Sitting of 15 May 1984

Preamble
The House met at half-past Two o'clock
PRAYERS
[MR. SPEAKER in the Chair]
PRIVATE BUSINESS
  METALS SOCIETY BILL [Lords]
  Read the Third time, and passed.
  EPSOM AND WALTON DOWNS REGULATIONS BILL [Lords]
  Considered; to be read the Third time.
Oral Answers to Questions
  EDUCATION AND SCIENCE

    Further Education
    Mr. Blairasked the Secretary of State for Education and Science if he will make a statement on the progress made in the implementation of the proposals, contained in "Training for Jobs", for the funding of further education.
    The Secretary of State for Education and Science (Sir Keith Joseph): The Manpower Services Commission is seeking views from employers and from the education system on the implementation of the new funding arrangements, which will operate from April next year.
    Mr. Blair: Is not the failure of the Secretary of State at recent meetings with the Association of Metropolitan Authorities and the Association of County Councils to convince them to change their opposition to the proposals in the White Paper "Training for Jobs" a classic illustration of the danger of making decisions without adequate consultation first? Would it not be common sense, whatever sense of Government virility may impel the right hon. Gentleman, to accept gratefully the AMA's proposal for a national review body to examine the whole matter of non-advanced further education, instead of making rash and ill-thought-out decisions?
    Sir Keith Joseph: I regret that at the moment the local authority associations do not seem eager to co-operate with the MSC. I do not find it possible to accept the AMA's proposal, because the Government's decision to change the funding stands, although obviously we want consultation on the implementation of the arrangements.
    Mr. Eastham: Is the Secretary of State aware of the acute embarrassment felt by the MSC when the Department issued the White Paper "Training for Jobs", because there had been no consultation with the MSC? That delayed the fulfilment and completion of the corporate plan.
    Sir Keith Joseph: It was a decision by the Government, for which the Government must take responsibility.
    Mr. Sheerman: Is the Secretary of State aware that what he is doing in technical and vocational education is a disaster? The right hon. Gentleman must bear the responsibility for destroying the coalition that produced the vocational and technical education for our young people. The high-handed way in which he has treated the AMA and the ACC is well illustrated, yet again, by the fact that, when the matter is put to it, the Conservative-controlled ACC will choose the Labour-controlled AMA's proposals, not the right hon. Gentleman's. Is that not symptomatic of the disastrous proposals and way in which they have been introduced?
    Sir Keith Joseph: There is much common ground. The local authority associations do not say that everything in non-advanced further education is perfect. They agree with the Government that there is room for improvement. The MSC is already a client of work-related non-advanced further education to the extent of 9 per cent. of its services. The Government propose only that that level should increase to 25 per cent.

    Teachers (Pay)
    Mr. Andrew F. Bennettasked the Secretary of State for Education and Science if he will make a statement on the teachers pay dispute.
    Mr. Barronasked the Secretary of State for Education and Science if he will make a statement on the teachers pay dispute.
    Mr. Jim Callaghanasked the Secretary of State for Education and Science if he will make a statement on the teachers pay dispute.
    Sir Keith Joseph: As I told the House on I May, I very much regret the teachers' unions' rejection of the employers' 4·5 per cent. pay offer. I believe that offer to be a fair one. It strains to the limit the employers' ability to pay, and it is for that reason that they have, rightly, refused arbitration.
    I regret even more the damage and disruption to pupils' education now being caused by the teachers' industrial action. I cannot believe such action to be in the teachers' own interests, and I hope that they will come to recognise the 4·5 per cent. pay offer as reasonable and acceptable.
    Mr. Bennett: Does the Secretary of State agree that he was once very concerned about standards in schools and that one of the key elements in achieving good standards in schools is the maintenance of high morale among teachers, pupils and parents? Has not his handling of the dispute done irreparable damage to that morale? Will he allow the whole issue to go to arbitration, and do something to restore the morale of our teachers, pupils and parents, so that we get value for money out of our education system?
    Sir Keith Joseph: The Government as a whole are certainly ardently in favour of increased standards in schools, but arbitration will not solve the problem. [HON. MEMBERS: "Why not?"] Surely Opposition Members realise that the employers have now offered as much as — and possibly in many cases more than—they can afford. The arbitrator may not make the ability to pay the crucial criterion, and he cannot provide more money.
    Mr. Barron: The Secretary of State has said that the present offer "strains to the limit" the money available to the employers, but has not the Secretary of State for the Environment been straining the ability of local authorities to pay by inflicting cuts on them during the past five years? Why does not the Secretary of State fight against those cuts in order to protect the educational standards of our people?
    Sir Keith Joseph: The Government of which I am a member fought and won elections in 1979 and 1983, when the central plank of our platform was to bring public spending under control and so reduce inflation. We have done that in the interests of every person in this country. We cannot imperil that success by increasing public spending in order to give pay increases which the country cannot afford. That road leads right back to the inflation of the 1970s.
    Mr. Callaghan: Is the Secretary of State aware that 60 per cent. of teachers earn less than £10,000 a year and that, following intensive training, it takes a scale 1 or scale 2 teacher 14 years to reach the maximum of £8,000 or £9,000? Does the right hon. Gentleman agree that that compares unfavourably with other similar professions, such as the police? What does he intend to do to force employers to accept arbitration, in the interests of the high morale of the teachers and children in those schools?
    Sir Keith Joseph: I have tried to explain that arbitration is no solution to the problem, since the arbitrator could not provide more money.
    Mr. Walden: Does my right hon. Friend agree that teaching is a profession, and that the three main characteristics of a profession are the maintenance of high standards, adequate rewards and not going on strike? Therefore, will my right hon. Friend continue his efforts to put together a package that emphasises the raising of teaching standards and the restructuring of teachers' salaries?
    Sir Keith Joseph: Some such possibility is under discussion within the Burnham framework. I hope that it will succeed in hammering out a system of rigorous teacher assessment which might be associated with the conditions to which my hon. Friend has referred. However, I should emphasise that the teachers have benefited and will continue to benefit from more job security than perhaps any other group in this country.
    Mrs. Rumbold: Will my right hon. Friend reassure anxious parents of young people who are about to take public examinations that the effects of the teachers' action and any subsequent days of strike will not affect their children's opportunities when they take those examinations?
    Sir Keith Joseph: The evidence so far is that children who have been taking examinations have not had their work disrupted. I hope that whatever happens in future — naturally, I hope that the teachers will soon accept the offer—that will continue.
    Mr. Beith: Has the Secretary of State forgotten that it was the votes of his representatives on the Burnham committee that prevented the dispute from being settled at an early stage? Since he bears responsibility for the costs that local authorities will incur at the end of the day, may I ask him to recognise that they should not be penalised for going to arbitration and accepting its conclusions?
    Sir Keith Joseph: I take my share of responsibility, but the proceedings inside Burnham are confidential. I repeat, a fair offer has been made and is still on the table.
    Mr. Nicholls: Does my right hon. Friend accept that, whatever the present position may be, in the end GCE and CSE examinations will be affected? Is it not disgraceful, irrespective of the rights and wrongs of this dispute, that teachers should so abuse their pupils' interest as to use them as so many bargaining counters in a pay dispute? Does he agree that such disgraceful conduct deserves to be condemned by hon. Members on both sides of the House?
    Sir Keith Joseph: I repeat, I do not believe that the teachers are doing themselves any good by their present conduct. I deeply regret the disruption to the children's education, including any repercussions for those taking examinations.
    Mr. Flannery: It must be agreed that the teachers are among the most orderly members of the work force. Is it not disgraceful that they should have been provoked into strike action? Is the Secretary of State aware that a young teacher's take-home pay is about £65 a week, whereas, for example, a policeman, with only three months' training before he is in uniform—and with slender qualifications compared with those of a teacher, whose training, in addition to qualifications already held, lasts at least three years—receives massively more? Why should such a disgraceful situation obtain in Britain today?
    Sir Keith Joseph: The teachers' present pay, let alone what it would be were the offer to be accepted, is at a level which I am told is attracting candidates of the desired quality for teacher training.
    Mr. Greenway: Is my right hon. Friend aware that over the weekend I met a teacher who claimed to be doing a 64-hour week? Has he heard broadcasts in which other teachers have claimed to be working very long hours indeed, taking into account time spent on school clubs, marking, and so on? Will he bear that in mind when the restructuring talks are resumed, and will he press for that resumption as soon as possible?
    Sir Keith Joseph: No one doubts that most teachers do very long hours during term time, and some work even between terms. That is not in doubt.
    Mr. Fisher: Is the Secretary of State aware that teachers' pay has fallen 31 per cent. below the level set by the Houghton committee? Does he accept that the only fair and just action that the Government should take is a phased return to decent pay levels, or is he not interested in rewarding the work of teachers, which he concedes is extremely valuable to the country?
    Sir Keith Joseph: A country cannot conduct its economic affairs to the benefit of all the people if past relativities are sought to be frozen.
    Sir Peter Emery: Will my right hon. Friend point out to the teachers' unions that many local authorities, by keeping their budgets within the money available, have tried to cut everything but the money available for teachers, and that for many authorities increases above 4·5 per cent. would mean a reduction in the number of teachers to cope with the grant of the additional awards, which would not be in anybody's interest?
    Sir Keith Joseph: That might be true of some local authorities. If more than 4·5 per cent. were to be

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    contemplated, there would have to be reductions in such crucial elements of education as books, equipment and maintenance, and even consideration of reducing the number of teachers.
    Mr. Nellist: Is the Secretary of State aware that his education cuts have increased demands on teachers so that many of them are having to buy paper, pens, pencils and books in order to teach the children? Is he further aware that class sizes of over 30, which many teachers have to teach, mean that teachers are engaged not so much in teaching as in crowd control? If he is so concerned about educational standards, why does he not concede the pay award for the teachers? After all, the police got 8·4 per cent. Are not teachers of equal value to the community?
    Sir Keith Joseph: I invite the hon. Gentleman to send me details of any authority of which that is true. Class sizes of over 30 have been dwindling year by year. The pupil-teacher ratio is at a record low level. If teachers are being imposed upon, as the hon. Gentleman says, that must reflect upon the local authority's management of its affairs.
    Mr. Mark Carlisle: In view of the last question, will my right hon. Friend confirm that not only is the pupil-teacher ratio at secondary and primary levels at its lowest level, but that it is considerably lower than the levels that the Government inherited in 1979?
    Sir Keith Joseph: My right hon. and learned Friend is entirely right. The pupil-teacher ratio is substantially better than it was when this Government first came into office.
    Mr. Radice: The Secretary of State has said that he is going to stand aloof from this dispute. However, does he accept that, far from standing aloof, his representatives on the Burnham committee have made a peaceful settlement far more difficult, most recently, on his instructions, by voting against arbitration, which is, of course, the accepted and constitutional way out of teachers' disputes? Why is the right hon. Gentleman now putting forward such weak arguments against arbitration, when only last year the Prime Minister and the then Secretary of State for the Environment were urging another public sector group, the water workers, to go to arbitration? What is sauce for the goose ought to be sauce for the gander.
    Sir Keith Joseph: It is tragic for the country that Her Majesty's Opposition seem to live in a Utopia in which money is available without limit and without regard to the consequences.

