Lords Sitting of 2 November 2004

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

British Energy plc: Loan Facility
Lord Jenkin of Roding Lord Jenkin of Roding asked Her Majesty's Government:
How much of the loan facility made available by the Department of Trade and Industry to British Energy plc in September 2002 and subsequently has been drawn on by the company.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville): My Lords, British Energy's drawings on the facility varied constantly according to the company's needs, and its peak drawing was £499.4 million in January 2003. All drawings on the facility have been repaid with interest by British Energy, which cannot make any further drawings following the decision of the European Commission on 22 September 2004 to approve the Government's restructuring aid to the company.
Lord Jenkin of Roding: My Lords, is it not clear that British Energy has repaid all its borrowings and that it now owes the Government nothing? In return for what was a very short-term supportive measure, is it not also clear that the Government have secured the sale of the company's overseas assets at knockdown prices, that they have demanded and secured an indefinite annual payment to the DTI of 65 per cent of the group's cash flow, and that they have also demanded and got the right to buy the company's power stations at £1 each? Does that not amount to expropriation without compensation?
Lord Sainsbury of Turville: My Lords, this has been a highly successful operation undertaken to achieve the solvent restructuring of a company which had been in very great difficulty. The aim of the Government was to make certain that, in terms of security of supply, the company could continue to function. That has been very successfully concluded.
Lord Peyton of Yeovil: My Lords, how many members of the present Government would be happy to find themselves on the receiving end of the kind of treatment they have meted out to British Energy?
Lord Sainsbury of Turville: My Lords, when you run out of cash you are not in a position to demand whatever terms you want. I think that the Government's action in providing restructuring aid was extremely sensible under the circumstances. After all, we have taken from the company £2.185 billion
138
worth of the costs of decommissioning spent fuel. In the circumstances, that represents a very good deal for the company, one that will keep it going.
Lord Berkeley: My Lords, does not my noble friend agree that the Government have made a prudent move in putting by a little money towards the day when these nuclear power stations will have to be decommissioned, the cost of which is not known but could run into billions? Is it not useful to have a piggy bank to turn to when no doubt the day comes on which the Government will have to spend money decommissioning power stations and getting rid of the waste in a suitable manner?
Lord Sainsbury of Turville: My Lords, it was a prudent and necessary move to make certain that a solvent restructuring of the company took place, although in an ideal world we would have liked British Energy to have met those costs itself.
Lord Ezra: My Lords, does the noble Lord agree that the need for the state-sponsored restructuring plan for British Energy was due to the very low level of wholesale electricity prices, which fell to the exceptional level of 16 pence per kilowatt hour in 2002? However, over the past 12 months the wholesale price of electricity has virtually doubled. In those circumstances, what has been the impact on the restructuring plan?
Lord Sainsbury of Turville: My Lords, the increase in wholesale electricity prices has helped the restructuring of the company. Clearly, in circumstances where major companies cannot withstand large changes in energy prices and run out of cash, the Government have to take action. But, obviously, the rise in wholesale prices has eased the restructure now taking place.
Lord Tombs: My Lords, does the Minister agree that the rescue or restructuring of British Energy, successful or not—here I have to agree with the noble Lord, Lord Jenkin, that it has been a disaster—arose from a series of government actions and inactions which precipitated the crisis? As to whether those were intentional I would not venture to express a view, but if the noble Lord has any doubts, perhaps I may recommend to him the National Audit Office report on the introduction of NETA. Finally, does he agree that the real casualties of this whole saga—that of creating a crisis and then failing to solve it rationally—have been the company, British Energy, which has been greatly weakened by the sale of its overseas assets, and the shareholders whose shares were acquired for virtually nothing?
Lord Sainsbury of Turville: My Lords, the effect of NETA, which was to introduce much more market-oriented prices, did affect the fortunes of British Energy. However, as I have said, the action taken by the Government to deal with the situation was entirely prudent and sensible in the circumstances.
Baroness Miller of Hendon: My Lords, does the Minister agree that a large number of employees of

139
British Energy who were also shareholders have been severely disadvantaged by the drop in the company's share value? Not only is that a terrible thing to have happened, but also it is one of the main reasons for the loss of morale among the workforce of the company.
Lord Sainsbury of Turville: My Lords, I sympathise a great deal with the employee shareholders of the company. However, it is not the Government's role to ensure that employee shareholders are able to see increases in their shareholdings whatever the fortunes of the company.
Baroness O'Cathain: My Lords, the Minister said that he thought the whole process was "a highly successful operation". Will he think it even more successful if the Government are able to acquire the power stations of British Energy for £1 each? Or, given that the loans have been paid up, is that option now likely to be taken away from the Government?
Lord Sainsbury of Turville: My Lords, part of the Government's objective is to see the company remain as an independent company, managed by a board of directors, together with all the financial disciplines that go with that. It was never the Government's intention to take over the company, unless as a last resort.
Lord Jenkin of Roding: My Lords, given that the company's profits are now recovering strongly in line with the recovery in electricity prices, and given the general view in the market that this recovery is likely to be sustained, is it not right that the Government should now seek a renegotiation of what seemed to be at the time—and even more so now—extraordinarily harsh treatment?
Lord Sainsbury of Turville: My Lords, the noble Lord will remember that, as a result of the agreement we have with the company, 65 per cent of its free cash flow will go towards discharging its liabilities. This is very important because the Government are underwriting them. Therefore, if the fortunes of the company go up, the Government will not have to underwrite as much of those liabilities. This is entirely right. I do not see why the current profitability of the company should in any way affect the situation. Two years ago, the company was running out of cash and was insolvent. The Government, by taking over certain liabilities and underwriting the others, have enabled its solvent restructuring. I cannot see why its profitability today is in any way relevant to that original action.

Prisons: Education and Training
2.45 p.m.
Lord Quirk Lord Quirk asked Her Majesty's Government:
Whether improvements in education and training provided in prisons are keeping pace with current and forecast rises in the prison population.
The Parliamentary Under-Secretary of State, Department for Education and Skills (Lord Filkin): My Lords, we are doing well against our targets for improving the literacy, numeracy and work-related skills of prisoners. But we want to go much further. The new sentencing arrangements and the national offender management system give us the foundation for a better learning and skills service, spanning custody and community, aimed at reducing reoffending.
Lord Quirk: My Lords, I am grateful to the Minister for that reassurance, which chimes with some of the good news that I have been noting, not least the programmes produced by Learn Direct. These proceed from Dearing House in Sheffield, so they could not be other than good. But if we are making progress with long-serving prisoners, does not the Minister share the concerns of Ms Owers, the chief inspector, that our systems for training and education are singularly ill suited to those on short sentences, who number many, many thousands and include first offenders? I do not forget in this connection the thousands who are kicking their heels on remand. Should not these be the very people for us to target, with incentives so that they can undertake intensive learning and, as it were, cut recidivism before it starts?
Lord Filkin: My Lords, the noble Lord asked a number of questions. In broad terms, the Chief Inspector of Prisons is right—there are greater challenges in providing appropriate training input for prisoners on short sentences or those on remand. The central focus of our thinking on that issue is that prison should be used as an opportunity for diagnosing the skill deficits and employment deficits of the offender in that situation so that you have a clear understanding of where their current skills do not fit them for employment, recognising that you then have to change other parts of the system to provide inputs to increase their basic and vocational skills in order to increase their prospects of employment. The noble Lord is right: a central focus of policy has to be on how to reduce reoffending and how skills appropriate to the location from which the prisoner comes can be supplied.
Lord Elton: My Lords, what success are the Government having in ensuring that there are sufficient prison officers to escort prisoners to education when education facilities and teachers are available? What success are they having in ensuring that prisoners who were in education when they went into prison are kept in touch and given the same curriculum as they had when they left and which they will rejoin when they get out?
Lord Filkin: My Lords, we certainly have to address both those points if we are to construct an effective system to increase the likelihood that someone who has been in prison will be able to go into employment. The central issue we are looking at—and we are at the start of a fairly fundamental review—is what a system would need to look like such that when someone left

141
prison and was in supervision afterwards, it would be possible for them to earn a living without reoffending. At present, if a person is incapable of getting work, we know what is likely to happen as a consequence. The two points raised by the noble Lord are part of the review, but it needs to go considerably wider.
Lord Acton: My Lords, is my noble friend aware that in a Written Question on 4 May I advocated that educated prisoners should teach illiterate prisoners how to read? Is he further aware that my noble friend Lady Scotland gave a positive reply? She went on to say:
"There are plans to support activity to train prisoners, prison officers and staff from other agencies to become adult learner supporters".—[Official Report, 4/5/04; col. WA 106.]
Can my noble friend say how these plans are developing?
Lord Filkin: My Lords, it is axiomatic that my noble friend Lady Scotland always gives my noble friend Lord Acton helpful replies, as most of us know. The more specific answer is that we are very positive about the concept of peer support because there is the resource in the prison of someone with education capability. We have commissioned the Centre for British Teachers to carry out a short study to evaluate how the benefits of the Toe by Toe programme for adults can be adapted to fit in with the Skills for Life strategy. We are actively interested in this issue.
Baroness Linklater of Butterstone: My Lords, can the Minister explain what is the retendering process for the prison education contract since the Government announced in January that Project REX, as it was called, was to be abandoned?
Lord Filkin: My Lords, the Government decided to stop the Project REX process because essentially the introduction of the National Offender Management Service meant that the landscape of offender management, encompassing both prisons and what we used to think of as the probation service, required a supply of basic skills training and vocational training which was appropriate for the totality of that landscape rather than simply being prison-focused. Therefore, the answer is that it is part of the process that I signalled to the noble Lord earlier: we are looking root and branch between the department and the Home Office about how we would better construct a system which had as one of its central goals the reduction of reoffending through increasing the capacity of people to get jobs. The supply of appropriate educational and vocational skills will be a crucial part of that process.
Baroness Howe of Idlicote: My Lords, as half of all prisoners do not have the skills required by 96 per cent of jobs, has not the time come for the Government to make it a legal requirement for all prisoners to receive a minimum of 30 hours' education and training, regardless of age, length of sentence and number of prison transfers?
Lord Filkin: My Lords, I am reluctant to leap to instant legislative solutions without being convinced that they would work in this respect. But I am with the noble Baroness in that part of the thinking that I instanced is about how we incentivise the system and incentivise the offender to be motivated towards learning and appropriate learning that will increase their ability to get a job. In a sense, that is obvious: one has to devise a system such that prison governors, prison officers and offenders are all motivated to realise that getting appropriate skills for jobs is how the system should be performing. By implication, I am not pretending that we are quite there yet.
Baroness Trumpington: My Lords—
Baroness Greengross: My Lords—
The Lord President of the Council (Baroness Amos): My Lords, we should move on to the next Question.

Homelessness
2.52 p.m.
Lord Laming Lord Laming asked Her Majesty's Government:
What action they are taking to stem the increase in homeless families in England.
The Minister of State, Office of the Deputy Prime Minister (Lord Rooker): My Lords, the Government have sustained reductions in rough sleeping, ended the use of long-term bed-and-breakfast hotels for homeless families and strengthened homelessness legislation so that more vulnerable people are rehoused. We are concerned about the numbers in temporary accommodation, although more than 80 per cent are now living in self-contained homes. We have provided additional investment to help local authorities prevent homelessness. Coupled with significant increases in new affordable housing, this will help us turn round the rising trend in homelessness.
Lord Laming: My Lords, I am most grateful to the Minister for that very helpful and encouraging reply. Is he aware of the very informative report of the Social Exclusion Unit called Breaking the Cycle which makes it clear that the number of families living in temporary homeless accommodation has increased every year during the past six years and is now at an all-time high? How many children are currently living in such accommodation, and what steps are being taken to secure their proper development, including their education?
Lord Rooker: My Lords, I am grateful for the tone of the noble Lord's supplementary. The direct answer to his question, astonishing though it might seem, is that I do not know. The point is that nobody knows. We know the number of families with children in temporary accommodation, but we do not know, at the press of a button, the number of children.

143
At the end of June this year, the estimate was that some 99,000 households were living in temporary accommodation. At around the same time, the number of families in temporary accommodation was estimated at 70,000, so one can see that there is a minimum number of children involved.
With reference to the report Breaking the Cycle, we will be taking forward the Social Exclusion Unit's recently announced work programme. We need to learn more about families in a transient situation or moving around. Being in temporary accommodation is still not the same as having a home that will remain, which helps stability with regard to schools and other such matters.
Baroness Maddock: My Lords, the Minister will know that when Shelter gave evidence to the inquiry by the Office of the Deputy Prime Minister Select Committee into homelessness, it reported that three-quarters of all local authorities surveyed by it identified affordability or a shortage of affordable housing as the significant outstanding challenge to tackling homelessness. The Minister will also be aware that the situation is particularly bad in rural areas where, in the past few years, the number of homeless people has gone up by 30 per cent. What are the Government trying to do to deal with this serious problem?
Lord Rooker: My Lords, I presume that the noble Baroness is referring to the current inquiry by the Select Committee, to which the Government have not yet given evidence but to which Ministers will be going—not just myself, but Ministers from other departments—before the end of the year. In addition, we are rewriting and reassessing the current homelessness strategy.
Following the spending review announced in the summer, although we have not yet made all the detailed decisions, we are fairly confident that in the period covered by the spending review we will be able to gain an extra 10,000 affordable dwellings on top of those which would already have been provided with the programmes. That will go some way towards meeting the situation we are in.
The Earl of Listowel: My Lords, is the Minister aware that in its survey, Living in Limbo, Shelter found that, on average, children in temporary accommodation were missing 55 days of school and that average stays in temporary accommodation were approximately nine months? Has he noted its recommendation that serious consideration should be given to funding child support workers in all the tenancy support schemes and the other recommendations on supporting children in these families?
Lord Rooker: My Lords, I am not aware of all the details, but I know the overall situation. I can assure the noble Earl that there is a very large programme of assistance and research across more than one
144
government department—the Department for Work and Pensions, the Department of Health and the Department for Education and Skills—regarding the effect of homelessness on children. There is a serious issue here. Another study found that only 29 per cent of children in temporary housing situations attended mainstream schools. We know that living in temporary accommodation has an effect on the mental health of both children and adults.
We have reduced the number of children in bed-and-breakfast accommodation in the past two years from 9,500 to around 26 because of the target to get families with children out of bed-and-breakfast accommodation. Getting people out of bed-and-breakfast accommodation into temporary accommodation is the next move. Sometimes that temporary accommodation will become their permanent home, but it is still unsatisfactory in that it is temporary.
Lord Chan: My Lords, what is being done to encourage local authorities to co-ordinate their regeneration programme, particularly in the inner cities, so that unoccupied houses can be used for homeless people?
Lord Rooker: My Lords, I hope that all noble Lords will be here tomorrow to give the Third Reading to the Housing Bill. It contains a host of goodies that will help deal with the situation. One is to get homeless families access to long-term empty property—not confiscation, but access. We have had many debates in the House; this is just one measure. We are also actively looking at the idea of bringing back into action empty flats and dwellings above retail premises. There will always be empty properties—there have to be, given the market situation. But properties left empty for a non-market reason are quite unacceptable as they represent an asset that the country is wasting, particularly in view of the need for them.
Baroness Byford: My Lords, does the Minister accept that in rural areas there is greater difficulty in obtaining temporary accommodation? What are the Government doing about it?
Lord Rooker: My Lords, the noble Baroness is quite right; there will be an inevitable shortage of temporary accommodation. However, we have a special programme for community settlements with populations below 3,000. There is a Housing Corporation programme to build affordable dwellings which we will have doubled in a four-year period. There are efforts going on in small villages and hamlets where there may be just two, four or six dwellings. The way out of that is to construct more at small levels—not large-scale developments—within the growth areas to ensure that the needs of the rural community are met.
Lord Brooke of Sutton Mandeville: My Lords, within the 70,000 families with children quoted by the Minister, does he also have statistics on how many are in inner cities and how many are elsewhere?
Lord Rooker: No, my Lords, I regret that I do not have that information, either off the top of my head or in the statistics that I have gathered from the overall figures. However, the information would be available on a local authority basis because we collect the figures from local authorities. I will see whether I can get that information and write to the noble Lord.

Adult Social Care
3 p.m.
Baroness Neuberger Baroness Neuberger asked Her Majesty's Government:
In what ways the forthcoming Green Paper on adult social care directly addresses the specific needs of people with physical impairments who also have mental health support needs.
The Parliamentary Under-Secretary of State, Department of Health (Lord Warner): My Lords, my ministerial colleague, Stephen Ladyman, announced on 12 August that we would be developing a Green Paper on the future of adult social care. The emphasis will be on individually tailored services that enable people to fulfil their potential and promote independence through earlier intervention. Services need to be seamless with partner agencies and professionals working to improve co-ordination and accessibility.
Baroness Neuberger: My Lords, I am grateful to the Minister for his reply and for his assurance that we will see individually tailored packages. Does he agree that the recent report sponsored by the Rowntree Foundation, One town for my body, another fin my mind demonstrated that there was virtually no communication between those who provide services for people with physical disabilities and those who provide services for people with mental health needs?
Will the Minister further reassure us by telling us that he will make every effort to ensure that those who are working on the Green Paper will do something to address the silo mentality that still exists, however much we try to provide seamless services in much of our social and healthcare packages?
Lord Warner: My Lords, there sometimes can be a silo mentality, as the Government accept. However, it would be unfair to suggest that that is happening everywhere. For example, a report by Professor Philp, the National Director for Older People's Services, was published today—bearing in mind that older people often have significant physical disabilities and problems of mental impairment on occasion. The report, launched by the Secretary of State and Professor Philp, shows that there has been dramatic
146
improvement. It shows increased investment and improvements in intermediate care, which are useful for the people about whom the noble Baroness was talking. We have seen improvements in stroke services and dementia services for older people and others with physical disabilities.
Lord Renton: My Lords, may I mention that I have a 50 year-old daughter who cannot walk, talk or feed herself, although she has a lovely personality? May I also mention that, in all the years that I have had to see that she is properly maintained there has never been enough help from the state to enable that to be done? Luckily, I have been able to provide the balance. However, there are many people who simply would not be able to do so. Will the Government bear in mind that this is a major problem that needs to be looked at afresh?
Lord Warner: My Lords, I congratulate the noble Lord on the care that he and his relatives have provided within his family, which is the way that many people prefer things to happen. However, the Government have done a lot to assist carers, although the noble Lord may not be aware that he has been one. We have invested substantial extra money in adult social care and will go on growing those services in line with the adult social care Green Paper.
Baroness Pitkeathley: My Lords, does my noble friend agree that it is also important to bear in mind the needs of those who combine physical impairment with learning difficulties of some kind? Does he also agree that those people are particularly vulnerable at the so-called transition period, when they pass into the remit of adult social care from the services provided for children and young people?
Lord Warner: My Lords, I agree with my noble friend. I know from my own experience in running a social services department that a particularly difficult transition often has to be made and a lot of support must be given to the parents of those children to help that transition take place successfully.
Lord Avebury: My Lords, is the Minister aware that a service that provides advocacy for those with long-term disabilities in Doncaster is about to close down through lack of funding? Does he not agree that there is a difficulty, especially with elderly people—as he said—suffering from multiple disabilities? They have great difficulties communicating with the system about problems such as housing. Advocacy services such as the one that is about to be closed in Doncaster are too valuable to be allowed to vanish.
Lord Warner: My Lords, I am not aware of the particular problems in Doncaster, but I do know that advocacy services are very important. However, we should not be too downcast. We are seeing a very substantial increase in the amounts of intensive home care provided to people to help keep them at home, and a massive growth in intermediate care services.

147
Clearly, these messages are getting through to state providers of services as well as voluntary and private providers. We are seeing an expansion of services in those areas, but we are not complacent.
Baroness Barker: My Lords, will the next NSF on mental health contain guidance on the integration of medicines for mental and physical conditions?
Lord Warner: My Lords, I am sorry. I do not have information available on that subject, but I will write to the noble Baroness.
Baroness Greengross: My Lords, will anything be done to stop the unfortunate transition between being an adult receiving social care and being an elderly person receiving care, when the standard of care and sometimes the benefits available are severely reduced?
Lord Warner: My Lords, one of the reasons for producing the Green Paper on adult social care is to ensure that we have more personalised and individually tailored services, so that as people move through their lives and their care needs change we can address those particular concerns.
Earl Howe: My Lords, did the Minister share my disappointment that the official survey on adult social care designed to help inform the Green Paper revealed what can only be described as a considerable hostility among many within the social care sector towards direct payments, which can do so much to empower service users? Why have not the Government done more to convince social care professionals of the merits of direct payments?
Lord Warner: My Lords, we have done our best in this particular area. Direct payments are a great success story. They are very popular with recipients and it behoves everyone working in social services departments to address their minds to the needs of the service users. They should discover how service users like to receive services and the extent to which they have independent needs that can be met more effectively through the direct payment system that this Government introduced.

Gaza: Israeli Withdrawal
3.8 p.m.
Lord Turnberg Lord Turnberg asked Her Majesty's Government:
What assistance they will offer to the Palestinian and Israeli Governments during and after the achievement of the plan to withdraw settlements from Gaza.
The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean: My Lords, we will continue, both bilaterally and with the international community, to engage with Israel, ensuring that any withdrawal is as complete as
148
possible, and is a first step towards the two-state solution rather than an end in itself. We are also encouraging the parties to work together and with the World Bank to ensure the economic viability of Gaza after withdrawal. We continue to work with the Palestinian Authority to help improve its security capability.
Lord Turnberg: My Lords, I am grateful to my noble friend for her response. I am sure that she will agree that Mr Sharon deserves some credit for taking this difficult but vital first step towards a two-state solution. Will she also agree that Israel cannot be seen to be capitulating to terror, as that will only encourage further terrorism, and that if Israel is to withdraw further from the West Bank, it will be able to do so only through negotiation, not through terror? What are Her Majesty's Government doing to help the moderate Palestinian leadership to overwhelm and overcome the terrorist activities?
Baroness Symons of Vernham Dean: My Lords, we agree strongly with the statement issued by the quartet on 22 September that the Sharon plan could provide a rare moment of opportunity in the search for peace. We are trying to help the Palestinian Authority on security questions, as I indicated in my initial response. We are providing technical assistance and training, including on work to prevent suicide bombings. Security work on the West Bank is now being unified through a central operations room to improve the capacity of the Palestinian security forces to work together. We have been undertaking that work for a number of months, and I believe that it is having a positive impact, but there is still a great deal of work to be done.
Lord Sterling of Plaistow: My Lords, does the Minister agree that early elections in the Palestinian territories would ensure that the leadership of the Palestinian Authority could play a key role in the peace process, particularly taking into account the vacuum created by Yasser Arafat's failing health?
Baroness Symons of Vernham Dean: My Lords, on that last point, of course we all wish Mr Arafat well and hope that he will have a speedy recovery. We welcome the announcement by the Palestinian Authority on 1 September about local elections, to be held from December 2004 to November 2005. We welcome the progress that there has been on voter registration. But to come to the main point of the question asked by the noble Lord, Lord Sterling, we also welcome the commitment of the Palestinian Authority to legislative council and presidential elections. Work is going on to resolve the questions about the timetable and conditions for those elections, but we believe that it is a positive step.
Lord Wallace of Saltaire: My Lords, with the transition from Israeli control of the Gaza Strip to reasserting Palestinian sovereignty, will security revert directly to Palestinian security forces, or is it envisaged

149
that there may need to be some sort of multinational peacekeeping security force? If so, would Her Majesty's Government envisage that the United Kingdom would make a contribution to it?
Baroness Symons of Vernham Dean: My Lords, that is an enormous question. If I were to answer it properly, we would be here for some time.
Let me say succinctly that we support both sides taking action in line with the road map. We would of course prefer there to be some discussion about how the process will be carried out. We are calling on Israel to co-ordinate its withdrawal from Gaza with the Palestinian Authority. That is a very important point. But it must be co-ordinated with not only the Palestinian Authority but Egypt and the international community as a whole. So yes, we do think that there is a role for the international community in the withdrawal.
Lord Howell of Guildford: My Lords, in addition to us doing all that we possibly can to help this little micro-state or political entity to be viable, can we do everything within our power to encourage other Arab leaders in the whole area to do their part in being very positive towards the Gaza withdrawal and its autonomy? Those leaders currently have plenty of money—the whole Gulf is awash with money, due to the high oil prices—so perhaps it is about time that there was a far more effective offer by the Arab League to help that little area become viable and prosperous and survive in a difficult situation.
Baroness Symons of Vernham Dean: My Lords, that is an excellent point and I endorse it thoroughly. Your Lordships may be as horrified as I am to learn that 50 per cent of Palestinians—and 60 per cent in Gaza—are living on less than two dollars a day at the moment. Gaza is in urgent need of aid and financial support. Much of it comes from the United Kingdom. In this financial year, the DfID bilateral funding for the Palestinians is expected to be £28.5 million. Nearly half will be provided to the United Nations Relief Works Agency for Palestinian refugees, but an enormous amount of money is still needed. I agree entirely with the noble Lord about the responsibilities on others in the region to provide some of that aid.
Lord Phillips of Sudbury: My Lords, I am very encouraged by what the Minister has just said. The economy in Gaza is in a state of utter ruination, with unemployment exceeding 70 per cent. Will she try to encourage the Israeli Government to provide some prospect of viability for the Palestinian economy in Gaza hereafter by allowing the Palestinians to export direct? At the moment, they are unable to do that, and all their export sales—pathetic though they are—yield resources which are then retained by the Israeli Government, thus further stifling any prospect of development of that pathetic economy.
Baroness Symons of Vernham Dean: My Lords, the noble Lord, Lord Phillips, has a very good point. This is an enormously important issue. If we are to talk about any form of viability for Gaza after an Israeli withdrawal, the point that he addressed is crucial. I remind your Lordships that the World Bank launched a multi-donor reform trust fund on 27 April. That fund aims to support the Palestinian Authority budget deficit by setting clear benchmarks for the Palestinian Authority to reach.
The point is that there have been real problems with the Palestinian Authority over corruption, which has meant that some countries have decided that they do not want to donate money to Palestine because they believe that it will not be used properly. However, the intervention of the World Bank substantially undercuts that argument, and ought to encourage others to give more than they have been giving.
Lord Clarke of Hampstead: My Lords, will the discussions between parties after the withdrawal include the bringing together of workers within the Palestinian Authority embryonic trade union centre and Histadrut? Would she agree that the Government should be doing all that they can to help the TUC in promoting such exchanges?
Baroness Symons of Vernham Dean: Yes, my Lords, I would hope that there could be all sorts of interchange during that period. I recognise the sensitivity and the difficulty of the situation with which we are dealing. However, the exchanges between trade unions are important, as are those between non-governmental organisations. If I may say so, I believe that the work being done by the Alexandria Group in relation to religious exchange is another important channel of communication. All three of those need to be developed.

Armed Forces (Pensions and Compensation) Bill
3.17 p.m.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Bach): My Lords, I beg to move that the Commons reasons be now considered.
Moved accordingly, and, on Question, Motion agreed to.

COMMONS REASONS FOR DISAGREEING TO CERTAIN LORDS AMENDMENTS
[The page and line references are to HL Bill 70, as first printed for the Lords.]

LORDS AMENDMENT
1 Clause 1, page 1, line 14, at end insert—
"( ) Any scheme established under subsection (2) must provide that there shall be no onus on any claimant under the scheme to prove the fulfilment of any conditions for a claim thereunder and that the benefit of any reasonable doubt shall be given to the claimant."
The Commons disagree to this amendment for the following reason—
1A Because it could allow a claim to succeed even though the conditions for entitlement were probably not fulfilled.
Lord Bach: My Lords, I beg to move that the House do not insist on its Amendment No. 1, to which the Commons have disagreed for their reason numbered 1A.
For the convenience of the House, I intend to save my substantial remarks until I have heard what my noble friend Lord Morris, and other noble Lords, have to say.
Moved, That the House do not insist on its Amendment No. 1, to which the Commons have disagreed for their reason numbered 1A—(Lord Bach.)
Lord Morris of Manchesterrose to move, as an amendment to the Motion that the House do not insist on its Amendment No. 1, to which the Commons have disagreed for their reason numbered 1A, at end insert "but do propose the following amendment in lieu thereof—
1C page 1, line 14, at end insert—
"( ) Any scheme established under subsection (2) must provide that there shall be no onus on any claimant under the scheme to prove that his illness or injury (whether physical or mental) or his death, is attributable (wholly or partly) to his service in the armed forces or the reserve forces and the benefit of any reasonable doubt shall be given to the claimant.""
The noble Lord said: My Lords, the Prime Minister's first words to the House of Commons when Parliament resumed after the Recess were:
"I know that the whole House will join with me in sending our condolences to the families of the two British soldiers who have lost their lives in Iraq since the House rose on 16 September. They were doing an extraordinary and heroic job. We can be proud of them".—[Official Report, Commons, 13/10/04; col. 276.]
Let my right honourable friend's words, reminiscent as they were of those of the Chancellor and the Defence Secretary in praise of our Armed Forces, inform this debate: one of huge importance to service and ex-service personnel alike.
Never on any legislative issue was Britain's ex-service community more at one than it is now in support of this amendment. My involvement with that community is as one of them. It was 56 years ago that I completed my time—mostly on active service—in the Armed Forces; but my interest goes much further back. When I was seven my father died of war injuries and my mother made ends meet as a war widow. That involvement, even more than my work over many years as Honorary Parliamentary Adviser to the Royal British Legion and Vice-President of the War Widows' Association, is the principal interest I have to declare in this debate.
152
I want first to make it crystal clear that my amendment's purpose is to vouchsafe, after next April, continuance of the burden and standard of proof used in the current war pensions scheme for claims for illness, injury or death attributable, wholly or partly, to service in the Armed Forces: no more and no less. On 20 October, in the debate in the House of Commons on the amendment approved by this House on 8 September, it was said that my amendment went further than to preserve the current burden and standard of proof. My advice and that of the Royal British Legion is that it did not; but to make our intention doubly clear, I have now reshaped the original amendment. Furthermore, if Ministers can demonstrate that there could still be ambiguity, I shall be glad to consider a change of wording to achieve our stated purpose.
From the moment this Bill first saw the light of day, the Government's intention has been to shift the burden of proof from the MoD to the claimant and to change the standard of proof from the existing test of "reasonable doubt" to the much sterner "balance of probabilities". Ever since then, notwithstanding all the ex-service community's representations, the Commons Select Committee's critical report and the speeches in your Lordships' House from noble and gallant Lords with vast experience of our Armed Forces—they include highly distinguished former Chiefs of the Defence Staff—the MoD's position has remained fundamentally unchanged, as the noble and learned Lord, Lord Ackner, set in bold relief in his intervention at the conclusion of my noble friend's speech on 8 September.
The Royal British Legion's view is that, for the MoD not now to modify its position, would be,
"a dire and retrograde step for those serving in the Armed Forces in the future".
Yet the MoD still wastes time bogusly claiming that "balance of probabilities" is more modern and fairer than "reasonable doubt". In truth, of course, it is as old as the hills. It was in fact replaced by "reasonable doubt" in 1943. Thus what the Government are now proposing is to put the clock back 60 years. Similarly the claim that "balance of probabilities" is fairer than "reasonable doubt" is demonstrably bogus. And my sources for that statement include my noble friend himself when he replied, on 22 January, to my Starred Question about the case of the late Major Ian Hill, following the coroner's landmark finding at the inquest into his death: "I can say", my noble friend told the House,
"that war widows' pensions are paid when death is deemed to be due to service, and that the war widow has to raise only a reasonable doubt for claims to succeed".—[Official Report, 22/1/04/ col. 1138.]
This most important safeguard in the existing war pensions scheme was the core of my noble friend's justification of the handling of Major Hill's case and clearly, in his view, the scheme's crowning virtue.
Yet now, while the MoD admits that successful claims for war and war widows' pensions will be reduced, my noble friend is made to argue for the dumping of that safeguard—and shifting the "burden

153
of proof" from the MoD to the claimant—to produce a saving for the department of what this House was told on 8 September is £200 million and the House of Commons was told on 20 October is £300 million. Thus in the MoD's case "cherry picking" includes the right even to pick—and change from month to month—its own unverifiable price tags.
As Colonel English, known to all of us here for his unwavering commitment and abiding concern in working for the Royal British Legion, says:
"Of course, there is another way of describing the cost to the MoD of £200–300 million if the MoD fails to defeat your amendment on burden and standard of proof. If they succeed it will cost disabled ex-service men and women—and the dependants of those who lay down their lives—exactly the same £200–300 million".
Ignoring the Prime Minister's recent comments on the high importance of the role of this House as a revising Chamber—charged with the duty of detailed parliamentary scrutiny—the MoD's posture now is not only to refuse to discuss a suggested compromise, even one that could be hacked both by the Legion and the Commons Defence Committee, but also to insist that if it does not have its way there will be no Bill at all.
Yet where could the Prime Minister's assessment of the importance of the legislative role of this House possibly be more crucially relevant than in scrutinising and revising—sustained in doing so as we are by former Chiefs of the Defence Staff—a Bill affecting the interests of ex-service personnel in broken health and the bereaved families of those who die in the service of this country?
Our Armed Forces have an unlimited liability to serve anywhere, at any time, under any conditions and to put their lives on the line. That does not apply to any other occupation and, with no resource other than the Legion to represent their interests, service personnel are heavily dependent on Parliament for a fair and continuing recognition of their needs.
That is the context in which we debate this amendment. There is no other group of people exposed to the hazards faced by our Armed Forces in all corners of the globe and none more reliant on parliamentary concern for their interests. They have no trade union or federation to protect them. Nor are normal commercial rates for permanent ill-health or disability insurance available to them. That is but part of the case for recognising the bounden duty of Parliament to do its best for the Armed Forces.
It was argued for the MoD in the House of Commons that the amendment on burden and standard of proof carried in this House on 8 September would allow a case to succeed even if the conditions for entitlement were not met.
Nowhere has the department provided any evidence of unmeritorious but successful war pension claims such as to cause concern, however, let alone a concern that what has worked perfectly well for 60 years has suddenly been undermined. Instead the ex-service community is left resentful of what it sees as double standards.
154
While the Prime Minister, backed by senior Ministers, speaks in the highest praise of our Armed Forces as the finest in the world, spin from inner Whitehall works to create the impression that—driven by a so-called "compensation culture"—the ranks of those incapacitated by war service are riddled with benefit cheats and lead swingers.
The Royal British Legion asked for any evidence the MoD has of abuse of the war pensions scheme. None has been forthcoming; and there can be no complaint now if war pensioners say that current reality is not a "compensation culture" in the ex-service community but an "obfuscation culture" in inner Whitehall.
Again, the impression was given in the House of Commons that the Royal British Legion has been unwilling to offer any kind of compromise. There was no mention there of the Legion's suggested compromise in a letter to Ivor Caplin dated 3 March 2004, to which he replied on 26 March rejecting the suggestion and commending the findings of a badly flawed report commissioned from the consultants Watson Wyatt by the MoD.
3.30 p.m.
Clearly Watson Wyatt has a wide knowledge of pension schemes, but not it appears of war pensions schemes. In the UK the current war pensions scheme has no comparator with any other scheme, whether in the public or private sector. That is because there is only one such scheme, whose provisions are unique to the Armed Forces in recognition of the extent of their commitment to the state.
The only meaningful comparison would have been with similar schemes, requiring unlimited liability from service personnel, in other developed countries that play a significant role in international affairs. The trap Watson Wyatt fell into in comparing the war pensions scheme with other pension schemes in the UK was that laid by the MoD's instruction—based on the bogus assumption that service in the Armed Forces is essentially no different from civilian employment—to compare the scheme with schemes where no valid comparison could be made.
By contrast the Royal British Legion was then working to document the effects of abandoning the current burden and standard of proof for incapacitated service personnel. The outcome was to show that, taken together with the MoD's proposal to reduce to five years the time-limit for making a claim, it could cut the number of successful claims by up to 60 per cent.
That finding was based on scrupulous analysis of the vast casework undertaken by the Legion, particularly that gained when acting for claimants in 93 per cent of all represented appeals at tribunals for war pensions, and totalling over 4,000 cases in the last year for which I have figures. The Government's response to that was to cast doubt on the Legion's analysis, while doing nothing whatever to produce one of their own.

155
Instead, the Government made the assertion—strongly renewed in the debate in the House of Commons on the amendment approved by this House on 8 September—that those who wanted to preserve the burden and standard of proof of the current scheme were opposed to higher benefits for more severely disabled ex-servicemen and women. It is, of course, totally preposterous to say that supporters of the current burden and standard of proof—and by implication the Royal British Legion—have taken any such stance. The Legion's door is open to all ex-service personnel in need of its help and, in fighting their corner, it insists on help in proportion to need for all.
How otherwise could its reputation be so universally high? Again, how else could the Legion attract so many volunteers to sell poppies year by year, as tens of thousands of them are now doing, all over Britain, even as I speak?
Moreover, if any MoD Minister thinks that his sternest critic is the Royal British Legion, I can introduce him to ex-servicemen and women who see the Bill, as it relates to burden and standard of proof, as the biggest stitch-up since the Bayeux Tapestry. In deference to the normal decencies, I am slightly moderating their actual words.
It was not the Legion that decided this Bill must be cost-neutral. It was executive government in the world's fourth-richest economy. In the ex-service community's view, it is demeaning of any department of state—most of all the MoD—to burn the midnight oil working on ways to cut spending on any entitled person's war pension or bereavement benefit. After all, what is being one of the world's richest economies worth if it does not enable a country to act justly and generously to those prepared to lay down their lives in its service?
There is no manifesto commitment involved here. Nor is there ever likely to be one for a policy change in opposition to which the ex-service community is so completely at one. The amendment is not against anyone, least of all my noble friend, for whom indeed I have every sympathy in his role—in so many of our debates—as the lone proponent of changing the burden and standard of proof. His lonesome stance reminds me, as he knows, of Oscar Wilde's sad comment at the first night of one of his plays:
"The play was a great success",
said Oscar,
"but the audience a failure".
My amendment repairs a disfiguring fault in the Bill and is about acting justly toward and keeping faith with men and women who deserve well of this House and of Parliament as a whole. I beg to move.
Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 1, to which the Commons have disagreed for their reason
156
numbered 1A, at end insert "but do propose Amendment No. 1C in lieu thereof".—(Lord Morris of Manchester.)
Lord Astor of Hever: My Lords, I start by declaring an interest as president of the Earl Haig branch and the Kent County branch of the Royal British Legion. The noble Lord, Lord Morris of Manchester, made a strong argument for his amendment.
Only this morning I received a copy of the Minister's letter, dated 29 October, to Ian Townsend of the Royal British Legion—which he has not yet received. That is the second time that a detailed letter has arrived on the morning of the debate. I complained last time about receiving detailed costings at the last minute. The enclosure in the letter is from the Government Actuary, dated 14 October. The meeting, to which the Minister refers as having taken place between the Royal British Legion and its legal adviser on one side and the MoD on the other, was on 15 July. It has therefore taken the Government Actuary three months to produce the letter. It has then taken more than two and a half weeks for the MoD to send the letter to the Royal British Legion.
The letter of 14 October from the Government Actuary is predicated on an assumed additional number of successful claimants totalling 1,600. That is information which the MoD has provided to the actuary as an assumed figure. We have no way of knowing whether that assumption is reasonable. However, implicit in the MoD advancing that assumed figure is its acceptance that 1,600 people, who previously would have received a war pension under the existing scheme, will now no longer be eligible because they will not be able to discharge the burden of proof imposed on them.
In the other place, Ivor Caplin argued that the amendment moved by the noble Lord, Lord Morris, and passed by this House went further than the existing war pensions scheme. That does not appear to be borne out by the Government Actuary, who uses the words, in opening:
I am writing regarding the extra costs that would arise from changing the proposed Armed Forces Compensation Scheme with the change in the burden and onus of proof to that currently applying to the War Pensions scheme. This would reflect the apparent intention of the recent Lords' amendment".
Therefore, the actuary appears to understand the amendment to apply the war pensions scheme burden, but the Minister in the other place was trying to spin it further than that.
The actuary then hedges the advice by saying:
"Clearly predicting how such an amendment would work in practice is difficult and you have to make a number of assumptions on the potential impact".
Indeed, the actuarial calculations are laced with broad estimates, uncertainties, caveats and being subject to margins of error. But the Minister, in his letter, appears to have transformed those into a certain sum of money. It is unacceptable for the Minister to come to the House at the 59th minute of the 1lth hour and seek to railroad us into accepting a proposition based on simulated figures. Why should we believe them? We

157
question the Government's figures of more than £300 million over 10 years. Only a month ago, that was £200 million. It is unfortunate that Ministers choose to inflate annual figures into headline-grabbing figures over 10 years.
The Minister's letter, although making it perfectly clear that the Government's position is unchanged, contains some helpful points, and it is a pity that those were not raised earlier. If they had been, it would have made for better co-operation. The Minister must by now be aware of the genuine anxieties from all sides of the House about the way in which the new scheme will work.
The Government appear not to be prepared to compromise or to give an inch. The noble Lord, Lord Morris, has said that he is perfectly willing to discuss the fine wording of the amendment to meet the Government's latest criticism. Members on all sides of the House will recognise the tremendous work carried out by the Royal British Legion. The RBL has made it clear to the Government that it is prepared to discuss compromise. The MoD has suggested that a burden of proof based on reasonable doubt permits many spurious claims to succeed. The RBL tells me that it would not support this, nor would it support any claims it believed to be spurious.
The Government's overt threat is to abandon the Bill if they cannot have their way. The inference is that it is others, including the RBL, all of whom have the best interests of the Armed Forces in their minds, who are being uncompromising.
The Government have produced questionable figures at the very last moment. This sends the wrong message to our Armed Forces if they are injured or become ill in the line of duty. We on these Benches recognise the unique status of members of the Armed Forces. This particularly relates to their unlimited liability to serve anywhere, at any time, under any conditions and, very often, with the requirement to put their lives on the line. Her Majesty's Government must provide them with much greater confidence in the new schemes.
Lord Redesdale: My Lords, perhaps I should start by not declaring an interest, in that I am not a member of the Royal British Legion, because I know that the Minister will also declare an interest. However, I must say that the work undertaken by the RBL has been unstinting on behalf of its members and, despite the strong exchange of words over the timing of letters and their contents, I do not think that anyone in the Chamber will undervalue the work, and future work, of the RBL for the former services community.
The noble Lord, Lord Morris of Manchester, set out clearly and comprehensively the problems that face us, as has the noble Lord, Lord Astor of Hever; so I shall not examine the minutiae of the amendment. However, it goes to the fundamental concept that underpins the Bill—that it has to be cost neutral. That means that, while we have heard much about the winners from the scheme, the amendment underlines who shall be the losers.
158
There are certain people who, by not receiving benefits, will pay for the improved benefits that are welcome. One of the issues that has unsettled us is that it was seen as being necessary for the Bill to be cost-neutral. The Minister has talked about best practice. Obviously we would like to see this scheme in operation, given that it is for a special group of people. We have talked about whether one can put one group of pensioners above another. However, we are dealing with a special group of people to whom we owe a debt. It is unfortunate that the Government have stuck to the cost neutral aspect.
I believe that the noble Lord, Lord Morris, will take this matter to a Division; and I know that the Minister will say that if the vote is carried that the Bill will be abandoned and all the benefits that would accrue from it would be lost. It is unfortunate that that state of affairs has come about and is the choice before us.
3.45 p.m.
Lord Craig of Radley: My Lords, the burden of proof issue has not suddenly been sprung at a late stage on an unsuspecting and unsighted Ministry of Defence. There has been a series of meetings and exchanges about it between the Royal British Legion, MoD officials and Ministers over many months. It has been at the heart of the RBL's concerns. The issue was extensively debated at Second Reading and, before that, in another place. I shall not repeat the arguments now, except to remind the House that on Second Reading the Minister relied primarily on the argument for adopting the balance of probabilities standard because it,
"is used widely elsewhere".—[Official Report, 10/06/04; col 495.]
We have now heard from the noble Lord, Lord Morris, regarding the £200 million and £300 million figures that have since been introduced. Ministers need to explain themselves.
What leaves a most unfortunate impression is that the MoD has no firm idea of the possible financial penalty. It did not even pray that in aid to start with, but has since been ratcheting it up to support the latest plank of resistance—that it is just too costly. The pressure on this House and another place to cave in has been further increased by explicit ministerial statements that if the Government do not get their way on this single aspect they would pull the Bill. That is a very serious position for us to face. Is it defensible?
The Armed Forces have been awaiting a new pension scheme for many years. The one that is now proposed is reasonably good. That has been said on all sides of this House and in another place. We have been told on a number of occasions that the two schemes—regarding pensions and compensation—will, in Mr Caplin's words, "each be broadly cost neutral". So some disagreement about the compensation scheme should have no impact on the balance struck in the pensions scheme. We are told that they are separate. Are the Government really so intransigent that they would let down all those service men and women that the new pension scheme will help to recruit and retain for a cost amounting, even at the worst figure that they

