention was to override any common law duties of confidence which criminal justice agencies might owe to defendants and others. However, the parliamentary Joint Committee on Human Rights has criticised Clause 23 because it contains no explicit provision to state that the Human Rights Act 1998 is not being overridden. On the other hand, we have included subsection (8), which makes it clear that no exchange of information can take place which contravenes the Data Protection Act 1998.
Removing subsection (7) will prevent any ambiguity regarding the Human Rights Act. We have concluded that the existence of a statutory authority to disclose will be sufficient to override common law duties and we do not need to go as far as the provision in subsection (7), which also overrides statutory duties of confidence.
We think it best to retain the reference to the Data Protection Act because there is a good deal of confusion about its operation—we have spoken about that confusion in the past—and we want to make it clear that it continues to apply. The fact that information is disclosed in compliance with the code, and that Clause 23 provides a basis for the disclosure, will go a long way to meeting the requirements of the Data Protection Act. However, it is our policy that any future revisions of the code of practice should be compliant with the Data Protection Act, and that agencies should continue to comply with those of its requirements which are not met by virtue of disclosure taking place under a statutory authority.
I hope that noble Lords are content with that explanation. I beg to move.
On Question, amendment agreed to.
Lord Triesman: My Lords, I beg to move that consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.
House adjourned at three minutes before seven o'clock.