    Students (Parental Contributions)
    Mr. Bruceasked the Secretary of State for Education and Science what recent representations he has had concerning those students whose parents do not pay their full share of the parental contribution.
    The Parliamentary Under-Secretary of State for Education and Science (Mr. Peter Brooke): We have had very few representations recently about students who do not receive the full assessed parental contribution towards their award. Evidence from the recent National Union of Students survey of undergraduate income and spending suggests that the problem is significantly less widespread than it was a decade ago.
    Mr. Bruce: Will the Minister acknowledge that, with the implementation of a halving in the minimum grant in October, a number of students in this category will be, if not denied further education, put to severe hardship, compounded by the cuts in travel grants, which could be very serious for students travelling long distances to university—for example, from the south of England to a Scottish university—and that these two factors together will be very serious for people in this category? Does he not recognise that the survey indicated that 47 per cent. of parents do not pay the full topping-up contribution?
    Mr. Brooke: Yes, I acknowledge that the figure is 47 per cent., but it was 73 per cent. 10 years ago, so this improvement has occurred.
    As regards student travel grants, in the process of bringing in the policy we have reviewed the cost of transport—for instance, between the south of England and Scotland.
    Mr. Patrick Thompson: Does my hon. Friend agree that, in respect of the financial arrangements for students, a flat rate scheme for reimbursing travel grants is inequitable? Therefore, should it not be examined critically, with a view to giving a fair deal to students who have long distances to travel?
    Mr. Brooke: I do not think that the issue of travel grants arises on this question, but I have never concealed the fact that there is an element of rough justice in the new policy that we have introduced. However, I am confident that it will be possible on a local basis to find enterprising solutions to the problem that my hon. Friend has described.

    Open University
    Mr. Dixonasked the Secretary of State for Education and Science when he will next meet the vice-chancellor of the Open University to discuss its resources.
    Mr. Eadieasked the Secretary of State for Education and Science when he will next meet the vice-chancellor of the Open University to discuss its resources.
    Mr. Brooke: My right hon. Friend has no plans to meet the vice-chancellor in the near future.
    Mr. Dixon: Will the Minister bear in mind that the grant to the Open University has been reduced in real terms since 1980 by over £2 million and that during the same period the number of students has increased by 6,000? The amount spent per student has been cut from £924 in 1980 to £824 in 1984. In the light of the proposed cuts over the next two years, will the hon. Gentleman meet the vice-chancellor to explain why the Government are financially strangling this worthwhile institution?
    Mr. Brooke: The cuts to which the hon. Gentleman has referred are in line with cuts which have occurred in other parts of the higher education system. I am hoping to see the vice-chancellor shortly.
    Mr. Haselhurst: Is my hon. Friend aware of the new courses of a specialist nature that are being developed by the Open University? Does he agree that wider knowledge of their availability might assist to boost the resources of the Open University?
    Mr. Brooke: I am grateful to my hon. Friend for making that point. There are enterprising opportunities for the Open University to follow, and I salute the enterprise that it has already shown.
    Mr. Eadie: Is the Minister aware that the Government will stand accused of undermining the best adult education experiment in the post-war world if they starve the Open University of the necessary financial resources? Is he further aware that Members' postbags reveal the overwhelming support of the British people for the Open University?
    Mr. Brooke: One would not think from these supplementary questions that the Government are effectively providing £60 million of public money to support the Open University. My right hon. Friend has asked the Open University visiting committee to play a part in identifying and appraising the options available to the university through discussion with the university and the Department, and to advise him on its plan of action. I hope to contribute to the discussion.
    Mr. Madel: Will my hon. Friend encourage the Home Department to ascertain what more it can do to fund prison education through the Open University? Will he also encourage co-operation between industry and the Open University, to ascertain what initiatives could be taken to improve the training and education that many employees will need?
    Mr. Brooke: I have always found the Open University enterprising in seeking new opportunities. I shall draw my hon. Friend's remarks to the attention of my right hon. and learned Friend the Home Secretary.
    Mr. Carter-Jones: Is the Minister aware that the cuts in finance for the Open University have had an adverse effect on the education of the disabled, who depend substantially on the Open University for their degrees? Will he give some thought to providing additional funds for the scheme set up by MENCAP and the Open University to provide training courses for the mentally handicapped?
    Mr. Brooke: As the hon. Gentleman knows, the Open University has provision to assist the unemployed. If he wishes to make submissions on behalf of the disabled, I hope that he will write to me.
    Mr. Forman: I recognise that it is unrealistic to expect the Open University to be exempt from public expenditure cuts and control, but does my hon. Friend accept that the target for 1986 is too tight, and will he give sympathetic consideration to that aspect?
    Mr. Brooke: It would be premature for me to respond to my hon. Friend's question until the Open University visiting committee has had the discussion to which I referred earlier.
    Mr. Sheerman: Will the Minister confirm that his right hon. Friend the Secretary of State has never visited the Open University? Will he encourage him to do so and to examine an institution which many believe could produce more courses, take on more students, do more to increase Britain's competitiveness and provide training courses for those who are between jobs or out of work? Is he aware that 51 per cent. of Open University students are taking courses in technological and science subjects and that they will be able to make a tremendous
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    contribution to Britain's future? Will he start to regard higher education as an investment in people and the future, not as an area for cuts?
    Mr. Brooke: My right hon. Friend does not see a clear opportunity to visit the Open University. He has told the vice-chancellor of the Open University that he will bear the invitation in mind. As to the cuts, let me pay tribute again to the contribution that the Open University is already making in continuing education in both its broad and narrow meaning.

    Head Teachers
    Sir William van Straubenzeeasked the Secretary of State for Education and Science when he expects to be able to announce decisions on his proposed probationary period for head teachers.
    Sir Keith Joseph: A consultation document was issued on 4 April by the Department to local education authorities, voluntary providing bodies and teacher associations. Comments were sought by 1 June. One of the major associations has asked for an extension until late June; that has been agreed. I hope to be able to reach a decision quite soon after I have considered the views expressed.
    Sir William van Straubenzee: Will my right hon. Friend accept that in evaluating a school and its standards it would be hard to overestimate the importance of the man or the woman who at any time is its head? Will he understand, therefore, that in carrying out the proposal in the question, or any other designed to improve the quality of the head, he will have the warm support of all concerned with educational standards?
    Sir Keith Joseph: I agree enthusiastically with the judgment of my hon. Friend and I am grateful that we agree so strongly.
    Mr. Allan Roberts: Being a member of a Government who claim to be keen on ballots, has the Minister considered, as a way of solving the problem of inadequate headmasters, having them elected by the staffs of the schools or, better still, by the parent-teacher associations for a two or a four-year period? Conservative Members may laugh at the suggestion, but they cannot say that it is not practical, because Oxford and Cambridge have been doing this for a few hundred years and at least they have maintained good public relations.
    Sir Keith Joseph: I think I can assume that the hon. Gentleman and I share the same objective: to get the best person to be head of a school. I must say, however, that I had not thought of his approach.

    Technical and Vocational Education Initiative
    Mr. Colvinasked the Secretary of State for Education and Science what help his Department is giving to promote the technical and vocational education initiative programme.
    Sir Keith Joseph: The Department is working closely with the Manpower Services Commission on all aspects of the initiative.
    Mr. Colvin: Besides TVEI, my right hon. Friend's Department also provides CELP, MEP and PICKUP. Is he certain that everyone knows what those programmes are?

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    Will he carefully consider whether there is not a danger of overlap and wasteful duplication in the provision of technical and vocational training and education? In particular, surely PICKUP is trying to do what is already being done by the Open Tech.
    Sir Keith Joseph: My hon. Friend should not be too discouraged by the proliferation of acronyms. Each tackles, I hope with rising success, different elements in the task of preparing people at school and after school for the world of work. I believe that all are justified.
    Mr. Loyden: Will the Secretary of State give consideration to the limited places and limited locations for survival courses for the offshore and onshore oil and gas industries? Is he aware that the lack of courses affects employment opportunities?
    Mr. Speaker: Briefly.
    Mr. Loyden: Will he consider the responsibility of his Department to investigate where these courses can be placed, particularly bearing in mind areas of high unemployment and the possibility of training for the offshore and onshore oil and gas industries?
    Sir Keith Joseph: I shall inform myself of the background to the hon. Gentleman's question.