159
have so far provided, to one hundred thousandth of the efficiency savings that the Chancellor has set Government to find in the next few years?
Mr Caplin further stated that the Government had,
"taken the savings from the changed burden and standard of proof and used them to provide bigger payments where the need can be expected to be greatest".—[Official Report, Commons, 20/10/04; cols. 905–6.]
Noble Lords should and have welcomed that recognition that the present scheme is not sufficiently supportive. The nub of the MoD's case seems to rest on a presumption that there is around £30 million a year, or some other large figure, that would be spent on malingerers and those who do not deserve compensation for illness or injury if the burden of proof standard is not changed.
No one would deny that in any scheme there will be those at the margin, and even those just outside it, who benefit. But we have had no clear explanation or evidence that this is both so seriously expensive and prevalent. Moreover, I believe that it behoves us to consider more closely the situation faced by a claimant. In the red corner there is the Ministry of Defence, with all the resources, experience and expertise that it could need to deal with any claim for compensation. In the blue corner is an individual, a service man or woman, who is possibly stressed and certainly with a demonstrable illness or injury. Although the MoD must provide the claimant's medical and other service records, it cannot be the referee. The individual in their corner is on their own, facing a heavy puncher on the other side of the ring. It is even suggested that legal or other assistance will not be necessary for the claimant. That would unbalance the position even more in the MoD's favour. The arrangements for refereeing a disagreement sound complex and daunting to an individual who is unfamiliar with such processes. An independent PAT and social security commissioners may become involved.
The Department for Constitutional Affairs is having to work on reform of the tribunal process because the service for appellants is not good enough or satisfactory. Does not that all sound frightening for the claimant? It fills me with foreboding. Surely, we owe it to our service men and women, and veterans, to retain a system that places the onus more squarely on the shoulders of the MoD and not the stressed individual. One has to look only at the prolonged delays and unsatisfactory treatment of Gulf War veterans by the MoD over a decade and more to appreciate that switching to a balance of probabilities is a step too far for the services.
The greatly respected Defence Select Committee in another place thought so. I agree with them. Noble Lords should also note that the MoD intends that the new burden of proof will apply to all servicemen and women from next April. So it seems that today's personnel will be deprived of their entitlement to the old standard of proof. Is that fair? Ministers stress that entitlements relate to arrangements in place when the individual was serving. When a suggested change is
160
going to cost the MoD, Ministers resist. When the MoD spots a saving, the individual must accept it. It is a "heads I win, tails you lose" situation.
The Government are prepared to short-change compensation standards for today's servicemen and women but will not agree to help others who are short-changed in the legacy issues. I support the amendment, which is designed to do no more and no less than to continue an arrangement that has been in place since 1942. Today's servicemen and women deserve it; so do new recruits. I support the amendment of the noble Lord, Lord Morris.
Lord Bramall: My Lords, I find myself in a painful quandary as to the best way forward for this most important Bill. I am also in some contention with my noble and gallant friend, whose views I greatly respect, and it is always good to see two five-star officers going at each other.
These two amendments, over which on Report in your Lordships' House the Government were defeated and which have since been rejected in another place, continue of course to remain matters of deep concern. That is the case in relation to the first one on the burden of proof in the compensation scheme—so ably and, indeed, passionately championed and still being championed by the noble Lord, Lord Morris of Manchester—because research by the Royal British Legion, which he has so strongly supported, has shown how deserving cases could be, and probably would be, disadvantaged by the new criteria. And it is the case in relation to the second amendment, which we shall discuss shortly—the excellent one put forward by my noble friend Lord Freyberg—because it would be parsimonious of the Government in the extreme if they were to go on brushing aside the plight of the most vulnerable post-retirement marriage widows.
Debates on these amendments in your Lordships' House, together with another one on unattributable pensions for life for existing widows, revealed how much concern, and indeed unfairness, still exists and needs to be addressed over these issues.
At the same time, I am very conscious that the new Bill, as drafted, gives current and future servicemen and women and their dependants a good pension deal—indeed, a much better one than the Ministry of Defence originally proposed. I am personally seriously worried that, even if further successful amendments in your Lordships' House were upheld in another place and then had to be renegotiated with the Treasury, not only would the Bill, already so long delayed and so urgently needed, be put back considerably but, bearing in mind the iniquitous cost-neutral aspect of the funding, it would lead to other important parts of the package suffering to the detriment of the Armed Forces as a whole.
So, after much thought, I now believe that the time has come to let the Bill go through with the support and blessing of your Lordships' House. If only Ministers would agree in all sincerity that once the Bill has received Royal Assent, these outstanding matters—especially the legacy issues—will be looked

161
at again, considered and discussed, some of the principles of pensions for life having already been agreed, I for one would not wish to delay the Bill any further.
Lord Hodgson of Astley Abbotts: My Lords, the noble Lord, Lord Morris of Manchester, hung his arguments for his amendment on two pegs: first, the change in the responsibility for proving the case from the MoD to the claimant; and, secondly, the change in the level of proof. I can get my mind around the second of those, recognising all the time the unique position of our servicemen and servicewomen.
I think that the Minister explained to us in previous debates the nature of what my noble friend Lord Astor referred to as "spurious" or falsely inflated claims. We have to recognise that we now live in a different age from that of 40, 50 or 60 years ago. We are more litigious and more disputatious, and I do not think we can expect that our Armed Forces, unique though their role is and unique though the dangers that they face are, will he immune from those changes in society. Therefore, I can understand why the Government have sought to proceed with the change in the level of proof.
However, I have much more difficulty with, and will he listening with great care to what the Minister has to say about, the other basis of the argument put forward by the noble Lord, Lord Morris. Here, I follow the noble and gallant Lord, Lord Craig, because this is about the individual versus the bureaucracy.
The switch from the bureaucracy to the individual seems to me to break one of the most important aspects of justice, which is—I hesitate to use this phrase in relation to the Armed Forces (Pensions and Compensation) Bill—equality of arms. As the noble and gallant Lord pointed out, we are dealing here with an individual serviceman or servicewoman who clearly believes that he or she is suffering, and in most cases will be suffering, mental or physical disability and is having to take on the might of the MoD. There is no equality of arms in that.
The predilection of a bureaucracy is to play for time and to spin out procedures—not so much for reasons of conspiracy but simply for reasons of administrative delay and because priorities are different. For the individual serviceman or servicewoman, this will be the most important thing in his or her life—it will be of critical importance. For the person at the MoD, it will be just another day at the office. That is why it will be so difficult for individuals to make their claim and why many of them, I fear, faced with this mountainous bureaucracy obstructing them, slowing things down, asking for more information and delaying hearings and so on, will simply say, "I can't face the continuing psychological effort required to press this claim", and they will abandon a perfectly legitimate and worthwhile claim.
When the Minister comes to reply, I shall want to hear him explain very clearly why my concerns will be met—that is, that there will be a very clear, sympathetic and easy way for the individual to move
162
his claim forward. I do not think that I have yet heard that from the Minister, and I hope that he will be able to address it in his response to the amendment.
Lord Freyberg: My Lords, I intervene in this debate because I wish to add my voice to that of the noble Lord, Lord Morris of Manchester, and others around the House on the heavy-handed manner that the Government have adopted in order to get their legislation through.
At a meeting held a few weeks ago with the Minister in another place to discuss my amendment on post-retirement marriages, I, too, was told that if I proceeded with it in any form, he would withdraw the entire Bill. It seems extraordinary that such threats are handed out when the purpose of my meeting was to look at the options available and to find out whether any were acceptable.
The issue at stake is whether the Government are prepared to listen to the arguments put forward in both Houses or whether we are expected to behave simply as rubber stamps. The noble Lord, Lord Morris of Manchester, has put a strong case, and I trust that the House will refuse to be intimidated by the Minister in the other place and, instead, will listen to the arguments for what they are.
Lord Boyce: My Lords, the eloquence of previous speakers means that I do not need to add to the debate. However, I become more concerned every day about the disillusionment of our Armed Forces with higher management in defence. If this amendment is not followed through, I believe that that will cause the disillusionment to deepen further.
I certainly also believe that it is wrong for the message to go out to them that we are being threatened with the withdrawal of the Bill if we do not withdraw the amendment. Perhaps the Minister would like to say in his response to the amendment how he will transmit the message to the Armed Forces that the amendment has been turned down. Will he use the words, "This is a fair result"?
4 p.m.
Lord Bach: My Lords, first, I declare that I am an associate member of the Lutterworth and District Branch of the Royal British Legion. That is an interest that I am proud to declare. Secondly, I thank all noble Lords who have spoken with passion and great commitment. I am grateful to all of them for the tone of the debate.
The fact is that elected Members in another place have voted by a substantial majority to disagree with this House's Amendment No. 1 on the burden of proof for the compensation scheme and have provided a reason for that disagreement. I am grateful to my noble friend Lord Morris for altering his amendment and for the clarification of intent that that redrafting provides.
The House will not be surprised to hear that we propose to resist the amendment. The grounds for resistance are the same. It is quite right that this issue

163
should have received such focus. It lies at the heart of the new compensation scheme. There has been a full debate on the burden and standard of proof at every stage of the Bill's passage. I shall not go into detail on the implications of the amendment again, as those were explained in another place.
As drafted now, the amendment seeks to introduce the war pensions scheme approach of applying the more generous standard and burden of proof to the new Armed Forces compensation scheme when considering whether an injury, illness or death was caused by service. It is a fact that the war pensions scheme burden and standard of proof mean that claims can succeed even when it is unlikely that service is the cause. I do not consider it reasonable to allow such arrangements to apply to a scheme for the future.
I remind noble Lords of the ways in which, during the passage of the Bill, we as government have sought to take on board legitimate concerns raised and have, where practical, sought to provide reassurance of our intention to promote a scheme that properly meets the special circumstances of military service. I have already announced the arrangements for the transitional period for the new pension scheme, when current serving personnel will not be able to make a choice of scheme, and, importantly, our commitment to include the new compensation scheme in the annual statement on veterans affairs made to the other place.
As the House has already heard, my honourable friend, the Veterans Minister, Ivor Caplin, met with the noble Lord, Lord Freyberg, to discuss his amendment. I quote from what my honourable friend said in another place on 20 October 2004:
"Last week, however, I had a constructive meeting with Lord Freyberg, and I indicated to him that we may be able to build on that meeting in future, when the Bill has received Royal Assent. I hope that, when that occurs, we can perhaps look at some of the other issues".
He later said:
"During my discussions with Lord Freyberg and the Forces Pension Society, I have indicated that we are prepared to continue to consider the matter".—[Official Report, Commons, 20/10/04; cols. 939–940.]
Further, the Veterans Minister is in active discussion with the Secretary General of the Royal British Legion, Brigadier Ian Townsend, about how officials might share the Royal British Legion's analysis of claims success rates under the new scheme. Indeed, my honourable friend and Brigadier Townsend met six days ago on Wednesday 27 October.
Throughout the process we have recognised the important role that the Royal British Legion plays in compensation issues, and remain committed to close working to achieve solutions that so far as practicable meet its concerns. I pay a genuine tribute to the Royal British Legion for all that it does and for the work that it has carried out in this particular area. I hope that noble Lords will recognise our willingness to resolve issues and engage in constructive discussions.
164
We have been asked many times before, as I have today, whether we could give examples of cases where the war pensions scheme has delivered decisions in terms of entitlement that should not be justifiable in an up-to-date scheme. In the past, and even today to some extent, we have been reluctant to do this, not because the evidence does not exist, but because we do not wish to imply that some current war pensioners were in some way undeserving.
I know that many, particularly of our older war pensioners, claim only reluctantly, and they should not feel that they are wrong to do so. They applied correctly under the rules as they are currently set out. Nonetheless, a change is now due if we are to produce a scheme that is focused properly on those whose injuries were likely to have been due to service, thereby freeing up resources to give greater help to the more severely disabled.
In this context, with the leave of the House, I shall give a couple of anonymous examples. The first is that of a 62 year-old ex-National Serviceman who claimed to have incurred a knee injury playing regimental football some 40 years ago. His service medical records had no note of the injury and post-service civilian medical records identified the onset of pain only in the previous two years. X-rays confirmed early arthritis in his knee. He also had some minor twinges in other joints. The claim was rejected by the Veterans Agency but overturned on appeal.
The second example is that many claims initiated by the widows of ex-servicemen rely on the fact that legislation allows war pensions awards if service in the Armed Forces caused or substantially hastened death. The concept of substantial hastening is not defined and awards have been made in cases of death at age 80 years and 90 years plus, more than half a century after leaving service. Some of those cases, involving death due to heart failure, have been linked to alleged minor sports injuries for which there is no documented link to service. They were said to have inhibited mobility leading to obesity, and ultimately to heart failure.
In those examples, which I am reluctant to bring before the House, I am not disputing that the claimants were suffering from a medical condition, or their entitlement under the scheme. I am simply suggesting that a cause other than service is far more likely to have been the cause of the condition or death. It is our belief that, given the choice between focusing the money available more effectively on the more severely disabled due to service who are poorly provided for under existing arrangements, or covering conditions which in all probability do not have a service cause, the former should benefit. We cannot afford to do both.
Let me say a brief word about costs. If we were to insert into the new compensation scheme a burden and standard of proof more generous than we have announced, such as that used by the war pensions scheme, that would be expensive. As the House has heard, our latest actuarial assessment is that the total cost would run to over £300 million over 10 years, with

165
a continuing annual premium thereafter. To be clear, that sum is not a saving, as has been suggested in the past; it is an additional cost to the Government.
As I said, there is no saving as a result of changing the burden and standard of proof. Were we to accept the amendment, substantial additional money would be required over and above our broadly cost-neutral proposals. That is because we have taken the savings from the changed burden and standard of proof and used them to provide a better focus of benefits on the more severely disabled, a group who, as I have said, are badly served by current arrangements. The most obvious example of that is the award for the first time of cash lump sums for pain and suffering. For the most seriously disabled the lump sum could be up to £280,000—over 40 times the basic annual war pension paid for 100 per cent disablement.
Frankly, if opposition parties wish to press on with the amendment to introduce the burden and standard of proof, they need to make clear whether they would abandon the improvements for the more severely disabled, or whether they would be prepared to commit themselves to provide the additional funding required. We simply cannot begin to afford both to improve benefits for the more severely disabled and to maintain the current generous burden of proof within existing funds. Nor would it be right to do so. We are sure that the right decision must be to make better provision for the more severely disabled and not to pay benefits in an occupational scheme to cases where injury, illness or death is unlikely to have been caused by service.
It is important to recognise that no single element of the new pension and compensation schemes can be considered in isolation. The Bill provides for a long sought-after comprehensive package of new pension and compensation arrangements suitable for today's Armed Forces. These arrangements include provisions which represent very considerable improvements on the current schemes at a time when the wider pensions scene is one of reducing value of benefits.
The changes include very significantly improved widows' and widowers' pension benefits—a 25 per cent increase in the value of widows' pensions, and, as many of your Lordships have argued for many years, an increase in death-in-service benefit to four times pay from a maximum of one and a half times, which is a major step reflecting the particular risks of service life. And we have provided a much better focus of compensation benefits on the more severely disabled. Many of the improvements respond to concerns that have been voiced for years about the current arrangements.
However, I have to stress that in the Government's view the two new schemes can only proceed together; they support and complement each other in a balanced package designed to meet the needs of Armed Forces personnel and their families in the 21st century. I must remind the House that in this respect they have the full support of the present chiefs of staff. Significant changes to any area affecting either the coherence or the affordability of the schemes would inevitably cause
166
us to look again at the overall package and mean that we were unable to progress with some or all of the improvements it currently contains. What is on offer is an overall package that redistributes resources and that better meets our manning needs and employer responsibilities. It is just not affordable to keep the generosity of the old and the best of the new.
I have to tell the House that if the amendment is passed, the Government's view—this is not a threat—is that the Bill would not be viable. It would mean that the Bill would fall and the improvements would be lost. I do not believe that that is what your Lordships want, the Armed Forces want, or the country wants.
I accept that the Royal British Legion has been flexible in recent months in offering alternative formulations of burden and standard of proof arid I thank it for its assistance. However, the flexibility has not been all one way. We have made a number of changes to our proposals already to address the concerns of the Royal British Legion, and three in particular: first, an extended time limit for claims of five years instead of the three originally proposed; secondly, provision for exceptional review where deterioration of a condition is substantially greater than that which would normally be expected, and which was recognised in the original award; and, thirdly, agreement to report to Parliament annually on the scheme's operation.
In addition, and importantly, we will be consulting veterans' organisations on the detailed rules for the scheme before they are finalised, as set out in the draft statutory instrument. We are also willing to look with the Royal British Legion and other veterans' organisations at ways in which we can provide greater reassurance on the transparency and independence of the decision-making process, and provide greater support for claimants.
The noble Lord raised the issue of claimants. I can tell him that the Government have looked carefully at the legion's concerns that our proposal did not represent a fair balance of responsibilities between the claimant and the department. As I have explained before, our approach does not place the whole evidential burden on the claimant. The scheme rules will provide that the Secretary of State, or at appeal the Pensions Appeal Tribunal (PAT), will decide whether, on the basis of all the relevant evidence before them, it is more likely than not that the injury, illness or death is due to service. It will also include the claimant's service and medical records and any additional evidence obtained by the Secretary of State.
4.15 p.m.
We do not intend that claiming under the new scheme should feel different for claimants. We consider that it would be unreasonable to require the claimant to obtain evidence relating to his claim. That could be from any source, including his official service records. The scheme rules will therefore impose a duty on the Secretary of State to make available such evidence on request. Of course claimants are free to submit evidence as they think fit.
There will be the right of appeal. The PAT will of course have regard to the entire body of evidence, whether provided by the claimant or by the Secretary of State. We believe that that will place a responsibility on the Secretary of State to provide a credible response to any substantial evidence submitted by the claimant.
Lord Hodgson of Astley Abbotts: My Lords, I am grateful to the Minister for that very full response. Will the rules provide timescales? In other words, will there be rules to prevent the process being elongated? On the draft rules to be discussed with the veterans' organisations, will they require the MoD to reply within certain specified times?
Lord Bach: My Lords, I have not seen the draft rules. I am not in a position to be able to answer accurately. The draft rules will be open to discussion with veterans' organisations. If that is one of the points of concern, I am sure that it can be looked at very carefully. I am careful in the answer I give to the noble Lord, but I see no reason why that should not be looked at carefully.
MoD Ministers will take a close interest in the working of the scheme. Frankly, if it is not found to be delivering fair results, I can confirm to the House that the design of the arrangements will be reviewed. It remains our strongly held view that a beyond reasonable doubt standard of proof is not appropriate to a no-fault scheme and is out of line with current good practice. As I indicated in the examples, it delivers decisions that we believe can no longer be justified. We are confident that the revised statement of approach on this issue will ensure a fair division of responsibilites. Our work has indicated that no claim would fail where there is reasonable evidence of injury, ill health or death due to service.
I fully support the argument that we should recognise the unique and special contribution that our Armed Forces make by having a generous compensation scheme for injury or illness caused by service. It is important that we should concentrate our resources on cases where service is the likely cause and, in particular, focus our provision on the seriously disabled. That is what we are doing. The issue for the House this afternoon is whether, within existing funds, we should make improvements for the more seriously disabled or introduce the generous war pension scheme's standard and burden of proof.
We have no doubt that it is right to address the inadequate level of benefits for the more seriously disabled rather than extend benefits to those whose conditions are unlikely to have been caused by service. That is the choice the House has to make. The other place, the elected House, has made its views quite clear and on a point where affordability is, frankly, at the heart of the issue, I would ask noble Lords to accept this judgment.
Lord Astor of Hever: My Lords, the Minister mentioned a figure of £300 million over 10 years; that
168
is £30 million a year. Does he agree that every page of the actuarial report he mentioned is riddled with uncertainties and caveats?
Lord Bach: My Lords, of course I accept that actuarial reports are actuarial reports. I do not expect them to be as final as the noble Lord seems to indicate. I do not think that I could agree with the way he has put the matter.
The Countess of Mar: My Lords, does the Minister appreciate that by citing those two examples he is not demonstrating the wilfulness of former armed servicemen, he is demonstrating the weakness of the appeal system?
Lord Bach: My Lords, I am certainly not suggesting that anyone is being wilful at all. People are absolutely entitled to take account of the present scheme. That is their right and that is what those individuals did. I am telling the House that any scheme based on those principles cannot be right.
Viscount Slim: My Lords, before the noble Lord sits down, am I right in understanding that if the government measures are passed, he is prepared to have further talks with his honourable friend in another place, Mr Caplin, and the noble Lord, Lord Freyberg, to see whether there is some way forward? Would that include the pre-1973 position of widows who, as I have said, are on one-third of a miserable, miserly pension and will not be offered to buy in for half, or whatever? Will that come up in the discussion?
Lord Bach: My Lords, I am grateful to the noble Viscount. He will know that earlier in this House, the Government made a concession on pre-1973 widows—I know that he is referring to widows since that time. I cannot give him that guarantee. I can just repeat what my honourable friend Mr Caplin said in another place. He met the noble Lord, Lord Freyberg, and indicated to him that,
"we may be able to build on that meeting in future, when the Bill has received Royal Assent. I hope that, when that occurs, we can perhaps look at some of the other issues … During my discussions with Lord Freyberg and the Forces Pension Society, I have indicated that we are prepared to continue to consider the matter".—[Official Report, Commons, 20/10/04; cols. 939–940.]
I want to be absolutely straight with the House: those are the words that were used in the other place and I know that Mr Caplin stands by them.
Lord Garden: My Lords, before the noble Lord sits down, will he return to where he talked about those reluctant claimants? Would he not expect that with a more difficult approach to the burden of proof, their reluctance will turn in to their not being claimants at all, although they have a proper case?
Lord Bach: My Lords, I do not think that that will follow. It is important that the rules are laid out. We really want those who received injury due to service to get what they are entitled to and to try to make it easier for them to come forward, rather than less easy. That

169
is what we intend. I understand the point that the noble Lord makes, but we want servicemen injured in service to know their rights—perhaps to have them more clearly laid out to them than in the past—and it to be taken for granted that they will make a claim where such a claim is justified.
Baroness Strange: My Lords, before the noble Lord sits down, can he confirm his promise that if the Bill is passed, he will ensure that all pre-1973 war widows retain their pension for life?
Lord Bach: My Lords, the concession that we made earlier, which I think went halfway towards what the noble Baroness wanted, will stand, whether or not the Bill passes. I make that clear.
Lord Morris of Manchester: My Lords, I am grateful to all noble Lords who have spoken in the debate—including my noble friend—which has been one of high quality. He will not be surprised that I do not accept his submission to the House. The case that my noble friend cited of an ageing servicemen who claimed benefit for a soccer injury during his service is not only utterly remarkable but totally bizarre. To leave anyone with the impression that such a case is in any way common or even representative of an insignificant minority would be even more bizarre. What the ex-service community has asked for is examples of systematic abuse. The charge was that the war pensions scheme is now abused day after day at considerable cost to the taxpayer. The only example that we have now been given is the one that I have just cited which, as I said, is remarkable to the point of being totally bizarre.
The Prime Minister, the Chancellor and the Defence Secretary got it right in describing our Armed Forces as the best in the world. That is why they deserve the benefit of the doubt and an acceptable burden of proof. Parliamentarians have a compelling duty to ensure justice for those prepared to lay down their lives in our service and the dependants of those who do so. Indeed, we see that as our most compelling duty.
The clash this afternoon is not between Left and Right, but between right and wrong. Let us not be intimidated from doing what we believe to be right. I ask the House to approve the amendment.
4.25 p.m.
On Question, Whether the said amendment shall be agreed to?
Their Lordships divided: Contents, 94; Not-Contents, 140.

Division No. 1

CONTENTS

Addington, L.

Blatch, B.

Alton of Liverpool, L.

Boyce, L.

Astor, V.

Bradshaw, L.

Astor of Hever, L.

Brooke of Sutton Mandeville, L.

Beaumont of Whitley, L.

Chelmsford, Bp.

Biffen, L.

Chorley, L.

170

Clement-Jones, L.

Livsey of Talgarth, L.

Cox, B.

McNally, L.

Craig of Radley, L. [Teller]

Mar, C.

Craigavon, V.

Marsh, L.

Crickhowell, L.

Mayhew of Twysden, L.

Darcy de Knayth, B.

Methuen, L.

Dundee, E.

Michie of Gallanach, B.

Dykes, L.

Miller of Hendon, B.

Elton, L.

Monro of Langholm, L.

Erroll, E.

Montrose, D.

Fearn, L.

Morris of Bolton, B.

Ferrers, E.

Morris of Manchester, L. [Teller]

Finlay of Llandaff, B.

Murton of Lindisfarne, L.

Fitt, L.

Northbourne, L.

Flather, B.

Peyton of Yeovil, L.

Fookes, B.

Plumb, L.

Forsyth of Drumlean, L.

Rawlings, B.

Fowler, L.

Redesdale, L.

Freyberg, L.

Rees-Mogg, L.

Garden, L.

Renfrew of Kaimsthorn, L.

Gardner of Parkes, B.

Renton, L.

Glentoran, L.

Roberts of Conwy, L.

Greengross, B.

Russell-Johnston, L.

Griffiths of Fforestfach, L.

Sandwich, E.

Holme of Cheltenham, L.

Scott of Needham Market, B.

Hooper, B.

Selsdon, L.

Hooson, L.

Shutt of Greetland, L.

Howe, E.

Smith of Clifton, L.

Howe of Aberavon, L.

Steinberg, L.

Howe of Idlicote, B.

Stern, B.

Howell of Guildford, L.

Stoddart of Swindon, L.

Hunt of Wirral, L.

Thomas of Gresford, L.

Jacobs, L.

Ullswater, V.

Jenkin of Roding, L.

Vallance of Tummel, L.

Kalms, L.

Wade of Chorlton, L.

Kingsland, L.

Wallace of Saltaire, L.

Laidlaw, L.

Walmsley, B.

Lang of Monkton, L.

Watson of Richmond, L.

Lindsay, E.

Williams of Crosby, B.

Linklater of Butterstone, B.

Windlesham, L.

Liverpool, E.

Young of Hornsey, B.

NOT-CONTENTS

Acton, L.

Dearing, L.

Allenby of Megiddo, V.

Desai, L.

Alli, L.

Dixon, L.

Amos, B. (Lord President of the Council)

Drayson, L.

Dubs, L.

Archer of Sandwell, L.

Elder, L.

Ashton of Upholland, B.

Evans of Parkside, L.

Bach, L.

Evans of Temple Guiting, L.

Barnett, L.

Farrington of Ribbleton, B.

Bassam of Brighton, L.

Faulkner of Worcester, L.

Berkeley, L.

Filkin, L.

Bhattacharyya, L.

Fyfe of Fairfield, L.

Billingham, B.

Gale, B.

Bledisloe, V.

Gavron, L.

Borrie, L.

Gibson of Market Rasen, B.

Boston of Faversham, L.

Goudie, B.

Bramall, L.

Gould of Brookwood, L.

Bridges, L.

Gould of Potternewton, B.

Brooke of Alverthorpe, L.

Graham of Edmonton, L.

Brookman, L.

Gregson, L.

Burlison, L.

Griffiths of Burry Port, L.

Campbell-Savours, L.

Grocott, L.[Teller]

Carter, L.

Harris of Haringey, L.

Chan, L.

Harrison, L.

Christopher, L.

Hart of Chilton, L.

Clark of Windermere, L.

Haskel, L.

Clarke of Hampstead, L.

Haworth, L.

Cohen of Pimlico, B.

Hayman, B.

Corbett of Castle Vale, L.

Henig, B.

Crawley, B.

Hilton of Eggardon, B.

David, B.

Hogg of Cumbernauld, L.

Davies of Oldham, L. [Teller]

Hollis of Heigham, B.

171

Hughes of Woodside, L.

Prys-Davies, L.

Hunt of Chesterton, L.

Radice, L.

Hunt of Kings Heath, L.

Randall of St. Budeaux, L.

Irvine of Lairg, L.

Rendell of Babergh, B.

Jay of Paddington, B.

Richard, L.

Jones, L.

Richardson of Calow, B.

Jordan, L.

Rogan, L.

Judd, L.

Rooker, L.

Kirkhill, L.

Rosser, L.

Laird, L.

Rowlands, L.

Laming, L.

Royall of Blaisdon, B.

Lea of Crondall, L.

Sawyer, L.

Leitch, L

Scotland of Asthal, B.

Lipsey, L.

Sewel, L.

Lockwood, B.

Sheldon, L.

McIntosh of Haringey, L.

Simon, V.

McIntosh of Hudnall, B.

Smith of Leigh, L.

MacKenzie of Culkein, L.

Stone of Blackheath, L.

McKenzie of Luton, L.

Strabolgi, L.

Masham of Ilton, B.

Strange, B.

Mason of Barnsley, L.

Taylor of Blackburn, L.

Massey of Darwen, B.

Temple-Morris, L.

Maxton, L.

Thornton, B.

Tomlinson, L.

May of Oxford, L.

Triesman, L.

Merlyn-Rees, L.

Truscott, L.

Mitchell, L.

Tunnicliffe, L.

Molyneaux of Killead, L.

Turnberg, L.

Morgan, L.

Turner of Camden, B.

Morgan of Drefelin, B.

Varley, L.

Morgan of Huyton, B.

Wall, of New Barnet, B.

Parekh, L.

Walton of Detchant, L.

Paul, L.

Warner, L.

Pendry, L.

Weatherill, L.

Peston, L.

Wedderburn of Charlton, L.

Pitkeathley, B.

Whitaker, B.

Plant of Highfield, L.

Whitty, L.

Ponsonby of Shulbrede, L.

Williams of Elvel, L.

Prosser, B.

Woolmer of Leeds, L.

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

LORDS AMENDMENT
2 After Clause 6, Insert the following new clause"—
Post-retirement marriages
As of 6th April 2005 widows, widowers and surviving registered unmarried partners of all service personnel shall receive a full widows' forces family pension based on their spouses' or partners' length of service and final salary, provided that their marriage took place before the service personnel's 60th birthday."
The Commons disagree to this amendment for the following reason—
2A Because it would involve a charge on public funds, and the Commons do not offer any further reason, trusting that this reason may be deemed sufficient.
Baroness Crawley: My Lords, I beg to move that the House do not insist on its Amendment No. 2, to which the Commons have disagreed for their reason numbered 2A. For the convenience of the House, I propose to save my substantive remarks until I have heard what noble Lords have to say in this important debate.
Moved, That the House do not insist on its Amendment No. 2, to which the Commons have disagreed for their reason numbered 2A. (Baroness Crauley.)
Lord Freyberg2B Lord Freyberg rose to move, as an amendment to the Motion that this House do not insist on its Amendment No. 2, to which the Commons have disagreed for their reason numbered 2A, at end insert "but do propose the following amendment in lieu thereof—
2C After Clause 6, Insert the following new clause"—
Post-retirement marriages
As of 6th April 2005 widows or widowers over the age of 75 of all service personnel shall receive a full widows' forces family pension based on their spouses' reckonable service and final salary, provided that their marriage took place before the service personnel's 60th birthday.""
The noble Lord said: My Lords, I beg to move Amendment No. 2B. In doing so, I cannot pretend that I am not disappointed that my previous amendment was not carried in another place, because it attempted to address a longstanding injustice. I wish to take this opportunity to thank the Member for Aldershot, Mr Gerald Howarth, for his valiant support of my amendment in another place.
However, as the issue continues to create hardship for elderly and vulnerable widows, and because there are so few mechanisms and opportunities for correcting past injustices of this kind, I believe that it is right that I should ask noble Lords to consider a new version of my original amendment, which I hope will prove more acceptable for reasons of cost. My new amendment would apply only to those now over 75; in other words, to the spouses of the Second World War generation. Consequently, it will cost no more than around £7 million, and not the £50 million estimated for the previous amendment.
In speaking to my amendment, it may be helpful if I give noble Lords a quick outline of the relevant points. Prior to 1978, service personnel who married after retirement were not entitled to pass on a pension to their widow, no matter how many years they had served. The armed services have a unique retirement structure, and, although such a lack of provision was not exceptional in pensions of the period, the difference in the military is that 70 per cent of those entitled to a pension were and are compulsorily retired at or around the age of 40. That is not the case in any other branch of the public services. It means that service personnel marrying between the ages of 40 and 60 were put at a unique disadvantage to those in the rest of the public service, whose normal retirement age was 60 or 65.
It is not that the widows of such marriages get a small, inadequate pension: widows of post-retirement marriages receive no pension at all. Their husbands' years of service count for nothing, although that is not the case for those who married under the age of 40, who can provide for their widow. Such widows are therefore at a disadvantage compared to their contemporaries in the military and compared to those in the public services in general. It is particularly harsh for widows whose first husband was in the forces but subsequently died who have then got remarried to a retired serviceman. They lose their first husband's pension on remarriage, and their second husband can pass on no pension at all. There are many instances in which it applies.
Why should those in the services who have already sacrificed so much family life, and regularly face situations of great personal danger, be expected to accept financial insecurity for their widow, just because they marry after the age of 40 but before the usual retirement age of 60? It seems only fair that the armed services should be on a similar footing to those in the rest of the public services and not be doubly penalised, having had a shorter career in the first place.
The amendment would allow a pension to a post-retirement widow, provided that the marriage had taken place before the serviceman or servicewoman was 60 and that they are now over 75 years old. The age of 60 is also the end of the age of recall liability for the Armed Forces, at which people can be called up for active service.
The Government have repeatedly stated that making a concession in this case would have severe read-across consequences in the rest of the public services. In fact, only the police and the fire service have a standard retirement age that is earlier than 60, and it is only five years earlier at 55. It is also worth remembering that those in the armed services are expected to live and work abroad for long periods. That is not the case for any other public servants. In other words, different conditions prevail in the armed services, so it is only fair that pension provision should take such factors into consideration.
I must also dispel, in the strongest terms, the grotesque scare figures—£300 million to £500 million—that have been bandied about as possible read-across for allowing all public service post-retirement marriages to qualify for pension benefits. That is one of the reasons why the age cap of 60 is in the amendment. I stress again that it is only the Armed Forces who oblige most of their personnel to retire at around 40. That is not the case in any other public service, and it seems a pity that the Government wish to confuse the matter by pretending otherwise.
One of the other issues that the Minister has raised repeatedly is retrospection. I am pleased to note that the Government have been willing to break their own rules on occasion, when they recognise an injustice. For example, only last month, during debate on the Civil Partnership Bill, the Parliamentary Under-Secretary of State at the Scotland Office, Mrs Anne McGuire, stated:
"The regulations will provide equality, as they will allow registered same-sex partners to accrue survivor pensions in public service schemes from 1988".—[Official Report, Commons, 12/10/04; col. 250.]
That is obvious retrospection, and I applaud the Government for their good sense in choosing to right a perceived injustice, rather than dogmatically applying an unequal rule. I urge them to take the same path and apply the same logic in this case.
I also reiterate the fact that I am asking not for preferential treatment for the Armed Forces but for parity. The Armed Forces are expected to face different pressures from those faced by people in any other walk of life, as we see daily in Iraq. It is cruel that
174
the widows of those who married later in life should be singled out for harsher treatment and inferior pension provision.
4.45 p.m.
Some might think that I have already had my opportunity to ask the Government to act on the issue. In ordinary circumstances, I might agree, but the circumstances surrounding the amendment are not ordinary. First, I know that the Labour Party is sympathetic in principle to the issue. It supported an even fuller amendment nine years ago, when the issue last came up in the House. Secondly, the nine-year gap has brought it home to me how few opportunities there are to raise such matters, while those affected continue to suffer the ill effects. This may be the last occasion to do something about the situation while many of those affected are still alive.
Finally, the ultimatum given by the Minister in another place has acted more as a provocation than a deterrent. His suggestion, which the Minister in this House read out today, that, if I were to drop the amendment, he might—I stress "might"—be able to address the matter at a later stage is no great encouragement for me to abandon it. The widows affected deserve more than potential consideration. If, however, the Minister here or the Minister in another place were prepared to go beyond a mere "might" and give an undertaking to help the widows outside the Bill, I would be happy to withdraw the amendment. If that is not possible, it is only right that this House should speak up for widows who have no other means of communicating their plight and who want only to receive the normal pension for their spouse's many years of service. I beg to move.
Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 2, to which the Commons have disagreed for their reason numbered 2A, at end insert "but do propose Amendment No. 2C in lieu thereof".—(Lord Freyberg.)
Lord Fowler: My Lords, I strongly support what the noble Lord has just said. This injustice has been ignored by governments of both parties; it is not remotely a party issue. In 1978 and 1987, there was some action, but the injustice to some of the oldest widows survives and continues.
One example that was given to me concerns an Army officer—divorced, as it happened—whose wife married again. He left the Army and only then remarried. He died prematurely, leaving a widow with two young children. His widow received nothing and had to struggle to bring up the two children. Just for the sake of completeness, his first wife did not receive anything either. That is not the way that we should behave to a widow, particularly after distinguished military service by a spouse. That widow is now in her early 80s. There is nothing that we can do to put right the injustice of the past, but we can make some recompense to her and other widows like her. That is what we should do, and it is the purpose of the amendment. Justice and fairness require such action.

175
The arguments used against this sensible course are twofold. First, the Government say, as they said in the previous debate, that it would breach their policy of non-retrospection. That is a nonsensical argument. About this time yesterday, we were debating with regard to the Pensions Bill an action of retrospection that was being introduced by the Government; that was the purpose of the debate that we had. One or two noble Lords present now were present for that debate. There has been no rule, as far as concerns retrospection, and that issue should not detain us too long.
The second reason—crucial and conclusive for governments—is cost. That is why this Government have not moved and why the previous government did not move. There is no other real reason. It is just a matter of judgment. I pay tribute to those who have drafted the amendment. The cost has been significantly reduced, and the extent of the application of the provision has been severely limited. We are talking about widows over the age of 75. I do not think that it is pushing generosity too far by Parliament and this House to act generously towards them. It is a matter of judgment, but I think that this country and this economy could afford to incur the modest cost involved. I very much hope that they will because, as it stands, the policy is indefensible.
Lord Astor of Hever: My Lords, I, too, support the amendment and pay tribute to the noble Lord, Lord Freyberg. When the Bill returned to the other place, we put down an amendment that all existing widows and widowers of post-retirement marriages over the age of 70 would be entitled to pension rights based on their spouse's service. Indeed, we made a commitment to supply that provision.
Lord Morris of Manchester: My Lords, as we have heard, my good friend the noble Lord, Lord Freyberg, was told by the Minister in another place that, if any amendment was approved by your Lordships on this issue today, even the extremely modest amendment he has just moved, with all his customary skill and concern, the Bill would fall. Does that still apply? Can we be told before this debate concludes whether it does?
Baroness Howe of Idlicote: My Lords, I wish also to support the amendment of my noble friend Lord Freyberg. As has been said, it really has been reshaped in a much more modest way. As we are near 11 November, it seems to be the right time and appropriate to redress this clear injustice. I would even name it indirect discrimination because the vast majority of widows and widowers are, in fact, affected. The case has been extremely well made. I very much hope that the Government, on reflection, will not just give an assurance but will agree to the amendment.
Lord Boyce: My Lords, we are in grave danger of repeating ourselves; the need for this is so obvious that it is inevitable. However, the new constraints drawn
176
around the amendment mean that we are dealing with a very small number of people and a relatively small sum of money. It really would be invidious not to look after them, especially given that their pensions have been paid for by their spouses over time. Surely the Government must see that this is a reasonable thing to do.
Lord Redesdale: My Lords, I am absolutely certain that the Minister will stand up and say—as she did many times in earlier stages—that she has to reject the amendment. But it has much merit: indeed, my name was attached to the amendment that went to the Commons. Perhaps I may commend the tenacity of the noble Lord, Lord Freyberg, on the way that he has pushed this issue—not just at this stage, but over a number of years—in this House. His argument has a great deal of merit.
The major problem that we face today is that the Government will say that they cannot accept this amendment because it will not be accepted in another place due to privilege. That, I believe, is a case which we cannot answer. Therefore, even if this amendment is passed, it will not be taken up by another place. However, as the noble Baroness, Lady Howe, pointed out, it is important that the Government understand that there is a great deal of feeling on this issue.
I was very moved by a letter that I received after the victory that this House imposed on the Government last time. A widow wrote saying that although she believed we would not be able to take the issue much further, she was heartened by the fact that for the first time in dealing with the MoD, it was not a matter that could be just brushed under the carpet.
The Minister implied to the noble Lord, Lord Freyberg, that something could be done outside the terms of the Bill. It would be helpful if he could convey the feelings that those widows have; that this is an issue that is not taken seriously by the MoD. Even if the Minister is unable to deal with it today, perhaps the noble Baroness may be able to say that something will be done in the future. I hope that she will not just use the privilege aspect and say that this can no longer be taken forward, but that the Government will do something positive.
Lord Vincent of Coleshill: My Lords, in the light of the very brief reason that was given in another place for the rejection of this amendment—namely, that,
"it would involve a charge on public funds"—
I should like to ask two questions relating to the precondition imposed at the outset of this Armed Forces pension review that the outcome should be "cost neutral".
My first question relates to the principles of equality and fairness on which a cost neutral condition was determined in the first place. I ask this because when the then proposed parliamentary pension scheme was debated in the other place shortly before its introduction, the question was raised as to how that very generous scheme was to be funded. The three-word answer recorded in Hansard states, "By the Exchequer".

177
Why then, in order to modernise important aspects of the Armed Forces Pension Scheme, including this proposed amendment and, not least, the death-in-service benefit where the parliamentary scheme is currently four times more generous, should the Armed Forces scheme now have to make compensating reductions or reject other amendments to pay for it when the parliamentary scheme costs fell entirely to the Exchequer?
My second question is more specific. Does the cost-neutral requirement of this review take account of the fact that between 1 April 1990 and 1 July 2004 the strength of the regular Armed Forces was reduced by one-third? Between the start of this review in 1998 and the implementation of the latest announced reductions that will be fully in effect by 2008, they will have fallen by 10 per cent. Should not the effect of those force reductions on reducing enormously the overall pension liability to the Armed Forces as they get smaller be permitted to count as a contribution towards cost neutrality?
On that basis, I would surely hope that we could cover the cost of this latest alternative amendment proposed by my noble friend Lord Freyberg.
The Earl of Erroll: My Lords, I want to add to the point about cost. I sat through part of the Pensions Bill yesterday. I cannot believe that we are arguing about a small amount of money to look after some war widows when yesterday there was a proposal that the Pensions Regulator should have non-contributory, index-linked, final salary pensions that can even be paid to non-executive directors, which is not normal elsewhere. I find it very difficult to understand how we could do that on the one hand and then, on the other hand, the next day cry "cost".
Lady Saltoun of Abernethy: My Lords, I, too, pay tribute to my noble friend for his tenacity. He is a dog who does not let go of his bone very easily. We are continually told that one of the reasons for amalgamating regiments is that recruiting is so bad. When the Government treat the dependents of people who make a career in the Armed Forces in this way, what do they expect? People are not stupid. When people think about making a career in the Army, the Royal Navy or the Royal Air Force, they are bound to consider pension arrangements in the future. I do not think that this will help.
Viscount Slim: My Lords, I should very much like put on the record the attitude of almost "uncaring arrogance" of those in another place in matters like this and that they merely put at the bottom of the page that the Exchequer will not pay. I note, and I wish it noted, that in another place, quite often just lately—three or four times—they have improved their pensions and, particularly, what happens to their widows when they die: I see that they make clear that that is no burden on the Exchequer. Those in another place have a lot to answer for.
5 p.m.
Baroness Crawley: My Lords, despite the many strong and passionately held views to the contrary that we have heard in this debate, I remain very clear that the House should agree with the Commons reason for disagreement with Lords Amendment No. 2. I repeat the words on the Marshalled List:
"Because it would involve a charge on public funds, and the Commons do not offer any further Reason, trusting that this reason may be deemed sufficient".
The reason makes it clear that the Commons disagree because of the additional cost of some £50 million to give the benefits described in the Lords amendment carried at Third Reading. The House is familiar with the arguments. I explained them in my speech in that debate. My noble friend has also given a clear explanation of why this figure would have to be paid by the Ministry of Defence to the Treasury. It would cover the years of service in the Armed Forces before post-retirement pensions were introduced in April 1978 for widows and October 1987 for widowers. I am afraid that there is no getting away from this additional charge, even if we were to make payments from a future date.
As the House knows well, we would expect this figure to rise to some £300 million to £500 million across government as a whole because the implications for other public service schemes would remain. It would not be possible to limit any concessions only to the Armed Forces.
My honourable friend in another place, the Minister for Veterans, told the Commons on 20 October about his constructive meeting with the noble Lord, Lord Freyberg. I understand that they agreed that it would be helpful to build on that meeting in the future, after the Bill has received Royal Assent. The Minister made it clear that he was prepared to give further consideration to this matter in those circumstances. I hope that, by restating that clarification, I am being helpful to noble Lords. However, obviously I cannot go beyond the words of my honourable friend, as the noble Lord, Lord Freyberg, has asked me.
I turn now to the further amendment proposed by the noble Lord, Lord Freyberg. The changes he has made, while reducing the cost of the proposal, do not have a material effect on the reason for disagreement. While it has not been possible in the time available to cost the amendment in any detail, the following points should be considered. First, the exclusion of unmarried partners brings no specific cost saving as we were unable to calculate the liability, given that we have no details of subsequent cohabitations. It did not form part of the £50 million figure. Secondly, while the amendment limits the age at which the improved benefits can be paid to age 75, in reality the age at which the majority of former service personnel might be expected to die and their widow's pension come into payment is in their seventies, so little is likely to be saved. For those widows or widowers below this age at the time of change, it will delay the payment of improved benefits until they reach this age, but the numbers affected are relatively small.

179
If carried, the amendments would impose an entirely arbitrary age limit, hedged about with qualifications which would not be defensible over time. It would, in short, be an untenable approach to legislation. To restrict benefits solely to those over the age of 70, while I am sure it is well intentioned, makes no sense at all in policy terms and would be at odds with our commitment to observe the principles of age discrimination legislation, where this is reasonable. For those reasons, I cannot agree with the noble Lord's amendment.
Viscount Bledisloe: My Lords, my noble friend Lord Freyberg gave clear reasons why the position of the services was different from any part of the public sector. He pointed out, first, that service personnel have to retire at age 40 and, secondly, that many will have served much of their time overseas, and thus probably would have found it difficult to marry during that period. The noble Baroness has not dealt with those reasons; she has merely said that it is impossible to distinguish between service personnel and the other sectors. Will she honour the House with an explanation of why she has said that?
Baroness Crawley: My Lords, the Government do not agree with the noble Lord, Lord Freyberg, in his assertion that there would not be a read-across from this section of the public service to the rest of the public service. I am afraid that it is as simple as that.
I have been asked a number of questions which I shall do my best to answer. The noble Lord, Lord Freyberg, talked about the change in the terms of the amendment, reducing costs from £50 million to £7 million. I should say to him in reply that we do not have a precise figure for the saving that would result from the change in the wording of the amendment, but we are confident that that saving would be nowhere near as great as indicated by the noble Lord. That is because, as I pointed out in my earlier response, most of the widows concerned would not be widowed until their seventies and would be expected to live into their eighties. The major cost issue which we have just been talking about is the wider implication for the public service, where we expect the costs to run to several hundred million pounds.
The noble Lord also asked about the issue of retrospection, specifically in the context of concessions we made earlier in the passage of the Bill—addressing the issue raised by the noble Baroness, Lady Strange. That concession would affect only those who remarry in the future, not those who have already remarried. In that sense, therefore, we do not see this as retrospection. Moreover, in the matter of retrospection, we are following a position that has been established by many governments.
The noble and gallant Lord, Lord Vincent, asked about cost neutrality. I would say to him that it is not the case that the parliamentary scheme is simply a matter of the Exchequer picking up the bill. The
180
parliamentary scheme is contributory, and the level of both contributions and pay take into account the value of the benefits offered under the scheme.
The noble and gallant Lord also asked me about reducing the numbers serving in the Armed Forces. The assessment of the costs of providing scheme benefits is based on an individual's entitlement, and cost neutrality relates to that. It is not sustainable to argue that reducing numbers would allow more valuable benefits. Moreover, wider defence costs would need to be taken into account when looking at the scheme.
I hope that I have covered the points made by noble Lords. For the reasons I have given, I cannot agree with the amendment tabled by the noble Lord, Lord Freyberg, and do agree with the Commons reason for disagreement.
Lord Morris of Manchester: My Lords, I am extremely grateful to my noble friend for the care with which she has explained her position. Can she answer my question: if the amendment of the noble Lord, Lord Freyberg, is carried, would it involve the dumping of the Bill? I understand from the noble Lord that he was told by a Minister in another place that acceptance here of his amendment would involve withdrawal of the Bill altogether. Is that still the case?
Baroness Crawley: My Lords, not having been privy to the discussions, I understand that that never was the case.
Lord Burnham: My Lords, if cost is the reason why the amendment should not be accepted at the moment, why might things be different if further consideration is given to the issue after the Bill has received Royal Assent? What will have changed?
Baroness Crawley: My Lords, I can only repeat that a discussion has taken place between my honourable friend in another place and the noble Lord, Lord Freyberg. That discussion has been put on the record, both in this House and in another place. I cannot go beyond that discussion.
Lord Bramall: My Lords, am I right in thinking that, as this is a legacy issue, it does not have to be on the face of the main enabling Bill? Why cannot this matter be treated as a completely separate subject and the Bill go forward on its own and quite separately?
Baroness Crawley: My Lords, the noble and gallant Lord is right: the matter addressed by the amendment does not need to be in the Bill. I therefore refer noble Lords to the willingness of the Government to discuss these matters beyond the Bill.
Lord Freyberg: My Lords, I thank all noble Lords who have spoken in support of the amendment today and the Minister for her consideration of this matter, whatever her views. I am sorry that she was unable to give a greater commitment than the one she has given from the Dispatch Box about looking at this subject

181
outside the Bill. This issue has vexed me for some time and, because the Minister was unable to say more than he "might" look at it, I have felt compelled to bring forward the amendment today.
I feel that it is more important to right an injustice than to stick to a rule that was unfair when it was first made and has had an increasingly punitive effect ever since. I have made every effort to frame the amendment in a way that will cost the Government as little as possible. I know that there is a difficulty with costing because no figures are available. The figure of £million came to me from the Forces Pension Society, and that is all I can quote today.
In the week before Remembrance Sunday, I should like to remind the House that those affected by this issue are mostly widows of Second World War servicemen who fought for a pensionable length of time—for around two decades—and endured great hardship without being able to provide for their wives in the event of their death, through no fault of their own and in contrast to contemporary colleagues in less arduous positions. I hope the House will grasp this late opportunity to help such a vulnerable group. In those circumstances, I should like to test the opinion of the House.
5.14 p.m.
On Question, Whether the said amendment shall be agreed to?
Their Lordships divided: Contents, 149; Not-Contents, 126.

Division No. 2

CONTENTS

Addington, L.

Darcy de Knayth, B.

Allenby of Megiddo, V.

Denham, L.

Alton of Liverpool, L.

Dixon-Smith, L.

Anelay of St Johns, B.

Dundee, E.

Astor, V.

Dykes, L.

Astor of Hever, L.

Eden of Winton, L.

Attlee, E.

Elliott of Morpeth, L.

Beaumont of Whitley, L.

Elton, L.

Biffen, L.

Erroll, E.

Blaker, L.

Falkner of Margravine, B.

Blatch, B.

Fearn, L.

Bledisloe, V.

Ferrers, E.

Bowness, L.

Finlay of Llandaff, B.

Boyce, L.

Flather, B.

Bradshaw, L.

Fookes, B.

Brooke of Sutton Mandeville, L.

Forsyth of Drumlean, L.

Brougham and Vaux, L.

Fowler, L.

Burnham, L.

Freeman, L.

Buscombe, B.

Freyberg, L. [Teller]

Byford, B.

Garden, L.

Carnegy of Lour, B.

Gardner of Parkes, B.

Carrington, L.

Glentoran, L.

Chelmsford, Bp.

Greengross, B.

Clement-Jones, L.

Griffiths of Fforestfach, L.

Colville of Culross, V.

Hamwee, B.

Colwyn, L.

Hayhoe, L.

Cope of Berkeley, L.

Higgins, L.

Courtown, E.

Hodgson of Astley Abbotts, L.

Craig of Radley, L. [Teller]

Holme of Cheltenham, L.

Craigavon, V.

Hooper, B.

Crathorne, L.

Hooson, L.

Crickhowell, L.

Howe, E.

182

Howe of Aberavon, L.

Rawlings, B.

Howe of Idlicote, B.

Razzall, L.

Howell of Guildford, L.

Redesdale, L.

Hunt of Wirral, L.

Rees-Mogg, L.

Jenkin of Roding, L.

Renfrew of Kaimsthorn, L.

Jopling, L,

Renton, L.

Kimball, L.

Richardson of Calow, B.

Kingsland, L.

Rix, L.

Kirkham, L.

Roberts of Conwy, L.

Laidlaw, L.

Rogan, L.

Laing of Dunphail, L.

Russell-Johnston, L.

Lester of Herne Hill, L.

Saltoun of Abernethy, Ly.

Linklater of Butterstone, B.

Sandberg, L.

Liverpool, E.

Sandwich, E.

Lucas, L.

Seccombe, B.

McColl of Dulwich, L.

Selsdon, L.

Mackie of Benshie, L.

Sharman, L.

McNally, L.

Sharples, B.

Maginnis of Drumglass, L.

Shaw of Northstead, L.

Shutt of Greetland, L.

Mar, C.

Simon of Glaisdale, L.

Marlesford, L.

Mayhew of Twysden, L.

Skelmersdale, L.

Methuen, L.

Slim, V.

Michie of Gallanach, B.

Smith of Clifton, L.

Soulsby of Swaffham Prior, L.

Miller of Hendon, B.

Steinberg, L.

Monro of Langholm, L.

Stoddart of Swindon, L.

Monson, L.

Strange, B.

Montrose, D.

Swinfen, L.

Morris of Bolton, B.

Tenby, V.

Morris of Manchester, L.

Thomas of Gresford, L.

Mowbray and Stourton, L.

Tope, L.

Murton of Lindisfarne, L.

Trumpington, B.

Noakes, B.

Ullswater, V.

Northbourne, L.

Vallance of Tummel, L.

Northover, B.

Vincent of Coleshill, L.

O'Cathain, B.

Waddington, L.

Palmer, L.

Wade of Chorlton, L.

Peel, E.

Walmsley, B.

Perry of Southwark, B.

Watson of Richmond, L.

Peyton of Yeovil, L.

Weatherill, L.

Plumb, L.

Williams of Crosby, B.

Prashar, B.

Williamson of Horton, L.

NOT-CONTENTS

Acton, L.

Desai, L.

Alli, L.

Dixon, L.

Amos, B. (Lord President of the Council)

Drayson, L.

Dubs, L.

Archer of Sandwell, L.

Evans of Parkside, L.

Ashton of Upholland, B.

Evans of Temple Guiting, L.

Bach, L.

Farrington of Ribbleton, B.

Barnett, L.

Faulkner of Worcester, L.

Bassam of Brighton, L.

Filkin, L.

Bhattacharyya, L.

Fyfe of Fairfield, L.

Billingham, B.

Gale, B.

Blackstone, B.

Gavron, L.

Boothroyd, B.

Gibson of Market Rasen, B.

Borrie, L.

Giddens, L.

Boston of Faversham, L.

Goudie, B.

Brooke of Alverthorpe, L.

Gould of Potternewton, B.

Brookman, L.

Graham of Edmonton, L.

Brooks of Tremorfa, L.

Griffiths of Burry Port, L.

Burlison, L.

Grocott, L. [Teller]

Campbell-Savours, L.

Harris of Haringey, L.

Carter, L.

Harrison, L.

Christopher, L.

Hart of Chilton, L.

Clark of Windermere, L.

Haskel, L.

Clarke of Hampstead, L.

Haworth, L.

Clinton-Davis, L.

Hayman, B.

Cohen of Pimlico, B.

Henig, B.

Corbett of Castle Vale, L.

Hilton of Eggardon, B.

Crawley, B.

Hogg of Cumbernauld, L.

David, B.

Hollis of Heigham, B.

Davies of Oldham, L. [Teller]

Hoyle, L.

183

Hughes of Woodside, L.

Radice, L.

Hunt of Kings Heath, L.

Randall of St. Budeaux, L.

Irvine of Lairg, L.

Rendell of Babergh, B.

Jay of Paddington, B.

Richard, L.

Jones, L.

Rooker, L.

Jordan, L.

Rosser, L.

Judd, L.

Rowlands, L.

Kirkhill, L.

Royall of Blaisdon, B.

Leitch, L.

Sainsbury of Turville, L.

Lipsey, L.

Sawyer, L.

Lockwood, B.

Scotland of Asthal, B.

McDonagh, B.

Sewel, L.

McIntosh of Haringey, L.

Sheldon, L.

McIntosh of Hudnall, B.

Simon, V.

MacKenzie of Culkein, L.

Smith of Leigh, L.

McKenzie of Luton, L.

Stone of Blackheath, L.

Mason of Barnsley, L.

Symons of Vernham Dean, B.

Massey of Darwen, B.

Taylor of Blackburn, L.

Maxton, L.

Temple-Morris, L.

Thornton, B.

Merlyn-Rees, L.

Tomlinson, L.

Mishcon, L.

Triesman, L.

Mitchell, L.

Truscott, L.

Morgan of Drefelin, B.

Tunnicliffe, L.

Morris of Aberavon, L.

Turnberg, L.

Murphy, B.

Turner of Camden, B.

Parekh, L.

Wall of New Barnet, B.

Peston, L.

Warner, L.

Pitkeathley, B.

Wedderburn of Charlton, L.

Plant of Highfield, L.

Whitaker, B.

Ponsonby of Shulbrede, L.

Whitty, L.

Prosser, B.

Williams of Elvel, L.

Prys-Davies, L.

Woolmer of Leeds, L.

Puttnam, L.

Young of Norwood Green, L.

Resolved in the affirmative, and amendment agreed to accordingly.
Motion, as amended, agreed to.

Domestic Violence, Crime and Victims Bill [H.L.]
5.25 p.m.
The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, I beg to move that the Commons amendments be now considered.
Moved accordingly, and, on Question, Motion agreed to.

COMMONS AMENDMENTS
[The page and line references are to Bill 83, the Bill as first printed for the Commons.]

COMMONS AMENDMENT
1 Page 3, line 12, leave out subsection (2).
Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1.
During earlier discussion on the Bill, your Lordships voted to insert a requirement into the familial homicide offence that courts should have particular regard to the extent to which defendants may have been the victims of domestic violence. The reasons for this were clear. We all agreed that victims of domestic violence need help and protection. None
184
of us wants to see them suffer further because the consequences of violence have left them unable to protect a loved one.
The Bill is one aspect of a huge programme of work the Government have undergone to tackle domestic violence, raise the profile of the issue and create a situation where it is no longer acceptable. Noble Lords will know of much that we have already done: the launch of the national domestic violence freephone helpline and online database in December 2003 and the national Home Office-led awareness-raising campaign around the new national domestic violence freephone helpline. The comprehensive campaign included posters, radio adverts, national surveys and covered themes such as pregnancy and domestic violence through a national survey to all midwives issued by the Royal College of Midwives, with a press conference of the results.
The black cab awareness-raising campaign launched in April 2003 comprised over 1 million taxi receipts with the helpline numbers, 325 tip-up seats, a checklist for cab drivers, a liveried cab and mandatory induction for awareness raising for all new cab drivers. This is still continuing and has had very good results in the evaluation of the campaign.
We have funded awareness-raising material for black and minority ethnic groups around the issues of marriage and honour crimes. A package of measures was announced last week to tackle forced marriages.
Christine Mann has been appointed as the national co-ordinator for health and mental health on domestic violence. This was done through the joint partnership between the Home Office, NIMHE and the Modernisation Agency.
In addition, the Bristol routine antenatal pilot results have been fed into the Children's National Service Framework with recommendations for routine inquiry.
Much work has been done to make sure that everyone is aware of the insidious and destructive nature of domestic violence, and that there is proper training for those who participate as professionals in dealing with this matter, whether the police, probation officers, courts, judges and others.
The requirement which your Lordships inserted would not, if I may respectfully say so, have provided additional protection for those who may have suffered such violence. The offence of familial homicide already contains safeguards for defendants who may be vulnerable. Defendants will be liable for the defence only if they have failed to take such steps as they could reasonably have been expected to take in their particular situation.
Noble Lords will know that each situation is likely to be slightly different from another. This will mean that all their circumstances must be taken into consideration so the full circumstances of domestic violence should come out in the case both during investigation and in the court during any discussion about what reasonable steps were, in a particular circumstance, open to the defendant which he could have taken but failed to take, and matters of that sort.

185
A further requirement on the court to take account of whether the defendant has been a victim of domestic violence or is in fear of such violence would merely make it more difficult, if I may respectfully suggest, to prosecute the offence and ensure the right charges and punishments for the person who caused the death.
5.30 p.m.
The practical effect of the requirement would be to undermine the "reasonable steps" test by implying a different test for the victims or potential victims of domestic violence. There are whole groups of people who may have very limited steps which they in their circumstances could take to protect the victim. Young or very old members of the household, or those suffering from a physical or mental disability, for example, may be limited in the steps that they can take. The court should be free to take all the circumstances of the case into account. As the offence is drafted, the steps which an individual defendant could reasonably have taken will depend on the individual circumstances of each case. If "particular regard" is to he had to domestic violence or the fear of it, what regard is to be had to all the other reasons that a defendant may have had for failing to protect the victim?
A further difficulty is that the term "domestic violence" can be interpreted widely, and the requirement would have been for the courts to take into account violence or fear of violence. That might lead us down the wrong path where a defendant might claim to be afraid of violence in order to escape the just retribution of the law for allowing the death of a child or a vulnerable adult. We do not want to discourage victims from coming forward, but nor do we want to encourage unfounded accusations of abuse to be made simply to muddy the waters in the case.
It is important that we are clear—being the victim of domestic violence does not absolve one of the responsibility to protect a child or vulnerable person who is at risk and who is depending on one for help. It is only by making sure that people face up to their responsibility that we can do justice to the vulnerable person who has died. If we make exceptions we accept that the current situation will continue, and murders will go unsolved and murderers unpunished. It is important to remember that many who are subjected to domestic violence find the courage to change and stand up to that violence only when someone who is vulnerable and whom they love very dearly is put under threat. That is usually the catalyst that causes—often the woman—to say, "I will take the violence for myself, but I absolutely refuse to allow my child to become subject to it". That is important for us to remember because there is a tension between two potentially vulnerable people.
The second part of the amendment proposed by the noble Baroness, Lady Anelay, would go even further. It mirrors an amendment that was put down in the other place and rightly rejected. It would mean that in cases where a defendant has suffered domestic violence, we would not be able to prosecute that
186
person unless there was evidence that they had actively contributed to the death. If we knew they had actively contributed to the death, we would of course expect them to be charged with murder or manslaughter, or at least aiding and abetting murder or manslaughter. That part of the amendment would most clearly make the offence unworkable and leave the "which of you did it" problem unresolved.
Where a domestic violence victim has done all that they reasonably can to protect someone in their care, we want them to come forward and say so. And in doing so they not only allow justice to be done for the victim who has died; they allow justice to be done for the violence which they themselves have suffered, which if not tackled will probably continue. This measure will help women to make what is often the toughest decision that anyone is asked to make—the decision to speak out about violence, not only on behalf of the victim who has died, but on their own behalf. If we look at the research we find that women suffer an average of 35 assaults before they are willing to speak out. Some women speak out on the first occasion but how many times do other women suffer and remain silent?
We appreciate how difficult it may be for the defendant to talk about domestic violence and sexual abuse, especially following a trauma such as the death of a child. Such difficult circumstances were discussed at length in the other place. We believe that the guidance which will be issued to police and prosecutors when implementing this new offence and the other ongoing police and prosecutor training will create circumstances which will allow and encourage those victims to speak up at an early stage. New guidance on investigating domestic violence has been produced by the National Centre for Policing Excellence under the auspices of ACPO, backed by a modular training programme. The guidance contains advice on all stages of an investigation and emphasises that officers should be vigilant to domestic violence when investigating child and vulnerable adult abuse—and for child abuse when investigating domestic violence, given the concurrence between domestic violence and child abuse. The guidance on policing domestic violence will be launched by the Assistant Chief Constable, Jim Gamble, who is the ACPO portfolio holder, at ACPO's domestic violence conference on 10 November.
In addition, the Home Office is funding the development of a training package to promote clear and consistent sexual assault protocols and national standards for professionals coming into contact with victims of sexual assault, to be used by health professionals and police officers. In conjunction with the Magistrates' Association, the Judicial Studies Board has produced a training pack for magistrates called "Domestic Violence: An Ordinary Crime?" which is being delivered across the country.
The CPS's policy and guidance documents on domestic violence are being revised and will take account of the provisions of the Bill, including the familial homicide offence. The new, national joint Crown Prosecution Service and CENTREX training

187
programme will be completed by the end of December 2004. Domestic violence training is also being delivered to the lawyers seconded to CPS Direct.
I hope that the House will recognise that the "reasonable steps" test already affords victims of domestic violence and other vulnerable defendants the necessary protection within the offence, and that the Government are taking steps to ensure that as the new offence is implemented there will be the opportunity for those victims to speak out.
I can reassure the House that one of the things that we have to celebrate is that, throughout the country through the work done by the national board and the local criminal justice board, domestic violence is now in its proper place. It is seen as a violent offence. That can make a real difference if one wants to reduce the number of offences committed and reduce the gap that there is at the moment between those brought to justice and those who go free. It is making a difference. However, with this offence, I urge that it is best for us to leave it to the courts to look at all the factors in the case, and not to single out certain circumstances as being more deserving of consideration than others.
Your Lordships raised very real concerns, and these were understandably echoed in the other place, but I respectfully say that we have got the balance of the offence right as it now stands. I invite your Lordships to accept this amendment.
Moved, That the House do agree with the Commons in their Amendment No. 1.—(Baroness Scotland of Asthal.)
Baroness Anelay of St Johns Baroness Anelay of St Johns rose to move Amendment No. 1A, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 1, leave out "agree" and insert "disagree".
The noble Baroness said: In moving this amendment, I shall also speak to Amendments Nos. 1B, 1C and 1D, which I tabled in lieu of government Amendment No. 1. I thank the Public Bill Office for its kind assistance in giving me guidance on how to get through the various rules for consideration of Commons amendments. I could not have done without that help.
Before I address the issues raised by the amendments, it is right for me to refer briefly to the problems that noble Lords will no doubt face today as a result of the Government's handling of the Bill in another place. I make it clear that I do not in any way reflect on the admirable handling of the Bill in this House by the noble Baroness, Lady Scotland.
It is certainly an age since we last considered these matters. Indeed, the Bill left this House on 25 March and wended its way through another place in a somewhat dilatory fashion. The only speed that ever seemed to occur happened just before a Committee day, when the Government would table yet more amendments at the last minute. Because the Government have used the Bill as a skip into which to
188
toss extra gifts from the Home Secretary, we now face a Bill that is twice as long, with regard to the text, as that first introduced into this House.
Another 19 clauses and the odd schedule or two face us today. The Government launched a consultation on some of those new clauses after the Bill had started its life here and in the full knowledge that the timing that they had set meant that this House could not consider those new clauses at any stage before the Lords consideration of the Commons amendments. That makes debate today somewhat stilted and difficult. Therefore, I hope that the Government will be able to continue the example that the Minister has just set by giving the House a full and clear explanation of some of the new clauses that we shall deal with today—although we are dealing with an old friend, in this amendment.
With regard to my amendments, I echo exactly the Minister's opening sentiments when she made it clear that none of us could tolerate the death or abuse of a child, and that when two people know who committed that crime and have a responsibility, it is right that they should pay for that responsibility by being properly prosecuted. Our only differences throughout have been on the basis of how that process should be dealt with. The Minister will recall that one of our difficulties was that we felt that the Government, in abandoning the Law Commission's proposals and coming up with something else, which seemed a bit of a mish-mash—to use unparliamentary language—had ended up satisfying nobody.
Today we return to the issue of how much recognition there should be of the vulnerability of domestic violence victims, when they find themselves accused of the new offence that the Government have created in Clauses 4 and 5, whereby someone has to show that they have taken reasonable steps to ensure that a child or vulnerable adult within their sphere of action or household has not suffered death.
As the Minister was speaking, I crossed out virtually the whole of my speech in response. The attention to detail that she gave today has met most, if not all, my objections. The Government have perhaps refined their stance—it is narrowed down to saying that they object to the fact that I am being unfair in singling out one particular group of people to be given special mention. I certainly did not apologise for that in the first instance, as I believe that victims of domestic violence are worthy of mention. But I agree with the Minister that there are difficulties when one gives special mention in court circumstances to particular groups.
I am aware that it is very difficult for amendments such as mine to go into the Bill, given that we were unable between us in Committee and Report to come to any agreement as to the definition of "domestic violence". I suspect that we shall return to that constructive debate on many future occasions, and I hope that at some time we shall resolve it between us.
I was reassured by the detailed information that the Minister gave with regard to the action that the Home Office is taking. I am always very sceptical about

189
Home Office initiatives. For one thing, the Home Office seems to announce them about four times before actually doing them—but never mind. We have a date in November for the announcement of the police launch of guidance. That is most welcome indeed. Certainly the JSB training for magistrates will be needed before any of the provisions can be put into practice. We welcome all that good practice.
Of the two amendments that I tabled today, the first intentionally simply changes by one word my original amendment, so it will seen by the Government not to be threatening them. The second amendment, which the Minister dismissed, was tabled simply because in another place there was no time to speak to it, so the Minister had no opportunity to explain why the Government objected to it. The Minister has done so today, and I accept her explanation. Although at this stage I must formally move the amendment, I do so in the happy expectation that I shall soon withdraw it.
Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 1, leave out "agree" and insert "disagree".—(Baroness Anelay of St Johns.)
Baroness Walmsley: My Lords, we on these Benches associate ourselves with the words of the noble Baroness, Lady Anelay. We all agree in this House that we totally abhor anyone who culpably does anything to kill a child or vulnerable adult. However, we very much support the spirit of Amendment No. 1C. We feel that there is a good reason for mentioning particularly the effect of domestic violence on someone who finds herself in a household where, unfortunately, a child is physically abused and killed, simply because of the very frequent correlation between domestic violence and abuse of a child and what we all know of the effect of that violence on the person—usually the mother.
I am afraid that I cannot really accept what the Minister says, that if one takes particular account of one reasonableness test, the court will not then take account of others. I believe that the court certainly would take account of others. The correlation is so high and the effect so marked in this particular case, that we feel that there is a great deal of merit in Amendment No. 1C tabled by the noble Baroness, Lady Anelay. That is why we support it.
Baroness Scotland of Asthal: My Lords, of course, I hear what the noble Baroness, Lady Walmsley, has said. I thank the noble Baroness, Lady Anelay, for the way in which she proposed her amendments, and I understand the sentiments behind them.
With regard to the point made by the noble Baroness, Lady Walmsley, the very fact that there is that marked correlation presents us with a difficulty. The noble Baroness will know that, tragically, many cases in which familial homicide takes place are situations in which violence or a high level of dysfunction have occurred in that family. From my
190
own knowledge, I can think of few cases when that was not true. Those cases give rise to very high levels of difficulty.
I agree with the noble Baroness that a proper understanding of the nature of domestic violence, the effect that it can have on the individual and the likelihood of its debilitating that individual and preventing him from behaving as one would normally expect him to behave, has to be better understood. All the training that we are doing for practitioners should create a better understanding of those issues.
When we are dealing with a homicide, however, it cannot be right that special, overriding and particular regard must be had to the domestic violence alone, without taking into consideration similar special circumstances that may arise as a result of age, disability, lack of opportunity and matters of that sort. All those things will be taken into account. The context is almost, tragically, bound to be one of' domestic violence or dysfunction of one sort or another.
I respectfully suggest that in most cases it would simply be impossible to separate those two things. That is why we believe that particular regard would make it particularly difficult, and we do not believe that it is necessary. However, we absolutely agree with all those who said that clear guidance training—so that people understand what they are dealing with—is absolutely vital. I understand the import of the noble Baroness's comments, but I believe that we have got it about right in the drafting.
Baroness Anelay of St Johns: My Lords, that is the right place to end. We all hope that the drafting is right, although some of us are more sceptical than others. I agree with the noble Baroness, Lady Walmsley, that we would like to have achieved greater change in Clause 4. But we have gone as far as we can, and we have had what I hope are effective reassurances from the Minister today. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 1B not moved.]
On Question, Motion agreed to.

COMMONS AMENDMENT
2 After Clause 5, insert the following new clause—
"EVIDENCE AND PROCEDURE: ENGLAND AND WALES
(1) Subsections (2) to (4) apply where a person ("the defendant") is charged in the same proceedings with an offence of murder or manslaughter and with an offence under section 5 in respect of the same death ("the section 5 offence").
(2) Where by virtue of section 35(3) of the Criminal Justice and Public Order Act 1994 (c.33) a court or jury is permitted, in relation to the section 5 offence, to draw such inferences as appear proper from the defendant's failure to give evidence or refusal to answer a question, the court or jury may also draw such inferences in determining whether he is guilty—

(a) of murder or manslaughter, or

(b) of any other offence of which he could lawfully be convicted on the charge of murder or manslaughter,

even if there would otherwise be no case for him to answer in relation to that offence.
(3) The charge of murder or manslaughter is not to be dismissed under paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998 (c.37) (unless the section 5 offence is dismissed).
(4) At the defendant's trial the question whether there is a case for the defendant to answer on the charge of murder or manslaughter is not to be considered before the close of all the evidence (or, if at some earlier time he ceases to be charged with the section 5 offence, before that earlier time).
(5) An offence under section 5 is an offence of homicide for the purposes of the following enactments—

sections 24 and 25 of the Magistrates' Courts Act 1980 (c.43) (mode of trial of child or young person for indictable offence);

section 51A of the Crime and Disorder Act 1998 (c.37) (sending cases to the Crown Court: children and young persons);

section 8 of the Powers of Criminal Courts (Sentencing) Act 2000 (c.6) (power and duty to remit young offenders to youth courts for sentence)."

Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2.
I shall speak also to Commons Amendments Nos. 3 and 85, which are consequential amendments relating to Clause 6 of the Bill as it currently stands. I do not intend to rehearse the ground we have already covered about what we are trying to achieve and why. Instead I would like, if I may, to deal head on with some of the criticisms that were made last time we debated these clauses. Before doing so I would like to say it is noteworthy that these provisions were debated in Committee in the other place and that Her Majesty's Loyal Opposition chose not to press the matter to a vote; nor did they revisit it on Report. Therefore, I take it that that stance will be continued although, of course, I await with bated breath what the noble Baronesses, Lady Anelay and Lady Walmsley, may say.
It has been asserted that our proposed procedural changes would allow a person to be convicted of murder or manslaughter merely on the basis of his or her silence in court. I hope I have already made myself clear on this but I state once again that that will not be possible. Section 38(3) of the Criminal Justice and Public Order Act 1994, read with the Murray case in the European Court of Human Rights, prohibits a verdict being returned that is based "wholly or mainly" on an adverse inference from silence.
If there was a possibility, after all the evidence had been heard, of such a verdict being returned, the trial judge would be duty bound not to allow the murder charge to go to the jury. It is important to remember that our proposals move only the point at which the question is considered of whether the prosecution has established a case to answer on murder. We are not proposing that this essential safeguard in our system should be completely expunged; the prosecution case must still pass a test of "case to answer".
It has also been suggested that our proposals would allow juries to draw an adverse inference from a defendant's silence in court even if that defendant may have had good or understandable reasons for not giving evidence.
192
A judge must be satisfied that a jury could draw such an inference of guilt from the evidence that has been heard before he allows the jury the possibility of doing so. And the jury cannot draw an inference unless it decides that the silence "can only sensibly be attributed" to the accused having no answer, or none that would stand up to cross-examination.
If the jury, when considering the evidence in the case as a whole, considers that there are possible reasons for the defendant's silence other than guilt—for example, "love, fear, loyalty, family solidarity"—it would not be proper for the jury to draw an adverse inference of guilt. Indeed, the jury may be directed that it must not do so.
It has been claimed in debates on these clauses that the prosecution will not be under an obligation to establish a case to answer before a charge of murder is left to the jury to consider. I wish to make it absolutely clear that this is wrong. The prosecution will remain under an obligation to establish a case to answer.
Postponing the decision whether the case may be left to the jury until after the end of the defence case does represent a change to traditional trial procedure, but it does not affect the substantive rights of the defendant, or the overall fairness of the trial. The Joint Committee on Human Rights has concurred with that view.
The way trials are arranged currently can fail justice in these cases. I believe we are all agreed on that. If we can make changes which attempt to correct this but do not jeopardise the fairness of trials, justice demands that we consider them.
In the particular domestic circumstances of these offences, the defendants are the only people who may reasonably be expected to be in a position to say what really happened. It should not be forgotten, either, that those defendants had a responsibility to safeguard the victim's well-being from a risk that was known or ought to have been known, yet the safeguard has failed. It is not unreasonable to ask to hear what they have to say before deciding whether the case should proceed further.
We in this House are all committed to justice for defendants in trials in these very difficult cases. But we must also strive to deliver, if we can, something which we have rarely had, and that is justice for the children and vulnerable adults who are the victims. The Government believe that these proposals retain the essential safeguards for a fair trail and improve the chances of justice being done. I therefore urge your Lordships to support Commons Amendments Nos. 2 and 3.
Moved, That the House do agree with the Commons in their Amendment No. 2.—(Baroness Scotland of Asthal.)
Lord Thomas of Gresford2A Lord Thomas of Gresford rose to move Amendment No. 2A, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 2, leave out "agree" and insert "disagree".
The noble Lord said: My Lords, we on these Benches have supported the principle of the new offence in Clause 5. It is necessary to consider its

193
ambit, and I summarise it as follows: where a child or vulnerable person dies as the result of an unlawful act, which may be a blow or prolonged neglect or omission to call medical assistance, any person over the age of 16 who is a member of the same household who either committed that unlawful act or omission or was negligent in failing to prevent it is guilty of an offence punishable with up to 14 years' imprisonment. That new offence is normally discussed in the context of two parents where it is not clear which of them inflicted the unlawful act and it is impossible for a jury properly to decide. However, that is not necessarily the only circumstance in which the new offence may be used.
Section 35 of the Criminal Justice and Public Order Act 1994 will apply, as it does generally, to the new offence. An inference may be drawn adverse to the defendant for failure to give evidence or refusal to answer a question without good cause. However, I am happy to receive an assurance from the Minister today that silence by itself will not prove guilt and that no adverse inference can ever be drawn if there is insufficient evidence to require the defendant to respond.
At present the specimen directions on this topic, which judges will give to juries when the issue is before them, are the following: the judge will say to the jury that,
"his silence at this trial may count against him. This is because you may draw the conclusion that he has not given evidence because he has no answer to the prosecution's case, or none that would bear examination. If you do draw that conclusion, you must not convict him wholly or mainly on the strength of it, but you may treat it as some additional support for the prosecution's case".
With the new offence in Clause 5 it is not difficult to establish a case to answer. If the prosecution proves prima facie that the victim died as a result of an unlawful act, for example, a non-accidental injury, and the facts indicate that there was a significant and foreseeable risk of that unlawful act and that the defendant was a member of the same household and appears to have taken no steps to prevent it, there is a case to answer. The prosecution does not have to prove that the defendant did foresee what occurred, but that he ought to have foreseen it. Accordingly, with the new offence there is no need to postpone the determination of the existence of a prima facie case to the end of the defence case. It gets rid of a difficulty in the law that has existed where a child or a vulnerable adult has been killed behind closed doors and there is a mystery about it. But this new clause, which appeared in the original Bill and was taken out by your Lordships, goes way beyond. Some bright spark obviously thought that it was a good idea to attempt to get a conviction of murder or manslaughter against an individual even though the evidence does not establish a prima facie case of either offence. To get round the fact that the judge would therefore throw the matter out at half-time, the submission of no case is to be postponed under the new clause to the end of the defence case. A conviction for murder may therefore rest on the shakiest of foundations.
6 p.m.
I am very glad to hear that silence alone will not be added to the lack of a prosecution case, to make it possible to convict a person of murder simply because the defendant does not give evidence. In these cases, as is my experience, a defendant will frequently not give evidence because he is protecting his wife or partner. It would be terrible for a person against whom there was no case to answer to be convicted of murder simply because he did not give evidence. From what the Minister said—no doubt she will confirm it—it follows that if a person has no case to answer on murder and remains silent, the judge must throw the case out once that person has declared that he is not giving evidence. The Minister is bound to accept that as a proposition.
Of course, that has a problem because the defendant faces a prima facie case under the new clause, and also a charge of murder. On the one hand he gets the possibility of a finite sentence of 14 years. On the other hand, for murder, he faces life imprisonment, with probably a minimum of 15 years actually served. There is therefore pressure on the defendant not to give evidence, so that he will not be convicted of murder, and therefore not to advance his defence to the new offence introduced in Clause 5. That is one problem that arises from the Bill.
I said that conviction would rest on the shakiest of foundations because the lack of a prima facie case on the prosecution's evidence is, by inference, to be made up by what one defendant says against the co-defendant and vice versa—what the two people charged with killing a child actually say in court. If they give evidence, it is the strongest inducement to lie and blame each other. As there is no prosecution case, the jury would therefore be faced with the question of which of them is telling the truth—which of them is the better liar. It becomes a personality contest—a gamble, a toss of the coin, intuition. It is rather like that Ouija case that some noble Lords will recall from years ago, when three or four members of the jury got out a Ouija board and asked the deceased who had killed him. That came to this House, and the conviction was obviously set aside.
Leaving the matter until the end of the defence case so that one defendant will blame another and there will be some evidence against both of them, for the jury to choose between, is a recipe for wrongful convictions. So what? The Government have challenged the doctrine of Sir William Blackstone, in his Commentaries on the Laws of England of 1765, that it is better that 10 guilty men go free than one innocent man suffer punishment. However, he saw the law simply as the people's shield.
On the other hand, Jeremy Bentham—the philosopher, whose corpse is stuffed in University College, London, not the lawyer of the same vintage—viewed the law as a weapon that the government wield to punish criminals or anyone else in the name of the greatest good for the greatest number. He believed in rounding up people who might commit crimes. He wanted to restore torture to aid in securing convictions, and believed that a defendant's lawyer

195
had an obligation to assist the prosecution. The Home Secretary is a Benthamite to his fingertips; I just hope that he does not end up in the same way.
Wrongful convictions obtained on unsatisfactory evidence undermine public confidence. We depend on the public to come forward as witnesses and act as jurors, to determine very important matters in our system. If there is a succession of appeals and it is found that people have been wrongly convicted, people's confidence and desire to help the law and the judicial process is weakened.
Mixing up the new offence that we support in Clause 5 with murder and manslaughter causes havoc to the law, on the principles of Sir William Blackstone. It was never suggested by the Law Commission in its report, Children: Their Non-Accidental Death or Serious Injury (Criminal Trials). Indeed, the Law Commission warned against it in paragraph 1.18. I shall briefly quote a passage from it, which states:
"New offences should not be used solely as a remedy to resolve the procedural problems associated with obtaining convictions for another type of offence",
such as murder. The paragraph continues:
"Therefore, although a new substantive offence may have collateral procedural advantages, in that a defendant who would previously have been unwilling to give evidence may be persuaded to do so, we emphasise that a new offence must be justifiable on its own terms before we would recommend it".
As with other matters in the report, the Government have abandoned that. They would rather have people wrongly convicted for murder than rely on the new offence that they have created in Clause 5. We oppose the new clause advanced in the amendment. I beg to move.
Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 2, leave out "agree" and insert "disagree".—(Lord Thomas of Gresford.)
Lord Campbell of Alloway: My Lords, it is impossible to improve on the speech made by the noble Lord, Lord Thomas of Gresford, so I shall take only a very little time. The problem is the cumulative effect of Amendment No. 2 as drafted. I am surprised that the Minister could imagine that it served the interests of a fair trial.
The composite effect of the amendment is like Humpty Dumpty. It turns any concept of a fair trial on its head. It does more than remove the burden of proof on the Crown. Why? How? It removes the presumption of innocence, and enables an accused to be convicted if he fails to give evidence or refuses to answer a question. It puts on the accused the duty to establish his innocence. As the noble Lord so ably pointed out, this hideous, complex combination can end only in manifest injustice.
Last of all, the amendment removes the entitlement to submit no case to answer either at the outset of the trial—on the depositions, which is perhaps not so important—or at the conclusion of the evidence, as opened by the Crown. That would be bad enough
196
itself, but if composite charges of murders were added to the indictment, it would be a recipe for total disaster.
Ordinarily, if the amendment were accepted and became part of the statute, the judge, faced with a suggestion that there should be a charge on Clause 5—which one accepts as being requisite—but that there should also be a charge for murder, would put the Crown to an election. It would be saying, "If you are going to proceed on murder, proceed on murder; if you are going to proceed on this clause, proceed on this clause". But the manifest injustice of proceeding on both is totally unacceptable, as has already been explained by the noble Lord, Lord Thomas.
Baroness Anelay of St Johns: My Lords, the Minister began by drawing attention to the fact that my colleagues in another place did not fight to the death over this issue. That does not imply that they are content with what the Government are doing—they have some severe reservations. My noble friend Lord Campbell of Alloway has just explained why there are still reservations. The Government have concocted a highly complex procedure, with the best intent; namely, that someone should not get away with murder. But we are concerned that the Government are creating a system that will not be workable and that leads to a theoretical erosion of long-established principles of law.
We are also concerned that the Government have expressed a view in Committee in this House that if they were to win another general election they might extend this process to other offences beyond murder and manslaughter, such as those where there was serious harm. The Minister is looking puzzled, so, therefore, she might give me an assurance that this is where this procedure stops. She might not be able to bind any future Home Secretary to such a commitment. I revelled in the description of the Home Secretary as a Benthamite, and what might happen to him. I shall think of that in the next Session when we debate for long hours the five or six Home Office Bills that face us.
The difficulty is that the Government have concocted an extremely complex procedure. The Front Bench position is that we hope that it will work. But we must be sure that it does not lead to the conviction of the innocent.
Lord Donaldson of Lymington: My Lords, I support the noble Lord, Lord Thomas of Gresford. I was surprised at the Minister's comment that the clause did not alter the burden of proof. The whole purpose of Clause 5 was to create a new offence which met the scandalous situation whereby one of two people was undoubtedly guilty of murdering a child or vulnerable adult, but one could not tell which. That clause was wholly sensible and violated no principle. But this further amendment alters the burden of proof—perhaps not the ultimate burden; but what is totally new, and has never been the law in this country, is that the prosecution can call upon the defendant to assist it in establishing guilt. In other words, the burden of

197
proof would not require the prosecution to prove a prima facie case on its own, as is the case otherwise. It would put the accused in a position that he might well, willy-nilly, have to contribute to the burden of the prosecution. That would be a step too far.
Perhaps no-one can see, at present, why the provision should be extended any further, but I cannot see why it is here in the first place. Clause 5 provides an amply sufficient punishment. Why gild the lily, particularly at the expense of a long tradition of English law?
6.15 p.m.
Baroness Scotland of Asthal: My Lords, perhaps I may say to the noble and learned Lord, Lord Donaldson, that I absolutely agree with him regarding the necessity of creating the new offence. He is correct—there was a scandalous situation and I am delighted that this House and the other place have put that scandal to an end.
But I cannot agree with the noble and learned Lord's suggestion that this is gilding the lily, and perhaps I may explain why. I also thank the noble Lord, Lord Thomas of Gresford, for his agreement in relation to the offence and, indeed, for his kind sentiments regarding the health and well-being of my right honourable friend the Home Secretary. I am sure that my right honourable friend will be warmed by the concern expressed by the noble Lord for his long-term well-being.
The movement that we are suggesting does create a difference, but it does not, as the noble Lord, Lord Thomas of Gresford, suggests, put in peril the sanctity of the way in which we have delivered justice in this country. The procedure is said by the noble Baroness, Lady Anelay, to be highly complex. In fact it is not. It is a simple procedure. We are seeking now to deal with the situation where you have an unlawful killing that has been committed by one of a closed number of persons in a group. That group might be two or more. In practice, we are dealing with a trial where two or more people are to be charged and tried; the prosecution produces evidence regarding the new offence; it is clear that one or more of those people are responsible for the murder—the killing of the vulnerable person; but at "half time", as it is colloquially called, there is insufficient evidence to establish a prima facie case of murder.
The noble Lord, Lord Thomas of Gresford, and others would say that at that stage there should be no opportunity to determine whether further or other evidence might make that clearer. But evidence could be given by either of the defendants, which clearly identifies that one or either of them committed the offence. One would then have the interesting situation whereby members of the jury had heard evidence that may be uncontroverted, which may demonstrate that one of those defendants had killed the child but the jury would be unable to deal with the matter, because it had been removed from their consideration. Therefore, the only offence for which either of those defendants could be dealt with would be the lesser
198
offence of familial homicide. Many right-thinking people would find that curious, if not verging on the ridiculous.
The noble Lord, Lord Thomas, is correct to say that the public must have confidence in the justice system. For example, the public—the jury—are told that one of those people killed that vulnerable person or that child. You have heard evidence regarding which one did not do so, but you are restrained or removed from making that decision because you heard that evidence at the wrong moment. Many people would not understand that situation. We are suggesting that at the end of all the evidence it would be possible for a case of "no case to answer" to be properly made. The jury could have that offence of murder removed, so that the only proper case left to be tried by the jury would be the offence of familial homicide. That does not do violence to justice but it removes a technical impediment to justice being done. The jury would still be left with the decision but, at the end of the case, the prosecution would still have to establish that there was a case to answer on the murder.
I think it is right to remind your Lordships what the Joint Committee on Human Rights concluded on this issue, which it considered very carefully. I refer noble Lords to paragraphs 2.11 and 2.12 of its report but shall quote from paragraph 2.12 in particular. It said that,
"the trial judge will not be able to invite a jury to draw an adverse inference unless there is a case for the defendant to answer on a charge of causing or allowing the death to occur, and that is a suspicious circumstance which, taken together with the other safeguards attaching to inferences from silence, should be sufficient, in our view, to rein in any tendency a jury may have to draw an inappropriate inference from silence in relation to the charge of murder or manslaughter".
At paragraph 2.13, the report states:
"We therefore conclude that the Government is entitled to say that there is not a significant risk that clause 5 would give rise to incompatibility with ECHR Article 6".
I accept straight away that it is a new way of dealing with the issue but it is not an unjust way. I am much reminded of a number of the changes that we have made over the years with which those of us familiar with the old ways have been uncomfortable—majority verdicts and many other examples spring to mind—and we have been able to do justice. I have confidence that the judges, working together with the Bar and the legal profession, will, using these procedures, be able to deliver a just and equitable resolution which is just to the defendant and also, after such a long period, just to the victims who have been murdered and whose voices have not been properly heard in the past.
Lord Thomas of Gresford: My Lords, the noble Baroness quoted from the Joint Committee on Human Rights in reference to convictions where there is simply silence. I have already pointed out that she has conceded that there will be no conviction in such cases and that silence will not make a case of its own.
I was concerned about the shaky foundations of a defendant giving evidence and blaming someone else—that is, blaming his or her co-defendant. How is a jury to sort out those two things? It is not a new

199
problem because defendants have been interviewed by police officers since time began and they have been able to, and can, give an account which sets out their side of things. They might say, "It wasn't me; it was my husband", or "It wasn't me; it was my wife who inflicted the fatal blow". But the policy of the law until now has always been that statements made to police officers are evidence only against the person who makes that statement and not evidence against anyone else. The reason that that policy has been adhered to—it has been developed from the common law and adhered to throughout the centuries—is that it is unsafe to rely on the accusation of one defendant against another defendant.
These new proposals now compound the problem. Not only are we sweeping away that policy but we are allowing juries to convict a person on the say-so of a co-defendant without a prime facie case being put forward by the prosecution. It is a recipe for disaster and for wrongful convictions. I do not think that the public will have confidence in a system which allows people to go to prison for life simply because their partner, who can lie better, is preferred by the jury. That is no position at all.
Baroness Scotland of Asthal: My Lords, I thank the noble Lord for giving way. He is right that I did not deal with that, but it is not right for him to suggest that this is a new issue. Matters of this kind are dealt with every day in our courts, and juries are asked the simple, straightforward question: "Which evidence do you prefer? Do you prefer the evidence of the Crown, the defendant or the co-defendant?" That is why we have a jury. It is the decider of fact, and surprisingly juries have been very good at doing that for hundreds of years.
Lord Thomas of Gresford: My Lords, they have been very good at doing it for hundreds of years because there is always a prima facie case. They can compare the account of one defendant against the prosecution evidence and decide, in that context and within that framework, who is telling the truth. Here, we are faced with a situation where there is no prima facie case against two people and they simply point the finger of blame at each other. There is no way in which to resolve that except by way of a beauty contest in which the question is: "Which one do you think is better and which one appeals to you more?".
As I have said so often, this really is a recipe for disaster, but perhaps it is too late in the course of this Bill for us on these Benches to do very much more than give the warning, and we shall have to see how the courts deal with it. However, one thing is absolutely certain: a judge will tell a jury in the strongest possible terms that a defendant has an interest to serve when he accuses his partner of having committed the act which led to the death. In the absence of any corroborative evidence called by the prosecution, the direction is likely to be so strong that I do not believe that, in the long run, this measure will result in the number of
200
convictions for murder that the Minister and those advising her hope that it will. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Motion agreed to.