    Assisted Places Scheme
    Mr. Flanneryasked the Secretary of State for Education and Science how many schools are now taking part in the assisted places scheme; and how many have approximately 5 per cent., 10 per cent., 30 per cent. and 40 per cent., respectively, of their pupils from this scheme.
    The Parliamentary Under-Secretary of State for Education and Science (Mr. Bob Dunn): Looking at the current position in the 223 English schools participating in the assisted places scheme, 40 schools have fewer than 5 per cent. assisted pupils, 80 have between 5 and 10 per cent., 93 have between 10 and 20 per cent., and the remaining 10 schools have between 20 and 30 per cent.
    Mr. Flannery: Is this not a surprising outcome in view of the fact that most people think that there may be one or two pupils in these schools on taxpayers' money? Is this not shoring up private schools and putting at a disadvantage ordinary schools? Is it not absolutely disgraceful that public money, which should be used to provide for ordinary children, is being used in these schools at a time when more and more cuts are being made in the rest of the education system?
    Mr. Dunn: The hon. Gentleman's hostility to the scheme is well known. The scheme was designed to give children from disadvantaged and poor homes an education which they would not normally receive. To that extent the scheme has been completely successful.
    Mr. Dorrell: Will my hon. Friend look for all opportunities to increase the funds available for the assisted places scheme, to ensure that the doors of the schools that were put into the private sector by the Labour party continue to be open so that opportunities are still available to the children of parents who cannot afford to pay the full fees imposed by the Labour party?
    Mr. Dunn: I agree entirely with my hon. Friend's sentiments. Financial constraints appear to rule out any significant enlargement of the scheme, but the matter will be kept under review.
    Mr. Hardy: Does the Minister consider that there is any justification for the generalisation that the poorer the quality of the private school the higher the number of assisted places arranged within it?
    Mr. Dunn: I do not accept that for a moment. All that I can say to the House in all truth is that in the 1983–84 school year 40 per cent. of assisted places attracted full fee remission. I am proud of that.
    Mr. Greenway: In their attacks on the scheme, do not Labour, Liberal and SDP Members put the interests of poor children and education right out of the door? Is it not time that they put the interests of deprived children and their chances in life above all things?
    Mr. Dunn: My hon. Friend is entirely right to draw to the attention of the House the fact that there is no difference between Liberal, SDP and Labour Members on educational matters. They are hostile to helping disadvantaged pupils and we must continue to draw attention to that at every opportunity.

    Under-fives
    Mr. Dubsasked the Secretary of State for Education and Science whether he is satisfied with the level of provision of education facilities for the under fives.
    Mr. Dunn: In January 1983 there were some 458,000 under-fives in education—the highest number ever and an increase of about 22,000 over the previous year. It is for local education authorities to decide on the level of provision in the light of local needs and priorities and, of course, in the light of resources available.
    Mr. Dubs: Does the Minister agree that the Inner London education authority's record in providing nursery education for the under-fives is second to none? Does he agree that that excellent level of provision is under threat from the Government's proposals, which will surely reduce the opportunity for many deprived and disadvantaged children in our city? What does the Minister propose to do about that?
    Mr. Dunn: I agree that ILEA has a record, but savings can be made in plenty of other ways without detriment to education services in London.
    Mr. Hayes: Will my hon. Friend do all that he can to persuade the Chancellor of the Exchequer to take work place nursery subsidies out of tax?
    Mr. Dunn: I am not sure that that is connected with the original question, but I shall direct my right hon. Friend's attention to my hon. Friend's comment.
    Dr. McDonald: Is the Minister aware that a small number of local authorities discriminate sharply against summer-born children, who receive only six terms of infant school education instead of a full three years? What action will the Government take to end such blatant discrimination against children who apparently have the misfortune to be born in the summer, so that they have a chance of decent infant education?
    Mr. Dunn: As a summer-born child, I have sympathy with what the hon. Lady says, but these are matters for local education authorities.
    Mrs. Rumbold: Has my hon. Friend any plans to reconsider the provision of under-fives education by local authorities so that it is a discretionary option?
    Mr. Dunn: Nursery education is already a discretionary option for local education authorities.
    Mr. Radice: Does the hon. Gentleman accept that his answer to the question of my hon. Friend the Member for Battersea (Mr. Dubs) is rather complacent? Does he not understand that the proportion of under-fives receiving nursery education is planned to be marginally lower in 1986–87 than it was in 1981–82, although the Government's Green Paper on public spending admits that the demand for nursery education is likely to rise rather than decline?
    Mr. Dunn: I am sorry to be at odds with the hon. Gentleman, but the participation rate as a percentage of three and four-year-olds stood at a record level of 40 per cent. in January 1983, and the expenditure plans allow for the figure to increase slightly up to 1986–87.
    Mr. Bruce: Will the Minister acknowledge that allowing nursery education to be discretionary is unfair? The Prime Minister, when Secretary of State for Education and Science, claimed that she wanted nursery education for all. How, therefore, can the Government justify the situation that exists in my constituency where, for example, in the city of Aberdeen nearly 50 per cent. of children who are under school age receive nursery education, but in Gordon district, under the same education authority, only 5 per cent. get it? Is that fair and just? Should not the Government be doing something to redress the balance?
    Mr. Dunn: Such complaints should be directed to the hon. Gentleman's local education authority. I am prepared to acknowledge, however, that there has been a slight increase in both part-time and full-time attendance levels in the past five years, and that is something for the Government to be proud of.

    Teachers (Pay)
    Mr. Fisherasked the Secretary of State for Education and Science whether he has any plans to meet leaders of the teachers unions to discuss rates of pay.
    Sir Keith Joseph: I meet the leaders of the teachers' unions from time to time, either at their request or at my suggestion, to discuss various matters of common concern. These discussions do not normally cover pay, which is a matter for the Burnham committee. Nevertheless, if any of the teachers' unions should wish to meet me to discuss pay matters, I should be happy to agree.
    Mr. Fisher: As the Secretary of State agrees that pay is a matter for the Burnham committee, will he accept the views of the independent chairman of the committee, Sir John Wordie, who says that negotiations are exhausted and that the matter should go to arbitration? Will the Secretary of State use his best endeavours to persuade his representatives on the committee to send the matter to arbitration, in the interests of the children of this country?
    Sir Keith Joseph: I have already tried, at some length, to explain why arbitration will make no more money available. That is the reason why I do not agree with the hon. Gentleman's views.
    Mr. Marlow: If one of my working-class constituents, or one of those of my hon. Friends, goes on strike, he loses one fifth of a week's pay for every day of the strike. In view of the fact that my right hon. Friend told me yesterday that teachers work for 190 days a year, if they go on strike for one day will they lose a 190th part of a year's salary? If not, why not? What is my right hon. Friend going to do about it?
    Mr. Andrew F. Bennett: Stupid.
    Sir Keith Joseph: I do not think that my hon. Friend's question was at all stupid. The answer, unfortunately, depends on the individual contracts between local education authorities and their teachers, and I cannot promise to be the master of the details of all those contracts.
    Mr. Radice: The Secretary of State has told the House why, despite the support of the Prime Minister for arbitration for the water workers last year, he is against arbitration this year. Even if the right hon. Gentleman is against arbitration, will he now call in representatives of the trade unions and the employers, as a matter of urgency, to discuss the dispute?
    Sir Keith Joseph: No, but I repeat that if any component of either group wishes to see me I shall be glad to see them. However, I cannot produce a magic wand. The dispute will be settled when the teachers decide that the offer, which is still on the table, is fair and realistic.
    Mr. Bill Walker: When the Secretary of State meets the teachers' unions, will he draw their attention to the fact that, for almost as long as one can remember, job security has been an element in the pay scales of teachers? The teachers should be reminded of that fact.
    Sir Keith Joseph: I have already agreed with my hon. Friend that the teachers enjoy one of the highest levels of job security of all the occupations.
    Mr. Teddy Taylorasked the Secretary of State for Education and Science how many letters he has received in the last three months concerning the level of teachers' pay.
    Sir Keith Joseph: I have received about 40 letters from right hon. and hon. Members, and about 90 from other interested parties and members of the public.
    Mr. Taylor: Although I appreciate that the teachers' strike is a difficult and complex issue for us all, does my right hon. Friend agree that strikes such as we have had do not in any way solve the problem of helping children?
    Sir Keith Joseph: They actively make it worse for children and damage many other objectives, including the interests of teachers.
    Mr. Skinner: Does the Secretary of State understand that he is skating on thin ice when using the argument of supply and demand in relation to teachers' pay, because if that maxim were applied to Members of Parliament and the police, we would not have had an 11 per cent. pay increase this year, because there are plenty of people who are trying to get into this place on the Tory side of the

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    House and the Opposition side? Is he further aware that if the job of chairman of the Tory party had been advertised they might well have got 200 applicants, any one of whom might have got the £5,000 extra for doing no more work, and the chances are that each of those applicants would have done better than the man who has got the job?
    Sir Keith Joseph: I accept that the hon. Gentleman would probably have tried to come to this place even if the pay were not what it is. I hope he will accept—though I doubt it—that in normal conditions in Britain, supply and demand at the specified quality is a key factor in settling pay.