COMMONS AMENDMENT
3 After Clause 5, insert the following new clause—

EVIDENCE AND PROCEDURE: NORTHERN IRELAND
(1) Subsections (2) to (4) apply where a person ("the defendant") is charged in the same proceedings with an offence of murder or manslaughter and with an offence under section 5 in respect of the same death ("the section 5 offence").
(2) Where by virtue of Article 4(4) of the Criminal Evidence (Northern Ireland) Order 1988 (S.I.1988/1987(N.I.20)) a court or jury is permitted, in relation to the section 5 offence, to draw such inferences as appear proper from the defendant's failure to give evidence or refusal to answer a question, the court or jury may also draw such inferences in determining whether he is guilty—

(a) of murder or manslaughter, or

(b) of any other offence of which he could lawfully be convicted on the charge of murder or manslaughter,

even if there would otherwise be no case for him to answer in relation to that offence.
(3) Where a magistrates' court is considering under Article 37 of the Magistrates' Courts (Northern Ireland) Order 1981 (S.I.1981/1675 (N.I.26)) whether to commit the defendant for trial for the offence of murder or manslaughter, if there is sufficient evidence to put him upon trial for the section 5 offence there is deemed to be sufficient evidence to put him upon trial for the offence of murder or manslaughter.
(4) At the defendant's trial the question whether there is a case to answer on the charge of murder or manslaughter is not to be considered before the close of all the evidence (or, if at some earlier time he ceases to be charged with the section 5 offence, before that earlier time).
(5) An offence under section 5 is an offence of homicide for the purposes of the following provisions—

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

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

Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 3. I spoke to this amendment with Amendment No. 2.
Moved, That the House do agree with the Commons in their Amendment No. 3.—(Baroness Scotland of Asthal.)
[Amendment No. 3A not moved.]
On Question, Motion agreed to.

COMMONS AMENDMENTS
4 Clause 10, page 6, line 4, at end insert—
"( ) After subsection (3) of that section insert—
"(3A) In proceedings under this section both the prosecution and the defence may lead, as further evidence, any evidence that would be admissible in proceedings for an injunction under section 3.""
5 Page 6, leave out lines 17 to 19.
6 Clause 11, page 6, line 39, at end insert—
"( ) After subsection (3) of that section insert—
"(3A) 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.""
7 Page 7, leave out lines 10 to 12.
Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 4 to 7.
These amendments aim to add a surcharge to criminal convictions in the courts, to fixed penalty notices for road traffic offences and to penalty notices for disorder. They divide into three categories. Particularly in view of the comments made by the noble Baroness, Lady Anelay, I intend to take a little time on these amendments so that the House has a full opportunity better to understand the way in which these provisions are made out.
For the surcharge payable on conviction, Amendment No. 8 inserts two new sections into the Criminal Justice Act 2003 that impose a duty on the court to impose a surcharge on a person convicted of an offence, except where the court makes an absolute discharge or a mental health disposal.
The surcharge payable in respect of penalty notices for disorder can be achieved principally through existing powers to make secondary legislation. However, Amendment No. 9 will change the maximum amount that can be prescribed as a penalty for disorderly behaviour from a quarter of the maximum fine to a quarter of the fine plus half of the maximum surcharge.
6.30 p.m.
Baroness Anelay of St Johns: My Lords, perhaps the noble Baroness would assist me. I thought I was paying proper attention to her—I apologise if I was not—but on my list the next group of amendments are what I considered to be technical amendments—Amendments Nos. 4 to 7. I may be wrong. I had not anticipated that the noble Baroness was to speak now on surcharges, which are mentioned in Amendments Nos. 8 and 9. I appreciate that that may be an error on my behalf.
Baroness Scotland of Asthal: My Lords, I thank the noble Baroness. I think I have skipped a whole group. I have gone straight to the substantive group, but I have not dealt with the technical government amendments. The noble Baroness is absolutely right and I apologise to the House.
The government amendments to which I should have been speaking are those that were discussed in the other place, relating to the clause dealing with restraining orders. Attention was drawn to an inconsistency between the proposed procedures for making restraining orders following an acquittal, and those making an order on conviction. I think I skipped to the most substantive one, as I knew we would spend some time on it and so I did not highlight this group. I thank the noble Baroness very much. With her normal
202
acuity, she is right on the button and has assisted me greatly. I was perhaps somewhat thrown by the generosity of the noble Lord, Lord Thomas of Gresford, in withdrawing the previous amendment.
In relation to Amendments Nos. 4 to 7, it was pointed out that whereas the subsection dealing with the restraining orders following an acquittal specifically provides for both the prosecution and the defence to inform the court's decision by leading additional evidence that would be admissible in civil proceedings, there is no explicit provision for further similar evidence to be adduced following a conviction. The Government undertook to consider that point further.
The Government's original position was that where restraining orders are made following a conviction for an offence under the 1997 Act, the court will already have heard sufficient evidence of harassment or intimidation to make an informed decision about the need for an order. However, where a defendant has been acquitted, the court might have need of further evidence before it can make an informed decision about whether a restraining order was necessary to protect the victim from harassment. That is why we made explicit provision for the prosecution and defence to lead such evidence following an acquittal.
The Bill will make restraining orders available on conviction for any offence—not just those under the 1997 Act. The Government accept that there will, as a result, be cases where the court has not heard evidence of harassment during the criminal proceedings, and may require additional information to judge whether an order is appropriate. Although we believe that further evidence admissible under the Civil Evidence Act 1995 probably would be admissible in such circumstances, we accept that courts and practitioners in such cases would benefit from the greater clarity that would be provided by an explicit provision on the face of the Bill.
It is for that reason that we have introduced these amendments, which will remove the current inconsistency. The effect will be to make it clear that following both a conviction and an acquittal, the court can inform its decision about whether to make restraining order by considering additional evidence that would be admissible in civil proceedings. I hope that the amendment addresses the problem that noble Lords highlighted on the last occasion that the Bill was before the House.
Moved, That the House do agree with the Commons in their Amendments Nos. 4 to 7.—(Baroness Scotland of A sthat)
Lord Renton: My Lords, before the noble Baroness sits down, perhaps she would explain something to me, and I dare say to various noble Lords, that has caused

203
great confusion. In Amendment No. 8, which adds a new clause after Clause 11, we find under new Section 161B—
Lord Davies of Oldham: My Lords, excuse me. If the noble Lord would allow me, we are discussing Amendments Nos. 4 to 7 at the moment and not Amendment No. 8.
Baroness Scotland of Asthal: My Lords, I believe that the noble Lord was misled by me earlier as I went straight on to the substantive amendments on surcharges, not having dealt properly or at all with this group of amendments. I have apologised for that and we are now on track, with the help of the noble Baroness, Lady Anelay. We are now dealing with the tidying up issues raised on the previous occasion.
Lord Renton: My Lords, I thank the noble Baroness for trying to explain the matter. I find it a very puzzling situation. If a surcharge is payable—
Baroness Scotland of Asthal: My Lords, I apologise. We have not yet come to that group of amendments. As I tried to explain, I wrongly started on the wrong group; I have totally acknowledged my error; I am back on track; and we shall come to the next group in a moment.
On Question, Motion agreed to.

COMMONS AMENDMENT
8 After Clause 11, insert the following new clause—

SURCHARGE PAYABLE ON CONVICTION
(1) In Chapter 1 of Part 12 of the Criminal Justice Act 2003 (c. 44) (general provisions about sentencing), after section 161 insert—
"Surcharges
161A COURT'S DUTY TO ORDER PAYMENT OF SURCHARGE
(1) A court when dealing with a person for one or more offences must also (subject to subsections (2) and (3)) order him to pay a surcharge.
(2) Subsection (1) does not apply in such cases as may be prescribed by an order made by the Secretary of State.
(3) Where a court dealing with an offender considers—

(a) that it would be appropriate to make a compensation order, but

(b) that he has insufficient means to pay both the surcharge and appropriate compensation,

the court must reduce the surcharge accordingly (if necessary to nil).
(4) For the purposes of this section a court does not "deal with" a person if it—

(a) discharges him absolutely, or

(b) makes an order under the Mental Health Act 1983 in respect of him.

161 B AMOUNT OF SURCHARGE
(1) The surcharge payable under section 161A is such amount as the Secretary of State may specify by order.
(2) An order under this section may provide for the amount to depend on—

(a) the offence or offences committed,

204

(b) how the offender is otherwise dealt with (including, where the offender is fined, the amount of the fine),

(c) the age of the offender.

This is not to be read as limiting section 330(3) (power to make different provision for different purposes etc)."
(2) In section 164 of that Act (fixing of fines), after subsection (4) insert—
"(4A) In applying subsection (3), a court must not reduce the amount of a fine on account of any surcharge it orders the offender to pay under section 161A, except to the extent that he has insufficient means to pay both."
(3) In Part 1 of Schedule 9 to the Administration of Justice Act 1970 (c. 31) (cases where payment enforceable as on summary conviction), after paragraph 12 insert—
"13 Where under section 161A of the Criminal Justice Act 2003 a court orders the payment of a surcharge."
(4) In Schedule 5 to the Courts Act 2003 (c. 39) (collection of fines), in paragraph 1(1) (application of Schedule), after "a fine" insert "or a surcharge imposed under section 161 A of the Criminal Justice Act 2003".
(5) The Secretary of State may by order—

(a) make provision amending Schedule 5 (collection of fines) or Schedule 6 (discharge of fines by unpaid work) to the Courts Act 2003 in its application by virtue of subsection (3) or (4) to surcharges;

(b) make provision for any part of Schedule 5, or the whole or any part of Schedule 6, not to apply to surcharges;

(c) make amendments to any enactment that are consequential on provision made under paragraph (a) or (b)."

Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 8.
Lord Carlisle of Bucklow: My Lords, may I inquire whether this is the new clause that deals with surcharges? The two new clauses after it raise the same principle with regard to fixed penalty offences. Does the Minister propose to deal with the issue of Amendments Nos. 8, 9 and 10 together; namely, the imposition of a surcharge both in conviction cases and as regards fixed penalties? Does that mean that we can speak to the principle of those three amendments as one?
Baroness Scotland of Asthal: Yes, my Lords. The noble Lord, Lord Carlisle, is absolutely correct. When I started cantering through this earlier, I said that I intended to deal with three categories. Again, I am sorry, if I have misled noble Lords.
These amendments aim to add a surcharge to criminal convictions in the courts; to fixed penalty notices for road traffic offences; and to penalty notices for disorder. They divide into three categories, as just indicated by the noble Lord, Lord Carlisle. I shall deal with each individually.
First, for the surcharge payable on conviction, Amendment No. 8 inserts two new sections into the Criminal Justice Act 2003, that impose a duty on the court to impose a surcharge on a person convicted of an offence, except where the court makes an absolute discharge or a mental health disposal. That is category number one.

205
In category number two, the surcharge payable in respect of penalty notices for disorder can be achieved principally through existing powers, as I mentioned earlier, to make secondary legislation. However, Amendment No. 9 will change the maximum amount that can be prescribed as a penalty for disorderly behaviour from a quarter of the maximum fine to a quarter of the fine plus half of the maximum surcharge
The surcharge payable in respect of road traffic fixed penalty notices can also principally be achieved through existing powers to make secondary legislation. Amendment No. 10 allows us to do two things: first, to prescribe a higher penalty for repeat offenders; and secondly, for the fixed penalty clerk to collect the surcharge separately from the fixed penalty.
The proposal to add a surcharge to criminal convictions and fixed penalty notices was one of a number of proposals set out in the consultation paper Compensation and Support for Victims of Crime, issued on 12 January 2004. There was overwhelming support for more and better services for victims of crime, although opinion was divided on the introduction of the surcharge. The majority of objections were to the addition of the surcharge to fixed penalty notices for speeding. The amendments set out here will add the surcharge only when a driver speeds or commits other endorsable motoring offences that attract fixed penalty notices on repeated occasions.
When this issue was debated in the other place, there was some disagreement over who should be liable to pay the surcharge. Some took the view that the offenders should have to pay the surcharge only when they had committed enough offences to be disqualified from driving.
We believe that a fair system is for drivers to receive one warning, and if they commit another endorsable offence within three years they should be liable for the surcharge. I should clarify that examples of the types of offences we are talking about are speeding offences, driving through red lights or ignoring pedestrian crossings.
It is incorrect to say that these offences are victimless crimes; 3,400 people are killed on the roads through speeding each year and 36,000 people are seriously injured. At 40 miles per hour, 85 per cent of people hit by a vehicle die, compared to 20 per cent at 30 miles per hour and 5 per cent at 20 miles per hour.
The House of Commons Transport Committee this week published a report on Traffic Law and its Enforcement. It states:
"Bad driving is not victimless … Changes are needed to ensure that we no longer have the culture which considers poor driving standards as acceptable, or at worst careless. It is unacceptable that speeding should be seen as unimportant, until such time as death or injury occurs".
We concur with that. The report goes on to say that drivers who receive automatic penalties for speeding have not committed a minor transgression but have significantly exceeded the speed limit. Someone would have to be driving at 35 miles per hour in a 30 miles per
206
hour zone to receive a fixed penalty notice. That could be the difference between life and death for many of those involved in collisions.
It is clear that road traffic offences are serious offences and can have grave consequences. Offenders should be made to pay the surcharge. What we are aiming to do is to make offenders pay a small sum to a fund for the victims of crime. The fund will provide practical and emotional support to a range of victims, including those who have been victims of road traffic offences. Victim Support, for example, can only do so much with the annual grant it receives, even though the grant has almost trebled since this Government took office—from £10.7 million to £30 million. Its focus is on providing core services to victims and witnesses through its community and court-based services. It would very much like to do more. There are other specialised support groups which deserve our support too; not least voluntary organisations which provide help to those injured or bereaved by death on the road, often as a result of speeding motorists.
We want to provide more funding to the voluntary sector and to communities to meet local needs. We are determined that victims should receive the practical and emotional support they need, in many cases to rebuild their lives. There is no provision in the Bill for the establishment of the victims' fund. That is because we can do so without primary legislation, by agreeing with the Treasury that a certain portion of the consolidated fund will be ring-fenced. A recent precedent for that is the Recovered Assets Fund, into which was paid the proceeds of crime recovered through confiscation orders. Many of your Lordships may be aware that similar schemes have been very successfully employed in other countries.
Turning first to the surcharge imposed on a criminal conviction, subsection (1) of Amendment No. 8 inserts into the Criminal Justice Act 2003 two new sections, Sections 161A and 161B. New Section 161A would impose upon the court a duty to order payment of the surcharge with a criminal conviction, except when the court makes an absolute discharge or mental health disposal. However, a compensation order would take priority over the surcharge. If the court considers that the offender should pay compensation and has insufficient means to pay the surcharge as well, it must reduce the surcharge accordingly—if necessary to nil.
The Secretary of State would also have power to prescribe further exceptions. We envisage using this power, which will be subject to the negative resolution procedure, if experience of operating the surcharge shows that certain categories of defendants are being unfairly penalised by the surcharge.
New Section 161B deals with the amount of the surcharge, which it states will be as specified by order by the Secretary of State, subject to the negative resolution procedure. It will enable higher surcharges to be ordered for more serious offences. The intention, however, is that the surcharge will be a relatively small amount—up to £30 at present—in order to maximise payment by the vast majority of offenders to a wide range of victims.

207
Subsection (2) of Amendment No. 8 amends the provisions on the fixing of fines to ensure that the court does not reduce a fine on account of the surcharge. The aim is to ensure that, as far as possible, the court orders the surcharge to be paid on top of any fine it would otherwise have given. The only exception is to be when the offender simply does not have enough money to pay both, in which case the surcharge will take priority. We think that the new powers in the Courts Act 2003 will improve the overall likelihood of payment so that offenders do pay both the fine and the surcharge.
6.45 p.m.
Subsection (3) of Amendment No. 8 has the effect that the surcharge will be treated as a fine for the purposes of collection and enforcement. Subsection (4) provides that the new provisions in the Courts Act on the collection and enforcement of fines will apply. Subsection (5) provides that the Secretary of State may amend the way in which the relevant provisions of the Courts Act apply to the surcharge. That is because these measures are currently being piloted.
The evaluation of the pilots may necessitate changes. Section 97 of the Courts Act provides a power to amend the provisions in the light of the pilots, but this would not extend to the surcharge, which will not be part of the pilot. This order-making power simply ensures that we can ensure that the Courts Act provisions, in their final form, apply properly to the surcharge. It will be subject to the affirmative resolution procedure, by virtue of Amendment No. 94.
Amendments Nos. 54, 69, 70, 77, 81, 87, 100 and 101 are consequential amendments to Amendment No. 8. Amendment No. 54 specifies that the order to be made under subsection (5) of Amendment No. 8 is subject to affirmative resolution. Amendment No. 69 amends the Rehabilitation of Offenders Act 1974 so as to ensure that the surcharge is disregarded for determining when a conviction is spent and the rehabilitation period will be applicable to the other parts of the sentence given by the court.
I hope that what I have said in relation to all three of the new changes will suffice. I am happy to give more detail if noble Lords would like it. I am sure that the House will agree that it is right that, whenever possible, offenders should be made to pay for the consequences of their crimes. A small contribution towards a fund to provide much needed support for a wide range of victims, we believe, is a fair and logical step. It will build on and complement existing services, including the criminal injuries compensation scheme and grant aid to Victim Support, made at the taxpayers' expense, to offer practical and emotional support.
I invite your Lordships to accept these amendments to add a surcharge to criminal convictions in the courts, to fixed penalty notices for road traffic offences and to penalty notices for disorder in order to provide revenue for the victims' fund.
I should now like to address the amendments which have been tabled to these proposed clauses. Amendment No. 8A in the name of the noble Baroness, Lady Anelay, seeks to remove the obligation on the court to order an offender to pay the surcharge when it deals with him. Instead it provides the court with a discretion in each case. Our intention is that the surcharge must be added unless the court has not dealt with the person under the terms specified in subsection (4) or the case is of a type which has been excepted from the surcharge provisions by an order made under subsection (2).
Amendment No. 8C, again in the name of the noble Baroness, Lady Anelay, would remove subsection (2) meaning that no such order could be made. So, instead of a clear list of exceptions being set out in an order, the court would consider each case on an individual basis.
Amendment No. 8B is consequential and would subsequently remove the mention of subsection (2) from subsection (1). These amendments would create additional work for the courts as they would have to carry out a detailed assessment of each case before deciding whether or not the surcharge should be added.
We believe that the courts should, assuming that they have dealt with the offender, automatically apply the surcharge unless the case meets the requirements set out in an order made by the Secretary of State. We appreciate that the intention behind the noble Baroness's amendments is to introduce some flexibility to the scheme, but we feel strongly that the surcharge should be compulsory. If people have committed and been found guilty of an offence which, in most cases, will have a direct victim, we think it right that there should be clarity about how much they should be asked to pay.
There are very few circumstances in which there will be a good reason why a small surcharge, to provide support and services to victims, should not be added by the court. Once the surcharge has been operating, the Secretary of State will be able to make an order setting out those circumstances and to add to them over time. That introduces a degree of flexibility, which I know that the noble Baroness seeks. Further, in the context of compensation, as stated in the Bill, where the court considers that the offender has insufficient means to pay both compensation and the surcharge, the court may reduce the amount of the surcharge, if necessary, to nil. Therefore, there is already some flexibility to the application of the surcharge. We would resist any amendments to introduce any more flexibility or discretion.
Amendments Nos. 8D and 8E, tabled in the name of the noble Baroness and the noble Viscount, Lord Bridgeman, who, happily, I see in his place, would change the procedure for making orders under Commons Amendment No. 8 from negative to affirmative resolution. Amendment No. 8D would mean that the power allowing the Secretary of State by order to exempt certain cases from payment of the surcharge of new Section 161A(2) would be subject to the affirmative procedure. We believe that the

209
intention of Amendment No. 8E is to make the power to set the level of surcharge by order in new Section 161B(1) subject to the affirmative procedure.
We want to be able to make the orders by negative resolution, as we would like to have the flexibility to make additions or alterations to the orders fairly easily, once the surcharge has been in operation for some time. We therefore think it sensible to use the negative resolution procedure. Also, we are not dealing with large amounts.
Further, the Government believe that it would be rather odd to have the order-making power to set the amount of the surcharge payable on conviction subject to the affirmative procedure, when the surcharge on road traffic fixed penalty notices will be dealt with using the existing powers in Section 53 of the Road Traffic Offenders Act 1988, as amended by the Bill, which is subject to the negative resolution procedure. In addition, the power to set the level of on-the-spot penalties for disorderly behaviour under Section 3 of the Criminal Justice and Police Act 2001 is, by order, subject to the negative resolution procedure. I remind your Lordships of Section 3(6) of that Act.
I should also like to clarify, however, that, as the Bill stands, any amendment made to the Courts Act 2003 through the order-making power provided for in subsection (5) of Commons Amendment No. 8 will be subject to the affirmative resolution procedure. That is to be found in Commons Amendment No. 54.
As for Amendment No. 10A, which would remove Commons Amendment No. 10 in its entirety, I hope that I have already explained why we consider those who have received fixed penalty notices for enforceable road traffic offences still to be offenders. Their actions cause harm to other people, both pedestrians and other drivers. We feel strongly that they should be asked to pay a small surcharge towards the victims' fund. As well as raising funds for the support of victims of crime, we hope that the introduction of the surcharge on fixed penalty notices for repeat offenders will encourage drivers to think twice about speeding or committing other enforceable road traffic offences, which would, in return, reduce the numbers.
Amendment No. 10B is intended to increase the application of the surcharge to those who have committed an endorsable offence or those who have been previously disqualified from driving within the past five years, instead of the past three years. Our reason for deciding to apply the surcharge to those who have committed more than one offence within a three-year period was that that is the length of time that an endorsement will remain on a driver's licence. After three years, the penalty points are removed and the driver's licence will then be clean. If the time limit were changed to live years, it would be administratively difficult, if not impossible, to find out if someone committed an endorsable offence more than three years ago, so we would not be able to identify those offenders and apply the surcharge to them.
I turn to Amendment No. 10C, which would remove the ability of the regulations permitted to be made in relation to conditional offers to apply the relevant part of the Road Traffic Offenders Act 1988 with modifications. Modifications may be needed to make the provisions work and we want to ensure that we have the flexibility to do that. I hope that noble Lords will accept there is nothing untoward about that intent.
We therefore reject these amendments but ask your Lordships to accept Amendments Nos. 8, 9 and 10. I hope that, after that lengthy exposé, there will be no questions that I have not already answered.
Moved, That the House do agree with the Commons in their Amendment No. 8.—(Baroness Scotland of" Asthal.)
Baroness Anelay of St Johns Baroness Anelay of St Johns rose to move, as an amendment to Commons Amendment No. 8, Amendment No. 8A:
8A Line 7, leave out "must" and insert "may"
The noble Baroness said: My Lords, in moving this amendment, as an amendment to Commons Amendment No. 8, I shall speak also to Amendments Nos. 8B to 8E and 10A to 10C.
When we were all trying to jump the gun a bit to get to these exciting new government proposals, my noble friend Lord Carlisle of Bucklow made the point for us all. Here we have three ways in which a new surcharge is to be imposed by the Government: three new clauses making substantial changes, and yet, all together in one group, very difficult for all of us to be able adequately to debate.
All my amendments were tabled with the sole aim of trying to signal in advance some of the questions that I might pose. Indeed, the noble Baroness has answered most of them—although, I must say, not quite all; I have one or two left. Overall, I thought that it was important for the Government to bring rather more clarity and transparency to the proposals than they had so far in another place. There was little or none there until the 11th hour, on Report last week.
As the noble Baroness said today, the Government proposals first saw the light of day in their consultation paper published on 12 January this year—after the Bill had started its progress through this House. When that consultation paper was produced, there was overwhelming support in response for better services for victims but very divided opinion on the matter of the surcharge. The majority of objections to the Government's proposals concerned the road traffic surcharges. If we were in Committee or on Report, I would quote extensively from those objections, but I shall certainly not do that at this stage. I merely mention that bodies such as the Police Federation and the Magistrates' Association are against those surcharges for practical reasons.
There was a furore in the press. The Government appeared to back off. On Second Reading, the Home Secretary said that the measure would not apply to the vast swathes of motoring offences. At that stage,

211
public opinion settled back down again, as did the red-top newspapers, in the belief that the Government would surcharge only the most serious traffic offenders and criminals who commit theft and violent offences.
The government new clauses in Amendments Nos. 8 and 9 are therefore pretty much what the public expected. They are certainly what we expected. But we should note that the proposal to surcharge those who are committed to prison makes a significant departure from the principle that I understood had always underpinned sentencing practice: that you should not mix a custodial with a financial penalty. Does the Minister agree that it has been usual practice in sentencing that, if there is a fine to be paid, as distinct from compensation, and a person is to be committed to prison, it has been good practice to commute the fine to extra days in prison? That recognises the importance of ensuring that when the offender is released, he or she makes a clean start and therefore should not be tempted to steal to pay the fine.
7 p.m.
My amendments concerning the surcharge on people put into custody were indeed there to probe just what flexibility the Government want. As all governments do, perhaps, they want even more flexibility than I was prepared to concede. I was trying to argue, through those amendments, that we should be able to trust the judiciary properly to look at the circumstances of each offender to determine whether it was appropriate to add the surcharge. As on many occasions throughout the Bill, the Government's response was to say, "That is not the way we want to do it. We want to have this flat rate, and we will have the Secretary of State with his own power. If, later on, we think that the approach is not working then we will have the Secretary of State issue an order saying when the penalty shall not be imposed".
At this late stage I shall certainly not contest that position. I shall look very carefully at how the system works on the RDS section of the Home Office website, which is a very good facility for letting us know what the department is getting up to—sometimes it is even quite clear about what it is getting up to, but not always. I shall certainly keep an eye on the matter.
There are greater problems with the third group of surcharge proposals for road traffic offenders. I shall outline my amendments on the subject. When the Home Secretary said what he was going to do, his proposal did not let people realise that committing a second endorsable offence of itself would be sufficient to trigger the surcharge. As the noble Baroness says, that is within a three-year period. I accept entirely her argument about why it should be three and not five; the amendment was intended only to elicit that explanation.
Amendments Nos. 10B and 10C are devices to ask the Minister certain questions. First, when do you get a penalty notice? What for? Much of the Commons debate and the remarks of the noble Baroness today have related to speed cameras. I am at one with the
212
noble Baroness on that: I accept, and always have, that speeding can be dangerous, especially in urban areas. I am arguing for transparency in sentencing and revenue raising. I am not arguing for an open sesame for boy-racers or girl-racers; however, I am certainly not arguing for an open sesame for the Government, who are desperate to find stealthier ways of getting extra funds. We all want victims' services properly funded, but I am not convinced that this is necessarily the right way to go about it.
There are plenty of other offences apart from speeding for which one could face the surcharge; for example, having your tyres under-inflated or over-inflated. The Government's definition of a "serious and persistent criminal" seems rather grotesque, because it includes someone who gets stopped twice in three years, perhaps for having under-inflated tyres. The Government argued in the other place that that was pretty much a middle-class crime and therefore it was okay to slap on a surcharge for the middle classes to pay up to assist victims of crime generally. I am glad that the noble Baroness did not take that line; it was not a particularly helpful one. It could well be the single parent on low income, who can just about afford an ancient runabout to take her children to school or the hospital and does not always have the tyres at the right pressure at the right time, who could be affected by this surcharge.
My second question is: how much will the penalty be? The noble Baroness has said that it will be only a small amount. That was a little coy, because in the other place sums of £5, £10 and £30 were bandied around. We were told, "We will let it run and then the Government will decide". By negative resolution they will be able to increase the amount when they wish. Surely the danger is that, if we all do as the noble Baroness says and think twice before speeding—I shall try; I have no points on my licence yet, but that is not through virtue—and become considerate drivers so that the government income from the fines goes down, surely the Government will be tempted to raise the surcharge to keep up the trickle of money into the fund to help victims. That would not be a transparent system.
My final question has not yet been addressed by the noble Baroness. When exactly does a surcharge fall due to be paid by the motorist? I shall take as an example a relatively common scenario, which I faced as a magistrate. One might be stopped for speeding once, say, for travelling at 36 m.p.h. in a 30 m.p.h. limit in one year, and within three years one is then stopped for having two tyres under-inflated and one tyre over-inflated. That is two occasions but four endorsable offences. If the surcharge is £5, does the person pay £5, £10 or whatever multiple thereafter?
The reason that I ask that question is because the noble Baroness's colleague Mr Goggins was less than clear in another place. He started off by saying that it would be clear:
"It will be clear that the second endorsable offence, not the value of the penalty points, will attract the surcharge".
But then he said:
"The number of occasions on which an offence is committed will be considered".

213
Did he leave out the word "not"? I do not know. He went on to say,
"twice is once too often, whether it is on the same day or over a period of three years".—[Official Report, Commons, 27/10/04; cols. 1506–08.]
It did not sound as though Mr Goggins quite knew whether it was two occasions, four offences or how it would be worked out. I beg to move this probing amendment.
Moved, as an amendment to Commons Amendment No. 8, Amendment No. 8A.—(Baroness Anelay of St Johns.)
Lord Carlisle of Bucklow: My Lords, I find this very strange. Like other noble Lords, I took part in the Committee stage of the Domestic Violence, Crime and Victims Bill, which was looked at line by line, as happens in Committee. Then, suddenly, without any reference at all, the Government in the House of Commons start adding clauses which had never been mentioned, have never been considered by noble Lords and have no direct relationship to the Bill. Three of them deal with surcharges. I should have thought that these three clauses would have cried out for careful examination in Committee. So far as I am concerned, the principle itself is very dubious.
The principle as I understand it is that anybody who appears before a court and is convicted of a criminal offence, if he is not mentally affected or granted an absolute discharge, will be subject to paying a surcharge. Equally, anyone driving a motorcar who has one speeding offence as a result of travelling past a speed camera, maybe on an open road in the early hours of the morning, and who commits a similar speeding offence during the following three years will immediately become subject automatically to a surcharge.
What is the surcharge for? The Minister, Mr Goggins, told us:
"Our aim is to make offenders pay a small sum to a fund for the victims of crime. The fund will provide practical and emotional support to a range of victims".—[Official Report, Commons Standing Committee E, 1/7/04; col. 293.]
Why should there be a greater responsibility on someone who has committed a second motoring offence, for example, to pay for the establishment of a fund to deal with the emotional support needed by an elderly lady who is, say, the victim of a burglary? Surely, it is society's duty to provide support for victims. Whether or not you have committed a second fixed-penalty offence seems totally irrelevant and in no way increases the responsibility of that individual to compensate that victim.
Who will be the victims? We are told that the fund will provide practical and emotional support for a range of victims. There is no provision for the establishment of a victims' fund. Who is to decide who the victims are? Is it to be Victim Support with more money from the Government than before? I declare now an interest that I would have had to declare later in any event as a former chairman of the Criminal Injuries Compensation Board. Is it merely a method of increasing the money available to the Criminal Injuries
214
Compensation Authority to compensate for the substantial cut in the budget that, I understand, it has received in the past few months?
What is the principle behind it? The Minister said that it was right that people should pay for their crimes. Of course they should, but I still do not understand why someone who is convicted of an offence of, say, shoplifting or drinking after hours should be more responsible than society as a whole to the victim of a wounding. The principle is highly questionable.
What about the practicality? First, there is the intention to surcharge the offender. As my noble friend Lady Anelay of St Johns asked, does that mean that, in future, everybody who is sentenced by any court to a term of imprisonment will, as well as being sent to prison, have a surcharge imposed on him? If that is so, is that not, as my noble friend said, contrary, in many ways, to the principle used in the past by the courts that if a person is incarcerated for his offence, we should not add a financial penalty?
The new clause does not say, "a court may"; it says, "a court … must". Presumably, anybody who is imprisoned for any offence, however serious and however long the sentence, will be surcharged. We are not told the amount, but he will have to pay a sum that will ensure that, when he comes out, he will have no money left with which to start, if he wishes, to live an honest life. It is an extraordinary proposal.
What about the motorist? Again, everyone who is convicted of an offence carrying a fixed penalty will, as I understand the proposals, be ordered to pay a surcharge. I agree with the Minister that motoring offences are serious. I agree with her that those who commit more than one motoring offence are a serious problem. I am not sure, however, that I would necessarily describe a person who committed one offence of speeding and one of having a bald tyre as a repeat offender.
If the view is that speeding for a second time is more serious than speeding the first time, why not put up the fixed penalty? The fixed penalty for a first offence is £60. In future, for a second offence, it will be £60 and something called a surcharge, amounting to £30. If we are concerned at the gravity of the offence, we should put up the fixed penalty to £90, rather than dressing the increase up by pretending that it is a surcharge that goes, in an unexplained way, through a victims' fund, which is not to be established, to help with the emotional and practical problems of victims of crime who have no relationship to the individual who has committed the speeding offence or driven with bald tyres.
I have spoken longer than I should have, but the proposal is nonsense in principle and will be shown in practice to be unworkable.
7.15 p.m.
Lord Renton: My Lords, my noble friends Lady Anelay of St Johns and Lord Carlisle of Bucklow have drawn our attention to a confusing situation, caused

215
mainly by the amendments moved in another place that the Government are asking your Lordships to accept this evening.
I am moved to draw attention, perhaps prematurely, to Amendment No. 8, which includes two new clauses to be added to the Criminal Justice Act 2003. The one that surprises and worries me is new Clause 161B, which deals with the amount of the surcharge. The Secretary of State will specify it by order. We find in the next subsection that the order may provide for the amount to depend on the offence or offences committed, how the offender is otherwise dealt with and the age of the offender.
In effect, the Secretary of State will be able to legislate in important ways on a matter that, essentially, should be dealt with in the Bill, rather than being delegated to him. We are not sure from new Clause 161B whether the Secretary of State will have the power to apply his recommendations to individual cases. I hope not. That would be the wrong way to legislate.
I sympathise greatly with the noble Baroness, Lady Scotland of Asthal. She has been given an impossible task. Theoretically, we are on the way to Royal Assent to this complicated Bill, but I hope that, somehow or another, it may not be passed in this Session. It should be thought out again and reconsidered in the next Session.
Lord Mayhew of Twysden: My Lords, one always tries to be charitable on such occasions, but the best that I can do is to call the proposals half-baked.
We are told that the Magistrates' Association opposes the proposals. I can see why. It would be helpful to be told what it said in response to the consultation. I cannot remember, but I imagine that the magistrates objected to being treated as tax collectors for the Government, who would be able thereafter to apply to matters outside the purview of magistrates the product of the so-called surcharge. Why is it called a surcharge? Why is it not called a penalty? That is what it is. What is it a surcharge on? It is a surcharge on a penalty that the magistrate thinks it right to impose.
I thought that those of us who took an interest in penal matters were agreed that custody should be avoided if other penalties were available and that financial penalties should be assessed according, in part, to the means of the offender. We all know how keenly the public feel that punishments should be appropriately severe, though not inappropriately severe. If, in a particular case, a court—any court—decides to respond to the offender's guilt by imposing a fine, it will do so by reference to his means and his ability to pay. We do not know what the Secretary of State will, by order, fix as the level of the surcharge. Presumably, it will be significant. The consequence will be that magistrates will reduce the amount of fines, to take account of the additional liability to pay the surcharge. If that is so, there will be a great deal of
216
dissatisfaction among people who say that the fine is insufficient. Should not the Government better think about all that again?
Baroness Walmsley: My Lords, the Home Office must have a very large and dusty box of Christmas baubles in its attic. It seems to raid that box very frequently and hang them on any unsuspecting passing Bill. These amendments fall within that category. So disconnected is the issue of these surcharges from the substance of the original Bill that I notice that the Government have had to introduce Amendment No. 101 to change the Title of the Bill.
Turning now to the substance of these amendments, while we support the Government's wish to provide more adequately for Victim Support and commend the work of the Victim Support organisations, we have our reservations about the detail of the proposals to surcharge, in particular, motorists convicted of speeding. We do not, however, support any campaign against speed cameras in general. They have an important role to play in road safety as long as there is sound evidence for the location of their deployment.
We are concerned, first, that when the Home Secretary first proposed this measure, he suggested that the victim fund would be paid for by the mugger and not by the motorist. Then, lo and behold, we find a proposal introduced in another place to surcharge the motorist. When challenged on that by my honourable friend the Member for Somerton and Frome in another place, the Minister, Paul Goggins, claimed that it would apply only to serious or persistent offenders.
Now I come to our second concern, which is clearly shared by many other Members of your Lordships' House. Mr Goggins's definition of a persistent offender is someone who already has some points on his licence. That might be for an infringement of a very minor kind, as described by other noble Lords, or perhaps an infringement of a speed limit that occurred two years and 11 months ago. Indeed, it is quite possible for someone to commit two offences of that kind within 50 yards of road if he is caught on two cameras in the same journey. In my view, that does not make him a persistent offender. One of the proposed amendments would give the court a certain amount of discretion that might deal with anomalies of that kind.
My honourable friend suggested that a more appropriate definition of someone who should be surcharged would be someone who had been disqualified from driving for a serious or a series of motoring offences. Sadly, as the Minister has confirmed again today, the Government do not agree.
On these Benches, we believe that it is important to have public support for the law. Since about 1.5 million endorsable speeding offences occur every year, I fear that this measure will only reinforce the public's view that the Government see speed cameras more as a convenient cash cow than as a serious attempt to improve road safety. That would be a great pity. Cannot the Minister give us any comfort about the definition of those to whom these surcharges would apply?

217
Another thing that worries me is the link between the amount of support available for victims and how law-abiding motorists are. I certainly echo the concern of the noble Baroness, Lady Anelay, in that respect. The public prefer to see a link between the punishment and the crime. I also echo the words of the noble Lord, Lord Carlisle, on that matter. He had it absolutely right.
We do not support the Government's amendment. We support many of the amendments that have been put down to try to neutralise some of the effects of them.
Lord Donaldson of Lymington: My Lords, unlike any speaker in the House on this topic, including the Minister, I have an interest to declare. I have paid a fixed penalty within the past three years for speeding. I am very aggrieved about that, but that is beside the point.
First, I want totally to support everything that the noble Lord, Lord Carlisle, said. It is a very startling innovation that is really outside the scope of the Bill. Well, it would be outside the scope of the Bill but for the change in the Long Title, which is remarkable in itself.
I turn now to the suggestion that magistrates will reduce the fine to take account of the surcharge. We are not dealing with the gaming Bill at the moment, but I would take a small bet that they will, notwithstanding that in new subsection (4A) at the top of page 5, they are told that they cannot do that. Of course, it would be quite impossible to prove whether they have or have not. In the interests of justice, as they see it—probably rightly see it—I fancy that they will.
The objection here is one that I have had to the Home Secretary's activities over quite a long period of time; namely, that he wishes to take away the discretion of the court at all levels to decide the appropriate penalty. He has introduced minimum sentences for other offences, subject to some slight get-out clause. Now he will do the same here.
It may be said that a surcharge is not the same as a penalty, but it certainly is from the point of view of the repeat offender, as I fear I may become before I get to the end of the three years.
Baroness Scotland of Asthal: My Lords, I hope to reassure the noble and learned Lord that even if he were to become a repeat offender, which I am sure he will not because of the salutary effect of having received his penalty already, the penalty that will be imposed on him is likely to be within his ability to pay.
Perhaps I may straight away tell noble Lords the sort of figures that we have in mind. For fixed penalty notices, including penalty notices for disorder, up to £80, the proposed surcharge level is between £5 and £10. For a fixed penalty notice, including penalty notices of disorder, which are imposed between £81 and £200, the proposed surcharge is £10. For a fine of up to £1,000, the proposed surcharge is £15. For all community penalties and fines of more than £1,000, the proposed surcharge is £30. The surcharge is £30 for
218
a custodial sentence that is suspended. It is also £30 for an immediate custodial sentence. Noble Lords will see that the amounts that we propose are of a relatively modest nature.
I hope that noble Lords will understand that we have tried in recent years to ensure that the victim is put very much at the heart of those proceedings. The victim has often felt—certainly this is something that a number of victims' organisations have told me—very much the "forgotten guest at the feast", the unregarded. We would very much like to change that. Huge amounts of effort and money are currently going into victim services. I am not just talking about the increase from £10.7 million to £30 million that is given to Victim Support.
In all, the Government, I believe, spend in excess of £600 million on various different services for the benefit of victims. But there is clearly much more that can be done. I have said already that we do not believe that road traffic offences are victimless crimes. I very much welcome the comments made by the noble Baroness, Lady Anelay, in support of that sentiment.
The best way of avoiding victims would be of course for civil obedience to break out. No surcharges would be payable because no one will have committed any offences. If that were to happen, I can assure noble Lords that no one would be happier than the Government. We would not have victims; we would not have those who were adversely affected; and we would not have to try to care for them in the way that we now do because they would not have so suffered.
Lord Carlisle of Bucklow: My Lords, how is a person mugged in the street the victim of a motorist speeding in another part of the country rather than the victim of the person who committed the mugging, or the victim of the society which failed to protect him from attack?
7.30 p.m.
Baroness Scotland of Asthal: My Lords, the victims' fund will be for everyone and we are refusing to exclude road traffic offences from that list. It is absolutely right to remember that if any other group of offences was causing the death of 3,400 people a year, there would be uproar about it. If any other group of offences involved injury to 36,000 people a year, there would be uproar about it. The fact that this is happening on our roads does not excuse the enormity of the pain caused by motoring offences.
Lord Carlisle of Bucklow: My Lords, I was not for a moment suggesting that there are no victims of road accidents; of course there are. However, what I sought to ask is why is someone mugged in Edinburgh more the victim of someone speeding in Scarborough than the victim of society as a whole, which should protect him?
Baroness Scotland of Asthal: My Lords, society, through moneys already made available through the taxpayer, already plays its part. But what we are saying is that it should not be the taxpayer alone who makes

219
this payment; each perpetrator of an offence should also make a contribution to a fund which will be set up and made available to various organisations which will be able to apply to it. That is similar to the way we have used recovered assets. For example, many noble Lords will know that recently we received around £4 million that will be used principally to set up sexual assault referral centres to which various bodies will be able to apply for funds. So it will be possible for various associations and organisations to apply to the victims' fund for support.
Those organisations will represent all sorts of victims: victims of road traffic offences, of sexual assault, of theft and of all kinds of other crime. Through their various organisations, victims will be able to access the fund. Equally, all sorts of perpetrators of all sorts of criminal offences will be asked to make a contribution.
Noble Lords may know that this arrangement has been used to great effect in many other countries around the world. It has succeeded in delivering the enhancement of high quality services for victims in need. We seek to do something similar.
The noble Baroness, Lady Anelay, asked what would happen in the case of multiple offences. The scenario that we envisage is this. Where a person is convicted of several offences at the same time, we would want the surcharge to be levied on the punishment for the most serious of those offences. I have already indicated that the level of the surcharge will be dependent on the level of the punishment. For example, a fine of up to £1,000 would attract a surcharge of £15, while a fine of £1,000 would attract a surcharge of £30.
In response to the point raised by the noble Lord, Lord Carlisle, I also made clear when I sought to outline how this is to work that it will be open to the court, if it felt that the fine as well as the surcharge could not be paid, for it to say that, if necessary, the surcharge could be reduced to nil. So it is not a case of saying that the fine may be improperly depressed or reduced because of the payment of the surcharge. A level of flexibility will be provided.
It is also wrong of the noble and learned Lord, Lord Donaldson, to fear that this is another removal of discretion. We have very much taken on board the fact that the courts would have real difficulty in setting individual surcharges. We have enabled the courts to make the charge quickly and effectively, and without any administrative or other difficulty. We think that we have provided sufficient flexibility for that.
The noble Baroness, Lady Walmsley, commented that this would be a raid on the Christmas box. Perhaps I may assure her that it is not. This is something that will very much inure to the benefit of victims and therefore, contrary to what was suggested by the noble Lord, Lord Carlisle, it is directly related to the Bill because this measure is concerned with domestic violence, crime and the victims of crime. We have created the Commissioner for Victims and Witnesses, who I am sure will be very anxious to monitor how we deal with this.
220
We say that this penalty is not being improperly imposed. It is not unusual for a sentence to include more than two elements. While it may be unusual in practice, there is nothing here which goes contrary to principle. Someone can receive a term of imprisonment along with a demand for a payment along the lines of this surcharge.
I accept that noble Lords would have preferred to have debated these matters earlier, and of course I take on board all the concerns and criticism in that regard. But we are where we are, and we believe that this will make a material and advantageous improvement to the ability not only to assist victims, but also—it is hoped—to underscore to those who do participate in committing offences that there is a cost attached, and that they will have to discharge their responsibilities. I hope that it will serve as a good reminder to people who have to pay the surcharge. Although they may think that they have committed a victimless crime, the surcharge will indicate that they have not. This small payment may serve as an appropriate reminder.
Lord Mayhew of Twysden: My Lords, I was hoping to hear an answer to a point I endeavoured to raise about magistrates reducing a fine they consider it appropriate to impose in order to permit the surcharge to be paid. The noble and learned Lord, Lord Donaldson, said that Section 164(4A) would deal with that, but in practice magistrates would do just what I have outlined if the justice of the case required it. Indeed, the whole wording of new subsection (4A) makes it clear that they are entitled to do that by stating,
"a court must not reduce the amount of a fine on account of any surcharge it orders the offender to pay … except to the extent that he has insufficient means to pay both".
That states in terms that they may do that.
I hope to hear an answer to this, because the only response that I have heard seemed to be along the lines that it is a small payment, given that I think I am right in saying that the surcharge will be only £15 for a fine of up to £1,000. However, surely the next thing that will happen is this: enthusiasts of victim support services will say, "Look at this. The surcharge is a tiny proportion of the total fine. You must increase it, Secretary of State. You have the power to do so". As my noble friend beside me pointed out, income tax began at sixpence in the pound, and we know all about the rate of progression of these devices. I hope that the Minister will respond to that point.
Baroness Scotland of Asthal: My Lords, even if I did not specifically refer to the noble and learned Lord, Lord Mayhew, by name, I believe that I answered the point by saying that the surcharge would not operate so as to reduce the level of the fine. The discretion is provided so that if the court is of the view that the level of the fine would be improperly depressed because of the inability of the defendant to pay both the fine and the surcharge, it would be open to the court, if it so desired, to reduce the surcharge—to nil, if that was

221
necessary. I had hoped that I made that clear. Knowing how the noble and learned Lord usually attends to these matters, clearly I did not.
Baroness Anelay of St Johns: My Lords, as ever I am grateful to the noble Baroness for her answers. We have scratched the surface at this late stage of the Bill, but we have done no more than that. My noble friend Lord Carlisle of Bucklow started us on the right line when he said that what we really should be looking at is the principle behind this arrangement. When we start to look at that principle, I think that we have to agree with the judgment of my noble and learned friend Lord Mayhew of Twysden, that this is a half-baked measure. Unfortunately, it is a half-baked measure presented so late in the day that we shall not be able to take the ingredients out and start all over again. I wish that the Government felt able to do that.
I agree with the noble and learned Lord, Lord Donaldson, that this is one more piece of evidence to show that the Government are moving away from using the discretion exercised by judges towards trying to impose a straitjacket, in this case taking the form of surcharges. The fact that the noble Baroness says that the amount of the surcharge may be sufficient for the noble and learned Lord to pay if he is so unlucky as to be caught by another speed camera is not the point. We are talking about the imposition of a surcharge on everyone for which there is as yet no fettering on the Government; it is an amount that could be raised at any time in the future.
The half-baked aspect of this came out when the noble Baroness was striving to persuade us about the principle behind it; about where the money would go and why. She started by saying that it would be nice if there was an outbreak of civil obedience because then there would be no surcharge because there would be no victims. However, the whole tenor of her argument is that if there were no road traffic victims, there would still have to be a surcharge because road traffic offenders would be paying for everyone else. Even if there were complete civil obedience and no one ever broke a road traffic direction ever again, penalties would still be imposed by the Government if they needed to pay for other victims.
Although it is an illogical and half-baked proposal, I shall certainly not be able to sort it out at this late stage. It merely goes to prove that in future we need to be sure that when the Government start a Bill they put into it at the very beginning the proposals that they hope to see at the end; that they do not put them into the Bill as though it was a skip passing in front of the House into which they can throw the goods they wish to see in it.
It is not a satisfactory position. People who consider themselves to be honest drivers will find themselves called "serious and persistent offenders" for the first time in their lives when perhaps they have once in a three-year period exceeded the speed limit at a modest level. I hope that they never do so, but it is an extraordinary title to apply to such people. I beg leave to withdraw the amendment.
222
Amendment No. 8A, as an amendment to Commons Amendment No. 8, by leave, withdrawn.
[Amendments Nos. 8B and 8E, as amendments to Commons Amendment No. 8, not moved.]
On Question, Motion agreed to.

COMMONS AMENDMENT
9 After Clause 11, insert the following new clause—

INCREASE IN MAXIMUM ON-THE-SPOT PENALTY FOR DISORDERLY BEHAVIOUR
(1) In Chapter 1 of Part 1 of the Criminal Justice and Police Act 2001 (c. 16) (on-the-spot penalties for disorderly behaviour), section 3 is amended as follows.
(2) In subsection (2) (maximum penalty that may be prescribed), at the end insert "plus a half of the relevant surcharge".
(3) After that subsection insert—
"(2A) The "relevant surcharge", in relation to a person of a given age, is the amount payable by way of surcharge under section 161A of the Criminal Justice Act 2003 by a person of that age who is fined the maximum amount for the offence.'"
Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 9. I have spoken to this amendment with Amendment No. 8.
Moved, That the House do agree with the Commons in their Amendment No, 9.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.

COMMONS AMENDMENT
10 After Clause 11, insert the following new clause—

HIGHER FIXED PENALTY FOR REPEATED ROAD TRAFFIC OFFENCES
(1) The Road Traffic Offenders Act 1988 (c. 53) is amended as follows.
(2) In section 53 (amount of fixed penalty), after subsection (2) insert—
(3) In particular, in relation to England and Wales an older made under subsection (1)(a) may prescribe a higher fixed penalty in a case where, in the period of three years ending with the date of the offence in question, the offender committed an offence for which—

(a) he was disqualified from driving, or

(b) penalty points were endorsed on the counterpart of any licence held by him."

(3) At the end of section 84 (regulations) (which becomes subsection (1)) insert—
"(2) The Secretary of State may by regulations provide that where—

(a) a conditional offer has been issued under section 75 of this Act,

(b) the amount of the penalty stated in the offer is not the higher amount applicable by virtue of section 53(3) of this Act, and

223

(c) it subsequently appears that that higher amount is in fact applicable,

the fixed penalty clerk may issue a further notice (a "surcharge notice") requiring payment of the difference between the two amounts.
(3) Regulations under subsection (2) above may—

(a) provide for this Part of this Act to have effect, in cases to which the regulations apply, with such modifications as may be specified;

(b) make provision for the collection and enforcement of amounts due under surcharge notices.""

Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 10. I have spoken to this amendment with Amendment No. 8.
Moved, That the House do agree with the Commons in their Amendment No. 10. (Baroness Scotland of Asthal.)
[Amendment No. 10A, as an amendment to the Motion, not moved.]
[Amendments Nos. 10B and 10C, as amendments to Amendment No. 10, not moved.]
On Question, Motion agreed to.
7.45 p.m.

COMMONS AMENDMENT
11 Clause 12, page 8, line 11, leave out from "count" to end of line 17 and insert "may not be regarded as a sample of other counts unless the defendant in respect of each count is the same person"
Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 11.
Let me begin by reminding your Lordships what these provisions are for. Where offending consists of innumerable repetitions of the same offence there may be far more instances of it than can reasonably be included in a single indictment. The practice used to be for a defendant to be indicted for a number of sample counts. It he was convicted of them the court would then sentence him on the basis of all the offences. But this meant that the offences for which he was sentenced included some to which he had not pleaded guilty, of which he had not been convicted and which he had not asked to be taken into consideration.
For this reason the practice was disapproved of by the Court of Appeal in the case of Kidd in 1998. The present clauses provide a statutory replacement for the sample count procedure. It is not intended to widen its scope, nor will it result in any cases which now receive jury trial being denied it. The offences that will he tried without a jury will be the ones that could not now be tried at all. The new procedure is an improvement on the old because where a defendant has been found guilty of sample counts the court will not, as before, simply assume that he is guilty of the remaining counts but will proceed to try those counts in accordance with the evidence.
224
In the debate at the Report stage in another place. Mr Douglas Hogg, the right honourable Member for Sleaford and North Hykeham, appeared to be somewhat concerned at the prospect of a judge who had heard the evidence in the first stage of a trial before a jury—and who would of course be aware that the defendant had been convicted—would then bring that knowledge to the second stage of the trial. This suggests a misapprehension about the purpose of this procedure. It is absolutely clear that where a defendant has been convicted of counts which are samples of other counts, it will be appropriate for the court to take account in the second stage of the trial both of the fact that he has been convicted and of any evidence adduced in the first stage that is relevant and admissible.
Conversely, a case where that would not be appropriate cannot be a sample count. But that is very different from applying a test of cross-admissibility, which is a bone of contention between us and noble Lords opposite. Your Lordships voted at Third Reading to add subsection (9) to this clause, a requirement for evidence admissible in respect of sample counts to be admissible in respect of subsidiary counts. There was a vote in Committee in another place to remove it, and an attempt at Report stage to reinstate it was defeated. Your Lordships have debated the issue in the past at some length, both on Report and at Third Reading, and it has been considered in another place. Nevertheless I should like to explain why we have consistently opposed the requirement for cross-admissibility and why we remain firmly of the view that such a requirement would be a mistake.
The risk is that using cross-admissibility as the criterion of whether counts were similar enough for one to be a sample of another might exclude some of the cases that we want to be subject to the two-stage process. Let me give an example. An offender is involved in an Internet scam whereby hundreds of victims are cheated of trivial sums of money; there is evidence of more than 600 transactions. Each transaction would constitute a separate count on the indictment and to include all of them would overload it.
The key issue in the case is whether or not the offender was dishonest. In other words, it is not in doubt that the transactions took place; the question is whether or not he had the dishonest intent. The prosecution would seek to make an application for a two-stage trial; 15 counts to be tried by jury and the rest to be tried by judge alone. If in order to obtain such an order the prosecution had to demonstrate that each count was cross-admissible, the court might apply a strict test of similarity or similar fact, which is commonly thought to be a test of degree. The case in the example may fail this test because evidence of dishonesty in respect of one transaction may have no probative value in respect of another different transaction. In other words, the evidence of the other transactions, while similar, may add no probative value to the main issue in the case, which is dishonesty.

225
Another difficulty is that the test would have to be applied at the preparatory stage, which is when the decision about using the two-stage procedure is to be taken. It might not be clear at that point whether evidence in respect of a count would be cross-admissible in respect of another count. Yet another difficulty is that where there has been no conviction the court has no power to award compensation. Victims may miss out on compensation, therefore, where there are more offences than can be accommodated on the indictment.
We are of the view that in cases of this type where the judge is considering whether one count is a sample of another, the judge can be relied upon to know what a sample count is and that the question of what can be regarded as a sample count can best be left to judicial discretion. The expression is well known and understood from the days before the Kidd judgment. I know that the noble Lord, Lord Thomas of Gresford, will be familiar with this, as indeed will the noble and learned Lord, Lord Donaldson. As far as I am aware, the case involved no suggestion that the courts were taking an unduly broad view of the circumstances in which some counts could be regarded as samples of others. The objection to the former procedure was merely that it entailed assuming the defendant's guilt on the subsidiary counts rather than establishing it, which is what our clause now allows.
Subsection (9), therefore, leaves what is a sample count to judicial discretion. We have been persuaded, however, that the way in which the subsection was originally drafted had an unhelpful circularity about it. Clause 12(9) has therefore been amended so as to remove the circular definition. It simply provides that a sample count is not to be regarded as a sample of other counts unless the defendant in respect of each count is the same person, thus preserving the part of Clause 9 that arguably has a useful function.
I hope that that is clear. We are creating a new mechanism to allow us to do what we did very happily for a number of years with great utility and facility.
Moved, That the House do agree with the Commons in their Amendment No. 11.—(Baroness Scotland of Asthal.)
Lord Thomas of Gresford Lord Thomas of Gresford rose to move Amendment No. 11A, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 11, leave out "agree" and insert "disagree".
The noble Lord said: My Lords, I draw your Lordships' attention to the wording of Clauses 12(4) and 14(1). Clause 12(4) says of the sample count:
"The second condition is that, if an order under subsection (2) were made, each count or group of counts which would accordingly be tried with a jury can be regarded as a sample of counts which could accordingly be tried without a jury".
The phrase "can be regarded" appears again in Clause 14 and, indeed, in the Minister's speech. It is new Labour speak, I am afraid; it is rather like the Prime Minister saying "I can apologise for misleading the country about Iraq", but did he? Here again, if it,
226
"can be regarded as a sample",
is it a sample, and by whom will it be regarded?
All we are seeking to do, in this very simple amendment, is to make it quite clear what a sample count is, as it has always been understood, and that it is the judge who takes the decision that he is the person who considers that the sample count is a sample of the other counts and not that it "can be regarded" as such. By whom? By the man on the Clapham omnibus? We are simply seeking clarification.
The noble Baroness referred to Internet fraud. That is no doubt a very modern thing. I recall prosecuting a case four or five years ago of some 300 people who had been defrauded in a mortgage scam. I think that a solicitor was one of the defendants. The sums involved—about £50,000—were not trivial. Statements were taken from those 300 victims; the police sent around a pro forma and had them all fill it in. I think we started with 30 counts in the indictment and, at the suggestion of the judge, we cut it down to 10. But every statement that had been obtained—the scam having been carried out in the same way—was evidence in the case in relation to those 10 counts. They were admissible on very well known principles and were samples of the criminality of the person concerned.
I fully recognise that, since the Kidd decision, which suggested that it would be wrong to sentence a person on sample counts if the other counts were not admitted, something had to be done. We do not object to the general principle behind this, but we object to the fact that the phrase,
"can be regarded as a sample"
is so wide that it could refer to things that are way outside the previously understood meaning of a sample count. For that reason, I beg to move.
Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 11, leave out "agree" and insert "disagree".—(Lord Thomas of Gresford.)
Baroness Anelay of St Johns: My Lords, I can be very brief, but my brevity does not reflect any lack of strength in my support. We remain unconvinced by the Government's argument; we do not see any mischief in the original amendment of the noble Lord, Lord Thomas of Gresford, with regard to subsection (9)(b). We believe that it is right to make certain that somebody cannot be convicted of an offence to be tried without a jury for large numbers of other offences that are not really linked to it.
We support the noble Lord, Lord Thomas of Gresford. We believe that his amendment would simply ensure that a sample count is exactly what the majority of legal practitioners would understand it to be. If the noble Lord is minded to test the opinion of the House, we shall support him.
Baroness Scotland of Asthal: My Lords, I hear what the noble Baroness says. I am disappointed that she should take that view, not least because it is absolutely clear on the face of the Bill that the person who will be

227
responsible for exercising the discretion as to what will and will not be a sample count will not be the man on the Clapham omnibus, it will be the judge. The judge will decide, as the judge has always decided in these cases, whether these counts can properly be seen as a sample. I make it plain that I, for one, have total trust in the ability of our judges to make that decision soundly. If noble Lords opposite do not, it is a matter for them.
Lord Thomas of Gresford: My Lords, the noble Baroness says that with her tongue in her cheek because she knows that nobody has been more supportive of the judiciary and the discretion of the judiciary than we on these Benches, and me in particular, not to mention the noble Baroness, Lady Anelay.
I am not satisfied with that reply. I ask your Lordships to agree with my amendment, and I propose to test the opinion of the House.
7.57 p.m.
On Question, Whether the said amendment (No. 11A) shall be agreed to?
Their Lordships divided: Contents, 84; Not-Contents, 96.

Division No. 3

CONTENTS

Addington, L.

Kingsland, L.

Anelay of St Johns, B.

Knight of Collingtree, B.

Astor of Hever, L.

Laidlaw, L.

Attlee, E.

Linklater of Butterstone, B.

Blaker, L.

Livsey of Talgarth, L.

Bonham-Carter of Yarnbury, B.

Lucas, L.

Bradshaw, L.

Luke, L.

Brougham and Vaux, L.

Lyell, L.

Burnham, L.

Mackie of Benshie, L.

Buscombe, B.

McNally, L.

Byford, B.

Marlesford, L.

Carlisle of Bucklow, L.

Masham of Ilton, B.

Carnegy of Lour, B.

Mayhew of Twysden, L.

Clement-Jones, L.

Michie of Gallanach, B.

Colwyn, L.

Miller of Chilthorne Domer, B.

Cope of Berkeley, L.

Monro of Langholm, L.

Denham, L.

Montrose, D.

Dholakia, L.

Morris of Bolton, B.

Dixon-Smith, L.

Neuberger, B.

Donaldson of Lymington, L.

Newton of Braintree, L.

D'Souza, B.

Noakes, B.

Dundee, E.

Northover, B.

Dykes, L.

Norton of Louth, L.

Elliott of Morpeth, L.

Park of Monmouth, B.

Fearn, L.

Prashar, B.

Flather, B.

Razzall, L.

Glenarthur, L.

Rennard, L.

Hamwee, B.

Roberts of Llandudno, L.

Higgins, L.

Rogan, L.

Hodgson of Astley Abbotts, L.

Roper, L. [Teller]

Hooper, B.

Rotherwick, L.

Hooson, L.

Russell-Johnston, L.

Howard of Rising, L.

Sandberg, L.

Howe of Idlicote, B.

Seccombe, B.

Jenkin of Roding, L.

Selsdon, L.

Kimball, L.

Sharp of Guildford, B.

King of Bridgwater, L.

Sharples, B.

228

Shutt of Greetland, L.

Walmsley, B.

Skelmersdale, L. [Teller]

Watson of Richmond, L.

Smith of Clifton, L.

Williams of Crosby, B.

Thomas of Gresford, L.

Williamson of Horton, L.

Ullswater, V.

Windlesham, L.

NOT-CONTENTS

Acton, L.

Hoyle, L.

Alli, L.

Hughes of Woodside, L.

Amos, B. (Lord President of the Council)

Hunt of Kings Heath, L.

Jones, L.

Archer of Sandwell, L.

Judd, L.

Ashton of Upholland, B.

Kirkhill, L.

Bach, L.

Laird, L.

Bassam of Brighton, L.

Leitch, L.

Billingham, B.

Lockwood, B.

Borrie, L.

McCarthy, L.

Brennan, L.

McDonagh, B.

Brooke of Alverthorpe, L.

McIntosh of Haringey, L.

Brookman, L.

McIntosh of Hudnall, B.

Burlison, L.

MacKenzie of Culkein, L.

Carter, L.

McKenzie of Luton, L.

Carter of Coles, L.

Mason of Barnsley, L.

Chan, L.

Massey of Darwen, B.

Clark of Windermere, L.

Maxton, L.

Corbett of Castle Vale, L.

Merlyn-Rees, L.

Crawley, B.

Mitchell, L.

David, B.

Morgan of Drefelin, B.

Davies of Coity, L.

Parekh, L.

Pitkeathley, B.

Davies of Oldham, L.[Teller]

Plant of Highfield, L.

Dixon, L.

Radice, L.

Drayson, L.

Rendell of Babergh, B.

Dubs, L.

Rooker, L.

Elder, L.

Rosser, L.

Evans of Parkside L.

Rowlands, L.

Evans of Temple Guiting, L.

Royall of Blaisdon, B.

Farrington of Ribbleton, B.

Scotland of Asthal, B.

Faulkner of Worcester, L.

Sewel, L.

Fitt, L.

Simon, V.

Fyfe of Fairfield, L.

Smith of Leigh, L.

Gale, B.

Stone of Blackheath, L.

Gibson of Market Rasen, B.

Symons of Vernham Dean, B.

Gilbert, L.

Taylor of Blackburn, L.

Goudie, B.

Temple-Morris, L.

Gould of Potternewton, B.

Thornton, B.

Graham of Edmonton, L.

Tomlinson, L.

Griffiths of Burry Port, L.

Triesman, L.

Grocott, L. [Teller]

Truscott, L.

Harris of Haringey, L.

Tunnicliffe, L.

Hart of Chilton, L.

Turnberg, L.

Haskel, L.

Turner of Camden, B.

Haworth, L.

Wall of New Barnet, B.

Henig, B.

Warner, L.

Hilton of Eggardon, B.

Whitaker, B.

Hollis of Heigham, B.

Young of Norwood Green, L.

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

COMMONS AMENDMENT
12 Before Clause 17, insert the following new clause—

PROCEDURE FOR DETERMINING FITNESS TO PLEAD: ENGLAND AND WALES
(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".
(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.""
Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 12. In relation to this group of amendments, the government amendments made in the other place seek to reinstate provisions removed at Third Reading in this House, which would streamline the court process for vulnerable defendants who may be unfit to stand trial. The change provides that the decision on whether a defendant is fit to plead to a charge should be taken by the judge alone, and not by a jury.
We understand the fears of those who have argued that the change reduces the protection of jury trial, but, with respect, we do not agree that it has that effect. A finding of unfitness does not enable any court disposal. It leads to a trial of the facts further to which there is a jury decision on whether the defendant did the act as charged. If the jury is not so satisfied, the court must acquit. Only if the jury finds that the defendant did the act is there a court disposal, and that disposal cannot be punitive. The court may order admission to hospital for treatment if medical evidence justifies that. If it does not, it may order supervision in the community or make an absolute discharge.
The proposal was made by Lord Justice Auld in his review of the criminal justice process. Its intent is to spare vulnerable defendants the lengthy process involving two separate juries, the first having to hear evidence from at least two medical practitioners. A jury is unlikely to be as well qualified as a judge to interpret complex evidence of a professional nature. Moreover, if the defendant subsequently wishes to challenge the finding, he will have a judge's reasons for the conclusion under the new clause. Under the 1964 Act provision, which this amendment would restore, the jury has to give no reasons for its finding.
The amendments tabled by the noble Baroness and the noble Viscount would remove the benefits of the judge's greater expertise, and need to give reasons, from precisely those cases in which the defendant might wish to challenge the decision. We know that the decision on fitness is not challenged in the great majority of cases.
The proposed amendment would leave the Government's intentions intact when there was no challenge. But the defendant stands to gain most when there is dissent, and we should not seek to exclude those benefits.
Lord Justice Auld's proposal is now four years old. We believe that it is too important both to the courts and to vulnerable defendants to be delayed further. It
230
must, at best, be subject to considerable further delay if removed from this Bill. We commend the amendment to your Lordships.
Moved, That the House do agree with the Commons in their Amendment No. 12.—(Baroness Scotland of Asthal.)
Baroness Anelay of St Johns Baroness Anelay of St Johns rose to move Amendment No. 12A, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 12, leave out "agree" and insert "disagree".
The noble Baroness said: My Lords, in moving the amendment, I shall speak to Amendments Nos. 12B, 13A and 13B. When we first debated these matters at Report, it was because the Government had inserted them into the Bill quite late in the day, but had tried to give this House as much advance notice as possible of the changes before Report. At that stage, as the Minister will recall, I sought to contact those organisations with a direct interest in representing the needs of people who could come within the remit of these clauses. The difficulty was that at that stage I was simply unable to get a response from them. The Minister felt that there had been official consultation; the difficulty was that I could not see any record of that, or response from the organisations.
At Third Reading there still had been no response, which was why I divided the House—because I felt that it was important to listen to the views of organisations such as Mind. By the time the Bill reached Second Reading in another place, Mind had issued its briefing, in which it said that it was,
"concerned at the absence of consultation about these changes, particularly in view of the commitments extended by the government on the consultation and scrutiny of the Mental Health Bill".
Mind also said in its briefing that it believed that the Government's proposals,
"will lead to an increase in unwarranted deprivation of liberty and an unfair criminalisation of people who are not of proven criminal liability".
I appreciate entirely the Minister's arguments, and that she believes that the interests of vulnerable people in those circumstances may be preserved by a judge having given reasons. I put against that the perception and experience of an organisation that represents people who will be subject to those proceedings. Will the Minister tell the House what conversations the Home Office has had with Mind in the course of the summer on these matters?
My concern is that there has been no response from the Government, although Sandra Gidley in another place quoted the briefing at Second Reading (at col. 575 of the Official Report of 14 June) and my honourable friend Cheryl Gillan in Committee also referred to it. (at cols. 202 to 203 of the Official Report of Standing Committee E of 29 June). Such references were simply not recognised in the response by Mr Goggins or, at Second Reading, by Mr Blunkett, the Home Secretary.
Today, I introduce an amendment—Amendment No. 12B—which addresses the need of the Government to achieve some form of administrative

231
convenience, and yet balances that against the need for vulnerable people still to have the assessment of a jury at an appropriate time. That is set against the background, as the Minister will know, of the fact that this House is always wary of any measures that nibble into the role of the jury.
The noble Baroness said today, and has said before, that because the measure is in the Auld report and that was published four years ago we had better introduce it. As my honourable friend Cheryl Gillan pointed out in another place, this particular proposal took up about two small paragraphs in the Auld report. There really has not been a thoroughgoing justification for the proposal.
With regard to administrative convenience, Mind makes the point that the issue of fitness to plead is not a simple procedural matter but one that goes to the heart of the issue of culpability. This factor does not weigh significantly against the core principles in favour of retention.
With regard to stress on the vulnerable individual, Mind states that it does not believe that the additional impact of a change in the composition of the jury would make more than a marginal impact on the defendant and there is no case for weighing this assumed stress against the importance of retaining the jury.
If the Government wish to press ahead, my Amendment No. 12B would seek to offer them a way in which we might resolve this matter so that the jury would be retained to make the decision only in those circumstances where there is a challenge as to fitness to plead. I refer to a question to which the noble Baroness's colleague in another place, the Minister, Mr Paul Goggins, replied. The question was asked by the noble Baroness's noble, or rather honourable, friend Vera Baird. She is not noble yet, but perhaps she will be after the next election, not that I would wish Redcar a different Member of Parliament although I wish that she would change her party. However, I certainly admire her.
This amendment came from Vera Baird. It would mean that in 10 per cent of the cases that are challenged the jury could be retained. In another place Vera Baird was rather coy about the origin of the amendment. I quite agree with her that it was a suggestion and that she never tabled the amendment. She was a loyal Back-Bencher; she suggested the amendment but did not table it. Paul Goggins' response was simply to brush it aside. He said that the Government did not want it because that was not the way they wanted to tackle the matter. The noble Baroness has gone slightly further today but she has not as yet met my principles on this matter sufficiently to persuade me that we should not proceed with my Amendment No. 12B.
Moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 12, leave out "agree" and insert "disagree".—(Baroness Anelay of St Johns.)
8.15 p.m.
Lord Thomas of Gresford: My Lords, we support Amendment No. 12A. The essential thing to realise about these issues of fitness to plead is that if a person is unfit to plead he is detained during Her Majesty's pleasure. Therefore, it is a matter of very considerable importance. Such people will be detained for a lengthy, indeterminate period of time. They will be regarded as people who have not been completely cleared of the offence with which they are charged. It is a very unfortunate position for them to be in. That is why we support this amendment.
Lord Donaldson of Lymington: My Lords, there is one slight snag with Amendment No. 12B in the name of the noble Baroness, Lady Anelay. Proposed new subsection (4A) states:
"Where there is no challenge by either party regarding the question of fitness to be tried".
I came across this in the late 1960s; it is the only time that I ever have met it. In the particular circumstances the prison officer had decided that the accused was perfectly fit to plead and had so certified. Originally no one raised any question about that until at a fairly late stage the accused went into the witness box. At that stage he said, alternately, "I did not do it" and "Of course, I did it". It seemed to be self-evident that he was not fit to plead. He was not putting on an act; he was quite genuine to that extent.
I turned to counsel for the defendant and asked whether he agreed that his client was unfit to plead. The counsel is a distinguished Member of this House. I cannot remember his name but it does not matter. He rightly said, in effect, "Don't be silly. If he is unfit to plead, he cannot give me any instructions as to whether he is fit to plead and so I really cannot enter into this at all", and he did not, although I believe it was clear that privately he thought that was all right.
That raised another point which is very helpfully dealt with—and I think rightly dealt with—in subsection (5) of the Government's amendment. In the peculiar circumstances to which I referred the accused's clear unfitness to plead emerged only during the course of the trial. There was, I am bound to say, a slight problem with the prison medical officer. The prosecution assured me that if we had a short adjournment he felt sure that the prison officer would change his mind, which he did. I was then faced with the problem of whether to empanel another jury to decide the question. That seemed to me to be daft. I do not think that it is referred to in any law on the subject. The question arises, if you have the same jury, do you really have to go through the charade of giving the evidence all over again? It seemed to me that that was nonsense. Therefore, I directed the jury that it was fully entitled to take account of the evidence that it had heard in a different capacity and the man was quite rightly found unfit to plead.

233
Subsection (5) of the new clause proposed by the Government is right. There are real problems in amendments that depend on neither party challenging, for reasons that I have given.
Baroness Scotland of Asthal: My Lords, I respectfully agree with the noble and learned Lord, Lord Donaldson. The judiciary generally shares the view that the new clause would be helpful. It may be right to remind the House what Lord Justice Auld said about the issue. He found that: first, the jury's role in the majority of unfitness decisions was little more than a formality; secondly, the procedure is cumbersome because it often requires the empanelling of two juries; thirdly, the jury can bring nothing to the finding that a judge cannot; and fourthly, he takes equivalent decisions about whether there should be a trial and whether a defendant is physically fit to stand in applications to stay the prosecution or discharge the defendant, very much as the noble and learned Lord gave us a clear example of.
Lord Justice Auld also suggested that the consequences of a finding of unfitness were more flexible since the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, including absolute discharge, and that the jury should be left to determine whether the defendant committed the act. I hope that noble Lords will not think that those points were not well made because he was succinct and precise to the point. Verbosity was never an ill from which he has suffered. He is right on the matter.
The noble Baroness made a point about the 10 per cent. For those who may be, as the noble Lord, Lord Thomas of Gresford, so clearly says, detained at Her Majesty's pleasure for a lengthy and indeterminate time, it is more important to get a reasoned decision on why they are to be so detained and why they are found to be unfit to plead. Although the jury can come to that decision, it is not obliged to give reasons for having come to it; in fact, it cannot. When it comes to either appealing or reviewing a jury's decision, there is not the wherewithal to know the basis on which it came to it. That is why we think it better if the judge is charged with that task, as he can bring the acuity, knowledge and skill that is sometimes needed when there is a contest between two difficult and contentious medical opinions. He can give a reasoned decision on why he may prefer the advice of one to the other.
In terms of the interests of those who are particularly vulnerable, we think the new clause a safeguard that is merited. Lord Justice Auld was right to say that the matter should be addressed. Given my further explanation and the assistance of the noble and learned Lord, I ask the noble Baroness not to press her amendment.
Baroness Anelay of St Johns: My Lords, I shall try to he as succinct as Lord Justice Auld, whose very weighty tome certainly did not suffer for its length. His acuity showed that it could have been even longer had it been written by someone else.
Even when the drafting of my amendments is holed below the water by the noble and learned Lord, Lord Donaldson, I sometimes have the temerity to plough
234
ahead. This is one such occasion. I am extremely grateful to the Public Bill Office for the assistance that it gave me in drafting the amendment. It had to be somewhat rushed at the last moment, and it achieved a miracle in producing the amendment, subject to the directions that I gave; I am sure that they were rather vague.
The amendment fulfils my commitment to Mind to raise the issue today and put it to the test if there were not a satisfactory answer from the Government on the points raised. I shall not test the patience of the House by going through those arguments again, but I wish to test the opinion of the House when we reach Amendment No. 12B.
Baroness Scotland of Asthal: My Lords. I just wanted to clarify matters, because the noble Lord, Lord Thomas of Gresford, suggested that an individual could be detained at Her Majesty's pleasure for an indeterminate period. I should make it plain, and I hope that the noble Lord was intending this, that unfitness to plead cannot lead to indefinite detention in hospital. It can lead only to a trial of the facts by the jury; and only if a jury finds the defendant did the act, as charged, can he be ordered to be detained in hospital—and then only if he meets the conditions for detention on the grounds for his mental disorder, subject to the full safeguards of the Mental Health Act 1983, including immediate right to hearing by the Mental Health Review Tribunal, which can discharge him. That is the process that would have to be undergone. I felt that I should make that clear. I have said that before, but putting the two together might have caused some confusion.
Baroness Anelay of St Johns: My Lords, so that we are clear—I shall now seek to withdraw the amendment to the Motion, but give notice that I shall seek to move Amendment No. 12B. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Anelay of St Johns Baroness Anelay of St Johns rose to move, as an amendment to Commons Amendment No. 12, Amendment No. 12B:
12B Leave out lines 4 to 13 and insert—
"( ) In section 4 (finding of unfitness to plead), after subsection (4) insert—
"(4A) Where there is no challenge by either party regarding the question of fitness to be tried the question shall be determined by the court without a jury.".
( ) In subsection (5) (question of fitness to be determined by a jury), for the words "The question of fitness to be tried" substitute "In all other cases the question".
( ) In subsection (6), for "A jury shall not make a determination under subsection (5)" substitute "The court or a jury shall not make a determination under subsection (4A) or (5)".
( ) In section 4A (finding that the accused did the act or omission charged against him), in subsection (1), for "section 4(5) above it is determined by" substitute "section 4(4A) or (5) above it is determined by the court or".
( ) In subsection (5)(a), after "was determined" insert "by a jury".

235
( ) In subsection (5)( b), after "was determined" insert "by a jury"."
The noble Baroness said: My Lords, I have spoken to the amendment already and I beg to move.
Moved, as an amendment to Amendment No. 12, Amendment No. 12B.—(Baroness Anelay of St Johns.)
8.26 p.m.
On Question, Whether the said amendment (No. 12B), as an amendment to Commons Amendment No. 12, shall be agreed to?
Their Lordships divided: Contents, 76; Not-Contents, 95.

Division No. 4

CONTENTS

Addington, L.

Lyell, L.

Anelay of St Johns, B.

Mackie of Benshie, L.

Astor of Hever, L.

McNally, L.

Attlee, E.

Maginnis of Drumglass, L.

Blaker, L.

Mar and Kellie, E.

Bradshaw, L.

Marlesford, L.

Brougham and Vaux, L.

Masham of Ilton, B.

Burnham, L.

Mayhew of Twysden, L.

Buscombe, B.

Michie of Gallanach, B.

Byford, B.

Miller of Chilthorne Domer, B.

Carlisle of Bucklow, L.

Monro of Langholm, L.

Carnegy of Lour, B.

Montrose, D.

Colwyn, L.

Morris of Bolton, B.

Cope of Berkeley, L.[Teller]

Neuberger, B.

Craig of Radley, L.

Newton of Braintree, L.

Denham, L.

Noakes, B.

Dholakia, L.

Norton of Louth, L.

Dixon-Smith, L.

Park of Monmouth, B.

Dundee, E.

Rennard, L.

Dykes, L.

Renton, L.

Elliott of Morpeth, L.

Roberts of Llandudno, L.

Fearn, L.

Rogan, L.

Glenarthur, L.

Roper, L. [Teller]

Hamwee, B.

Rotherwick, L.

Higgins, L.

Russell-Johnston, L.

Hodgson of Astley Abbotts, L.

Sandberg, L.

Hooper, B.

Seccombe, B.

Hooson, L.

Sharp of Guildford, B.

Howard of Rising, L.

Sharples, B.

Kimball, L.

Shutt of Greetland, L.

King of Bridgwater, L.

Skelmersdale, L.

Kingsland, L.

Smith of Clifton, L.

Knight of Collingtree, B.

Thomas of Gresford, L.

Laidlaw, L.

Trumpington, B.

Linklater of Butterstone, B.

Ullswater, V.

Livsey of Talgarth, L.

Walmsley, B.

Lucas, L.

Watson of Richmond, L.

Luke, L.

Williams of Crosby, B.

NOT-CONTENTS

Acton, L.

Brookman, L.

Alli, L.

Burlison, L.

Amos, B. (Lord President of the Council)

Carter, L.

Carter of Coles, L.

Archer of Sandwell, L.

Clark of Windermere, L.

Ashton of Upholland, B.

Corbett of Castle Vale, L.

Bach, L.

Crawley, B.

Bassam of Brighton, L.

David, B.

Billingham, B.

Davies of Coity, L.

Borrie, L.

Davies of Oldham, L.[Teller]

Brennan, L.

Dixon, L.

Brooke of Alverthorpe, L.

Donaldson of Lymington, L.

236

Drayson, L.

McKenzie of Luton, L.

D'Souza, B.

Massey of Darwen, B.

Dubs, L.

Maxton, L.

Elder, L.

Merlyn-Rees, L.

Evans of Parkside, L.

Mitchell, L.

Evans of Temple Guiting, L.

Morgan of Drefelin, B.

Farrington of Ribbleton, B.

Parekh, L.

Faulkner of Worcester, L.

Pitkeathly, B.

Fyfe of Fairfield, L.

Plant of Highfield, L.

Gale, B.

Radice, L.

Gibson of Market Rasen, B.

Rendell of Babergh, B.

Goudie, B.

Rooker, L.

Gould of Potternewton, B.

Rosser, L.

Griffiths of Burry Port, L.

Rowlands, L.

Grocott, L. [Teller]

Royall of Blaisdon, B.

Harris of Haringey, L.

Scotland of Asthal, B.

Hart of Chilton, L.

Sewel, L.

Haskel, L.

Simon, V.

Haworth, L.

Smith of Leigh, L.

Henig, B.

Snape, L.

Hilton of Eggardon, B.

Stone of Blackheath, L.

Hollis of Heigham, B.

Taylor of Blackburn, L.

Howe of Idlicote, B.

Temple-Morris, L.

Hoyle, L.

Thornton, B.

Hughes of Woodside, L.

Tomlinson, L.

Hunt of Kings Heath, L.

Triesman, L.

Jones, L.

Truscott, L.

Judd, L.

Tunnicliffe, L.

Kirkhill, L.

Turnberg, L.

Leitch, L.

Turner of Camden, B.

Lockwood, B.

Wall of New Barnet, B.

McCarthy, L.

Warner, L.

McDonagh, B.

Whitaker, B.

McIntosh of Haringey, L.

Wilkins, B.

McIntosh of Hudnall, B.

Williamson of Horton, L.

MacKenzie of Culkein, L.

Young of Norwood Green, L.

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

COMMONS AMENDMENT
13 Before Clause 17, insert the following new clause—

PROCEDURE FOR DETERMINING FITNESS TO BE TRIED: NORTHERN IRELAND
(1) The Mental Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I.4) is amended as follows.
(2) In Article 49 (finding of unfitness to be tried), in paragraph (4) (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 paragraph (4A) of that Article, for "A jury" substitute "The court".
(4) In paragraph (1) of Article 49A (finding that the accused did the act or omission charged against him), for "jury" substitute "court".
(5) For paragraph (5) of that Article substitute—
(5) Where the question of fitness to be tried was determined after arraignment of the accused, the determination under paragraph(2) is to be made by the jury by whom he was being tried.""
Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 13. I spoke to this amendment with Amendment No. 12.
Moved, That the House do agree with the Commons in their Amendment No. 13.—(Baroness Scotland of Asthal.)
[Amendment No. 13A not moved.]
[Amendment No. 13B, as an amendment to Commons Amendment No. 13, not moved.]
On Question, Motion agreed to.

COMMONS AMENDMENTS
14 Clause 17, page 12, line 17, at end insert—
"(4) Section 5A of the Criminal Procedure (Insanity) Act 1964 ("the 1964 Act") applies in relation to this section as it applies in relation to section 5 of that Act.
(5) 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

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

(6) Where the Court of Appeal make a supervision order by virtue of this section, any power of revoking or amending it shall be exercisable as if the order had been made by the court below."
15 Page 12, line 20, at end insert—
""interim hospital order" has the meaning given in section 38 of that Act;"
16 Page 12, line 24, leave out from first "the" to end of line 27 and insert "1964 Act."
17 After Clause 18, insert the following new clause—

COURTS-MARTIAL ETC
Schedule (Unfitness to stand trial and insanity: courts-martial etc) (unfitness to stand trial and insanity: courts-martial etc) has effect."
Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 14 to 17. These amendments are intended to reflect in court martial procedure the changes that were made by current Clauses 17 and 18. It also reflects the change made by Amendments Nos. 12 and 13 that we considered a moment ago, that a decision whether a defendant is fit to plead will be made by the judge advocate alone rather than by the lay members of the court martial, and it makes consequential amendments.
The service legislation in this area is out of date. An attempt to provide an updated framework was made in the Armed Forces Act 1996, but the regulatory framework that it provided for has proved too complex and it has never been commenced. Therefore, it is now a matter of some urgency to put appropriate provisions in place.
The effect of the amendments is to allow courts martial to slot into the Mental Health Act 1983 and to make hospital orders on the same terms as civilian orders. That has meant abandoning the AFA 1996 provisions, which had envisaged a system allowing courts martial to commit people to hospital in Scotland or Northern Ireland as well as England and Wales. It is right that I should emphasise further that under the new provisions a person who is admitted into hospital in England and Wales can later be
238
administratively transferred to a hospital elsewhere in the United Kingdom, if that is appropriate in his or her case.
The amendments also address a problem with the service legislation that has become apparent only from recent House of Lords and ECHR case law. The AFA 1996 Act envisages that orders admitting people to hospital or non-residential supervision would be made with input from both the judge advocate—that is a civilian judge—and the lay members of the court martial, who are non-legally qualified military officers and who serve a function like a jury. This is consistent with the normal courts martial sentencing procedure which allows the lay members to have input into sentencing because of their expert knowledge about the effect of criminal offending on military discipline.
However, the case law makes it clear that these orders are not to be considered as criminal in nature, but as mental health matters. While the court members will still decide on the facts of the case, it is therefore inappropriate to have lay input into the orders themselves. The decision should be made by the judge advocate alone on the basis of advice from mental health professionals.
In addition, Amendments Nos. 14 to 16 make some technical improvements to Clause 17. Those changes are not related to the court martial system, but simply improve what we have already done for the civilian system.
Moved, That the House do agree with the Commons in their Amendments Nos. 14 to 17. (Baroness Scotland of Asthal.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
18 Before Clause 19, insert the following new clause—
POWERS OF AUTHORISED OFFICERS EXECUTING WARRANTS
(1) After section 125B of the Magistrates' Courts Act 1980 (c. 43) insert—

125BA POWERS OF PERSONS AUTHORISED UNDER SECTION 125AOR125B
Schedule 4A to this Act, which confers powers on persons authorised under section 125A or 125B for the purpose of executing warrants for the enforcement of fines and other orders, shall have effect."
(2) After Schedule 4 to that Act insert the Schedule set out in Schedule (Powers of authorised officers executing warrants) to this Act."
19 Before Clause 19, insert the following new clause—

DISCLOSURE ORDERS FOR PURPOSE OF EXECUTING WARRANTS
After section 125C of the Magistrates' Courts Act 1980 (c. 43) insert—
"125CA POWER TO MAKE DISCLOSURE ORDER
(1) A magistrates' court may make a disclosure order if satisfied that it is necessary to do so for the purpose of executing a warrant to which this section applies.
(2) This section applies to a warrant of arrest, commitment, detention or distress issued by a justice of the peace in connection with the enforcement of a fine or other order imposed or made on conviction.
(3) A disclosure order is an order requiring the person to whom it is directed to supply the designated officer for the court with any of the following information about the person to whom the warrant relates—

(a) his name, date of birth or national insurance number;

(b) his address (or any of his addresses).