  PRIME MINISTER

    Engagements
    Dr. Mawhinneyasked the Prime Minister if she will list her official engagements for 15 May.
    The Prime Minister (Mrs. Margaret Thatcher): This morning I had meetings with ministerial colleagues and others, including one with a delegation of unofficial Members of the Executive and Legislative Council from Hong Kong. In addition to my duties in the House I shall be having further meetings later today, including one with Sir Robert Muldoon, the Prime Minister of New Zealand. This evening I hope to have an audience of Her Majesty the Queen.
    Dr. Mawhinney: Has my right hon. Friend read today the rejection by the general secretaries of the electricians union and the Civil and Public Services Association of politically motivated and revolutionary campaigns of industrial action? Does she agree that that rejection represents the view of the overwhelming majority of trade unionists? Will she urge miners' leaders, if they will not listen to her, at least to listen to their fellow trade unionists?
    The Prime Minister: I agree with my hon. Friend. Miners have already been offered a larger pay increase than that accepted by power and gas workers. I ask the miners only to look at the matter on merit—the amount of pay that they have been awarded and investment, which is at an all-time record. So far there have been no compulsory redundancies, and redundancy payments are far better than have ever been provided under any previous Government.
    Mr. Steel: Bearing in mind the defence estimates that were published yesterday, how does the Prime Minister justify scrapping the Polaris fleet and replacing it with a nuclear force that is 14 times as powerful, when that will distort our defence budget at a cost double the £5 billion that was originally given to the House? Does she not think that Britain will now be put outside the international arms control discussions?
    The Prime Minister: No, Sir. The Polaris fleet will have to replaced in the early 1990s. We are still to have an independent nuclear deterrent; Trident is the best replacement. It amounts to only 3 per cent. of the defence budget and up to 6 per cent. of the equipment budget and gives far greater deterrence for that expenditure than any substitute could.
    Mr. Rost: Now that Mr. Scargill has admitted that he is manipulating an industrial dispute with the wider objective of overthrowing a democratically elected Government, will my right hon. Friend invite the Leader of the Opposition to No. 10 so that he might declare whether he and his party still believe in—
    Mr. Speaker: Order. The hon. Gentleman is in danger of doing what I hoped we would not do again—putting into the Prime Minister's mind thoughts about what is in the mind of the Leader of the Opposition. The hon. Gentleman must ask a question on a matter for which the Prime Minister has responsibility.
    Mr. Rost: Will the Prime Minister, as one of her responsibilities, invite to No. 10 Downing street the Leader of the Opposition and ask him whether his party still believes in democratic government by the ballot box?
    The Prime Minister: I must give my hon. Friend the answer which I really believe he would expect, which is no, Sir. I ask the coal miners to look at the case on merit.
    Mr. Ernie Rossasked the Prime Minister if she will list her official engagements for Tuesday 15 May.
    The Prime Minister: I refer the hon. Gentleman to the reply that I gave some moments ago.
    Mr. Ross: Will the right hon. Lady take some time today to contemplate on the fact that if she establishes pay review boards to look into pay and conditions for groups of workers but shelves the reports when the boards report back, she will bring the whole pay review board system into disrepute?
    The Prime Minister: No, the pay review system has been established for some time. We try to consider the results of the reports together, knowing that we have to look at not only the recommendations but where the money will come from and how it can be raised. I remind the hon. Gentleman that before the 1979 election the Labour Government referred nurses' pay to Clegg. That board took a very long time to report, but the Conservative Government honoured what was recommended.
    Mr. Maclean: As Arthur Scargill has declared his intention to bring down the Government of this country by unconstitutional means, and is aided and abetted by the Labour party, what conclusion does my right hon. Friend draw from the deafening silence of the Labour party leadership, which does not condemn such action?
    The Prime Minister: I have frequently said that the Labour party has always been the strikers' friend, as it appears to be in this case. There is a difference of opinion. Some miners are working and earning well so that they can look after their families and give the coal mining industry a good future by their faithfulness in producing coal when there are orders to be met. I suggest that we follow their example.
    Mr. Hattersley: May I ask the right hon. Lady a question which enables her to behave like a Prime Minister rather than a party spokesman? Will she take a moment to explain why the Government have imposed what amounts to a veto on arbitration in the teachers' pay dispute? Why was she so passionate for arbitration in the water dispute, and why is she so opposed to it now? Can the right hon. Lady tell us why she prefers to continue the conflict rather than end the dispute honourably, practicably and sensibly?
    The Prime Minister: I am sorry that the right hon. Gentleman thinks so little of party spokesmen. We have all been through that period. With regard to the right hon. Gentleman's question, I have already heard my right hon. Friend the Secretary of State for Education and Science answer it to the effect that the offer was the maximum that ratepayers and taxpayers could afford. With respect, the difference between teachers and water workers is obvious. An increase for the water workers could have been met by one of three methods: by price, efficiency or falling numbers. In relation to teachers, increasing the offer could be done only by a reduction in the number of teachers.
    Mr. Hattersley: Can the Prime Minister make it absolutely clear whether she is opposed to arbitration in this case or whether she is opposed to arbitration in general? Many people would say that she is totally opposed to arbitration because conflict rather than conciliation meets her party's needs.
    The Prime Minister: How can the right hon. Gentleman ask that question when he has just said that I asked people to go to arbitration in a particular case? His question falls to the ground by virtue of the question that he previously asked.
    Mr. Lofthouseasked the Prime Minister if she will list her official engagements for Tuesday 15 May.
    The Prime Minister: I refer the hon. Gentleman to the reply that I gave some moments ago.
    Mr. Lofthouse: Is the Prime Minister aware of the fires at Rossington colliery in Yorkshire? How many more pits must be destroyed before she feels that it is her responsibility to intervene in the miners' strike and get the parties round the table for responsible and realistic talks? Is she prepared to sit back and hope for a Galtieri-like victory? Does she further realise that she is not fighting a foreign aggressor or an individual inside or outside the NUM, but the hard-working men of the mining industry? Does the right hon. Lady realise that these men's families and children are now suffering great financial hardship? Will she intervene, or does she want to starve them into defeat?
    The Prime Minister: I understand that the face in that colliery has had to be sealed for technical reasons. As the hon. Gentleman knows, the face is susceptible to heating. Unfortunately, there is about £2 million worth of equipment down there, which has also had to be sealed off. Had the strike not occurred that would have not happened and, presumably, the face would also be working. Some 50,000 miners are working, earning well and looking after their families. I seek only a good prospect and a good future for the coal industry. This Government have put more investment into the future of coal than any previous Government, by providing external financing limits and good objectives for the future. The National Coal Board is getting extra orders. It now remains for the miners to take advantage of those opportunities.
    Mr. Peter Bottomley: Given that the money for the coal industry runs at about £1·5 million per year per constituency, why should nurses and teachers in my constituency be asked to give greater subsidies to the mining industry when the miners are not willing to work on the earnings which they presently receive?
    The Prime Minister: My hon. Friend has made a very cogent point. Workers in other industries — indeed,
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    taxpayers on the whole—annually have to put quite a considerable amount of subsidy into the coal mining industry. Every taxpayer pays on average between 75p and £1 per week in subsidies to the coal mining industry before he begins to pay for coal or electricity.
    Mr. Beithasked the Prime Minister if she will list her official engagements for Tuesday 15 May.
    The Prime Minister: I refer the hon. Gentleman to the reply that I gave some moments ago.
    Mr. Beith: Will the Prime Minister reconsider, in the light of some recent cases, her long-held hostility to any form of parliamentary scrutiny by a Select Committee of the security services? Has she not come to the conclusion that it is easier to keep Ministers in the dark when they are not in turn answerable to Parliament, and that that sometimes extends even to the Prime Minister?
    The Prime Minister: No, Sir.
    Mr. Teddy Taylor: At her meeting today with representatives of New Zealand, was my right hon. Friend able to tell them that Britain will never forget the sacrifices that New Zealand has always been willing to make for us in the most difficult times of our country? Was she able to give them an assurance that we shall resist further cuts in the very small amount of agricultural produce that New Zealand sends to this country?
    The Prime Minister: When I see the Prime Minister of New Zealand later in the afternoon I shall most certainly give him that message. I have given him such messages frequently. We are always grateful for the sacrifices that New Zealand made for freedom in Europe and the world over. We constantly remind our European partners that it is to countries such as New Zealand that we owe, in part, some of the liberties which we now enjoy. They should respond to that by giving New Zealand a reasonable deal on both butter and sheep in the European Community.
    Mr. O'Brien: In view of the gross uncertainty that surrounds the nurses' pay award and the implementation of the committee's decision, will the Prime Minister assure the House that the nurses will receive the higher wage award to which they are entitled?
    The Prime Minister: I said that we were considering all the review body's reports together. I hope to be able to make an announcement on all of them not later than just after the Whitsun recess.
    Mr. Greenwayasked the Prime Minister if she will list her official engagements for 15 May.
    The Prime Minister: I refer my hon. Friend to the reply that I gave some moments ago.
    Mr. Greenway: Does my right hon. Friend agree that, whatever the rights and wrongs of the teachers' pay dispute, it is unacceptable that children's examinations and their future should be put at risk by strikes? Would it not be more fitting for that vocational profession to commit itself to a no-strike agreement to protect the weakest members of society—our children?
    The Prime Minister: I agree with my hon. Friend. I understand that there is no interference with examinations at the moment—I hope that that is correct. We expect professional people to give a lead and to put the children first.
    Mr. Tony Lloydasked the Prime Minister if she will list her official engagements for Tuesday 15 May.
    The Prime Minister: I refer the hon. Gentleman to the reply that I gave some moments ago.
    Mr. Lloyd: Will the Prime Minister find time today to read the latest survey from the Manchester chamber of commerce, which states that the patchy economic recovery, which may have been detectable in 1983, has petered out? Will she stop kidding herself and the country that an economic recovery is on the way and do something serious for my constituents who are, or will be, out of work, and for the economy of the north-west?
    The Prime Minister: Taking the country as a whole, I cannot possibly agree with the hon. Gentleman's report. The gross domestic product has increased by about 3 per cent. compared with a year ago, real personal disposable income has increased, inflation has been halved, manufacturing productivity has increased by 14 per cent., and in spite of the fact that interest rates have increased by 0·5 per cent., they remain considerably lower than those in the United States.
    Later—
    Mr. Tony Lloyd: On a point of order, Mr. Speaker. Before the Prime Minister leaves the Chamber, may I seek your guidance? My right hon. and hon. Friends and I are ever anxious to help the good government of this country, but I was surprised to receive a communication from the Prime Minister's Parliamentary Private Secretary—
    Mr. Speaker: Order. The hon. Gentleman seeks to ask a question of the Prime Minister, not to raise a point of order. [HON. MEMBERS: "No."] Well, I cannot be responsible for letters which the hon. Gentleman receives from the Prime Minister's Parliamentary Private Secretary.
    Mr. Lloyd: I am asking your advice, Mr. Speaker, on whether it was in order for me to receive a letter asking me to inform the Prime Minister's PPS what my supplementary question would have been. [HON. MEMBERS: "Oh!"]
    Mr. Speaker: Order. It sounds to me like a fair cop.

BILL PRESENTED
  WILDLIFE AND COUNTRYSIDE (AMENDMENT)
  Mr. Peter Hardy, supported by Mr. Andrew F. Bennett, Mr. Kenneth Carlisle, Mr. Sydney Chapman, Dr. David Clark, Mr. John Farr, Mr. Ron Lewis, Mr. Allen McKay, Dr. John Marek, Mr. Stephen Ross, Mr. Chris Smith and Mr. Nicholas Lyell, presented a Bill to amend section 28 of the Wildlife and Countryside Act 1981, so as to provide protection for sites of special scientific interest during the consultations with interested parties permitted by section 28(2) of that Act: And the same was read the First time; and ordered to be read a Second time upon Friday 6 July and to be printed. [Bill 173].