(4) A disclosure order may be made only on the application of a person entitled to execute the warrant.
(5) This section applies to the Crown as it applies to other persons.
125CB USE OF INFORMATION SUPPLIED UNDER DISCLOSURE ORDER
(1) Information supplied to a person under a disclosure order, or under this subsection, may be supplied by him to—

(a) the applicant for the order or any other person entitled to execute the warrant concerned;

(b) any employee of a body or person who, for the purposes of section 125B above, is an approved enforcement agency in relation to the warrant;

(c) any justices' clerk or other person appointed under section 2(1) of the Courts Act 2003.

(2) A person who intentionally or recklessly—

(a) discloses information supplied under a disclosure order otherwise than as permitted by subsection (1) above, or

(b) uses information so supplied otherwise than for the purpose of facilitating the execution of the warrant concerned,

commits an offence.
(3) But it is not an offence under subsection (2) above—

(a) to disclose any information in accordance with any enactment or order of a court or for the purposes of any proceedings before a court; or

(b) to disclose any information which has previously been lawfully disclosed to the public.

(4) A person guilty of an offence under subsection (2) above is liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to a fine.

(5) In this section "disclosure order" has the meaning given by section 125CA(3) above.""
20 Before Clause 19, insert the following new clause—

PROCEDURE ON BREACH OF COMMUNITY PENALTY ETC
Schedule (Procedure on breach of community penalty etc) (procedure on breach of community penalty etc) has effect."
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 18 to 20.
We now move on to a number of measures introduced at Commons Standing Committee and Report stage concerning the enforcement of fines, warrants where an offender has breached a community penalty and warrants issued when there has been a failure to appear in front of the court when summoned. These new measures were introduced by the Parliamentary Under-Secretary of State, Department for Constitutional Affairs, Christopher Leslie, as part of a large package of improvements the Government are currently taking forward to improve the overall
240
enforcement of criminal penalties and fail to appear warrants. These powers will relate only to criminal warrants.
One of the Government's top priorities within the criminal justice system is to increase the effective enforcement of criminal penalties and pre-conviction warrants. For example, through the review carried out by my noble friend Lord Carter of Coles, the criminal justice system seeks to increase the use of fines. However, if we are to do that and be successful we must first ensure that the fine is seen by the judiciary and the public as being a credible form of punishment. To enable that to happen the effective enforcement of fines is essential.
The successful enforcement of community penalty breach warrants and fail to appear warrants is equally crucial to improve the efficiency of the courts and the overall criminal justice system. These additional measures are needed to tackle offenders who wilfully refuse to comply with the orders of the courts.
Currently only about 30 per cent of distress warrants and 43 per cent of community penalty breach warrants are executed successfully. It is estimated that there are currently around 70,000 outstanding fail to appear warrants. I doubt whether any noble Lord would argue that improved enforcement in these areas is something that we should not implement immediately. That is why these measures have been introduced in the Bill. The Domestic Violence, Crime and Victims Bill presented the earliest opportunity to see these new measures enacted. That is the background to why these measures appear before your Lordships' House today.
Therefore, the Government have introduced Amendments Nos. 18, 19, 20, 62 and 63 to the Bill. Amendments Nos. 102 and 103 amend the Long Title. These measures will give civilian enforcement officers (CEOs) and approved enforcement agencies (AEAs) the powers they need to improve the enforcement of fines, community penalty breach warrants, and the execution of fail to appear warrants.
By way of background I should explain that CEOs are employed directly by the courts or the police and execute warrants ordered by the court in relation to offenders who wilfully default on their penalties or refuse to attend court when summonsed. AEAs perform a similar contracted service in those areas where the courts have entered into partnership with other agencies to underpin effective enforcement of the orders of the courts. In carrying out their duties, both CEOs and AEAs are expected to adhere to the same standards of conduct. AEAs and the officers they employ must satisfy the conditions set out in the Approved Enforcement Agencies Regulations 2000. The national standards are available on the Department for Constitutional Affairs website, but, for example, those regulations specify that no officer employed by an AEA could have a criminal conviction punishable by imprisonment or a conviction for dishonesty or violence. For example, when employing CEOs in Devon and Cornwall, criminal background

241
checks are carried out on the individuals as well as in-house checks to ensure that there are no outstanding warrants.
CEOs and AEAs have varying backgrounds; they include former police officers and others with experience of enforcement activities and debt management. I can assure the House that both sets of officers will receive thorough training in the execution of warrants, human rights and health and safety before they can operate—it will relate to both their existing powers and the proposed ones.
To that end, we want civilian enforcement officers and approved enforcement agents to have the power to enter and search premises to find an offender in order to execute a warrant of arrest, commitment or detention. This power can also be used in executing a warrant of distress, where he or she is in default in paying a sum, as a result of conviction. In all the above cases, the powers can be used only where the officer has reasonable suspicion that the offender who is the subject of the warrant is present. We also want them to have the power to search an offender for dangerous articles, such as hypodermic needles or knives, and items that the offender may use to facilitate an escape from lawful custody, and also the power to use reasonable force in exercising the powers that I have already outlined.
The new powers will not only lead to the more effective enforcement of fines, community penalties and "fail to appear" warrants but will also provide health and safety benefits for civil enforcement officers employed by both the courts and the police, and staff deployed by approved enforcement agencies. The officers involved in executing those warrants will, when an offender is deemed high risk, rely on police support. Those officers will receive detailed guidance and training before they can exercise the powers. We will involve key stakeholders, such as staff representative bodies, in the development of that provision. The main cost of implementation of those policies will be in the training.
I can assure noble Lords that the powers contain safeguards in that the power of entry can be used only to the extent that it is "reasonably required", a search can be conducted only on "reasonable grounds", and any force must be "reasonable" and "necessary". Should a civilian enforcement officer or member of an AEA exceed those limitations, the acts would no longer be lawful. The legal consequences will depend on what has been done, but a grievance can be pursued through the Magistrates' Courts Committee, through the AEAs' own complaints procedures, which they must have, or through legal redress in the criminal or civil courts, depending on the charge. We anticipate that powers of entry and search will be used only at the end of the process when necessary to enforce a warrant.
Secondly, we have also given magistrates' courts a new power to request specified information on offenders from organisations in the public and private sectors; for example, a financial institution or local authority. The information requested by the courts is
242
intended to help trace offenders whose whereabouts have become unknown. At present, courts do not have access to such data should the organisations involved be unwilling to co-operate. The measure is for use only in assisting the execution of criminal warrants, and the power will be available only to the courts.
Currently, in instances where the courts have been provided with poor-quality information, such as false or multiple addresses, or where information is out of date, they are severely hampered in the effective enforcement of fines and community-penalty breach warrants. The new power will help the courts by allowing them to require organisations to provide data where it is thought that more up-to-date information is held about a hard-to-trace offender. The intention is that this power will be used only on a case-by-case basis in helping the courts determine the location of an untraceable offender. All powers comply with the current data protection legislation. As this is a change to the current system that will have an effect on employers, albeit a relatively small number, we have consulted employers' representatives about the new power and its possible impact on business. They are happy that it places no significant burdens on them.
Thirdly, we are also putting in place measures that will allow proceedings for breach of a community penalty to be commenced and heard by a magistrates' court other than the court responsible for overseeing the community penalty. Magistrates' courts are restricted in respect of which court can enforce a community penalty in the case of non-compliance by the offender. Restrictions vary according to the type of sentence, but in practice they tend to mean that only the court that passes sentence can issue a warrant or summons to secure the attendance of an offender who is in breach. The warrant or summons must specify that the offender appears before that court.
If the offender moves away from the area, it will create problems for enforcement. Often, CEOs and AEAs have to travel long distances to execute a warrant. Although the CEOs have national jurisdiction, the execution of a warrant in another court area is often inefficient and impractical. The problems are compounded when the offender cannot be found at the address on the warrant.
Giving magistrates the power will not only enable the more effective and efficient enforcement of community penalty breach warrants but will lead to the more effective and efficient use of civil enforcement officers and approved enforcement agencies by the courts. It is worth saying that, during 2002–03, only 29 per cent of the warrants were executed within the target period. That has improved to 43 per cent, but the aim is a 75 per cent enforcement rate within the target period. In order to achieve that, the court will have received all the relevant paperwork before the proceedings take place.
As I noted at the beginning of my speech this evening, the effective enforcement of criminal penalties and "failed to appear" warrants by magistrates' courts and the police is a priority for the Government and sits at the heart of the criminal justice

243
system. Progress is being made, but we must do more to build on it and sustain the improved performance. These measures will help to do that. I can also confirm to noble Lords that, on the implementation of the powers, we will evaluate the effectiveness of the powers themselves and of the impact of the policy.
Moved, That the House do agree with the Commons in their Amendments Nos. 18 to 20.—(Baroness Ashton of Upholland.)
Baroness Anelay of St Johns: My Lords, I am advised by the Deputy Speaker that it would not be appropriate for me to speak to Amendment No. 62 in this group, although it is grouped with these amendments. There are more ways than one of skinning a cat—I love cats, so I would not do that. I shall speak briefly to the amendments moved by the noble Baroness, and I shall not move Amendment No. 62A when we reach it.
Yesterday, the noble Baroness, Lady Ashton of Upholland, invited my noble friend Lord Bridgeman and me to a meeting to discuss this group of amendments. I am grateful to her. The way in which she presented the Government's position means that she has answered almost just about all the questions that I was going to ask her today.
It is a new batch of provisions. The noble Baroness will not be too surprised—I told her yesterday that I would do it—if I tease her a little about dropping them into the Bill with the parachute offered to the DCA by the Home Office. When the provisions were introduced in another place on 6 July, the Minister's colleague Mr Leslie said:
"we saw an opportunity to make what I regard as vital changes to the law".—[Official Report, Commons Standing Committee E, 6/7/04; col. 358.]
One could say that the changes were so vital that no one had mentioned them until then, but, never mind, I see the reason behind the proposals. As a hard-bitten old magistrate, I was frustrated at the difficulty of serving warrants and getting effective fine enforcement in particular cases.
The proposal will take enforcement further within the constraints that the Minister set out. There will be proper training and guidance. There has been consultation with employers, and there will be safeguards for people caught up in the process. When a warrant is executed, there may be third parties around, particularly in a house in multiple occupation, who may find themselves injured or inconvenienced. There must be some method of redress for them. The noble Baroness has outlined it today.
I am content with the way in which the noble Baroness has presented the information, particularly the information that she gave about the dividing line between the occasions on which a civilian should take action and the occasions on which they can take action only with the police or when the police would take that action. The Government are aware that we are concerned about the growing tendency on the part of the Government to use civilians instead of police
244
officers. However, in this regard, the Government have drawn the right dividing line between their functions.
Lord Thomas of Gresford: My Lords, I, too, thank the noble Baroness for having a meeting with my noble friend Lady Walmsley and me to explain these provisions. Amendment No. 63, which introduces the procedure on breach of community penalties and so on, is to be welcomed. It is a very good idea that a person does not have to be taken half way across the country if he is in breach of a community penalty.
Providing that there is a proper transfer of information between one court and another, so that there is no sentencing for breach of a community penalty in ignorance of what has happened in the previous proceedings, that is fine. The noble Baroness was good enough to give us that assurance yesterday and to repeat it in her remarks today. Precisely how that is done, whether by transfer of the file or by some magical IT, for which she is also responsible, is something that we will be very interested to investigate.
On the issue of disclosure orders, we are concerned, as is the noble Baroness, Lady Anelay, with the increased use of civilian enforcement agencies. That is a growth industry. I am not very happy with it. I hope that it is not possible for an approved enforcement agency to do private work alongside public work, where the temptation to use information, for example, obtained by a disclosure order, would be given to private clients of the same organisation. I know that it would be an offence. I hope that, in accordance with the provisions set out here, it is made absolutely plain in contracts with that agency and in directions that are given to the court that the purpose of the disclosure order is limited to executing a warrant against an individual and that the information thus obtained is private.
I hope to say a little more on Amendment No. 62 if the noble Baroness, Lady Anelay, expands on Amendment No. 62A. While I indicated unease at the use of civilian enforcement officers and, more particularly, enforcement agencies, I have a serious objection to the use of force when doing the various things that new Schedule 4A would allow: in particular, the searching of arrested persons by force; the entry to levy distress by force; and the executing of warrants of arrest with the use of force.
In some circumstances, I suppose, a warrant of arrest can attract the use of force. But the searching of individuals by force, left to a civilian agency, is a new departure in this country. It was a matter that was the subject of protest by my colleague Mr David Heath when the matter first came before the other place in July. I repeat the concerns that were set out then.
As regards Amendment No. 62A, I see that the noble Baroness, Lady Anelay, is shaking her head and we will not be discussing it. I am sorry that she will not pursue the matter a little further.
Again, I hope that guidelines will be sent out to the organisations concerned that it will be contractually part of their responsibilities to ensure that only

245
reasonable force is used and that there is a review of contracts too. That is the sort of thing that bedevils the privately run prison service at the present time.
On Question, Motion agreed to.

COMMONS AMENDMENT
21 After Clause 23, insert the following new clause—

VICTIMS OF PERSONS SENTENCED TO IMPRISONMENT OR DETENTION
(1) This section applies if—

(a) a court convicts a person ("the offender") of a sexual or violent offence, and

(b) a relevant sentence is imposed on him in respect of the offence.

(2) But section (Victims of persons subject to hospital direction and limitation direction) applies (instead of this section) if a hospital direction and a limitation direction are given in relation to the offender.
(3) The local probation board for the area in which the sentence is imposed must take all reasonable steps to ascertain whether a person who appears to the board to be the victim of the offence or to act for the victim of the offence wishes—

(a) to make representations about the matters specified in subsection (4);

(b) to receive the information specified in subsection (5).

(4) The matters are—

(a) whether the offender should be subject to any licence conditions or supervision requirements in the event of his release;

(b) if so, what licence conditions or supervision requirements.

(5) The information is information about any licence conditions or supervision requirements to which the offender is to be subject in the event of his release.
(6) If a person whose wishes have been ascertained under subsection (3) makes representations to the local probation board mentioned in that subsection or the relevant local probation board about a matter specified in subsection (4), the relevant local probation board must forward those representations to the persons responsible for determining the matter.
(7) If a local probation board has ascertained under subsection (3) that a person wishes to receive the information specified in subsection (5), the relevant local probation board must take all reasonable steps—

(a) to inform the person whether or not the offender is to be subject to any licence conditions or supervision requirements in the event of his release,

(b) if he is, to provide the person with details of any licence conditions or supervision requirements which relate to contact with the victim or his family, and

(c) to provide the person with such other information as the relevant local probation board considers appropriate in all the circumstances of the case.

(8) The relevant local probation board is—

(a) in a case where the offender is to be supervised on release by an officer of a local probation board, that local probation board;

(b) in any other case, the local probation board for the area in which the prison or other place in which the offender is detained is situated."

Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 21. These amendments seek to achieve a simple aim: that victims of serious sexual or violent offending should have rights to information about the release of the offender, whether the offender
246
has received a prison sentence or has been dealt with under mental health legislation. Noble Lords will know that that is an issue that Jayne Zito and the Zito Trust have spent a considerable amount of time on. I pay tribute to the work that she and the trust have done and the way in which they have campaigned so hard and so long for this change.
The combined effect of the amendments will be that when the court sentences for a serious sexual or violent offence, the local probation board acquires a duty to identify the victim of the offence. If the victim wishes, they are to be kept informed about decisions regarding the offender's release. They have the right to make representations about measures to be taken for their protection and to be informed about those measures.
The duty already exists under Section 69 of the Criminal Justice and Court Services Act 2000 where the offender receives a prison sentence. But these provisions will extend it to cases where the offender is dealt with under mental health legislation; whether under a prison sentence or not. The provisions consolidate Section 69 of the 2000 Act with the new provision covering the three Mental Health Act 1983 powers under which such offenders may be detained.
9 p.m.
I turn now to the amendments tabled by the noble Baroness, Lady Anelay of St Johns. I should say with respect that these amendments would have little or no practical effect on the provisions as drafted. The amendments to lines 11 and 31 to remove the reference to "all" reasonable steps would have the effect of weakening only slightly the requirement on probation boards to identify a victim who wished to be informed or to make representations. We wish to retain the existing wording which conveys a high level of responsibility and is indicative of our commitment to keeping victims informed wherever they wish it and when it is practicable. I should point out that in the victims' panel which I chair, victims have constantly pointed out that they want the opportunity to be consulted and kept informed, if they indicate that that is really what they want. That is a strong desire that was expressed by all members of the advisory panel.
For the purposes of the line 12 amendment, a person need only appear to the board to act for the victims. So a person "appointed to act for the victim" would be included. I have taken a number of the issues raised by the noble Baroness, Lady Anelay, to be probing in nature to make sure that we are including those people whom she would wish us to include.
In relation to the line 25 amendment, under the existing arrangements, which are to be maintained, victim liaison officers contact the victim about two months before the relevant decision. If the victim has not made representations in time for the decision process, it is a reasonable inference that they do not wish to do so. In any event, if a time period on making representations were to be provided for in legislation, it would need to be more precisely specified than just being within a "reasonable time limit". We consider that the current arrangements provide the appropriate degree of flexibility.
On the proposal to require the information to be conveyed "in writing", victims contacted by victim liaison officers do not always want information in writing, but prefer simply to have a meeting or sometimes a telephone call. We think that it is better to preserve flexibility to act in accordance with victims' wishes.
However, I understand the reason for these amendments. It is right that we ensure that these provisions are correct and that we have approached this with the appropriate level of sensitivity to meet the needs of victims in this rather delicate and difficult area.
Moved, That the House do agree with the Commons in their Amendment No. 21.—(Baroness Scotland of Asthal.)
Baroness Anelay of St Johns Baroness Anelay of St Johns rose to move, as an amendment to Commons Amendment No. 21, Amendment No. 21A,
21A Line 11, leave out "all"
The noble Baroness said: My Lords, in moving Amendment No. 21A, I shall speak also to Amendments Nos. 21 B to 21G. The noble Baroness is absolutely right. These amendments are probing in nature in order to try to flesh out some of the issues raised by the Government's new clauses. In that spirit, I have purposely tabled amendments only to the first relevant clause and certainly did not replicate them for the later clauses. I did not want to trouble the Printed Paper Office with the need to print that lot.
I recognise that the provisions before us have the support of mental health organisations. However, I have questions about the kind of consultation that is to take place with victims on these matters. What is the practicality surrounding the process, not only for the victim but also for the Probation Service which has to carry out these consultations? What happens when an offender is released but then moves from one area to another? Will the victim be advised of that change of residence?
What estimate have the Government made of the resource implications for the Probation Service, especially as it has now been subsumed within NOMS? The Minister will be aware from what has been said in this House—particularly at Question Time—about the concern of noble Lords with regard to the funding of the Probation Service and the financial challenges that it faces, especially in London where there is a shortage of professionals in post.
The noble Baroness referred to the fact that Amendment No. 21A would remove the word "all" from the phrase "take all reasonable steps". She said that it would not make much difference. I accept that. I am merely intrigued by the drafting simply because I have not seen it used before by the Government. It may be that it was in statutes passed before I began my twoand-a-half years in this job, but it seems to tie down the Probation Service to a particularly rigorous procedure. That is to be welcomed in that one wants to give the victim every opportunity to be consulted and
248
to give his views but it also imposes a particular rigour on the Probation Service. What happens if someone challenges the Probation Service and says, "You did not take all reasonable steps. These are the reasonable steps that you did not take"? One does not want the system to be undermined by a lack of faith in it, either from the Probation Service side or the victim's side.
The noble Baroness referred to Amendment No. 21B. I have simply redrafted the subsection so that the duty is to consult the person who appears to be the victim of the offence or to consult a person who appears to have been appointed to act for the victim. The amendment seeks to elicit whether it is right that someone should pop up and say, "I am acting on behalf of Mr or Mrs A and therefore you should consult me because I am the one who is acting in his or her best interests". Should there not be some kind of proof that that person has been appointed either by Mr or Mrs A, or by someone legally acting on his or her behalf, to be involved in the consultation process?
I know many pressure groups and individuals act very responsibly in taking up cases, but very sensitive information is involved in this particular process and one must be wary that one does not go too wide in opening out the availability of consultation.
The noble Baroness also referred to Amendment No. 21E, which requires the information to be given in writing. There again, the amendment seeks merely to raise the question of what reasonable steps the Probation Service has to take to get the information to someone and how long the response period should be. There could be victims who feel so scarred by the experience of what they have been through that they simply will not reply. It is not because they are being obstructive to the system or difficult intentionally but because they cannot face the thought of having any contact with an organisation which is trying to act on behalf of the person being released, even though the Probation Service has contacted the victim in his or her own best interests. It is a question of how long should be the time lag before the Probation Service says, "We have done everything we can; we have tried to contact the victim; now we are going to get on with it even though we have not heard back from him or her".
As was the case when I started the day a very long while ago, I shall move this amendment in the expectation that it will shortly be withdrawn and that those grouped with it will not be pressed.
Moved, as an amendment to Commons Amendment No. 21, Amendment No. 21A.—(Baroness Anelay of St Johns.)
Baroness Walmsley: My Lords, while we do not oppose the intent of the Commons amendment we have one concern upon which the Minister may be able to shed some light. When this issue was debated in another place, my honourable friend the Member for Somerton and Frome asked the Minister whether there would be any restrictions on the victim's use of the information, but the Minister, Paul Goggins, was unable to give him a definite answer on that occasion. I wonder whether the Minister can do so tonight.

249
The problem is that in some circumstances, the victim may wish to go to the local media with the information that a person who has caused him or his family a great deal of grief is about to be released into the community and may go back to live in the same vicinity. This could pose difficulties for the rehabilitation of that ex-offender and therefore be highly undesirable to all of us who wish all ex-offenders to be resettled in the community and living a positive life. It may even cause unnecessary anxiety to residents in the neighbourhood and/or lead to victimisation of the ex-offender. All those are highly undesirable consequences.
There are also questions of how the information can or should be shared with Victim Support, GPs or anybody who might want to give counselling to the victim. Since Mr Goggins was unable to give my honourable friend a definite answer in another place, I invite the Minister to clarify the situation for your Lordships this evening.
Baroness Scotland of Asthal: My Lords, I very much understand why the noble Baroness raises this issue. The whole point of the amendments is to give victims of those who are mentally disordered similar rights with regard to information to those who are subject to the ordinary defendant.
What has really changed—and it is important that this is recognised—is that we have now set up witness and victims care units in the way in which the whole process of prosecutions will go. We hope that very soon there will be such a unit it all the 42 areas of local criminal justice boards with which we deal.
We hope that from the moment someone becomes a victim, there will he a proper assessment of what their needs are to get them through the process of the trial and an assessment of their long-term needs for help and assistance thereafter. During that time, we hope, an identified person will assist the victim right the way through. That is going to be available, and was available before these provisions for all those who were not subject to a disordered offender's offences. We are trying to bring all victims within the same category so that they all have similar rights.
It is absolutely fundamental that we listen to victims. The Probation Service will be responsible for finding out the way in which the victim may best want to receive information, who their contact points are or may be, and get some sort of confirmation on how that will be managed. We are producing good practice guides; the victims and witnesses unit in the Home Office is producing a tool kit which will go live and will, we hope, help local criminal justice boards to put in place the sorts of provisions that they will need to make sure that these things are implemented appropriately.
The provisions will mean that for the first time, victims of serious sexual or violent offenders will have the right to be kept informed. The noble Baroness, Lady Walmsley, asked about what happens to the information, because some of it is indeed confidential. Sharing information with victims must balance the
250
legitimate needs of the victim to know what is in place, to address their legitimate fears, and the equally legitimate need to respect the medical confidentiality of the patient and avoid harming their chances of successful rehabilitation.
The decision must be case-specific. The decision one makes in one case may not be the sort of case one wants to make in another. That is why, where the victim has expressed a wish to make representations, we have restricted the information which the probation board must convey to what is needed to enable representations. In addition, where the victim has expressed a wish to receive information about conditions of discharge, we have restricted the information which the probation board must convey to the victim only to details of any conditions which relate to contact with the victim or his or her family. We have left to the board's discretion what additional information it may be able to give to the victim, taking into account the circumstances of the individual case. We would not expect victims to be given details of the offender's address because offenders also have rights to confidentiality.
9.15 p.m.
There is also the possibility of seeking an injunction against disclosure by the media if appropriate and necessary in the circumstances, in particular for the purposes of protecting the patient. However, the board will have the responsibility for deciding, to take up a point made by the noble Baroness, Lady Anelay, about who is deemed appropriate to act on behalf of the patient. This measure has been so longed for—and Jayne Zito and others have spoken very passionately about the matter; there has been a real sense of injustice—because we have had two tiers of victims. One gets one sort of help, support and information if the perpetrator is compos mentis and has all their mental faculties and a totally different set if he does not. We listened to that and to the pain that has caused many families. We hope that these provisions will help to redress that balance.
We understand the concern that has been expressed by the noble Baroness, Lady Walmsley, in relation to that balance. Similarly, we understand the practicality of the questions asked by the noble Baroness, Lady Anelay, with her usual acuity saying, "What does this mean, how does it work and what will people do?". I will always commend the noble Baroness for that approach because it is absolutely the right one. It is what delivers on the ground for the people that we all care about.
Baroness Anelay of St Johns: My Lords, I am not sure whether that means that I am such a boring old so and so that I talk about the same thing on every single Bill, but never mind, I will keep plugging along. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Motion agreed to.

COMMONS AMENDMENTS
22 After Clause 23, insert the following new clause—

VICTIMS OF PERSONS SUBJECT TO HOSPITAL ORDER WITH RESTRICTION ORDER
(1) This section applies if the conditions in subsections (2) and (3) are met.
(2) The first condition is that one of these applies in respect of a person ("the patient") charged with a sexual or violent offence—

(a) the patient is convicted of the offence;

(b) a verdict is returned that the patient is not guilty of the offence by reason of insanity;

(c) a finding is made—

(i) under section 4 of the Criminal Procedure (Insanity) Act 1964 (c.84) that the patient is under a disability, and

(ii) under section 4A of that Act that he did the act or made the omission charged against him as the offence.

(3) The second condition is that a hospital order with a restriction order is made in respect of the patient by a court dealing with him for the offence.
(4) The local probation board for the area in which the determination mentioned in subsection (2)(a), (b) or (c) is made must take all reasonable steps to ascertain whether a person who appears to the board to be the victim of the offence or to act for the victim of the offence wishes—

(a) to make representations about the matters specified in subsection (5);

(b) to receive the information specified in subsection (6).

(5) The matters are—

(a) whether the patient should be subject to any conditions in the event of his discharge from hospital;

(b) if so, what conditions.

(6) The information is information about any conditions to which the patient is to be subject in the event of his discharge from hospital."
23 After Clause 23, insert the following new clause—
"VICTIMS OF PERSONS SUBJECT TO HOSPITAL ORDER WITH RESTRICTION ORDER: REPRESENTATIONS
(1) This section applies if section (Victims of persons subject to hospital order with restriction order) applies.
(2) If—

(a) a person makes representations about a matter specified in section (Victims of persons subject to hospital order with restriction order) (5) to the local probation board mentioned in section (Victims of persons subject to hospital order with restriction order) (4) or the relevant local probation board, and

(b) it appears to the relevant local probation board that the person is the victim of the offence or acts for the victim of the offence,

the relevant local probation board must forward the representations to the persons responsible for determining the matter.
(3) The duty in subsection (2) applies only while the restriction order made in respect of the patient is in force.
(4) The Secretary of State must inform the relevant local probation board if he is considering—

(a) whether to give a direction in respect of the patient under section 42(1) of the Mental Health Act 1983 (c.20) (directions lifting restrictions),

(b) whether to discharge the patient under section 42(2) of that Act, either absolutely or subject to conditions, or

252

(c) if the patient has been discharged subject to conditions, whether to vary the conditions.

(5) A Mental Health Review Tribunal must inform the relevant local probation board if—

(a) an application is made to the tribunal by the patient under section 69,70 or 75 of the Mental Health Act 1983 (c.20) (applications concerning restricted patients), or

(b) the Secretary of State refers the patient's case to the tribunal under section 71 of that Act (references concerning restricted patients).

(6) Subsection (7) applies if—

(a) the relevant local probation board receives information under subsection (4) or (5), and

(b) a person who appears to the relevant local probation board to be the victim of the offence or to act for the victim of the offence—

(i) when his wishes were ascertained under section (Victims of persons subject to hospital order with restriction order) (4), expressed a wish to make representations about a matter specified in section (Victims of persons subject to hospital order with restriction order) (5), or

(ii) has made representations about such a matter to the relevant local probation board or the local probation board mentioned in section (Victims of persons subject to hospital order with restriction order) (4).

(7) The relevant local probation board must provide the information to the person.
(8) The relevant local probation board is—

(a) if the patient is to be discharged subject to a condition that he reside in a particular area, the local probation board for the area;

(b) in any other case, the local probation board for the area in which the hospital in which the patient is detained is situated."

24 After Clause 23, insert the following new clause—

VICTIMS OF PERSONS SUBJECT TO HOSPITAL ORDER WITH RESTRICTION ORDER: INFORMATION
(1) This section applies if section (Victims of persons subject to hospital order with restriction order) applies.
(2) Subsection (3) applies if a person who appears to the relevant local probation board to be the victim of the offence or to act for the victim of the offence—

(a) when his wishes were ascertained under section (Victims of persons subject to hospital order with restriction order) (4), expressed a wish to receive the information specified in section (Victims of persons subject to hospital order with restriction order) (6), or

(b) has subsequently informed the relevant local probation board that he wishes to receive that information.

(3) The relevant local probation board must take all reasonable steps—

(a) to inform that person whether or not the patient is to be subject to any conditions in the event of his discharge;

(b) if he is, to provide that person with details of any conditions which relate to contact with the victim or his family;

(c) if the restriction order in respect of the patient is to cease to have effect, to notify that person of the date on which it is to cease to have effect;

(d) to provide that person with such other information as the board considers appropriate in all the circumstances of the case.

(4) The Secretary of State must inform the relevant local probation board—

(a) whether the patient is to be discharged;

(b) if he is, whether he is to be discharged absolutely or subject to conditions;

(c) if he is to be discharged subject to conditions, what the conditions are to be;

(d) if he has been discharged subject to conditions—

(i) of any variation of the conditions by the Secretary of State;

(ii) of any recall to hospital under section 42(3) of the Mental Health Act 1983 (c.20);

(e) if the restriction order is to cease to have effect by virtue of action to be taken by the Secretary of State, of the date on which the restriction order is to cease to have effect.

(5) Subsections (6) and (7) apply (instead of subsection (4)) if—

(a) an application is made to a Mental Health Review Tribunal by the patient under section 69, 70 or 75 of the Mental Health Act 1983 (c.20) (applications concerning restricted patients), or

(b) the Secretary of State refers the patient's case to a Mental Health Review Tribunal under section 71 of that Act (references concerning restricted patients).

(6) The tribunal must inform the relevant local probation board—

(a) of the matters specified in subsection (4)(a) to (c);

(b) if the patient has been discharged subject to conditions, of any variation of the conditions by the tribunal;

(c) if the restriction order is to cease to have effect by virtue of action to be taken by the tribunal, of the date on which the restriction order is to cease to have effect.

(7) The Secretary of State must inform the relevant local probation board of the matters specified in subsection (4)(d) and (e).
(8) The duties in subsections (3) to (7) apply only while the restriction order is in force.
(9) The relevant local probation board has the meaning given in section (Victims of persons subject to hospital order with restriction order: representations) (8)."
25 After Clause 23, insert the following new clause—
"VICTIMS OF PERSONS SUBJECT TO HOSPITAL DIRECTION AND LIMITATION DIRECTION
(1) This section applies if—

(a) a person ("the offender") is convicted of a sexual or violent offence,

(b) a relevant sentence is imposed on him in respect of the offence, and

(c) a hospital direction and a limitation direction are given in relation to him by a court dealing with him for the offence.

(2) The local probation board for the area in which the hospital direction is given must take all reasonable steps to ascertain whether a person who appears to the board to be the victim of the offence or to act for the victim of the offence wishes—

(a) to make representations about the matters specified in subsection (3);

(b) to receive the information specified in subsection (4).

(3) The matters are—

(a) whether the offender should, in the event of his discharge from hospital, be subject to any conditions and, if so, what conditions;

(b) whether the offender should, in the event of his release from hospital, be subject to any licence conditions or supervision requirements and, if so, what licence conditions or supervision requirements;

254

(c) if the offender is transferred to a prison or other institution in which he might have been detained if he had not been removed to hospital, whether he should, in the event of his release from prison or another such institution, be subject to any licence conditions or supervision requirements and, if so, what licence conditions or supervision requirements.

(4) The information is—

(a) information about any conditions to which the offender is to be subject in the event of his discharge;

(b) information about any licence conditions or supervision requirements to which the offender is to be subject in the event of his release."

26 After Clause 23, insert the following new clause—
"VICTIMS OF PERSONS SUBJECT TO HOSPITAL DIRECTION AND LIMITATION DIRECTION: REPRESENTATIONS
(1) This section applies if section (Victims of persons subject to hospital direction and limitation direction) applies.
(2) If —

(a) a person makes representations about a matter specified in section (Victims of persons subject to hospital direction and limitation direction) (3) to the local probation board mentioned in section (Victims of persons subject to hospital direction and limitation direction) (2) or the relevant local probation board, and

(b) it appears to the relevant local probation board that the person is the victim of the offence or acts for the victim of the offence,

the relevant local probation board must forward the representations to the persons responsible for determining the matter.
(3) If the representations are about a matter specified in section (Victims of persons subject to hospital direction and limitation direction) (3)(a), the duty in subsection (2) applies only while the limitation direction given in relation to the offender is in force.
(4) The Secretary of State must inform the relevant local probation board if he is considering—

(a) whether to give a direction in respect of the offender under section 42(1) of the Mental Health Act 1983 (c.20) (directions lifting restrictions),

(b) whether to discharge the offender under section 42(2) of that Act, either absolutely or subject to conditions, or

(c) if the offender has been discharged subject to conditions, whether to vary the conditions.

(5) A Mental Health Review Tribunal must inform the relevant local probation board if—

(a) an application is made to the tribunal by the offender under section 69, 70 or 75 of the Mental Health Act 1983 (c.20) (applications concerning restricted patients), or

(b) the Secretary of State refers the offender's case to the tribunal under section 71 of that Act (references concerning restricted patients).

(6) Subsection (7) applies if—

(a) the relevant local probation board receives information under subsection (4) or (5), and

(b) a person who appears to the relevant local probation board to be the victim of the offence or to act for the victim of the offence—

(i) when his wishes were ascertained under section (Victims of persons subject to hospital direction and limitation direction) (2), expressed a wish to make representations about a matter specified in section (Victims of persons subject to hospital direction and limitation direction) (3)(a), or

255

(ii) has made representations about such a matter to the relevant local probation board or the local probation board mentioned in section (Victims of persons subject to hospital direction and limitation direction)(2).

(7) The relevant local probation board must provide the information to the person.
(8) The relevant local probation board is—

(a) if the offender is to be discharged from hospital subject to a condition that he reside in a particular area, the local probation board for the area;

(b) if the offender is to be supervised on release by an officer of a local probation board, that local probation board;

(c) in any other case, the local probation board for the area in which the hospital, prison or other place in which the offender is detained is situated."

27 After Clause 23, insert the following new clause—
"VICTIMS OF PERSONS SUBJECT TO HOSPITAL DIRECTION AND LIMITATION DIRECTION: INFORMATION
(1) This section applies if section (Victims of persons subject to hospital direction and limitation direction) applies.
(2) Subsection (3) applies if a person who appears to the relevant local probation board to be the victim of the offence or to act for the victim of the offence—

(a) when his wishes were ascertained under section (Victims of persons subject to hospital direction and limitation direction) (2), expressed a wish to receive the information specified in section (Victims of persons subject to hospital direction and limitation direction) (4), or

(b) has subsequently informed the relevant local probation board that he wishes to receive that information.

(3) The relevant local probation board must take all reasonable steps—

(a) to inform that person whether or not the offender is to be subject to any conditions in the event of his discharge;

(b) if he is, to provide that person with details of any conditions which relate to contact with the victim or his family;

(c) if the limitation direction in respect of the offender is to cease to have effect, to notify that person of the date on which it is to cease to have effect;

(d) to inform that person whether or not the offender is to be subject to any licence conditions or supervision requirements in the event of his release;

(e) if he is, to provide that person with details of any licence conditions or supervision requirements which relate to contact with the victim or his family;

(f) to provide that person with such other information as the board considers appropriate in all the circumstances of the case.

(4) The Secretary of State must inform the relevant local probation board—

(a) whether the offender is to be discharged;

(b) if he is, whether he is to be discharged absolutely or subject to conditions;

(c) if he is to be discharged subject to conditions, what the conditions are to be;

(d) if he has been discharged subject to conditions—

(i) of any variation of the conditions by the Secretary of State;

(ii) of any recall to hospital under section 42(3) of the Mental Health Act 1983 (c.20);

256

(e) if the limitation direction is to cease to have effect by virtue of action to be taken by the Secretary of State, of the date on which the limitation direction is to cease to have effect.

(5) Subsections (6) and (7) apply (instead of subsection (4)) if—

(a) an application is made to a Mental Health Review Tribunal by the offender under section 69,70 or 75 of the Mental Health Act 1983 (c.20) (applications concerning restricted patients), or

(b) the Secretary of State refers the offender's case to a Mental Health Review Tribunal under section 71 of that Act (references concerning restricted patients).

(6) The tribunal must inform the relevant local probation board

(a) of the matters specified in subsection (4)(a) to (c);

(b) if the offender has been discharged subject to conditions, of any variation of the conditions by the tribunal;

(c) if the limitation direction is to cease to have effect by virtue of action to be taken by the tribunal, of the date on which the limitation direction is to cease to have effect.

(7) The Secretary of State must inform the relevant local probation board of the matters specified in subsection (4)(d) and (e).
(8) The duties in subsections (3)(a) to (c) and (4) to (7) apply only while the limitation direction is in force.
(9) The relevant local probation board has the meaning given in section (Victims of persons subject to hospital direction and limitation direction: representations) (8)."
28 After Clause 23, insert the following new clause—
"Victims of persons subject to transfer direction and restriction direction
(1) This section applies if—

(a) a person ("the offender") is convicted of a sexual or violent offence,

(b) a relevant sentence is imposed on him in respect of the offence, and

(c) while the offender is serving the sentence, the Secretary of State gives a transfer direction and a restriction direction in respect of him.

(2) The local probation board for the area in which the hospital specified in the transfer direction is situated must take all reasonable steps to ascertain whether a person who appears to the board to be the victim of the offence or to act for the victim of the offence wishes—

(a) to make representations about the matters specified in subsection (3);

(b) to receive the information specified in subsection (4).

(3) The matters are—

(a) whether the offender should be subject to any conditions in the event of his discharge from hospital;

(b) if so, what conditions.

(4) The information is information about any conditions to which the offender is to be subject in the event of his discharge from hospital."
29 After Clause 23, insert the following new clause—
"VICTIMS OF PERSONS SUBJECT TO TRANSFER DIRECTION AND RESTRICTION DIRECTION: REPRESENTATIONS
(1) This section applies if section (Victims of persons subject to transfer direction and restriction direction) applies.
(2) If—

(a) a person makes representations about a matter specified in section (Victims of persons subject to transfer direction and restriction direction) (3) to the local probation board mentioned in section (Victims of persons subject to transfer direction and restriction direction) (2) or the relevant local probation board, and

257

(b) it appears to the relevant local probation board that the person is the victim of the offence or acts for the victim of the offence,

the relevant local probation board must forward the representations to the persons responsible for determining the matter.
(3) The duty in subsection (2) applies only while the restriction direction given in respect of the offender is in force.
(4) The Secretary of State must inform the relevant local probation board if he is considering—

(a) whether to give a direction in respect of the offender under section 42(1) of the Mental Health Act 1983 (c.20) (directions lifting restrictions),

(b) whether to discharge the offender under section 42(2) of that Act, either absolutely or subject to conditions, or

(c) if the offender has been discharged subject to conditions, whether to vary the conditions.

(5) A Mental Health Review Tribunal must inform the relevant local probation board if—

(a) an application is made to the tribunal by the offender under section 69,70 or 75 of the Mental Health Act 1983 (c.20) (applications concerning restricted patients), or

(b) the Secretary of State refers the offender's case to the tribunal under section 71 of that Act (references concerning restricted patients).

(6) Subsection (7) applies if—

(a) the relevant local probation board receives information under subsection (4) or (5), and

(b) a person who appears to the relevant local probation board to be the victim of the offence or to act for the victim of the offence—

(i) when his wishes were ascertained under section (Victims of persons subject to transfer direction and restriction direction) (2), expressed a wish to make representations about a matter specified in section (Victims of persons subject to transfer direction and restriction direction) (3), or

(ii) has made representations about such a matter to the relevant local probation board or the local probation board mentioned in section (Victims of persons subject to transfer direction and restriction direction) (2).

(7) The relevant local probation board must provide the information to the person.
(8) The relevant local probation board is—

(a) if the offender is to be discharged subject to a condition that he reside in a particular area, the local probation board for the area;

(b) in any other case, the local probation board for the area in which the hospital in which the offender is detained is situated."

30 After Clause 23, insert the following new clause—
"VICTIMS OF PERSONS SUBJECT TO TRANSFER DIRECTION AND RESTRICTION DIRECTION: INFORMATION
(1) This section applies if section (Victims of persons subject to transfer direction and restriction direction) applies.
(2) Subsection (3) applies if a person who appears to the relevant local probation board to be the victim of the offence or to act for the victim of the offence—

(a) when his wishes were ascertained under section (Victims of persons subject to transfer direction and restriction direction) (2), expressed a wish to receive the information specified in section (Victims of persons subject to transfer direction and restriction direction) (4), or

258

(b) has subsequently informed the relevant local probation board that he wishes to receive that information.

(3) The relevant local probation board must take all reasonable steps—

(a) to inform that person whether or not the offender is to be subject to any conditions in the event of his discharge;

(b) if he is, to provide that person with details of any conditions which relate to contact with the victim or his family;

(c) if the restriction direction in respect of the offender is to cease to have effect, to notify that person of the date on which it is to cease to have effect;

(d) to provide that person with such other information as the board considers appropriate in all the circumstances of the case.

(4) The Secretary of State must inform the relevant local probation board—

(a) whether the offender is to be discharged;

(b) if he is, whether he is to be discharged absolutely or subject to conditions;

(c) if he is to be discharged subject to conditions, what the conditions are to be;

(d) if he has been discharged subject to conditions—

(i) of any variation of the conditions by the Secretary of State;

(ii) of any recall to hospital under section 42(3) of the Mental Health Act 1983 (c.20);

(e) if the restriction direction is to cease to have effect by virtue of action to be taken by the Secretary of State, of the date on which the restriction direction is to cease to have effect.

(5) Subsections (6) and (7) apply (instead of subsection (4)) if—

(a) an application is made to a Mental Health Review Tribunal by the offender under section 69,70 or 75 of the Mental Health Act 1983 (c.20) (applications concerning restricted patients), or

(b) the Secretary of State refers the offender's case to a Mental Health Review Tribunal under section 71 of that Act (references concerning restricted patients).

(6) The tribunal must inform the relevant local probation board—

(a) of the matters specified in subsection (4)(a) to (c);

(b) if the offender has been discharged subject to conditions, of any variation of the conditions by the tribunal;

(c) if the restriction direction is to cease to have effect by virtue of action to be taken by the tribunal, of the date on which the restriction direction is to cease to have effect.