EUROPEAN COMMUNITY DOCUMENTS
Ordered,
That the European Community Documents Nos. 4335/81 and corrigendum and 4219/83 concerning Tourist Assistance Insurance be referred to a Standing Committee on European Community Documents—[Mr. Garel–Jones.]

Questions to Ministers
3.32 pm
Mr. Ray Powell: On a point of order, Mr. Speaker. Some hon. Members had hoped to ask a supplementary question to question no. 12, tabled by the hon. Member for Caernarfon (Mr. Wigley). The hon. Member is continually complaining about the non-attendance of some Welsh Members at Welsh questions. Has he given you, Mr. Speaker, an explanation for his absence this afternoon, which prevented hon. Members from asking supplementary questions to question No. 12?
Mr. Speaker: Order. The hon. Member for Caernarfon (Mr. Wigley) gave me a very good reason why he could not be present this afternoon.

Orders of the Day
  Police and Criminal Evidence Bill
  As amended (in the Standing Committee), further considered.
  Police and Criminal Evidence Bill
    New Clause 17

      MAXIMUM PERIODS OF DETENTION BEFORE CHARGE
      '(1) A person arrested in England or Wales for an offence shall not, subject to subsection (4) below, be kept in police detention for more than six hours from the time of his arrest.
      (2) Subject to subsection (3) below, a person who at the expiry of six hours after his arrest is in police detention and has not been charged shall be released at that time either on bail or without bail.
      (3) Subsection (2) above does not apply to a person whose detention for more than six hours after his arrest has been authorised or is otherwise permitted in accordance with section 39 of this Act.
      (4) In accordance with section 39 of this Act a magistrates' court may authorise the detention of a person for two further periods of not more than 12 hours each.
      (5) A person to whom section 39 and subsection (4) above apply, unless at the expiry of 30 hours after his arrest is in police detention and has not been charged, shall be released at that time either on bail or without bail.'.—[Mr. Kaufman.]
      Brought up, and read the First time.
      3.33 pm
      Mr. Gerald Kaufman: I beg to move, That the clause be read the Second time.
      Mr. Speaker: With this it will be convenient to take the following amendments: (a) to the proposed new clause, in subsection (5) leave out '30' and insert '48.'.
      No. 95, in clause 37, page 33, line 12, leave out
      'subject to the following provisions of this section and to sections 38 and 39 below'.
      No. 96, in clause 37, page 33, line 14, leave out '24' and insert '6'.
      No. 108, in clause 37, page 33, line 41, leave out
      'subject to subsection (5) below'.
      No. 109, in clause 37, page 33, line 42, leave out '24' and insert '6'.
      No. 110, in clause 37, page 34, line 1, leave out subsection (5).
      No. 111, in page 34, line 9, leave out clause 38.
      No. 114, in page 35, line 35, leave out clause 39.
      No. 117, in clause 39, page 36, line 9, leave out '36'
      and insert '6'.
      No. 119, in clause 39, page 36, line 11, leave out lines 11 to 32.
      No. 121, in clause 39, page 36, line 40, leave out '36' and insert '6'.
      No. 125, in page 38, line 18, leave out clause 40.
      Mr. Kaufman: The Opposition regard the Bill—[Interruption.]
      Mr. Speaker: Order. I ask hon. Members to withdraw as quietly as possible or to remain and listen to the debate on this important new clause.
      Mr. Kaufman: The Opposition still regard the Bill as unacceptable in most of its major provisions, but we regard the provisions regarding detention without charge as being at the heart of its damaging effects.
      First, I should point out that we regard is as a serious discourtesy to the House that the Home Secretary is simply not troubling to take an interest in this legislation. No doubt he will have the impertinence to come to the Chamber tomorrow to move Third Reading, having attended only three hours of the 145 hours of debate in Standing Committee and having merely slipped in for a moment yesterday to try to gain kudos by announcing a concession that was in fact forced upon him by the Opposition. He has not troubled to be present now. We regard it as an affront to the House that the Minister whose name is on the Bill, who is responsible for it and who goes around boasting about it cannot be bothered to talk to the House about it or to listen to what is said about it.
      The Minister of State, Home Office (Mr. Douglas Hurd)rose—
      Mr. Kaufman: I shall give way to the Miniser of State, who once again wishes to curry favour with his right hon and learned Friend by producing some paltry excuse for the absence of the Home Secretary.
      Mr. Hurd: I merely seek once again to correct the right hon. Gentleman's inaccuracies. My right hon. and learned Friend the Home Secretary took part in the Report stage yesterday and intends to do so today. Moreover, as the right hon. Gentleman has said, my right hon. and learned Friend will no doubt also be here tomorrow, so I do not think that there is any substance in the charge against my right hon. and learned Friend.
      Hon. Members: "Where is he?"
      Mr. Kaufman: The question is indeed, "Where is he?"
      Mr. David Ashby: Come on, raise the tone!
      Mr. Kaufman: It is impossible to raise the tone of any debate when Conservative Members are present. Nevertheless, having placed those comments on record, I shall now try to deal with a matter that we regard as at the heart of the Bill—the power to detain without charge.
      My hon Friends from Scottish constituencies have been utterly astounded at the provisions of the Bill. Section 2 of the Criminal Justice (Scotland) Act 1980 provides:
      "Detention under subsection (1) above shall be terminated not more than six hours after it begins"
      and then goes on to explain what is involved. Unless our proposal is accepted, the Bill will allow detention without charge for 36 hours solely on the judgment of the police and between 36 and 96 hours on the judgment of a magistrate.
      It is important to keep constantly in mind the fact that we are dealing here with a person who has not been charged, who is innocent of any offence until proven guilty and who, indeed, may not even be charged. The Government are saying that a person who is technically —and probably certainly—innocent of any offence may, on the decision of the police themselves, be detained incommunicado for 36 hours without any relative, friend or legal representative knowing anything about it and without the knowledge of a magistrate. In other words, a person can disappear into police custody for 36 hours in exactly the same way as happens in the totalitarian states that hon. Members condemn.
      Why are the Government doing this? They base their Bill on the Royal Commission report, and it is true that the report cites the Scottish precedent, but it does not agree with it, for somewhat recondite reasons. The Royal Commission report rejects the Scottish solution, and it certainly rejects, even more strongly, the Government's solution. Its proposal is in paragraph 3.104, which says:
      "persons suspected of an offence for which they have been arrested and detained must within 24 hours be released unconditionally, released on bail for further enquiries, charged and released on bail to appear at court, or charged and brought before a court that day, if there is a court available".
      Paragraph 3.105 says:
      "We see the statutory requirement for reviews on arrival at the police station, at six hours and 24 hours, as providing formally the necessary and progressive measures of internal and external supervision of the police discretion to detain an arrested suspect."
      Paragraph 3.106 says:
      "where a suspect has not been charged within 24 hours the police should be required to bring him before a magistrates' court sitting private".
      Therefore, the Royal Commission is quite firm that a 24-hour period is the maximum beyond which a detained person must not be kept without charge and without a magistrate being asked to prolong the detention.
      The Government's argument is that they are improving on the law as it stands. They can argue that, because the law is imprecise and there are different arguments about what the law, imprecise though it is, means. However, some would argue that the precision that the Government are seeking to import is less satisfactory than the imprecision of the law as it stands. The Government say that, for the first time, they are bringing in precision and everybody will know where they stand, and claim the
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      maximum of 96 hours as some kind of concession. because we now know that nobody can be detained beyond 96 hours without being charged.
      However, this is no concession, because only a tiny fraction of people who are now detained beyond 96 hours without charge would be assisted. It is a concession in pretence, but not one in fact. The statistics provided by the Royal Commission report and elsewhere demonstrate that. Paragraph 3.96 of the report says:
      "about three quarters of suspects are dealt with in six hours or under and about 95 per cent. within 24 hours @ The detailed studies of police interrogation found none who were held for more than 48 hours."
      The report quotes a Metropolitan police survey for the East quarter of 1976, which is also quoted in a Conservative party document that I have. 'That survey shows that, in that period in the Metropolitan police area, 81,465 people were detained for up to 24 hours, which was 98·4 per cent. of the total. Some 1,309 were detained between 24 and 48 hours, which was 1·6 per cent. Some 20 were detained between 48 and 72 hours and four between 72 and 96 hours. The survey shows that the number of people who were detained for over 96 hours was nil. Another survey shows us that five persons out of 83,000 were held as long as 96 hours.
      There is a Government pretence that precision provides a concession, but the Government are in fact showing that the concession is meaningless because it will affect a tiny handful of people. According to the statistics, if they are still valid, it would have been necessary for the Metropolitan police to go to a magistrate to detain for longer than the 24-hour period, which the Royal Commission advocated, only 1·6 per cent. of those people whom they felt it appropriate to detain in that quarter.
      3.45 pm
      Far from assisting those detained — including the innocent, who, almost by definition, will be a considerable majority of the detainees — precision will not assist anyone but will make it possible for considerable numbers of innocent persons who are not charged to be held for up to 36 hours. The Minister of State will, no doubt, say that a person held for longer than 24 hours, is one who is to be detained on the say-so of a superintendent, if need be, and is suspected of having committed a serious arrestable offence. Everyone who has studied the legislation knows that the definition of a "serious arrestable offence" is farcical. It is sufficiently farcical as it stands and will remain fairly farcical even in the rewritten clause which makes a concession to the argument put forward by the Opposition in Standing Committee. The factors defined in clause 105 as a "serious arrestable offence" are as long as a piece of string. If a superintendent wishes to detain a person, "a serious arrestable offence" can be defined in a way to keep almost anyone, for almost any offence, detained without charge.
      Sir John Biggs-Davison: The right hon. Gentleman said earlier that he was surprised by what his Scottish colleagues told him obtained in Scotland. In what respects are the Scottish arrangements superior to those proposed in the Bill?
      Mr. Kaufman: In a civilised democratic country, deprivation of freedom of an individual not charged with an arrestable offence ought to be massively the exception rather than the rule. The Scottish arrangement provides, as in the Criminal Justice (Scotland) Act 1980, which I