(7) The Secretary of State must inform the relevant local probation board of the matters specified in subsection (4)(d) and (e).
(8) The duties in subsections (3) to (7) apply only while the restriction direction is in force.
(9) The relevant local probation board has the meaning given in section (Victims of persons subject to transfer direction and restriction direction: representations)(8)."
31 After Clause 23, insert the following new clause—

REPRESENTATIONS AND INFORMATION: INTERPRETATION
(1) In sections (Victims of persons sentenced to imprisonment or detention) to (Victims of persons subject to transfer direction and restriction direction: information)—

"court" does not include a court-martial or the Courts-Martial Appeal Court;

"hospital direction" has the meaning given in section 45A(3)(a) of the Mental Health Act 1983 (c. 20);

"hospital order" has the meaning given in section 37(4) of that Act;

"licence condition" means a condition in a licence;

"limitation direction" has the meaning given in section 45A(3)(b) of the Mental Health Act 1983 (c. 20);

"local probation board" means a local probation board established under section 4 of the Criminal Justice and Court Services Act 2000 (c. 43);

"relevant sentence" means any of these—

(a) a sentence of imprisonment for a term of 12 months or more;

(b) a sentence of detention during Her Majesty's pleasure;

(c) a sentence of detention for a period of 12 months or more under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (offenders under 18 convicted of certain serious offences);

(d) a detention and training order for a term of 12 months or more;

"restriction direction" has the meaning given in section 49(2) of the the Mental Health Act 1983 (c. 20);

"restriction order" has the meaning given in section 41(1) of that Act;

"supervision requirements" means requirements specified in a notice under section 103(6) of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6);

"transfer direction" has the meaning given in section 47(1) of the Mental Health Act 1983 (c. 20).

(2) For the purposes of sections (Victims of persons sentenced to imprisonment or detention) to (Victims of persons subject to transfer direction and restriction direction: information) an offence is a sexual or violent offence if it is any of these—

(a) murder or an offence specified in Schedule 15 to the Criminal Justice Act 2003 (c. 44);

(b) an offence in respect of which the patient or offender is subject to the notification requirements of Part 2 of the Sexual Offences Act 2003 (c. 42);

(c) an offence against a child within the meaning of Part 2 of the Criminal Justice and Court Services Act 2000 (c.43)."

32 After Clause 23, insert the following new clause—
"Victims of mentally disordered persons: Northern Ireland
(1) The Justice (Northern Ireland) Act 2002 (c. 26) is amended as follows.
(2) After section 69 (views on temporary release) insert—
"69A INFORMATION ABOUT DISCHARGE AND LEAVE OF ABSENCE OF MENTALLY DISORDERED PERSONS
(1) The Secretary of State must make a scheme requiring the Secretary of State to make available to persons falling within subsection (2) information about—

(a) the discharge from hospital of, or

(b) the grant of leave of absence from hospital to,

persons in respect of whom relevant determinations have been made.
(2) The persons referred to in subsection (1) are victims of the offences in respect of which the determinations were made who wish to receive the information.
(3) A relevant determination is made in respect of a person if—

(a) a hospital order with a restriction order is made in respect of him by a court dealing with him for an offence, or

(b) a transfer direction and a restriction direction are given in respect of him while he is serving a sentence of imprisonment in respect of an offence.

(4) The Secretary of State may from time to time make a new scheme or alterations to a scheme.
(5) The information to be made available under a scheme must include information as to any relevant conditions to which a person in respect of whom a relevant determination has been made is to be subject in the event of—

(a) his discharge from hospital, or

(b) the grant of leave of absence from hospital to him.

(6) A condition is relevant for the purposes of subsection (5) if it appears to the Secretary of State that it might affect a victim of an offence in respect of which the determination was made.
(7) A scheme may require the Secretary of State to take all reasonable steps to ascertain whether a person who appears to him to be the victim of an offence in respect of which a relevant determination has been made wishes to make representations about the matters specified in subsection (8).
(8) The matters are—

(a) whether the person in respect of whom the determination has been made should be subject to any conditions in the event of his discharge from hospital or the grant of leave of absence from hospital to him;

(b) if so, what conditions.

(9) A scheme that includes provision such as is mentioned in subsection (7) must specify how the representations are to be made.
(10) A scheme may require other information in relation to the discharge of, or the grant of leave of absence to, persons in respect of whom relevant determinations are made to be made available under the scheme.
(11) The other information may include, in cases of a description specified by the scheme or in which the Secretary of State considers it appropriate, the date on which it is anticipated that a person in respect of whom a relevant determination has been made will be discharged or granted leave of absence from hospital.
(12) Subsections (5) to (8) of section 68 apply in relation to a scheme made under this section as they apply in relation to a scheme made under that section.
(13) A scheme may make different provision in relation to different descriptions of persons in respect of whom a relevant determination is made.
69B VIEWS ON LEAVE OF ABSENCE
(1) If a person who is the victim of an offence in respect of which a relevant determination has been made makes to the Secretary of State representations falling within subsection (2) the Secretary of State has the obligations specified in subsection (3).
(2) Representations fall within this subsection if they are to the effect that the grant of leave of absence to the person in respect of whom the determination has been made would threaten the safety, or otherwise adversely affect the well-being, of—

(a) the actual victim of the offence in respect of which the determination was made, or

(b) a person who is regarded for the purposes of a scheme under section 69A as a victim of that offence by virtue of section 68(5) (as applied by section 69A(12)).

(3) The Secretary of State must—

(a) have regard to the representations in deciding whether he should give his consent to leave of absence being granted, and

261

(b) inform the victim of any such decision.

(4) Section 69A(3) (relevant determination) applies for the purposes of this section.".
(3) In section 70 (supplementary), after subsection (3) insert—
"(4) In sections 68 and 69 references to a person serving a sentence of imprisonment in Northern Ireland include a person detained in hospital pursuant to a transfer direction and a restriction direction.
(5) In subsection (4) and section 69A(3)—

"restriction direction" has the meaning given in Article 55(2) of the Mental Health (Northern Ireland) Order 1986;

"transfer direction" has the meaning given in Article 53(2) of that Order.

(6) In section 69A(3)—

"hospital order" has the meaning given in Article 44(1) of the Mental Health (Northern Ireland) Order 1986;

"restriction order" has the meaning given in Article 47(1) of that Order;

"sentence of imprisonment" has the meaning given in Article 53(5) of that Order.

(7) In sections 69A and 69B "leave of absence" means leave of absence under Article 15 of the Mental Health (Northern Ireland) Order 1986.".
(4) In section 90(5) (statutory rules), in paragraph (b) after "section 68" insert "or 69A"."
Baroness Scotland of Asthal: My Lords, I beg to move that this House do agree with the Commons in their Amendments Nos. 22 to 32, to which I have already spoken.
Moved, That the House do agree with the Commons in their Amendments Nos. 22 to 32.—(Baroness Scotland al A sthal.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
33 page 17, line 4, leave out "criminal"
34 page 17, line 9, after "means" insert "(a)"
35 page 17, line 9, after "offence" insert ", or
(b) a victim of anti-social behaviour"
36 page 17, line 10, after "(2)" insert "(a)"
37 page 17, line 15, leave out "criminal" and insert "relevant"
38 page 17, line 17, leave out "criminal" and insert "relevant"
39 page 17, line 19, leave out "criminal" and insert "relevant"
40 page 17, line 24, leave out "criminal" and insert "relevant"
41 page 17, line 26, leave out "criminal" and insert "relevant"
42 page 17, line 28, leave out "criminal" and insert "relevant"
43 page 17, line 29, after "(4)" insert "— (a)"
44 page 17, line 31, after "proceedings" insert—
"(b) a person is a defendant in relation to any other relevant proceedings if he might be, has been or might have been the subject of an order made in those proceedings."
45 page 17, line 31, at end insert—
"(7) In subsections (4) to (6) "relevant proceedings" means—

(a) criminal proceedings;

(b) proceedings of any other kind in respect of anti-social behaviour.

(8) For the purposes of this section—

(a) "anti-social behaviour" means behaviour by a person which causes or is likely to cause harassment, alarm or distress to one or more persons not of the same household as the person;

(b) a person is a victim of anti-social behaviour if the behaviour has caused him harassment, alarm or distress and he is not of the same household as the person who engages in the behaviour."

46 page 17, line 34, at end insert—
"(1A) An authority specified in Schedule 6 that has functions in relation to an area outside England and Wales is within the Commissioner's remit only to the extent that it discharges its functions in relation to England and Wales.
(1B) Subsection (1A) does not apply in relation to the Foreign and Commonwealth Office."
Baroness Scotland of Asthal: My Lords, I beg to move that this House do agree with the Commons in their Amendments Nos. 33 to 46.
We are now dealing with the amendments relating to the victims' commissioner, which brings the Ministry of Defence Police and NCIS within the remit of the commissioner. They also make it clear that the victims' commissioner and the Victims Advisory Panel can consider victims of anti-social behaviour together with the others to be included.
The group of amendments extends the remit of the Commissioner for Victims and Witnesses, both by making clear that he or she will have power to consider issues relating to all anti-social behaviour, and not only criminal anti-social behaviour, and by adding extra authorities to his or her remit. This measure was sought on the last occasion that we discussed it, so I have pleasure in making that statement.
Amendments Nos. 33 to 45 and Amendments Nos. 48 to 52, which extend the definition of victims and witnesses of crime to include victims and witnesses of anti-social behaviour, will enable the commissioner to address issues, including issues arising from civil court proceedings, relating to victims and witnesses of anti-social behaviour. They will also ensure that the Victims Advisory Panel will be able to conslider national policy to tackle anti-social behaviour and provide its views to the Government.
The effects of some anti-social behaviour, for its victims, can be as devastating as those for victims of theft or burglary, or other offences of that level of seriousness.
We have put in place a tough programme to address anti-social behaviour. We should like the commissioner to have powers to examine whether it has made a difference to the lives of individuals and communities and to advise on what further action we should take.
Amendments Nos. 66 and 67 bring within the commissioner's remit in Schedule 9 the Ministry of Defence police in so far as it exercises its functions in relation to the non-service criminal justice system in England and Wales, and the National Crime Squad and National Criminal Intelligence Agency, which we propose will jointly form a new serious organised crime agency in future legislation.

263
Amendment No. 46 makes it clear that with the exception of the Foreign and Commonwealth Office, the commissioner's role does not extend beyond how the organisations within his or her remit discharge their duties in England and Wales.
I invite noble Lords to accept these amendments to extend, and provide greater clarity to, the role of the Commissioner for Victims and Witnesses. I hope that in that regard, while we near the end of our time, I have given a little pleasure to those who wanted this inclusion to be made.
Moved, That the House do agree with the Commons in their Amendments Nos. 33 to 46.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.

COMMONS AMENDMENT
47 page 18, line 7, leave out paragraph (b) and insert—
"(b) compliance with sections (Victims of persons sentenced to imprisonment or detention) to (Victims of persons subject to transfer direction and restriction direction);"
48 page 18, line 20, after "victims" insert "of offences or anti-social behaviour"
49 page 18, line 20, after "witnesses" insert "of offences or anti-social behaviour"
50 page 18, line 21, after "offences" insert "or anti-social behaviour"
51 page 19, line 3, after first "offences" insert "or anti-social behaviour"
52 page 19, line 3, after second "offences" insert "or anti-social behaviour"
Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 47 to 52, to which I have spoken with Amendments Nos. 21 and 33.
Moved, That the House do agree with the Commons in their Amendments Nos. 47 to 52. (Baroness Scotland of Asthal.)
On Question, Motion agreed to.

COMMONS AMENDMENT
53 After Clause 33, insert the following new clause—
"RECOVERY OF CRIMINAL INJURIES COMPENSATION FROM OFFENDERS
(1) The Criminal Injuries Compensation Act 1995 (c. 53) is amended as follows.
(2) After section 7 insert—
"7A RECOVERY OF COMPENSATION FROM OFFENDERS: GENERAL
(1) The Secretary of State may, by regulations made by statutory instrument, make provision for the recovery from an appropriate person of an amount equal to all or part of the compensation paid in respect of a criminal injury.
(2) An appropriate person is a person who has been convicted of an offence in respect of the criminal injury.
(3) The amount recoverable from a person under the regulations must be determined by reference only to the extent to which the criminal injury is directly attributable to an offence of which he has been convicted.
(4) The regulations may confer functions in respect of recovery on—

(a) claims officers;

(b) if a Scheme manager has been appointed, persons appointed by the Scheme manager under section 3(4)(a).

(5) The regulations may not authorise the recovery of an amount in respect of compensation from a person to the extent that the compensation has been repaid in accordance with the Scheme.
7B RECOVERY NOTICES
(1) If, under regulations made under section 7A(1), an amount has been determined as recoverable from a person, he must be given a notice (a "recovery notice") in accordance with the regulations which—

(a) requires him to pay that amount, and

(b) contains the information mentioned in subsection (2).

(2) The information is—

(a) the reasons for the determination that an amount is recoverable from the person;

(b) the basis on which the amount has been determined;

(c) the way in which and the date before which the amount is required to be paid;

(d) the means by which the amount may be recovered if it is not paid in accordance with the notice;

(e) the grounds on which and the procedure by means of which he may seek a review if he objects to—

(i) the determination that an amount is recoverable from him;

(ii) the amount determined as recoverable from him.

(3) The Secretary of State may by order made by statutory instrument amend subsection (2) by—

(a) adding information;

(b) omitting information;

(c) changing the description of information.

7C REVIEW OF RECOVERY DETERMINATIONS
(1) Regulations under section 7A(1) shall include provision for the review, in such circumstances as may be prescribed by the regulations, of—

(a) a determination that an amount is recoverable from a person;

(b) the amount determined as recoverable from a person.

(2) A person from whom an amount has been determined as recoverable under the regulations may seek such a review only on the grounds—

(a) that he has not been convicted of an offence to which the injury is directly attributable;

(b) that the compensation paid was not determined in accordance with the Scheme;

(c) that the amount determined as recoverable from him was not determined in accordance with the regulations.

(3) Any such review must be conducted by a person other than the person who made the determination under review.
(4) The person conducting any such review may—

(a) set aside the determination that the amount is recoverable;

(b) reduce the amount determined as recoverable;

(c) increase the amount determined as recoverable;

(d) determine to take no action under paragraphs (a) to (c).

(5) But the person conducting any such review may increase the amount determined as recoverable if (but only if) it appears to that person that the interests of justice require the amount to be increased.
7D RECOVERY PROCEEDINGS
(1) An amount determined as recoverable from a person under regulations under section 7A(1) is recoverable from him as a debt due to the Crown if (but only if)

(a) he has been given a recovery notice in accordance with the regulations which complies with the requirements of section 7B, and

(b) he has failed to pay the amount in accordance with the notice.

(2) In any proceedings for the recovery of the amount from a person, it is a defence for the person to show—

(a) that he has not been convicted of an offence to which the injury is directly attributable;

(b) that the compensation paid was not determined in accordance with the Scheme; or

(c) that the amount determined as recoverable from him was not determined in accordance with regulations under section 7A.

(3) In any such proceedings, except for the purposes of subsection (2)(b), no question may be raised or finding made as to the amount that was, or ought to have been, the subject of an award.
(4) For the purposes of section 9 of the Limitation Act 1980 (time limit for actions for sums recoverable by statute to run from date on which cause of action accrued) the cause of action to recover that amount shall be taken to have accrued—

(a) on the date on which the compensation was paid: or

(b) if later, on the date on which a person from whom an amount is sought to be recovered was convicted of an offence to which the injury is directly attributable.

(5) If that person is convicted of more than one such offence and the convictions are made on different dates, the reference in subsection (4)(b) to the date on which he was convicted of such an offence shall be taken to be a reference to the earlier or earliest (as the case may be) of the dates on which he was convicted of such an offence.".
(3) In section 9(7) (financial provisions: sums payable into Consolidated Fund), after "section 3(1)(c)" insert ", or by virtue of regulations made under section 7A(1),".
(4) In section 11, after subsection (8) insert—
"(8A) No regulations under section 7A(1) or order under section 7B(3) shall he made unless a draft of the regulations or order has been laid before Parliament and approved by a resolution of each House.""
Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 53.
The amendment adds new Clauses 7A to 7D, to the Criminal Injuries Compensation Act 1995, to give the Criminal Injuries Compensation Authority—the CICA—the power to recover from offenders the compensation that it has paid to their victims. This proposal is one of several set out in the consultation paper, Compensation and Support for Victims of Crime, issued on 12 January this year. The proposal received strong support, and the resulting new clause was welcomed when it was introduced in the other place.
We want to make offenders liable to reimburse the CICA for any money that it has paid out to the victim. The CICA will be able to pursue the offenders through the civil courts for that money. The clause provides an enabling power and sets out some of the parameters of the proposed arrangements, but the more detailed arrangements would be made by regulations under the Bill's enabling powers.
266
I am happy briefly to summarise the proposed provisions. After Section 7 of the 1995 Act there would be inserted new Clauses 7A to 7D. First, that sets out that the Secretary of State may by regulations make provision for the recovery of an amount front an offender, equal to or part of the compensation paid to a victim in respect of a criminal injury. It makes it clear that recovery will be possible only when the offender has been convicted of the relevant offence in the criminal courts. Such a conviction will establish that the offender was indeed guilty of the offence which led to the victim's injury, and this will obviate the need for CICA to establish liability in the civil courts.
The proposed arrangements will require the CICA to serve a recovery notice on the offender, setting out the amount of liability, the reasons for the determination and the basis on which it has been determined how it must be repaid and how the offender can object, if he contests either the amount recoverable or that he is not the person from whom it should be recovered. The information that must be contained in that notice is set out in the Bill and is an important safeguard to the offender. It would be the dream ticket for the noble Baroness, Lady Anelay, because it answers all her questions.
If the offender objects, the arrangement provides that the CICA must formally review that objection and that the review must be conducted by a person other than the one who took the original decision to issue a recovery notice. That is another important safeguard. After review, or if no objection is lodged and assuming no payment is made, the CICA may then initiate recovery action through the civil courts. In practice this means that it may seek to recover the money by normal debt recovery action. Such action will give the offender a further opportunity to object on the grounds set out on the face of the Bill. That is another important safeguard. Amendments Nos. 104 and 105 make a consequential change to the Long Title of the Bill to make it clear that the Bill now includes provision about the recovery, by the CICA, of compensation from offenders.
I should make it clear that these provisions do not take anything away from the rights of a victim or in any way compromise their ability to obtain appropriate redress. A victim will still have the right to sue the person who harmed them for compensation through the civil courts. 'What we want is to give the CICA a power to get back from offenders the money it has paid out in compensation to their victims, and we want it to use this power whenever there is a realistic chance of making a net recovery of public funds.
Fuller details of the procedure will be set out in regulations (for affirmative resolution). Parliament will accordingly have an opportunity to consider more of the detail when those regulations are laid before it. The compensation recovered under these arrangements will go back to the CICA so it can be used to pay compensation to other victims of violent crime. I am sure noble Lords will agree it is right that, whenever possible, offenders should be made to pay for the consequences of their crimes. I therefore commend the new clause to the House.

267
I turn swiftly to the amendments in the name of the noble Baroness, Lady Anelay of St Johns. The first of these amendments seeks to clarify the liability of each attacker when two or more of them are jointly responsible for causing the injury for which the victim has received compensation from the Criminal Injuries Compensation Authority. The amendment aims to make it express that each attacker is liable only for the proportion of the damage (or injury) he caused.
We do not think it is necessary to make this amendment to achieve that underlying aim. While the present provision is drafted in the singular, it does not mean that the words do not embrace the plural. In fact, we envisage that there may well be cases where multiple offenders cause injury which leads to compensation under the Criminal Injuries Compensation Scheme. Indeed, there could also be cases of multiple victims on any one set of facts.
We agree with the sentiment behind the amendment that the doctrine of joint and several liability would not be appropriate in this context. That would mean that where the CICA paid compensation in respect of injuries caused by multiple defendants, the CICA could demand full repayment from any one individual.
According to new Section 7A(3), the amount recoverable from a person under the regulations must be determined by reference only to the,
"extent to which the criminal injury is directly attributable to an offence of which he has been convicted".
Therefore, it would not be appropriate to demand full repayment from one individual if the criminal injury is not directly attributable to their particular conviction.
Much will depend upon the circumstances of the case in question and the facts that are proved or accepted. If the offenders are equally culpable, the CICA will seek to recover an equal share of the compensation from each of them. If one offender seems to be more culpable than the other (or others), the CICA is likely to make a corresponding adjustment of the apportionment. Separate notices would be served on each offender.
The offenders will, of course, have the right to challenge the level of their liability on the basis that the amount was not determined in accordance with the regulations, if they request a formal review by the CICA. They will have a further right to challenge that apportionment in the civil courts when the CICA asks for the debt recovery notice to be enforced.
With such assurances, and with such safeguards already in the Bill, I hope that noble Lords will agree that the further level of refinement they have suggested is not in fact necessary.
The second amendment relates to the information which must be given to offenders in the debt recovery notice requiring them to repay the compensation that the CICA has paid to the victim they injured. New Section 7B(2) lists the information that must be provided in the debt recovery notice and new Section 7B(3) empowers the Secretary of State to change that list of information by statutory instrument, subject to
268
negative resolution. This amendment would require the statutory instrument to be approved by affirmative resolution.
9.30 p.m.
I see no strong justification for that change. The affirmative resolution procedure is, of course, much more demanding of parliamentary time, which is all too frequently at a premium. Any changes to the list of information for a recovery notice are likely to be minor in nature, and the negative resolution procedure seems entirely adequate and appropriate for such minor changes.
The next two amendments would extend the grounds on which an alleged offender could formally request CICA to review either whether he was the right person from whom recovery should be sought, or the amount of the recovery. The new clause sets out the grounds on which such a review may be requested, restricting them to three, of which the one most relevant is that the offender was not convicted of the offence to which the injury was directly attributable. The amendments would seek to extend the grounds to include cases where, fourthly, the conviction for the relevant offence had been overturned on appeal and, fifthly, where the sentence for the relevant offence had been reduced on appeal.
We do not think either addition necessary. For any of the new provisions to bite, the offender must have been convicted of the offence to which the victim's injury is directly attributable. If the case were going to appeal, CICA would wait until the appeal had been heard before seeking to recover money from the offender. If the conviction were overturned, clearly CICA would not seek to recover any money, since it would have no powers to do so.
In the less likely event that a conviction was overturned some time after conviction and recovery of compensation, the offender would of course be entitled to his money back. That could be achieved in a number of ways, of which the most straightforward would be for CICA to make a simple payment. We do not think anything is needed in the Bill to provide for that unlikely event.
If the sentence were reduced on appeal, of course the conviction itself would still stand. Therefore, CICA would quite properly still be able to seek to recover the money that it had paid in compensation to the offender's victim. The sentence itself is not relevant in that context. The offender caused the victim's injury, and CICA will have paid out compensation to that victim—who must have been a blameless victim in order to qualify for compensation under the compensation scheme—and CICA accordingly has every right to try to recover the taxpayer's money.
The last amendment would add to the decision that a person undertaking a review of a recovery determination is empowered to take. At present, new Section 7C(4) proposed in Amendment No. 53 lists four possible decisions; namely, setting the determination aside, reducing or increasing the amount recoverable, or letting the initial recovery determination stand. The amendment would

269
additionally empower the reviewing person to require an amount to be repaid to the offender from whom recovery had been sought.
We think that that amendment betrays a slight misunderstanding of the processes involved. At that stage, CICA will have served an initial recovery notice on the alleged offender. If the offender contests that notice, he can ask CICA to review its initial decision. At that stage, therefore, the offender will not have paid any money to CICA. If the CICA reviewer decides not to proceed with the recovery action or to reduce the amount of recovery sought, there will therefore be no question of CICA paying any money back to the offender. That being the case, the amendment seems to serve no purpose and would not be necessary.
The noble Lord, Lord Carlisle, has been particularly concerned about the issue, not least on how often the provision will be used. I make it clear that the Bill is an enabling piece of legislation, so CICA can decide whether it is appropriate to be used. Noble Lords will have seen in a number of the documents that we issued in relation to victims and witnesses that there was clearly worry about what happens if someone wins the lottery or comes into a great deal of money after moneys have been paid out.
However, a number of victims' organisations—not least SAMM, which deals with the families of murder victims and made the case powerfully clear to me at its AGM a few weeks ago—find it offensive that taxpayers have to pay money in such a way to compensate them, their members themselves being taxpayers. Then they discover that the perpetrator has set up a business, has a huge amount of money or comes into money, and there is no opportunity to get that money back through the CICA or anyone else. Of course we understand that sentiment. This amendment gives the CICA an opportunity to recover money if it deems that it is appropriate, feasible and proper. I beg to move.
Moved, That the House do agree with the Commons in their Amendment No. 53.—(Baroness Scotland of Asthal.)
Baroness Anelay of St Johns Baroness Anelay of St Johns rose to move, as an amendment to Commons Amendment No. 53, Amendment No. 53A:
53A Line 15, at end insert—
"( ) The amount recoverable from a person under the regulations may be determined by reference to the extent to which the offender acted jointly with another person in causing the damage and to the proportion of the damage that was caused by that offender."
The noble Baroness said: My Lords, I am back into my rather boring mode of, "how does it work?". The Minister has spotted that, but I am grateful to her for giving a fuller explanation than was achieved in another place—particularly regarding her explanation of the matter of joint enterprise and the apportionment of payment by the offender. Of course it is good practice, in court proceedings where more than one person is convicted of an offence, for the court to apportion compensation according to the culpability of each of those persons. Often not every guilty person
270
is there, so it is difficult anyway to apportion the compensation effectively. I appreciate that as near a correct result as can be achieved should be achieved through the drafting of the amendment proposed by the noble Baroness.
I was also concerned by the issue of what would happen if someone's conviction was overturned on appeal. I clearly heard the comments of the Minister that one would not need to worry about that because there would not be a recovery until later anyway—and if there was a need to recover compensation and pay it back to the offender, who is no longer an offender, one should not worry, because the CICA could do that anyway; so there would be no need to put that duty on the face of the Bill. My difficulty was that if there is no duty on the face of the Bill I was not sure how the person would have recourse against the CICA if the money was not repaid to them. But perhaps the Minister will tell me that there are procedures within the CICA to ensure that it would make such reparation.
She then might say that all of that would be tied up within the regulations anyway, and that the House would have the opportunity to deal with that—but by negative resolution. That is why I raised the issue of whether that should be made by affirmative resolution. I appreciate that the Minister has not yet had the interesting experience of being in opposition. If that ever comes her way, she will find that it is quite an interesting experience, to say the least, to arrive on a Monday morning to a pile of orders on her desk to determine whether any such negative procedure orders alarm her enough to pray against them. Indeed, the noble Lord, Lord Lester of Herne Hill, has such a prayer next Monday. That is why sometimes we on these Benches are more concerned than the Government to examine why an order should be affirmative.
As we always say, the other place does not have the same procedure as this House and is not always given the time to debate negative instruments, even if they are prayed against. I feel that the noble Baroness has gone far enough to satisfy my questions tonight. The underlying concern still remains: how much money will actually be raised by this new procedure and will it work? That answer will come when the system is in operation. For the moment I shall move the amendments and I anticipate that my noble friend Lord Carlisle of Bucklow will contribute, but I shall not press these matters. I beg to move.
Moved, as an amendment to Commons Amendment No. 53, Amendment No. 53A.—(Baroness Anelay of St Johns.)
Lord Carlisle of Bucklow: My Lords, I start by making two declarations. One is a declaration of apology that I was not present when the Minister first rose to her feet, although I think that I heard most of her speech. Either the previous amendment was dealt with very quickly or I walk very slowly, as I thought that I started walking here when the previous amendment was still being considered. Secondly, I declare an interest as the former chairman of the

271
Criminal Injuries Compensation Board, and I am delighted to see my noble friend Lord Thomas in his place. He was, of course, a member of the board and I hope that he may add to my remarks.
I am sure that the Minister and I both acknowledge, and are proud of, the fact that, of any country, ours has the original—that is, the first—and clearly the best system for compensating victims of crime in the most generous of terms. What I question about Amendment No. 53 is not the principle but what it will achieve in practice.
At present, as the Minister will know, the Criminal Injuries Compensation Appeals Panel or the Criminal Injuries Compensation Authority, as it is now called, as opposed to "Board", has always had, and has, the power to pursue an offender who has been convicted by the court when that court has made a compensation order and the CICB or CICAP has made an award afterwards. Those bodies take over the compensation award made by the court if it has not been fully met and they pursue the applicant.
As I understand it, it is suggested here that that should be widened so that, provided that the offender has been convicted, in all cases the authority should be able to pursue the offender for any award of compensation that it may make to the victim, irrespective of whether or not the court has made a compensation order.
My first question is: how is the authority to know the offender's means to pay? The great advantage of a compensation order made in a court is that the offender's ability to pay is taken into account. The right to pursue the offender will apparently exist irrespective of his ability to pay and that may lead to many claims being made when they are not possibly achievable. That is my first query and worry
Secondly, what happens when the offender, having pleaded guilty, nevertheless challenges the amount of the award? Let us remember that we may be dealing with a case where a man pleads guilty to an assault in which he punched another man in the face. It is possible that the man who was punched hit the corner of a pavement and is now unfit to work for life. He is being compensated for that, although it arises from the punch in the face. What will happen when the offender says, "I pleaded guilty to assault and a compensation order was made on the basis that we had a fight and I hit him. But I had nothing to do with the injury caused to his brain, or he had some other injury beforehand, and I don't see why I should be asked to pay for the rest of it"? I am not saying that the Bill does not cover that; I am asking how it covers it. How does it cover it without the possibility of a serious danger of the medical reports provided for the board by the victim, in which he has privilege, being required to be disclosed to the defendant?
9.45 p.m.
If the offender says, "I know I hit her"—the charming Minister sitting over there—"but she had other injuries and I am not responsible for those", I am
272
told that he will be entitled to challenge the amount of the award. Suppose he says, "I wish to see the medical reports on which the award was made to Lady Scotland". Is he entitled to see them and, if so, does that breach the privilege of her medical reports?
These worries make me believe that the new power will be used very sparingly. With the greatest respect, I suspect that to some extent that it is a degree of window dressing. I am not sure whether one will receive any more money by pursuing awards made against people whose ability to pay one does not know, who have the right to appeal to a tribunal—I am not clear how that tribunal is formulated—and who, unless they win the pools and the news hits the newspapers, have no money at all. One may be pursuing a man with no money for no particular purpose. Is it really window dressing?
I am sure that the Minister will be happy to confirm that they have cut the budget for the Criminal Injuries Compensation Authority. She shakes her head—I may be wrong. I thought that they had cut the budget for the Criminal Injuries Compensation Authority and I thought that perhaps this was a way of trying to recoup the money from the offender. Will it succeed? I do not know. I do not oppose it in any way in principle. I know that our views are the same as the purpose of the scheme. I just feel that this particular proposal may not have been fully thought through, even if it is rather better baked than the one on which my noble and learned friend Lord Mayhew spoke earlier.
Lord Thomas of Gresford: My Lords, I follow the noble Lord, Lord Carlisle of Bucklow, and at the same time I pay tribute to him for all the expert and hard work that he put in as chairman of the Criminal Injuries Compensation Authority, of which I was for some six or seven years a member, along with other noble Lords.
In law there is a saying that when one door shuts another opens. Here we seem to have a new industry in which claims officers are to be appointed. Presumably they will be legally qualified or will have some kind of training. There will also be a scheme manager. The scheme appears, on the face of it, to be that the claims manager investigates all the circumstances. He investigates what happened; he apportions blame; he determines how much compensation is recoverable, which presumably involves an investigation as to the means of the person who has to pay; and, in addition to him, there is someone who can conduct a review— a person other than the person who made the determination under review. So the files build up again. I know that the noble Lord, Lord Carlisle, will recall the way in which files can build up in matters of this kind and the whole situation becomes a bureaucratic nightmare.
What has been the situation until now? I see that the Minister is being handed the answer before I have finished speaking. The position that has pertained until now is that a court, in considering how to deal with an offender, and with knowledge of his means, will order that person to pay compensation. That compensation is taken into account by the Criminal

273
Injuries Compensation Authority. The compensation can, as the noble Lord, Lord Carlisle, pointed out, be taken over by the CICA and paid directly. That is a way in which there is recovery.
So already built into the system is a judicial determination of responsibility, a judicial determination of compensation and recovery with the CICA. Why do we need to have a new system such as this? If an offender comes into a lot of money—if he wins the pools, succeeds on the lottery or whatever—it is always open to a victim to sue him. If the offender is sued and if the victim recovers compensation or damages, those damages are taken into account as a deduction from any award the Criminal Injuries Compensation Authority may make.
Therefore, there are two ways in which the offender can be made to pay; either originally when he is dealt with in the criminal court or through being sued. Either way the CICA gains. The Bill would set up a system which, as the noble Lord, Lord Carlisle, pointed out, is likely to be used very sparingly because it involves a whole new investigation of facts, apportionment of liability and apportionment of means. Of course it is window dressing.
We know that the criminal injuries compensation scheme, which at one time was based upon civil damages, was reduced to a tariff scheme under the Conservative government and reduced even further by the current Government's pegging of the amount paid out. I have looked at it. The criminal injuries compensation fund has been pegged at about £250 million for the past four or five years. There is obviously a determination to keep it at that level.
When the Government talk about victims being at the heart of their justice policy, I always take that with a pinch of salt. Even the noble Baroness, Lady Ashton, tried today to push out victims from the heart of the criminal justice system because she said that the recovery of penalties and fines was at the "heart" of the system; that is the word she used. So there is a certain amount of conflict. I do not think that the Government should be using the words "victim at the heart of the criminal justice system" until there is a resumption of the Criminal Injuries Compensation Board scheme, as it once was.
Baroness Scotland of Asthal: My Lords, I say immediately to the noble Lord, Lord Carlisle, that this is not window dressing. It is a response to a very serious concern that has been raised over a significant period. It was raised initially when we had the consultation in relation to victims about what we should do to respond to situations where it became clear that large sums of money may have become available.
I want to re-emphasise a point that I hope I made in opening; namely, that this is an enabling piece of legislation. It does not oblige the CICA to make claims. Indeed, it is right that the CICA will have to look at the commercial realities of seeking to recover costs in relation to small claims or payments that have been made.
274
The first decision will be on how much payment should properly be made to a victim. The second decision will come subsequent to that payment and is about whether it is right and proper to seek to recover all or any of that payment from the person who has been rightly convicted of committing that offence.
It is very hard to predict at this stage how often and how frequently the provision will be used, but from talking to victims, a number of victims' groups and a victims' panel, it is clear that many of them believe that there are circumstances they would like to bring to the authority's attention as to changes in the fortunes of defendants which are not currently being taken advantage of. So this is a very clear indication of the Government listening to what victims have said and seeking to act in support of what is a genuine and proper desire on their part.
The noble Lord also mentioned the budget. I can affirm that the budget has certainly not been cut. In 2003–04, the budget for compensation was £160 million, although that was overspent by £10 million. We have allocated an extra £3 million to the compensation budget. So the budget is £163 million and we are taking steps to manage within that budget for this year.
Lord Thomas of Gresford: My Lords, does the noble Baroness accept that the figure of £200 million to £250 million was what used to be paid under the scheme and that therefore, if it is £160 million now, there has clearly been a cut?
Baroness Scotland of Asthal: My Lords, we do not accept that there has been a cut. Several issues have been brought into this. We help and assist victims not just through the CICA but, as noble Lords will know, from many other sources. That money has been increased, as far as I am aware, almost year on year. I am certainly happy to write to noble Lords more fully about that position, bearing in mind that it is now about five minutes to 10 o'clock.
Lord Carlisle of Bucklow: My Lords, does the Minister accept that, as I understand it, the delay in dealing with cases is getting longer than it was because of not having enough money to pay out for those cases?
Baroness Scotland of Asthal: My Lords, I am unable to accept that. Noble Lords will know that earlier this year—and, I think, last year—additional resources were introduced to try to enhance the time taken to make it faster. Of course, there are issues about whether the appointment of temporary workers to speed things up can continually be paid for, but I am not aware that that has meant that things have become significantly slower.
Again, in order not to be inaccurate in any way, I am quite happy to write to noble Lords because the noble Lord may be right that, in recent months, it has become slower, but I am not aware that it has significantly changed. However, I am happy to write to

275
both the noble Lord, Lord Thomas of Gresford, and the noble Lord, Lord Carlisle of Bucklow, and to put my letter in the Library in the usual way.
On medical records, issues of disclosure and the need to respect the rights of both victims and offenders are of course extremely important. There will be safeguards in the regulations to protect those rights. Both Houses will have a chance to consider those issues in greater detail when the regulations are debated. Those regulations will be debated under the affirmative resolution procedure, which will give us an opportunity to examine them in greater detail.
We think that this is a very positive step, giving the CICA an opportunity. In the right and appropriate case, I know that it will avail itself of it but, if I may speak entirely personally, it is not something that I anticipate will be used on a daily basis. It will be used, I imagine, for the larger cases and where there is evidence to indicate that the defendant is someone who now has the means to pay in whole or in part the compensation that has been expended on behalf of the taxpayer through the CICA to victims.
Lord Thomas of Gresford: My Lords, before the noble Baroness sits down, can she tell us who makes the determination? Is it a member of CICA or is it to be a member of the claims people referred to in the amendment? What is the mechanism for determining how much will be paid?
Baroness Scotland of Asthal: My Lords, the CICA will make the determination of the award to the victim. It will make the determination.
10 p.m.
Lord Thomas of Gresford: My Lords, I appreciate that the CICA makes the award, but who makes the recovery order?
Baroness Scotland of Asthal: My Lords, it will be for the CICA to determine whether it wishes to make a claim for recovery. It will take the necessary steps to bring that about. That is what we propose through this amendment. The mechanism that it adopts is an issue that we can look at. It will be the decision made by the CICA acting by itself, through its servants, agents or otherwise in the normal way. Can I name the person who will do it? No. Will they be under the CICA? Yes.
Baroness Anelay of St Johns: My Lords, I must first withdraw my amendment before the noble Baroness can get her provisions on to the statute book. It is appropriate that at this stage I should be brief. I wish to recognise the experience of the noble Lord, Lord Thomas of Gresford, and my noble friend Lord Carlisle of Bucklow in working on the Criminal Injuries Compensation Board (CICB), which my noble friend chaired. Their experience shows that there is reason to doubt whether the new system will work effectively. A new bureaucracy is being put into place, as the noble Lord, Lord Thomas of Gresford, said. There is concern that the net value of what may be
276
recovered will be relatively low if one must pay for the work done by the claims manager and all the other paraphernalia, when a recovery system already exists in the CICA.
I must end on the tantalising prospect of seeing the Government explain how the disappearance of up to £100 million worth of funds from the CICA awards can be considered not to be a cut. The response seemed to be, "Well, we will spend it elsewhere". Tell that to the people who would otherwise expect to receive very timely awards from the CICA, directly to them rather than it being spent on other services. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 53B to 53E, as amendments to Commons Amendment No. 53, not moved.]
On Question, Motion agreed to.

COMMONS AMENDMENTS
54 Clause 37, page 20, line 14, after "section" insert "(Surcharge payable on conviction)(5),"
55 Clause 38, page 20, line 28, at end insert—
"section (Procedure for determining fitness to be tried: Northern Ireland)."
56 page 20, line 28, at the end insert—
"section (Victims of mentally disordered persons: Northern Ireland)."
57 page 20, line 32, after "Schedule" insert "(Unfitness to stand trial and insanity: courts-martial etc),"
58 page 20, leave out lines 34 and 35.
Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 54 to 58, to which I have spoken with Amendments Nos. 8, 12 and 14.
Moved, that the House do agree with the Commons in their Amendments Nos. 54 to 58.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.

COMMONS AMENDMENT
59 Clause 39, page 20, line 38, leave out subsection (2).
Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 59. This is a technical amendment to remove the House of Lords privilege amendment to Clause 39, inserted when the Bill moved from the House of Lords to the other place. As this House cannot consider matters of money and charges on the public funds, this amendment was inserted. Following Second Reading in another place, a money resolution was passed and, due to amendments agreed during Committee stage, a ways and means resolution.
Moved, That the House do agree with the Commons in their Amendment No. 59.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.

COMMONS AMENDMENT
60 Schedule 1, page 23, line 20, leave out from beginning to the second "that" in line 23 and insert "the requirement under Article 49A of the Mental Health (Northern Ireland) Order 1986"
61 After. Schedule 2, insert the following new schedule—
"UNFITNESS TO STAND TRIAL AND INSANITY: COURTS-MARTIAL ETC
Army Act 1955 (3 & 4 Eliz. 2 c. 18) and Air Force Act 1955 (3 & 4 Eliz. 2 c. 19)
1 For section 116 of the Army Act 1955 and of the Air Force Act 1955 (provisions where accused found insane) substitute—
"Findings of unfitness to stand trial and insanity
115A FITNESS TO STAND TRIAL
(1) This section applies where on a trial by court-martial of a person the question arises (at the instance of the defence or otherwise) whether the accused is fit to stand trial.
(2) For the purposes of this Act a person is unfit to stand trial if he is under a disability such that apart from the Criminal Procedure (Insanity) Act 1964 it would constitute a bar to his being tried on indictment in England and Wales.
(3) If, having regard to the nature of the supposed disability, the judge advocate is of opinion that it is expedient to do so and in the interests of the accused, he may postpone consideration of the question of fitness to stand trial until any time up to the opening of the case for the defence.
(4) If, before the question of fitness to stand trial falls to be determined, the court finds the accused not guilty on the charge or each of the charges on which he is being tried, that question shall not be determined.
(5) Subject to subsections (3) and (4) above, the question of fitness to stand trial shall be determined as soon as it arises.
(6) The question of fitness to stand trial shall be determined by the judge advocate sitting alone.
(7) A judge advocate shall not make a determination under subsection (6) above except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved.
115B FINDING THAT THE ACCUSED DID THE ACT OR MADE THE OMISSION CHARGED
(1) This section applies where in accordance with section 115A(6) above it is determined by a judge advocate that the accused is unfit to stand trial.
(2) The trial shall not proceed or further proceed but it shall be determined by the court—

(a) on the evidence (if any) already given in the trial, and

(b) on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the judge advocate under this section to put the case for the defence,

whether it is satisfied, as respects the charge or each of the charges on which the accused was to be or was being tried, that he did the act or made the omission charged against him as the offence.
(3) If as respects that charge or any of those charges the court is satisfied as mentioned in subsection (2) above, it shall make a finding that the accused did the act or made the omission charged against him.
(4) If as respects that charge or any of those charges the court is not so satisfied, the court shall find the accused not guilty as if on the charge in question the trial had proceeded to a conclusion.
(5) Where the question of fitness to stand trial was determined after arraignment of the accused, the determination under subsection (2) above shall be made by the court-martial by whom he was being tried.
116 FINDINGS OF INSANITY
(1) Where, on the trial of a person by court-martial, the court is satisfied, as respects the charge or any of the charges on which he is being tried, that the accused did the act or made the omission charged against him as the offence but that at the time of that act or omission he was insane, the court shall find that the accused was not guilty of that offence by reason of insanity.
(2) No finding under subsection (1) above shall be made except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved.
116A POWERS TO DEAL WITH PERSON UNFIT TO STAND TRIAL OR NOT GUILTY BY REASON OF INSANITY
(1) This section applies where, on a trial of a person by a court-martial—

(a) the accused is found to be unfit to stand trial and to have done the act or made the omission charged against him; or

(b) the accused is found not guilty by reason of insanity.

(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 finding relates is an offence the sentence for which is fixed by law, and

(b) the court has power to make a hospital order.

the court shall make a hospital order with a restriction order (whether or not it would have power to make a restriction order apart from this subsection).
(4) The functions of the court under this section shall be exercised by the judge advocate (or, where subsection (5) below applies, the judicial officer) sitting alone, and section 95(2) and (3) above shall not apply.
(5) Any function of the court under this section exercisable after an adjournment or an appeal shall be exercisable by a judicial officer if—

(a) the court ordering the adjournment, or (as the case may be) the Courts-Martial Appeal Court, so orders; or

(b) the Judge Advocate General so directs.

(6) In this Act—

"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" means an order which requires the person in respect of whom it is made ("the supervised person") to be under the supervision of a person ("the supervising officer") for a period specified in the order of not more than two years.

116B ORDERS UNDER THE MENTAL HEALTH ACT
(1) In relation to the making of an order by virtue of subsection (2)(a) of section 116A 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 116A 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."
(2) In relation to a case where section 116A above applies but the court has 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 116A 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, that Act shall apply—

(a) as if references to the Crown Court were references to a court-martial;

(b) as if references to an offender were references to a person in whose case section 116A above applies (references to an offence being construed accordingly); and

(c) with such further modifications as may be prescribed.

(4) The Secretary of State may by regulations make provision with respect to the admission to, detention in, and release from, hospital of any person in respect of whom an order is made under the 1983 Act by virtue of this Act.
Regulations under this subsection may in particular make provision for a person in respect of whom such an order has been made to be conveyed to, and detained in, a place of safety pending his admission to hospital.
(5) Where—

(a) a person is detained in pursuance of a hospital order which the court had power to make by virtue of section 116A(1)(a) 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 either remit the person for trial before a court-martial or direct that he be tried before a civil court.
In this subsection "responsible medical officer" means the registered medical practitioner in charge of the person's treatment.
(6) The Secretary of State may by regulations make provision supplementing subsection (5) above, including in particular—

(a) provision for a person in whose case that subsection applies to be conveyed to a court or place of detention and to be detained in such a place;

(b) provision for the hospital order and the restriction order to cease to have effect at such time as may be prescribed.