      153
      cited, that a person must be either charged or released after a detention of six hours, and that is why the new clause specifies that period.
      Because the hon. Gentleman asked a serious question, I shall do what I can to provide him with a serious reply. I shall read out the objections that the Royal Commission put to the Scottish period of detention. I emphasise, as I said earlier, that I am not persuaded by the Royal Commission's objections, and the Government will certainly not be swayed by them. The Royal Commission stated:
      "We note the six hour detention period in the recent Criminal Justice (Scotland) Act 1980 but believe that rather different considerations are to be applied in that jurisdiction where arrest must be followed immediately by charge and where the police have very limited powers to release suspects on bail."
      If the Government say that they disagree with the six-hour period because of the differing arrangements in Scotland, we need to know why they regard the Scottish arrangements as inferior.
      When I discussed these matters with my hon. Friends who represent Scottish constituencies, especially the lawyers among them, they could not believe their ears when I told them of the arrangements proposed in the Bill, just as many people from democratic countries in Western Europe cannot understand why such arrangements are being proposed. The arrangements proposed in the Bill —for reasons that the Government have never begun to explain, let alone justify—go far beyond those in other democratic countries in the developed world. Therefore, the fact that the extension, on the say-so solely of a superintendent, from 24 to 36 hours depends on the definition of a serious arrestable offence is no justification.
      We believe that the definition of a "serious arrestable offence" is too loose to justify such a draconian power. When I say "we" I am talking not simply about the Labour party, the National Council for Civil Liberties or other organisations that are "suspect" because they believe in civil liberties, but about organisations such as the Law Society. In the material that it has published in connection with the Bill, it strongly opposes the Government's proposal. The Law Society says that the time limits for detention in the Bill are excessive, that the magistrates court should have an opportunity to review detention at the 24-hour point, and that 72 hours should be the maximum permissible period of detention. I believe that that goes too far, but at least the Law Society agrees in principle with the Royal Commission, whereas the Government, who say that they based their proposals on that body, completely, in this instance, disregard it.
      Why are we so worried? In a Bill that we regard as inherently unacceptable, why do we say that this provision lies at the very core of its unacceptability? The answer is that in a democratic society a person's freedom of movement must be denied him only in the most exceptional circumstances. Moreover, for the police to hold someone incommunicado for up to 36 hours deprives him of his right to silence—a right that lies at the very heart of an accused person's defence of liberty in a democratic society.
      Some people may ask whether I am alleging that the police will torture that person while he is being held incommunicado for 36 hours. The answer is that I am not. People may ask whether I am alleging that the police will behave brutally towards that person, attack him and beat
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      him up. I am not alleging that either, although from time to time such allegations are made, and some of them sadly turn out to be justified. The police sometimes behave brutally towards those detained, but that is not the basis of my opposition to this proposal. I am opposed to it simply because if someone is held incommunicado for that length of time and if only the police have access to him, he may well confess to something that he has not done in order to put an end to the circumstances in which he is detained. The very worst sort of clear-up rate for crime is one based on confessions. People can be induced to make confessions in certain circumstances, whatever the safeguards. Moreover, if the police rely increasingly, with these additional powers, on the evidence of confessions, genuine investigation will take a back seat.
      It should be at the core of policing and the investigation, prevention and punishment of crime that the police are required to produce evidence to prove beyond a peradventure that the accused has committed the crime. That is what the presumption of innocence rests on. If increasingly we are to have confession evidence, the police will resort to that more and more.
      We need only consider a most notorious and lamentable case to realise to what confession evidence can lead. Timothy John Evans confessed to the murders which Christie committed. All the literature published about that case shows that at no time was any brutality inflicted on Evans by the police and that there was nothing which could be defined as coercion. He was a person of limited literacy and intelligence responding to questioning and confessing to crimes which he did not commit. He was executed for those crimes, although it was later discovered that he had not committed them.
      Mr. Robert Maclennan rose—
      Mr. Kaufman: I was about to say something which the hon. Gentleman might have found gratifying, for I was intending to point out that, in the end, the right hon. Member for Glasgow, Hillhead (Mr. Jenkins) gave Timothy John Evans a free pardon—though rather late in the day to do Evans any good, because he was by then in his grave.
      Mr. Maclennan: I wish to reinforce the point that the right hon. Gentleman is making about the dangers of evidence obtained in such circumstances. There is a much more recent case than that of Timothy John Evans, one that has given rise to considerable anxiety. Barry Foster has been detained in Rampton for over two years on the evidence of his own confession. Although it has become clear that the offence for which he was held was committed by someone else, the Home Office has still not given any explanation of the scandalous delay in dealing with his case. That reinforces appropriately and contemporaneously the point that the right hon. Gentleman is making.
      Mr. Kaufman: I am grateful to the hon. Gentleman for mentioning that case. There are others of which hon. Members will be aware. Therefore, we must provide safeguards. That is why the amendement says that detention shall be limited to six hours and that, after that, a magistrate shall have to authorise further detention in exceptional circumstances.
      We build our case on a number of factors. First, the Government are disregarding the precedent set by their

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      legislation in Scotland. Secondly, they are disregarding the recommendations of the Royal Commission on Criminal Procedure, on which the Home Secretary claims the Bill is based. Thirdly, the Government are rejecting the advice and opinions of authoritative bodies such as the Law Society and the National Council for Civil Liberties. Fourthly, there is no justification for saying that it does not matter that only a superintendent has the right to justify the extra 12 hours' detention without charge before a case goes to a magistrate, because that can occur only where a serious arrestable offence has been alleged. The definition of "serious arrestable offence" in the Bill is so loose as to he no protection. Sixthly, we are particularly concerned about this issue because a person detained in such circumstances is denied the right to silence, and the police will therefore be tempted to resort increasingly to confession evidence, the worth of which is questionable, rather than to investigative evidence.
      I repeat that, in a democratic society, no state organisation should be allowed to deprive an individual citizen of his freedom without the greatest possible justification, and if that justification cannot be provided, the period of deprivation of freedom ought to be reduced to the minimum consonant with proper inquiries. That is why we have tabled our new clause, on which I principally speak, and that is why I hope that the House will accept it
      4 pm
      Mr. Gerald Bermingham: I welcome my right hon. Friend's new clause and ask him to accept the amendment to change the period of time to 48 hours. The amendment is tabled not in the belief that 48 hours is the appropriate time, but in an effort to find a compromise to the Government's almost draconian 96-hour provision.
      Those of us who have been involved in the practice of law for a considerable number of years know that the average time that a person spends in a police station in the ordinary run of the mill case, as was shown in the survey referred to earlier by my right hon. Friend, is six hours. Indeed, that number of hours is on the high side and refers to the longer periods which the average man accused of an offence spends in detention after his arrest. There has been a growing tendency over the years for those who conduct the investigations, particularly when they realise that no pressure of time is on them, to extend the period. An investigation tends to come to a halt somewhere in the middle of that period, and nothing happens for many hours.
      Every hour spent in a police station is an hour of pressure and sometimes leads to results which no hon. Member would wish to see occur. The matters that lie behind the 96-hour proposal in the Bill give rise to greater fears when one studies the situation with even the slightest amount of dispassionate interest.
      We should begin by asking why a period of 96 hours is proposed. I and many of my hon. and right hon. Friends and, indeed, Conservative Members, who spent endless hours in the Committee, came out of it with as little explanation of why 96 hours was necessary as we had at the start of the Committee proceedings. I hope that at this almost 23rd hour—although another place may take a more realistic view in due course—the Minister will give us the opportunity to listen with some care to the reasons that lie behind the need for a period of 96 hours.
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      The survey to which reference has been made showed a total of five cases where anywhere near the 96 hours was required. Why is it necessary to make it the generality? Is it because we are to go further down the road that will take us away from investigation and towards interrogation as a basis for oral evidence in a court? It is within the memory of hon. Members who have practised for much longer than 10 years that in the last 10 years the sweep from investigation to interrogation has been most marked. That does nothing for the police service, and it does even less for justice.
      It was interrogation that led to the horrific results in the Timothy Evans case, the Confait case and the Foster case. There is an almost endless list of cases in which, primarily as a result of interrogation, people were initially found guilty, but were proved by subsequent events to be innocent. This happens not only in big cases, but in a series of little cases too.
      I recall a case in which a man was accused of a minor burglary in a shop. It was alleged that he had kicked in the window. He was questioned off and on for 15 to 16 hours. At the end of that time, on the inducement of, "You will go home tonight, Johnny, if you sign this," he signed a piece of paper, went home on bail, and had in fact admitted an offence. It was as the result of pressure of time and the fear that he would not go home that the confession was induced.
      A number of other such cases have occurred. One of the most startling occurred recently in the Rochdale area, and if hon. Members care to read the Committee debates they will find that case described at some length. A man who had a low IQ, and who was known to be mentally retarded, was arrested for the alleged murder of a woman. Not only was he held in the police station overnight, but he was held incommunicado. By the time that anybody was able to get near him, despite the efforts of the mental health worker, social workers and other persons, he was at the point of confessing to the murder.
      Mr. Ashby: Will the hon. Gentleman confirm that in that case the person did confess? It was held that it was oppressive to have detained him for so long, and that confession was excluded by the trial judge. No other evidence could be put forward in the case, and he was acquitted.
      Mr. Bermingham: I am grateful for the hon. Gentleman's intervention, but he is confusing the Rochdale case with yet another case. The hon. Gentleman is referring to the Reading case, in which the confession was the only evidence, and that led to the exclusion of the evidence. In the Rochdale case the stage of charging was never reached—although I understand that the charge sheet was almost prepared—because somebody in the next town confessed to the murder. Another man was under arrest for some 36 hours into the investigation. In that case also it was time that was the source of pressure.
      As I said earlier, the Government have been asked on numerous occasions to explain the need for the 96 hours. We have received one or two half-hearted explanations about the difficulty of forensic evidence. However, hon. Members with long experience of numerous murder cases from the very early stages, such as I have had, have rarely found, even where forensic evidence was awaited, that the charge has not been laid within 24 hours.
      I refer the Minister to a question asked of the Prosecuting Solicitors' Society in evidence to the Select