116C SUPERVISION ORDERS
(1) The court shall not make an order under section 116A(2)(b) above unless it is satisfied—

(a) that, having regard to all the circumstances of the case, the making of a supervision order is the most suitable means of dealing with the accused;

280

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

(c) that arrangements have been made for any treatment which (under subsection (2) below) is intended to be specified in the order.

(2) An order under section 116A(2)(b) above may, in accordance with regulations under subsection (3) 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—

(a) by order direct that the definition of "supervision order" in section 116A(6) above shall be amended by substituting, for the period for the time being specified there, such period as may be specified in the order under this subsection;

(b) by regulations make further provision in relation to supervision orders.

(4) Regulations under subsection (3) above may in particular make provision—

(a) as to the procedure to be followed by a court-martial making a supervision order;

(b) as the requirements which may be specified in such an order;

(c) as to the descriptions of supervising officer who may be so specified;

(d) for treatment to be provided at a place other than the place specified in the order in accordance with arrangements made by the medical practitioner by whom or under whose direction the supervised person is being treated;

(e) for the amendment and revocation of any supervision order.

116D PROVISIONS SUPPLEMENTARY TO SECTIONS 115A TO 116C
(1) In this section and sections 115A to 116C above—

"duly approved" means approved for the purposes of section 12 of the Mental Health Act 1983 by the Secretary of State as having special experience in the diagnosis and treatment of mental disorder (within the meaning of that Act);

"prescribed" means prescribed by regulations made by the Secretary of State.

(2) For the purposes of the provisions of sections 115A and 116 of this Act which permit a court to act on the written evidence of a registered medical practitioner or a registered medical practitioner who is duly approved, a report in writing purporting to be signed by a registered medical practitioner or a registered medical practitioner who is duly approved may, subject to subsection (3) below, be received in evidence without proof of the signature of the practitioner and without proof that he has the requisite qualifications or is duly approved; but the court may require the signatory of any such report to be called to give oral evidence.
(3) Where, in pursuance of a direction of the court, any such report is tendered in evidence otherwise than by or on behalf of the accused, then—

(a) if the accused is represented by counsel or a solicitor, a copy of the report shall be given to his counsel or solicitor;

(b) if the accused is not so represented, the substance of the report shall be disclosed to him; and

(c) the accused may require the signatory of the report to be called to give oral evidence, and evidence to rebut the evidence contained in the report may be called by the accused or on his behalf.

(4) The power of the Secretary of State to make regulations under sections 116A to 116C above, and orders under section 116C(3) above, shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament."
2 In section 225(1) of the Army Act 1955 and in section 223(1) of the Air Force Act 1955 (general provisions as to interpretation) insert at the appropriate places—

""hospital order" has the meaning assigned to it by section 116A(6) of this Act;";

""restriction order" has the meaning assigned to it by section 116A(6) of this Act;";

""supervision order" has the meaning assigned to it by section 116A(6) of this Act;".

Naval Discipline Act 1957 (c. 53)
3 For section 63 of the Naval Discipline Act 1957 (provisions where accused found insane) substitute—
"Findings of unfitness to stand trial and insanity
62A FITNESS TO STAND TRIAL
(1) This section applies where on a trial by court-martial of a person the question arises (at the instance of the defence or otherwise) whether the accused is fit to stand trial.
(2) For the purposes of this Act a person is unfit to stand trial if he is under a disability such that apart from the Criminal Procedure (Insanity) Act 1964 it would constitute a bar to his being tried on indictment in England and Wales.
(3) If, having regard to the nature of the supposed disability, the judge advocate is of opinion that it is expedient to do so and in the interests of the accused, he may postpone consideration of the question of fitness to stand trial until any time up to the opening of the case for the defence.
(4) If, before the question of fitness to stand trial falls to be determined, the court finds the accused not guilty on the charge or each of the charges on which he is being tried, that question shall not be determined.
(5) Subject to subsections (3) and (4) above, the question of fitness to stand trial shall be determined as soon as it arises.
(6) The question of fitness to stand trial shall be determined by the judge advocate sitting alone.
(7) A judge advocate shall not make a determination under subsection (6) above except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved.
62B FINDING THAT THE ACCUSED DID THE ACTOR MADE THE OMISSION CHARGED
(1) This section applies where in accordance with section 62A(6) above it is determined by a judge advocate that the accused is unfit to stand trial.
(2) The trial shall not proceed or further proceed but it shall be determined by the court—

(a) on the evidence (if any) already given in the trial, and

(b) on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the judge advocate under this section to put the case for the defence,

whether it is satisfied, as respects the charge or each of the charges on which the accused was to be or was being tried, that he did the act or made the omission charged against him as the offence.
(3) If as respects that charge or any of those charges the court is satisfied as mentioned in subsection (2) above, it shall make a finding that the accused did the act or made the omission charged against him.
(4) If as respects that charge or any of those charges the court is not so satisfied, the court shall find the accused not guilty as if on the charge in question the trial had proceeded to a conclusion.
(5) Where the question of fitness to stand trial was determined after arraignment of the accused, the determination under subsection (2) above shall be made by the court-martial by whom he was being tried.
63 FINDINGS OF INSANITY
(1) Where, on the trial of a person by court-martial, the court is satisfied, as respects the charge or any of the charges on which he is being tried, that the accused did the act or made the omission charged against him as the offence but that at the time of that act or omission he was insane, the court shall find that the accused was not guilty of that offence by reason of insanity.
(2) No finding under subsection (1) above shall be made except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved.
63A POWERS TO DEAL WITH PERSON UNFIT TO STAND TRIAL OR NOT GUILTY BY REASON OF INSANITY
(1) This section applies where, on a trial of a person by a court-martial—

(a) the accused is found to be unfit to stand trial and to have done the act or made the omission charged against him; or

(b) the accused is found riot guilty by reason of insanity.

(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 finding relates is an offence the sentence for which is fixed by law, and

(b) the court has power to make a hospital order,

the court shall make a hospital order with a restriction order (whether or not it would have power to make a restriction order apart from this subsection).
(4) The functions of the court under this section shall be exercised by the judge advocate (or, where subsection (5) below applies, the judicial officer) sitting alone, and sections 56A(3) and 57 above shall not apply.
(5) Any function of the court under this section exercisable after an adjournment or an appeal shall be exercisable by a judicial officer if—

(a) the court ordering the adjournment, or (as the case may be) the Courts-Martial Appeal Court, so orders; or

(b) the Judge Advocate of Her Majesty's Fleet so directs.

(6) In this Act—

"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" means an order which requires the person in respect of whom it is made ("the supervised person") to be under the supervision of a person ("the supervising officer") for a period specified in the order of not more than two years.

63B ORDERS UNDER THE MENTAL HEALTH ACT
(1) In relation to the making of an order by virtue of subsection (2)(a) of section 63A 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 63A 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."
(2) In relation to a case where section 63A above applies but the court has 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 63A 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, that Act shall apply—

(a) as if references to the Crown Court were references to a court-martial;

(b) as if references to an offender were references to a person in whose case section 63A above applies (references to an offence being construed accordingly); and

(c) with such further modifications as may be prescribed.

(4) The Secretary of State may by regulations make provision with respect to the admission to, detention in, and release from, hospital of any person in respect of whom an order is made under the 1983 Act by virtue of this Act.
Regulations under this subsection may in particular make provision for a person in respect of whom such an order has been made to be conveyed to, and detained in, a place of safety pending his admission to hospital.
(5) Where—

(a) a person is detained in pursuance of a hospital order which the court had power to make by virtue of section 63A(1)(a) 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 either remit the person for trial before a court-martial or direct that he be tried before a civil court.
In this subsection "responsible medical officer" means the registered medical practitioner in charge of the person's treatment.
(6) The Secretary of State may by regulations make provision supplementing subsection (5) above, including in particular—

(a) provision for a person in whose case that subsection applies to be conveyed to a court or place of detention and to be detained in such a place;

(b) provision for the hospital order and the restriction order to cease to have effect at such time as may be prescribed.

63C Supervision orders
(1) The court shall not make an order under section 63A(2)(b) above unless it is satisfied—

(a) that, having regard to all the circumstances of the case, the making of a supervision order is the most suitable means of dealing with the accused;

284

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

(c) that arrangements have been made for any treatment which (under subsection (2) below) is intended to be specified in the order.

(2) An order under section 63A(2)(b) above may, in accordance with regulations under subsection (3) 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—

(a) by order direct that the definition of "supervision order" in section 63A(6) above shall be amended by substituting, for the period for the time being specified there, such period as may be specified in the order under this subsection;

(b) by regulations make further provision in relation to supervision orders.

(4) Regulations under subsection (3) above may in particular make provision—

(a) as to the procedure to be followed by a court-martial making a supervision order;

(b) as the requirements which may be specified in such an order;

(c) as to the descriptions of supervising officer who may be so specified;

(d) for treatment to be provided at a place other than the place specified in the order in accordance with arrangements made by the medical practitioner by whom or under whose direction the supervised person is being treated;

(e) for the amendment and revocation of any supervision order.

63D PROVISIONS SUPPLEMENTARY TO SECTIONS 62A TO 63C
(1) In this section and sections 62A to 63C above—

"duly approved" means approved for the purposes of section 12 of the Mental Health Act 1983 by the Secretary of State as having special experience in the diagnosis and treatment of mental disorder (within the meaning of that Act);

"prescribed" means prescribed by regulations made by the Secretary of State.

(2) For the purposes of the provisions of sections 62A and 63 of this Act which permit a court to act on the written evidence of a registered medical practitioner or a registered medical practitioner who is duly approved, a report in writing purporting to be signed by a registered medical practitioner or a registered medical practitioner who is duly approved may, subject to subsection (3) below, be received in evidence without proof of the signature of the practitioner and without proof that he has the requisite qualifications or is duly approved; but the court may require the signatory of any such report to be called to give oral evidence.
(3) Where, in pursuance of a direction of the court, any such report is tendered in evidence otherwise than by or on behalf of the accused, then—

(a) if the accused is represented by counsel or a solicitor, a copy of the report shall be given to his counsel or solicitor;

(b) if the accused is not so represented, the substance of the report shall be disclosed to him; and

(c) the accused may require the signatory of the report to be called to give oral evidence, and evidence to rebut the evidence contained in the report may be called by the accused or on his behalf.

(4) The power of the Secretary of State to make regulations under sections 63A to 63C above, and orders under section 63C(3) above, shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament."
4 In the proviso to section 56(3) of that Act (court-martial not to be adjourned for more than six days), after "except with the consent of the accused and the prosecuting authority" insert ",or for the purpose of exercising powers under section 63A of this Act,".
5 In section 135(1) of that Act (general provisions as to interpretation) insert at the appropriate places—

""hospital order" has the meaning assigned to it by section 63A(6) of this Act;";

""restriction order" has the meaning assigned to it by section 63A(6) of this Act;";

""supervision order" has the meaning assigned to it by section 63A(6) of this Act;".

Courts-Martial (Appeals) Act 1968 (c. 20)
6 The Courts-Martial (Appeals) Act 1968 is amended as follows.
7 For section 16 substitute—
"16 SUBSTITUTION OF FINDING OF INSANITY OR FINDINGS OF UNFITNESS TO STAND TRIAL ETC.
(1) This section applies where, on an appeal against conviction, the Appeal Court, on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved, are of opinion—

(a) that the proper finding would have been one of not guilty by reason of insanity; or

(b) that the case is not one where there should have been a finding of not guilty, but that there should have been findings that the accused was unfit to stand trial and that he did the act or made the omission charged against him.

(2) The Appeal Court shall make in respect of the appellant—

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

(b) the Appeal Court have power to make a hospital order,

the Appeal 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) The provisions of, or made under, the sections specified below shall apply (with any necessary modifications) in relation to the Appeal Court as they apply in relation to a court-martial.
The sections are—

(a) where the relevant Service Act is the Army Act, sections 116B to 116D of that Act;

(b) where the relevant Service Act is the Air Force Act, sections 116B to 116D of that Act;

(c) where the relevant Service Act is the Naval Discipline Act, sections 63B to 63D of that Act.

(5) Where the Appeal Court 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 a judicial officer and not by the Appeal Court; and

(b) section 38(7) of the Mental Health Act 1983 (absconding offenders) shall have effect as if the reference to the court that made the order were a reference to a judicial officer.

(6) Where the Appeal Court make a supervision order by virtue of this section, any power of revoking or amending it shall be exercisable by a judicial officer and not by the Appeal Court."
8 In section 21 (appeal against finding of not guilty by reason of insanity), in subsection (1), after "except" insert "section 8(2) and".
9 In section 22 (consequences where appeal under section 21 allowed), at the beginning of subsection (4) insert "Subject to section 23 below,".
10 For section 23 substitute—
"23 SUBSTITUTION OF FINDINGS OF UNFITNESS TO STAND TRIAL ETC.
(1) This section applies where, on an appeal under section 21 of this Act, the Appeal Court, on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved, are of opinion that—

(a) the case is not one where there should have been a finding of not guilty; but

(b) there should have been findings that the accused was unfit to stand trial and that he did the act or made the omission charged against him.

(2) The Appeal Court shall make in respect of the appellant—

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

(b) the Appeal Court have power to make a hospital order,

the Appeal 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) The provisions of, or made under, the sections specified below shall apply (with any necessary modifications) in relation to the Appeal Court as they apply in relation to a court-martial.
The sections are—

(a) where the relevant Service Act is the Army Act, sections 116B to 116D of that Act;

(b) where the relevant Service Act is the Air Force Act, sections 116B to 116D) of that Act;

(c) where the relevant Service Act is the Naval Discipline Act, sections 63B to 63D of that Act.

(5) Where the Appeal Court 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 a judicial officer arid not by the Appeal Court; and

(b) section 38(7) of the Mental Health Act 1983 (absconding offenders) shall have effect as if the reference to the court that made the order were a reference to a judicial officer.

(6) Where the Appeal Court make a supervision order by virtue of this section, any power of revoking or amending it shall be exercisable by a judicial officer and not by the Appeal Court."
11 (1) Section 24 (appeal against finding of unfitness to stand trial) is amended as follows.
(2) In subsection (1)—

(a) for "his trial" substitute "trial and to have done the act or made the omission charged against him";

(b) for "the finding" substitute "either or both of those findings".

(3) In subsection (2), after "except" insert "section 8(2) and".
12 For section 25 substitute—
"25 DISPOSAL OF APPEAL UNDER S. 24
(1) This section applies to appeals under section 24 of this Act.
(2) Where the Appeal Court allow an appeal against a finding that the appellant is unfit to stand trial—

(a) the appellant may be tried accordingly for the offence with which he was charged; and

(b) the Court may make such orders as appear to them necessary or expedient pending any such trial for the custody, release or continued detention of the appellant.

(3) Where, otherwise than in a case falling within subsection (2) above, the Appeal Court allow an appeal against a finding that the appellant did the act or made the omission charged against him, the Court shall, in addition to quashing the finding, direct a finding of not guilty to be recorded (but not a finding of not guilty by reason of insanity)."
13 After that section insert—
"Appeal against order made in cases of insanity or unfitness to stand trial
25A RIGHT OF APPEAL AGAINST HOSPITAL ORDER ETC.
(1) A person in whose case a court-martial—

(a) makes a hospital order or interim hospital order by virtue of the relevant Service Act, or

(b) makes a supervision order under the relevant Service Act, may appeal to the Appeal Court against the order.

(2) An appeal under this section lies only with the leave of the Appeal Court.
25B DISPOSAL OF APPEAL UNDER S.25A
(1) If on an appeal under section 25A of this Act the Appeal Court 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 Appeal Court 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 a judicial officer and not by the Appeal Court; and

(b) section 38(7) of the said Act of 1983 (absconding offenders) shall have effect as if the reference to the court that made the order were a reference to a judicial officer.

(4) The fact that an appeal is pending against a supervision order under the relevant Service Act shall not affect any power conferred on any other court to revoke or amend the order.
(5) Where the Appeal Court make a supervision order by virtue of this section, any power of revoking or amending it shall be exercisable by a judicial officer and not by the Appeal Court."
14 (1) Section 57 (interpretation) is amended as follows.
(2) In subsection (1) insert at the relevant places—

""duly approved" means approved for the purposes of section 12 of the Mental Health Act 1983 by the Secretary of State as having special experience in the diagnosis and treatment of mental disorder (within the meaning of that Act);";

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

""interim hospital order" has the meaning given in section 38 of that Act;";

""judicial officer" has the same meaning as in the relevant Service Act;";

""restriction order" has the meaning given to it by section 41 of the Mental Health Act 1983;":

""supervision order" means an order which requires the person in respect of whom it is made to be under the supervision of another person for a period specified in the order of not more than two years."

(3) After subsection (2) insert—
"(2A) For the purposes of the provisions of sections 16 and 23 of this Act which permit the Appeal Court to act on the written evidence of a registered medical practitioner or a registered medical practitioner who is duly approved, a report in writing purporting to be signed by a registered medical practitioner or a registered medical practitioner who is duly approved may, subject to subsection (2B) below, be received in evidence without proof of the signature of the practitioner and without proof that he has the requisite qualifications or is duly approved; but the Appeal Court may require the signatory of any such report to be called to give oral evidence.
(2B) Where, in pursuance of a direction of the Appeal Court, any such report is tendered in evidence otherwise than by or on behalf of the appellant, then—

(a) if the appellant is represented by counsel or a solicitor, a copy of the report shall be given to his counsel or solicitor;

(b) if the appellant is not so represented, the substance of the report shall be disclosed to him; and

(c) the appellant may require the signatory of the report to be called to give oral evidence, and evidence to rebut the evidence contained in the report may be called by the appellant or on his behalf."

15 (1) Schedule 3 (modifications in relation to prisoners of war) is amended as follows.
(2) In paragraph 3—

(a) in paragraph (a), for "or 15" substitute ",14A, 15 or 25A";

(b) omit paragraph (b).

(3) After paragraph 3 insert—
"3A In relation to a protected prisoner of war, sections 16 and 23 of this Act shall each have effect as if the following subsection were substituted for subsection (4)—
"(4) The provisions of a Royal Warrant shall apply (with any necessary modifications) in relation to the Appeal Court as they apply in relation to a court-martial.""
Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 60 and 61, to which I have spoken with Amendments Nos. 12 and 14.
Moved, That the House do agree with the Commons in their Amendments Nos. 60 and 61.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.

COMMONS AMENDMENT
62 After Schedule 2, insert the following new schedule—
POWERS OF AUTHORISED OFFICERS EXECUTING WARRANTS
The following is the Schedule inserted after Schedule 4 to the Magistrates' Courts Act 1980 (c.43)—
SCHEDULE 4A
Section 125BA

POWERS OF AUTHORISED OFFICERS EXECUTING WARRANTS
Meaning of "authorised officer" etc
1 In this Schedule—
"authorised officer", in relation to a warrant, means a person who is entitled to execute the warrant by virtue of—

(a) section 125A of this Act (civilian enforcement officers); or

(b) section 125B of this Act (approved enforcement agencies);

289
"premises" includes any place and, in particular, includes

(a) any vehicle, vessel, aircraft or hovercraft;

(b) any offshore installation within the meaning of the Mineral Workings (Offshore Installations) Act 1971; and

(c) any tent or movable structure.

Entry to execute warrant of arrest etc
2 (1) An authorised officer may enter and search any premises for the purpose of executing a warrant of arrest, commitment or detention issued in proceedings for or in connection with any criminal offence.
(2) The power may be exercised—

(a) only to the extent that it is reasonably required for that purpose; and

(b) only if the officer has reasonable grounds for believing that the person whom he is seeking is on the premises.

(3) In relation to premises consisting of two or more separate dwellings, the power is limited to entering and searching—

(a) any parts of the premises which the occupiers of any dwelling comprised in the premises use in common with the occupiers of any other such dwelling; and

(b) any such dwelling in which the officer has reasonable grounds for believing that the person whom he is seeking may be.

Entry to levy distress
3 (1) An authorised officer may enter and search any premises for the purpose of executing a warrant of distress issued under section76 of this Act for default in paying a sum adjudged to be paid by a conviction.
(2) The power may be exercised only to the extent that it is reasonably required for that purpose.
Searching arrested persons
4 (1) This paragraph applies where a person is arrested in pursuance of a warrant of arrest, commitment or detention issued in proceedings for or in connection with any criminal offence.
(2) An authorised officer may search the arrested person, if he has reasonable grounds for believing that the arrested person may present a danger to himself or others.
(3) An authorised officer may also search the arrested person for anything which he might use to assist him to escape from lawful custody.
(4) The power conferred by sub-paragraph (3) above may be exercised—

(a) only if the officer has reasonable grounds for believing that the arrested person may have concealed on him anything of a kind mentioned in that sub-paragraph; and

(b) only to the extent that it is reasonably required for the purpose of discovering any such thing.

(5) The powers conferred by this paragraph to search a person are not to be read as authorising the officer to require a person to remove any of his clothing in public other than an outer coat, a jacket or gloves; but they do authorise the search of a person's mouth.
(6) An officer searching a person under sub-paragraph (2) above may seize and retain anything he finds, if the officer has reasonable grounds for believing that the person searched might use it to cause physical injury to himself or to any other person.
(7) An officer searching a person under sub-paragraph (3) above may seize and retain anything he finds, if he has reasonable grounds for believing that the person might use it to assist him to escape from lawful custody.
USE OF FORCE
5 An authorised officer may use reasonable force, if necessary, in the exercise of a power conferred on him by this Schedule.'"
Baroness Ashton of Upholland: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 62. I have spoken to this amendment with Amendment No. 18.
Moved, That the House do agree with the Commons in their Amendment No. 62.—(Baroness Ashton of Upholland.)
[Amendment No. 62A, as an amendment to Commons Amendment No. 62, not moved.]
On Question, Motion agreed to.

COMMONS AMENDMENT
63 After Schedule 2, insert the following new schedule—
"PROCEDURE ON BR EACH OF COMMUNITY PENALTY ETC
Interpretation
1 In this Schedule—
"the Sentencing Act" means the Powers of Criminal Courts (Sentencing) Act 2000 (c.6);
"the 2003 Act" means the Criminal Justice Act 2003 (c.44).
Detention and training orders
2 (1) Section 104 of the Sentencing Act (breach of supervision requirements of detention and training order) is amended as follows.
(2) In subsection (1) (issue of summons or warrant by justice of the peace)—

(a) omit the words "acting for a relevant petty sessions area";

(b) in paragraph (a), omit the words "before a youth court acting for the area";

(c) in paragraph (b), omit the words "requiring him to be brought before such a court".

(3) For subsection (2) substitute—
"(2) Any summons or warrant issued under this section shall direct the offender to appear or be brought—

(a) before a youth court acting for the petty sessions area in which the offender resides; or

(b) if it is not known where the offender resides, before a youth court acting for same petty sessions area as the justice who issued the summons or warrant."

Suspended sentence supervision orders
3 (1) Section 123 of the Sentencing Act (breach of requirement of suspended sentence supervision order) is amended as follows.
(2) In subsection (1) (issue of summons or warrant by justice of the peace) omit the words "acting for the petty sessions area for the time being specified in the order".
(3) For subsection (2) substitute—
"(2) Any summons or warrant issued under this section shall direct the offender to appear or be brought—

(a) before a magistrates' court for the petty sessions area in which the offender resides; or

(b) if it is not known where the offender resides, before a magistrates' court acting for the petty sessions area for the time being specified in the suspended sentence supervision order."

(4) After subsection (4) insert—
"(5) Where a magistrates' court dealing with an offender under this section would not otherwise have the power to amend the suspended sentence supervision order under section 124(3) below

291
(amendment by reason of change of residence), that provision has effect as if the reference to a magistrates' court acting for the petty sessions area for the time being specified in the suspended sentence supervision order were a reference to the court dealing with the offender."
Community' orders under the Sentencing Act
4 (1) Schedule 3 to the Sentencing Act (breach, revocation and amendment of certain community orders), as it has effect on the day on which this Act is passed, is amended as follows.
(2) In paragraph 3(1) (issue of summons or warrant by justice of the peace) omit the words "acting for the petty sessions area concerned".
(3) In paragraph 3(2) (court before which offender to appear or be brought), for paragraph (c) substitute—
"(c) in the case of a relevant order which is not an order to which paragraph (a) or (b) applies, before a magistrates' court acting for the petty sessions area in which the offender resides or, if it is not known where he resides, before a magistrates' court acting for the petty sessions area concerned."
(4) In paragraph 4 (powers of magistrates' court to deal with breach), after sub-paragraph (3) insert—
"(3A) Where a magistrates' court dealing with an offender under sub-paragraph (1)(a), (b) or (c) above would not otherwise have the power to amend the relevant order under paragraph18 below (amendment by reason of change of residence), that paragraph has effect as if the reference to a magistrates' court acting for the petty sessions area concerned were a reference to the court dealing with the offender."
Curfew orders and exclusion orders
5 (1) Schedule 3 to the Sentencing Act (breach, revocation and amendment of curfew orders and exclusion orders), as substituted by paragraph 125 of Schedule 32 to the 2003 Act, is amended as follows.
(2) In paragraph 3(1) (issue of summons or warrant by justice of the peace) omit the words "acting for the petty sessions area concerned".
(3) In paragraph 3(2) (court before which offender to appear or be brought), for paragraph (b) substitute—
"(b) in the case of a relevant order which is not an order to which paragraph (a) above applies, before a magistrates' court acting for the petty sessions area in which the offender resides or, if it is not known where he resides, before a magistrates' court acting for the petty sessions area concerned."
(4) In paragraph 4 (powers of magistrates' court to deal with breach), after sub-paragraph (4) insert—
"(4A) Where a magistrates' court dealing with an offender under sub-paragraph (2)(a) or (b) above would not otherwise have the power to amend the relevant order under paragraph15 below (amendment by reason of change of residence), that paragraph has effect as if the reference to a magistrates' court acting for the petty sessions area concerned were a reference to the court dealing with the offender."
Attendance centre orders
6 (1) Schedule 5 to the Sentencing Act (breach, revocation and amendment of attendance centre orders) is amended as follows.
(2) In paragraph 1(1) (issue of summons or warrant by justice of the peace), omit the words—

(a) "acting for a relevant petty sessions area";

(b) "before a magistrates' court acting for the area";

(c) "requiring him to be brought before such a court".

(3) For paragraph 1(2) substitute—
"(2) Any summons or warrant issued under this paragraph shall direct the offender to appear or be brought—

(a) before a magistrates' court acting for the petty sessions area in which the offender resides; or

292

(b) if it is not known where the offender resides, before a magistrates' court acting for the petty sessions area in which is situated the attendance centre which the offender is required to attend by the order or by virtue of an order under paragraph 5(1)(b) below."

(4) In paragraph 2 (powers of magistrates' court to deal with breach), after sub-paragraph (5) insert—
"(5A) Where a magistrates' court dealing with an offender under sub-paragraph (1)(a) above would not otherwise have the power to amend the order under paragraph5(1)(b) below (substitution of different attendance centre), that paragraph has effect as if references to an appropriate magistrates' court were references to the court dealing with the offender."
Community' orders under the 2003 Act
7 (1) Schedule 8 to the 2003 Act (breach, revocation or amendment of community order) is amended as follows.
(2) In paragraph 7(2) (issue of summons or warrant by justice of the peace) omit the words "acting for the petty sessions area concerned".
(3) In paragraph 7(3) (court before which offender to appear or be brought), for paragraph (b) substitute—
"(b) in any other case, before a magistrates' court acting for the petty sessions area in which the offender resides or, if it is not known where he resides, before a magistrates' court acting for the petty sessions area concerned."
(4) In paragraph 9 (powers of magistrates' court to deal with breach), after sub-paragraph (5) insert—
"(5A) Where a magistrates' court dealing with an offender under sub-paragraph (1)(a) would not otherwise have the power to amend the community order under paragraph 16 (amendment by reason of change of residence), that paragraph has effect as if the references to the appropriate court were references to the court dealing with the offender."
(5) In paragraph 27 (provision of copies of orders), at the end of sub-paragraph (1)(c) insert ", and

(d) where the court acts for a petty sessions area other than the one specified in the order prior to the revocation or amendment, provide a copy of the revoking or amending order to a magistrates' court acting for the area so specified."

Suspended sentence orders under the 2003 Act
8 (1) Schedule 12 to the 2003 Act (breach or amendment of suspended sentence order, and effect of further conviction) is amended as follows.
(2) In paragraph 6(2) (issue of summons or warrant by justice of the peace) omit the words "acting for the petty sessions area concerned".
(3) In paragraph 6(3) (court before which offender to appear or be brought), for paragraph (b) substitute—
"(b) in any other case, before a magistrates' court acting for the petty sessions area in which the offender resides or, if it is not known where he resides, before a magistrates' court acting for the petty sessions area concerned."
(4) In paragraph 8 (powers of magistrates' court to deal with breach), after sub-paragraph (4) insert—
"(4A) Where a magistrates' court dealing with an offender under sub-paragraph (2)(c) would not otherwise have the power to amend the suspended sentence order under paragraph 14 (amendment by reason of change of residence), that paragraph has effect as if the references to the appropriate court were references to the court dealing with the offender."
(5) In paragraph 22 (provision of copies of orders), at the end of sub-paragraph (1)(c) insert ", and
(d) where the court acts for a petty sessions area other than the one specified in the order prior to the revocation or amendment, provide a copy of the revoking or amending order to a magistrates' court acting for the area so specified."
9 In Schedule 13 to the 2003 Act (transfer of suspended sentence orders to Scotland or Northern Ireland), in paragraph 12 (modifications of Schedule 12), after sub-paragraph (5) insert—
"(5A) In paragraph 6(3)(b), the words "before a magistrates' court acting for the petty sessions area in which the offender resides or, if it is not known where he resides," are omitted."
Local justice areas
10 The power conferred by section 109(5)(b) of the Courts Act 2003 (c.39) to amend or repeal any enactment, other than one contained in an Act passed in a later session, includes power to amend any such enactment as amended by this Schedule, but only for the purpose of making consequential provision in connection with the establishment of local justice areas under section 8 of that Act."
64 Schedule 4, page 31, line 23, after "by" insert "any of these"
65 page 31, leave out lines 27 to 29 and insert—
"(b) sections (Victims of persons sentenced to imprisonment or detention) to (Victims of persons subject to transfer direction and restriction direction) of that Act (duties of local probation boards in connection with victims of sexual or violent offences)."
66 Schedule 6, page 36, line 32, at end insert—
"12A The National Criminal Intelligence Service. 12B The National Crime Squad."
67 page 37, line 2, at end insert—
"13A The Ministry of Defence Police."
68 Schedule 7, page 37, line 27, at end insert—
"Colonial Prisoners Removal Act 1884 (c. 31)
In section 10 of the Colonial Prisoners Removal Act 1884 (application of Act to removal of criminal lunatics), in subsection (3), in paragraph (a) for the words from "give" to the end substitute "by warrant direct that he is to be detained in such hospital, within the meaning given by section 145(1) of the Mental Health Act 1983, as may be specified in the direction; and any such direction shall have the same effect as a hospital order under section 37 of that Act together with a restriction order under section 41 of that Act, made without limitation of time;".".
69 page 38, line 32, at end insert—
"Rehabilitation of Wenders Act 1974 (c. 53)
In section 1(3) of the Rehabilitation of Offenders Act 1974 (meaning of "sentence" for the purposes of that Act), after "other than" insert—
"(za) a surcharge imposed under section 161A of the Criminal Justice Act 2003;"."
70 page 38, line 32, at end insert—
"Magistrates' Courts Act 1980 (c. 43)
In section 108 of the Magistrates' Courts Act 1980 (right of appeal to Crown Court), after subsection (3) insert—
"(4) Subsection (3)(d) above does not prevent an appeal against a surcharge imposed under section 161A of the Criminal Justice Act 2003."
In section 139 of that Act (disposal of sums adjudged to be paid by conviction)—

(a) after paragraph (a) insert—

"(aa) in the second place in payment to the fund mentioned in paragraph (c) below of surcharges imposed under section 161A of the Criminal Justice Act 2003;";

(b) in paragraph (b), for "second" substitute "third"."

71 page 38, leave out line 34 and insert—
"In section 13A of the Criminal Appeal (Northern Ireland) Act 1980 (appeal against finding of unfitness to be tried), in subsection (1), for "the jury has returned" substitute "there has been".
In section 19(IA)(a) of that Act"
72 page 39, line 4, at end insert—
"In section 81 of that Act (power of Crown Court to grant bail), in subsection (1A), for "or 15" substitute ", 15 or 16A"."
73 page 39, line 11, at end insert—
"Representation of the People Act 1983 (e. 2)
10A In section 3A of the Representation of the People Act 1983 (disenfranchisement of offenders detained in mental hospitals), for subsection (5) substitute—
"(5) As respects any part of the United Kingdom, this section applies to any person in respect of whom a hospital order has been made by virtue of—

(a) section 116A of the Army Act 1955 or the Air Force Act 1955 or section 63A of the Naval Discipline Act 1957, or

(b) section 16 or 23 of the Courts-Martial (Appeals) Act 1968.""

74 page 39, line 12, at end insert—
"In section 47 of the Mental Health Act 1983 (removal to hospital of persons serving sentences of imprisonment, etc), in subsection (5)(a), for the words "under any enactment to which section 46 applies" substitute "made in consequence of a finding of insanity or unfitness to stand trial"."
75 page 39, line 19, leave out "omit paragraph (b) of subsection (1)" and insert "in subsection (1)—

(a) for paragraph (a) substitute—

"(a) is treated by virtue of any enactment as subject to a hospital order and a restriction order; or";

(b) omit paragraph (b)"

76 page 39, line 20, at end insert—
"In section 84 of that Act (removal to England and Wales of offenders found insane in Channel Islands and Isle of Man), in subsection (2), for the words from "had been" to the end substit ute "were subject to a hospital order together with a restriction order, made without limitation of time".
(1) Schedule 5 to that Act (transitional and saving provisions) is amended as follows.
(2) For paragraph 21 substitute—
"21 Any direction to which section 71(4) of the Mental Health Act 1959 applied immediately before the commencement of this Act shall have the same effect as a hospital order together with a restriction order, made without limitation of time."
(3) In paragraph 37(2), for "direction under section 46 of this Act" substitute "hospital order together with a restriction order, made without limitation of time"."
77 page 40, line 27, at end insert—
"Criminal Justice Act 1991 (c. 53)
In section 24 of the Criminal Justice Act 1991 (recovery of fines etc by deductions from income support), after subsection (3) insert—
"(3A) This section applies in relation to a surcharge imposed under section 161A of the Criminal Justice Act 2003 as if any reference in subsection (1) or (3) above to a fine included a reference to a surcharge.""
78 page 40, line 32, at end insert—
"In section 10 of that Act (which makes equivalent provision for Northern Ireland), in subsection (7), for the words "a jury in Northern Ireland has returned' substitute "in Northern Ireland there has been"."
Baroness Scotland of Asthal: My Lords, I beg to move, That the House do agree with the Commons in their Amendments Nos. 63 to 78.
Moved, That the House do agree with the Commons in their Amendments Nos. 63 to 78. (Baroness Scotland of Asthal.)
On Question, Motion agreed to.

COMMONS AMENDMENT
79 page 41, line 33, at end insert—
"( ) In subsection (4), for "it were an order of the court" substitute "the court had made an occupation order or a non-molestation order in terms corresponding to those of the undertaking"."
Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 79.
The amendment is designed to deal with concern that the provisions of the Family Law Act 1996 on undertakings are unclear about a court's power to issue an arrest warrant if an undertaking is breached. Under Section 46 of the Family Law Act, the court may accept an undertaking from the parties to the proceedings, instead of making a non-molestation order or occupation order. No power of arrest may be attached to an undertaking, and we are not proposing to make breach of an undertaking a criminal offence.
The concern is that the 1996 Act is unclear about whether the court has the power to issue an arrest warrant following the breach of an undertaking. That is because, although the 1996 Act makes it clear that an undertaking is enforceable as if it were an order of the court under Section 46(4) of the Act, the court has not made a relevant order for the purposes of Section 47(8), which deals with arrests for breaches. There is a concern, in practice, that some courts are not issuing warrants in such cases because they believe that the legislation is unclear. We believe that it is right that if an undertaking given to the court is breached, the person breaching the order should be punishable by the court for contempt. That was the intention in the original legislation.
The amendment means that the law will be clarified so that undertakings will become enforceable as if the court had made an occupation or non-molestation order in terms corresponding to those of the undertaking, thus making it clear that an arrest warrant can be issued.
Moved, That the House do agree with the Commons in their Amendment No. 79.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.

COMMONS AMENDMENT
80 page 42, line 31, at end insert—
"32A(1) SECTION 47 OF THE CRIME (SENTENCES) ACT 1997 (POWER TO SPECIFY HOSPITAL UNITS) IS AMENDED AS FOLLOWS.
(2) Omit subsections (1)(d) and (2)(c).
(3) For subsection (4) substitute—
"(4) A reference in this section to section 37 or 41 of the 1983 Act includes a reference to that section as it applies by virtue of—

(a) section 5 of the Criminal Procedure (Insanity) Act 1964,

(b) section 6 or 14 of the Criminal Appeal Act 1968,

296

(c) section 116A of the Army Act 1955 or the Air Force Act 1955 or section 63A of the Naval Discipline Act 1957, or

(d) section 16 or 23 of the Courts-Martial (Appeals) Act 1968.""

81 page 43, line 6, at end insert—
"Powers of Criminal Courts (Sentencing) Act 2000 (c. 6)
In section 132 of the Powers of Criminal Courts (Sentencing) Act 2000 (compensation orders: appeals etc), after subsection (4) insert—
"(4A) Where an order is made in respect of a person under subsection (3) or (4) above, the Court of Appeal or House of Lords shall make such order for the payment of a surcharge under section 161A of the Criminal Justice Act 2003, or such variation of the order of the Crown Court under that section, as is necessary to secure that the person's liability under that section is the same as it would be if he were being dealt with by the Crown Court."
In section 136 of that Act (power to order statement as to financial circumstances of parent or guardian), in subsection (1), for "or compensation" substitute ", compensation or surcharge".
(1) Section 137 of that Act (power to order parent or guardian to pay fine, costs or compensation) is amended as follows.
(2) In the heading, for "or compensation" substitute ", compensation or surcharge".
(3) After subsection ( 1 ) insert—
"(1A) Where but for this subsection a court would order a child or young person to pay a surcharge under section 161A of the Criminal Justice Act 2003, the court shall order that the surcharge be paid by the parent or guardian of the child or young person instead of by the child or young person himself, unless the court is satisfied—

(a) that the parent or guardian cannot be found; or

(b) that it would be unreasonable to make an order for payment, having regard to the circumstances of the case."

(4) In subsection (3), for "subsections (1) and (2)" substitute "subsections (1) to (2)".
(1) Section 138 of that Act (fixing of fine or compensation to be paid by parent or guardian) is amended as follows.
(2) In the heading, for "or compensation" substitute ", compensation or surcharge".
(3) Before paragraph (a) of subsection (1) insert—
"(za) subsection (3) of section 161A of the Criminal Justice Act 2003 (surcharges) and subsection (4A) of section 164 of that Act (fixing of fines) shall have effect as if any reference in those subsections to the offender's means were a reference to those of the parent or guardian;".
In section 142(1) of that Act (power of Crown Court to order search of persons before it)—

(a) before paragraph (a) insert—

"(za) the Crown Court orders a person to pay a surcharge under section 161 A of the Criminal Justice Act 2003,";

(b) in paragraph (d), for "or compensation" substitute ",compensation or surcharge"."

82 page 43, line 7, at end insert—
"35A The Criminal Justice and Court Services Act 2000 (c. 43) is amended as follows.
35B Section 69 (duties in connection with victims of certain offences) (which is superseded by section (Victims of persons sentenced to imprisonment or detention)) is repealed."
83 page 43, line 8, leave out from "4" to "(offences"
84 page 43, leave out lines 16 to 22 and insert— "37 (1) Section 133 of the Sexual Offences Act 2003 (general interpretation of Part 2) is amended as follows.
(2) In subsection (1)—

(a) in the definition of "admitted to a hospital", for paragraph (c) substitute—

"(c) section 46 of the Mental Health Act 1983, section 69 of the Mental Health (Scotland) Act 1984 or Article 52 of the Mental Health (Northern Ireland) Order 1986;";

(b) in the definition of "detained in a hospital", for paragraph (e) substitute—

"(c) section 46 of the Mental Health Act 1983, section 69 of the Mental Health (Scotland) Act 1984 or Article 52 of the Mental Health (Northern Ireland) Order 1986;";

(c) in the definition of "restriction order", for paragraph (c) substitute—

"(c) a direction under section 46 of the Mental Health Act 1983, section 69 of the Mental Health (Scotland) Act 1984 or Article 52 of the Mental Health (Northern Ireland) Order 1986;".
(3) After that subsection insert—
"(1A) A reference to a provision specified in paragraph (a) of the definition of "admitted to a hospital", "detained in a hospital" or "restriction order" includes a reference to the provision as it applies by virtue of—

(a) section 5 of the Criminal Procedure (Insanity) Act 1964,

(b) section 6 or 14 of the Criminal Appeal Act 1968,

(c) section 116A of the Army Act 1955 or the Air Force Act 1955 or section 63A of the Naval Discipline Act 1957, or

(d) section 16 or 23 of the Courts-Martial (Appeals) Act 1968."

In section 135 of that Act (interpretation: mentally disordered offenders), omit subsection (4)(c)."
85 page 43, line 32, at end insert—
"( ) In paragraph 172, for "63" substitute "63A"."
86 page 43, line 38, at end insert—
"39A In section 50 of that Act (application of Part 7 to Northern Ireland), in subsection (13), for paragraphs (a) to (c) substitute—

"( a) for "section 4A of the Criminal Procedure (Insanity) Act 1964" substitute "Article 49A of the Mental Health (Northern Ireland) Order 1986", and

(b) for "that section" substitute "that Article".""

87 page 44, line 2, at end insert—
"In section 151 of that Act (community order for persistent offender previously fined), in subsection (5), after "compensation order" insert "or a surcharge under section 161A".
In section 305 of that Act (interpretation of Part 12), in subsection (1), insert at the appropriate place—
""compensation order" has the meaning given by section 130(1) of the Sentencing Act;""
88 Schedule 8, page 45, line 3, at end insert—
"Criminal Procedure (Insanity) Section 7.

Act 1964 (c.84)

In section 8—

(a) the proviso to subsection (3);

(b) in subsection (4), the words from ", except" to "courts-martial,".

Schedule 2."

89 page 45, line 5, at end insert—
"Courts-Martial (Appeals) Act In Schedule 3, paragraph 3(b)." 1968 (c.20)
90 page 45, line 7, at end insert—

"In Schedule 1, paragraph 4(2)."

91 page 45, line 32, at end insert
"Armed Forces Act 1996 (c.46) Section 8.

Schedule 2."

92 page 45, line 35, at end insert—
"Crime (Sentences) Act 1997 In section 47—

(c.43)

(a) in subsection (1), paragraph (d) and the word "or" preceding it;

(b) in subsection (2), paragraph (c) and the word "and" preceding it "

93 page 45, line 45, column 2, at beginning insert—

"Section 69."

94 page 45, line 46, at end insert—

"Sexual Offences Act 2003 (c. 42)

Section 135(4)(c)."'

95 Schedule 9, page 47, line 4, after "Court" insert "or a court-martial"
96 Page 47, line 7, after "Appeal" insert "or the Courts-Martial Appeal Court"
97 Page 47, line 10, leave out paragraphs (a) and (b) and insert—

"(a) sections (Procedure for determining fitness to plead: England and Wales) and (Procedure for determining fitness to be tried: Northern Ireland);

(b) section 17 and Schedule 2;

(c) section (Courts-martial etc) and Schedule (Unfitness to stand trial and insanity: courts-martial etc);"

98 Page 47, line 12, leave out "10 to 13" and insert "10A to 13, 32A"
99 Page 47, line 12, leave out "and 39" and insert ", 39 and 39A"
100 Page 47, line 17, at end insert—
"Section (Surcharge payable on conviction) applies only in relation to offences committed on or after the commencement of that section."
101 In the Title, line 4, after "offence," insert "to make provision for the payment of surcharges by offenders;"
102 Line 7, after "insanity;" insert "to make provision about the execution of warrants;"
103 Line 7, after "insanity;" insert "to make provision about the enforcement of orders imposed on conviction:"
104 Line 9, leave out "and"
>105 Line 10, after second "offences" insert "; and to make provision about the recovery of compensation from offenders"
Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 80 to 105.
Moved, That the House do agree with the Commons in their Amendments Nos. 80 to 105.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.

Children Bill [H.L.]
Bill returned from the Commons with amendments and with a privilege amendment: it was ordered that the Commons amendments be printed.
House adjourned at seven minutes past ten o'clock.