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      Committee on Home Affairs. The question was asked whether, at the time that somebody was arrested, there ought not to be at least prima facie evidence against that person. That is crucial and that is where the problem begins to arise. A number of arrests take place purely on a hunch or guesswork. Thereafter, reliance is placed on interrogation in some way to substantiate the link between the various pieces of evidence that exist and the defendant who is to be interrogated. Indeed, I have heard it said on a number of occasions in my presence, "We believe that this is the man who has done it." After he has been interviewed that may well prove to be the case, but it is no basis upon which to found a judicial system.
      Mr. Kenneth Hind: Many cases brought before the courts rely far too heavily upon the evidence of interview and admission during police interviews, rather than upon evidence which one would describe as primary or first-hand, which should be the substantive basis of any prosecution.
      Mr. Bermingham: I agree entirely with the hon. Gentleman. That trend has become the problem. It has arisen from a sense of expediency on the part of police forces. In the 1970s they were short of resources and manpower, especially skilled manpower. However, the pressure was on them continuously to secure results. The quickest and easiest way to secure results is to obtain a cop or a confession.
      In discussing the criminal law, we are not always dealing with the mass murderer or the chap who robs a bank of millions of pounds. About 98 per cent. of criminal offences are trivial cases in the sense that they are non-indictable, or they are indictable matters which are subsequently dealt with by magistrates courts. If the evidence is that of linkage between the crime and the person to be arrested, it would be a good start if the person running the police station found that there was, to a large extent, a prima facie case against the accused.
      Mr. Jerry Hayes: Does the hon. Gentleman agree that if the police keep a man in custody without trial for up to 96 hours that will work to their detriment? If there is a confession at the end of the 96 hours—I suspect that in many instances there will be—no sensible and robust judge will say that there was not some oppression. That oppression will stem from the period that the man has been in custody and not from the police force itself.
      Mr. Bermingham: I am grateful to the hon. Gentleman for making that intervention. I agree with him entirely. What is the need for the 96-hour provision in any event? No justification for its inclusion in the Bill has ever been put forward. It has been found — there are a number of case studies to show this—that the longer a man is kept in custody and asked the same repetitive questions, the greater is his inclination to acquiesce and to give the answer that the interrogator wants to hear.
      I am forced back to the same simple but salient point: what is the justification for the 96-hour provision? What is the need for us to develop a system that will have no equal anywhere in Europe? If the European Court of Human Rights examines our system, I suspect that it will condemn it, and rightly so. We shall be completely out of line with good practice anywhere else in the world.
      Mr. Hurd indicated dissent.
      Mr. Bermingham: I note that the Minister shakes his head.
      Mr. Robin Corbett: The Minister is waking up.
      Mr. Bermingham: I have been waiting for many months for the Minister to explain why he needs and wants the 96-hour provision. Apparently only five sets of inquiries have lasted that long. That was revealed by the survey to which my right hon. Friend the Member for Manchester, Gorton (Mr. Kaufman) referred. It seems that the bulk of cases were completed in six hours. In Scotland, all accused are charged within six hours if it is considered that there is a case against them. Perhaps the Home Office, the ministerial system or those who are behind all this have forgotten the simple and old-fashioned principle that the moment there is a prima facie case against someone he should be charged. That is how it should be.
      I agree that there are times when the man who is being held in the police station may have committed other offences. If that is so, he should be charged and taken before the court before the other matters are dealt with. Any extra time that elapses in the police station slows down the whole process, because time is being wasted.
      4.15 pm
      Mr. Hurd indicated dissent
      Mr. Bermingham: It appears that the Minister continues to disagree with me. If he wishes to intervene, I shall allow him to do so.
      Mr. Hurd: Before anyone could conceivably be kept in detention without charge for the maximum of 96 hours he would have to appear twice on separate occasions before a magistrates' court. He would have to be present and he would have to have legal representation. The police would have to satisfy the magistrates on two separate occasions of the need for further detention which is defined in clause 39. That is what the hon. Gentleman has omitted from his analysis. If he believes that the magistrates would agree to further detention if the police said, "We keep on asking him the same questions and he does not answer," it seems that he has a poor opinion of magistrates.
      Mr. Bermingham: It seems that the Minister wishes to show that I have a poor opinion of magistrates. I have long experience of magistrates, and I know how easy it is to wrap up the facts to present a case, at a time when the defence is not in a position to provide a detailed analysis of what is being alleged, that will result in detention continuing. The person representing the prosecution will say, "This man is believed to have been concerned with the offence that is before the court and with numerous interrelated offences. There are important inquiries to be made and we are worried that witnesses will be interfered with. We are concerned that the accused might abscond."
      Those of us who have been in practice have heard these arguments ad nauseam, especially during bail applications on the day after a person has been charged, when the first three-day remand or seven-day remand is being sought. That is the voice of practical experience. The Minister might say that it is the voice of practical cynicism, but I suggest that if the House accepts the 96-hour provision experience will show that the first extension to 24 hours will be fairly easily obtained.
      I am not denigrating magistrates, because they are only as good as the information that they are given. Any good

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      advocate can wrap up allegations nicely in a packaged way that will appear to contain much more serious matters than turns out to be the case.
      Mr. Hayes: The hon. Gentleman says that any good advocate can wrap up a lay bench. With respect, I disagree with him. One does not have to be a good advocate to do that. It is easy to do so, especially when the police are suggesting, as they often do, that the offence is extremely serious. Does the hon. Gentleman agree that a defending advocate will be wasting his time in arguing against continuing custody unless he is before a stipendiary magistrate? The old-style committal is a classic example of my argument. The procedure is almost a complete waste of time when it takes place before lay benches.
      Mr. Bermingham: It is clear that the hon. Gentleman has great experience of these matters. I accept what he says. I was trying to be rather kinder in presenting my argument, by referring to a good advocate. However, the hon. Gentleman is right. It is necessary only to suggest that the matter is extremely serious, that there have been a spate of burglaries and a number of robberies in the area and that it is crucial for the accused to remain in custody for 24 hours, and invariably the application will be granted.
      Mr. Ashby: Does the hon. Gentleman agree that if the police are to ask for a further remand in custody prior to charging, the only reason that they can advance for making the application is that further inquiries have to be made? If they cannot advance that argument, there is no reason for the accused to be further remanded, and the police will have to charge. Does the hon. Gentleman agree also that the magistrates should then ask, "Inquiries of whom?" If the inquiries are not of the person who is in custody, there is no need to keep that person uncharged. The police can continue to make inquiries elsewhere without asking questions of that person. That is the danger, and that is where oppression lies. Does the hon. Gentleman agree with me?
      Mr. Bermingham: I agree entirely with the hon. Gentleman. If X is arrested and Y is thought also to be involved, the first application may be made on the ground that the police have another person, or persons, to interview. When entering police stations I have heard it said, "We have not charged him, but we do not want you to see him yet because we want to arrest 1, 2,3 and 4, with no names, no pack drill. If it is known what he has said or has not said, or if his presence here leaks out, the others might be put on guard." Where co-defendants are sought, there may be a tendency to delay charging and to keep the questioning going until the co-defendants are caught.
      We go back to the principle that seems to lie behind all this. We have shifted the emphasis from investigation to interrogation. The longer we permit interrogation to continue, the greater danger there will be to justice at the end of the day. Those of us who were in practice 10 years ago know that it was a golden rule that a person had to be charged within 24 hours. That was a spur to speedy charging and appearance before a court. In those days there was the safety measure of the writ of habeas corpus, but that in itself has been whittled away and the courts are now remarkably reluctant to grant a writ of habeas corpus. It is for that very reason that the law needs to be explicit on this point.
      Mr. Kaufman: I want to go back a bit, because I think that it is necessary to get this on the record. The Minister of State intervened in my hon. Friend's speech to protest that the police would have to go twice to the magistrates to get the 96-hour period. 'What the Minister did not say was that that was not how the Bill was presented to the House of Commons. Originally, the police would have had to go to the magistrate only once. The second application was a concession to the case put forward by my hon. Friends for an amelioration of what was proposed. We accept that, just as we will accept any concession as being better than nothing, but we cannot begin to say that because the Government have made this concession we find the position satisfactory.
      Mr. Bermingham: I am grateful to my right hon. Friend for that intervention. I am aware that that was one of the smaller concessions that we achieved in the progress through Committee. When I say "smaller", it is smaller from the point of view of human beings.
      I should like the Government to give a much greater concession by going back to the requirement for a charge to be made within 24 hours, but that is a dream which I do not think one can realistically expect. It is against that brckground that my hon. Friend the Member for Birmingham, Erdington (Mr. Corbett) and I are seeking, in our amendment to the new clause to have a maximum of 48 hours. In research which I have carried out myself and which I have caused others to carry out for me we looked for cases or a group of cases 'which lay without the 48-hour period. We were hard-pressed to find examples where 48 hours would not have been adequate to bring charges, even of the most serious nature and involving the most serious and complicated form of forensic investigation.
      I hope that the House will not be misled by any hon. Member who suggests that scientific and forensic evidence is always crucial and cannot be obtained within 48 hours. In reality, within 48 hours one will have enough of the gist of what the forensic evidence will be to establish a prima facie case. The actual details of the forensic evidence often may not become available until many weeks later.
      At the heart of the whole matter must be a wish on the part of many of us to return the investigation system to being an investigation system and not an interrogation system, and to remove the waste of time that often occurs in many court hearings when argument goes on ad nauseam about oppression. We shall come later to the clause dealing with tape recordings, which will in its own way remove much of the problem that has existed hitherto over verbal evidence. In a civilised society, surely we should have an investigation system which removes all threats and problems of oppression. The only way that we can do that is by limiting the maximum period for which a person may be held without charge to 48 hours. It is for that reason that I hope the House will accept my amendment to the new clause.
      Mr. Nicholas Lyell: I speak with an air of déja vu. While I have not joined my hon. Friends and Opposition Members in the most recent Committee stage, I did spend more than 100 hours—I forget how many score more—in the last Parliament going over the same ground.
      Where I take issue with the right hon. Member for Manchester, Gorton (Mr. Kaufman) and the hon. Member for St. Helens, South (Mr. Bermingham) is that they forget

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      what an enormous advance the Bill, as drafted, is on the present position and how far it goes to correct the imbalances which have hitherto existed. I notice the hon. Member for St. Helens, South frowning. He may have been a member of the Standing Committee—I do not know; certainly he was not a member of the Standing Committee that considered the Bill in the last Parliament.
      Under present law, there is no requirement for the police to make a record after six hours as to why they maintain someone in detention. There is no requirement, as is proposed in the Bill, to review that decision after the next nine hours and to review it every succeeding nine hours.
      Mr. Bermingham rose—
      Mr. Lyell: If I may get under way first, I shall then gladly give way.
      There is no requirement to go before magistrates to extend the period in detention, let alone a requirement to go before them after 36 hours and again after a further 36 hours. There is no absolute maximum of 96 hours. All these are improvements for the liberty of the subject and for the better discipline and control of what goes on in a police station which do not exist today and which will go a long way to correct the position.
      The hon. Member for St. Helens, South, said that there is no evidence of cases going beyond 96 hours; I think that was how he put it. I am sure that in his long hours in Committee he had an opportunity of reading and no doubt carefully studying the evidence on which the Royal Commission came forward with its recommendation. I have not referred to that evidence for some months, so I may be forgiven if I do not get the chapter and verse right. I think it was in the third or fourth quarter of 1979, the relevant period when the Royal Commission was carrying out its work, that the Metropolitan police dealt with 230-plus cases which had gone over 72 hours. They did not seek to come forward and say that all those cases were monstrous. Those cases were a tiny proportion of the total number of cases. But this is where the argument of Opposition Members and of those of my hon. Friends, who tend occasionally to become frustrated with magistrates, falls down. I have been before magistrates courts on many hundreds of occasions and I know the same sense of frustration when one is an unsuccessful advocate.
      Mr. Kaufman rose—
      Mr. Lyell: I can see that the right hon. Gentleman has the book, and has the advantage of me; I shall give way in a moment. There are real and practical reasons in a tiny minority of cases for going on. I shall give way now so that the right hon. Gentleman can make his point.
      Mr. Kaufman: It is well to get this right. What the Royal Commission report said in paragraph 3·96 was:
      "a survey done for us by the Metropolitan Police between 1 October and 31 December 1979 showed 212 persons (0·4 per cent.) out of 48,343 held for 72 hours or more"—
      not 96 hours as I think the hon. and learned Gentleman was suggesting—
      "before charge or release without charge."
      The information we have about as long as 96 hours comes from another survey, which showed that five persons were held for as long as 96 hours. I think the hon. Gentleman's memory, understandably, has failed him on this.
      Mr. Lyell: I am grateful to the right hon. Gentleman, but he did not hear what I said. I said that 230-plus—in that I was wrong, because it was 212—were held for over 72 hours, not over 96 hours. Of course, I was dealing with the last quarter, and with the difference between 72 hours and 96 hours which the Royal Commission had in mind. The figure is over 72 hours and under 96 hours—or a maximum of 96 hours.
      If the right hon. Member for Gorton leapt to his feet to justify 84 hours instead of 96 hours, there might be some validity in his argument. In a small but significant number of cases, the upper levels are reached. The right hon. Gentleman will remember the 91-hour Court of Appeal case when Lord Justice Goff made his judgment. In that case a person was taken into custody and his name was not verified until 91 hours later, despite massive efforts. We are talking about rare cases and the extreme margin. We must get back into balance.
      Mr. Kaufman: The hon. and learned Member is arguing from statistics. It is as well to present to the House the available statistics. Metropolitan police figures for the third quarter of 1982 show that, of persons held without charge, none were held beyond 96 hours and only four were held beyond 72 hours. There is no tolerable statistical basis for the hon. and learned Gentleman's argument.
      4.30 pm
      Mr. Lyell: With respect, the right hon. Member for Gorton has destroyed his own case. We are talking about an absolute statutory maximum. Since 1979—including during 1982, when the measure was much in our minds —there has been a reduction in the number of people that the police find it necessary to detain for a long time. We all welcome that.
      The Opposition do not seem to understand the pressure that will be put upon the police if they have to make a review every six or nine hours. They will have to record in writing the reasons for the detention and go to the justices, not only to put forward their argument but to give full opportunity for the person held in detention to be represented so that his side of the picture can be argued. All that must happen before they can detain a person over 36 hours and then for over 72 hours.
      The Opposition, and some of my hon. Friends who are anxious about the matter, have the issue out of balance. We are discussing a broadly libertarian measure which is greatly to the benefit of the individual. The Confait case has been mentioned. I do not believe that our former colleague, Mr. Christopher Price, who was so closely involved in that case, would differ from me in that view.
      Mr. James Wallace: The hon. and learned Member says that we must get this matter in proportion. Under section 2 of the Criminal Justice (Scotland) Act 1980, which deals with rules of detention, according to a written reply on 5 May 1983, the average length of detention is 2½ hours. Is the rate of detection in Scotland any less efficient than it is in England?
      Mr. Lyell: Talk about arguing nonsense from statistics! The hon. Member establishes that most people go in and out of police stations rather quickly, which is also true in England. The vast majority of detentions are for fewer than six hours. We are dealing with fringe cases, comparatively. The Bill sets up a careful reverse pyramind of increasingly onerous tests which have to be passed

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      before a person can be kept in detention for a long period. That should be welcomed as right and proper. We are trying to achieve the right balance between fairness to the individual and civil liberties and the need to attack crime —often serious crime. The Bill strikes a fairer balance than that revealed in recent exchanges in the debate.
      Mr. Wallace: We are discussing one of the most controversial aspects of the Bill. As the hon. and learned Member for Mid-Bedfordshire (Mr. Lyell) says, we must strike a balance between the public interest, which is to prevent and detect crime, and individual liberty. Our duty is to try to get that balance right.
      Traditionally, Parliament has jealously defended the individual's right to liberty against all interventions and interferences. We must continue to do that. When a measure infringes individual freedom or liberty and the right of the individual to move about, we must examine it with great care and grant such intervention only if the case is made out. The alliance view is that the case is not made out.
      We propose a 24-hour limit. We do that with some misgiving, but we recognise political reality and that some limit will be written into the Bill. We believe that 96 hours is grossly excessive, even with the safeguard of two appearances before a magistrates court.
      Another fundamental right is that of silence. It is proposed that detention up to 96 hours can be permitted for the purpose of police questioning. That seriously undermines the right to silence, whatever the safeguards.
      I have studied English law and for a number of years before being elected to the House I practised at the Scottish Bar. I am the first to acknowledge the differences between procedure in England and Scotland. One must be careful when making comparisons, but it is in order to make such comparisons when discussing this issue. We are not comparing two wholly dissimilar countries, but two jurisdictions in one kingdom and in countries with similar crime patterns. It is right that we should look closely at the way in which individual liberties are treated in different parts of the kingdom. There should be no great differences in the way that people are treated.
      Under both systems, even after the passage of this measure, the concept of voluntary detention will still exist. Euphemistically, that is sometimes known as "helping the police, with their inquiries". Since the 1980 Act came into force in Scotland, the number of people in that category has been reduced.
      Under the proposals, arrest in England would have to take place prior to detention. A person could be detained for questioning for up to 96 hours, but that questioning would cease immediately the prosecution believed that there was sufficient evidence for the prosecution to succeed. Without delay, the police would have to cease to question at that point.
      Under the Criminal Justice (Scotland) Act 1980 there can be detention prior to or without arrest for up to six hours. When that measure was being discussed there was concern that we were allowing some form of statutory detention without arrest — hence the provisions for detention in that Act are edged with a number of safeguards. When the threshold of arrest is crossed in Scotland it must be accompanied immediately with a charge. That arrest must be subsequently justified by reference to that charge, even if it is a holding charge. On charge and arrest—
      Mr. Corbett: Or release.
      Mr. Wallace: Indeed. A person must be released after six hours if no charge is brought. On arrest and charge he must be brought before a court as soon as is practicably possible. Various rights to legal representation follow from that.
      While the systems and the periods of time involved in arrest and charge differ, the important matter is the admissibility of evidence and statements—particularly confessions—by the accused person. In Scotland, there are three identifiable periods during an investigation when statements may be elicited. First, there is the preliminary investigation. Secondly, there is the period when the accused person has become a suspect. Thirdly, there is the period following arrest and charge. With very limited exceptions, any statement elicited after arrest and charge will be inadmissible and great care is taken by the courts with regard to statements elicited by the police after the finger of suspicion has been pointed at the accused. The law of Scotland, as developed in 1954 by Lord Justice General Cooper in the case of Chalmers v. Her Majesty's Advocate, may have been thought to have taken an extreme position in suggesting that any statement made by the accused after he had come under police suspicion would be inadmissible. That position has been eroded, but nevertheless the courts look very carefully at any statement made in the second phase because — as Lord Justice Cooper said in the case of Chalmers—the courts have a special duty to safeguard suspects when they are in police stations.
      The position is uncertain, but the criterion used by the courts is one of fairness. The court must decide whether the statement has been obtained fairly. A statement not obtained fairly would be inadmissible. The period of detention that we are considering is one in which he detained person has come under suspicion. Although there is some uncertainty in the law, one can say with great certainty that it would be almost unheard of for a Scottish court to entertain any statement made after 96 hours of police questioning.
      When I compare the Scottish and English systems I do so not in a spirit of national one-upmanship but in a spirit of amity. However, some of the notes for guidance come as a shock to someone who has practised in the Scottish courts. We find that someone who has been arrested but not charged will be allowed brief outdoor exercise daily if that is practicable, and there are other provisions making arrangements for the provision of meals. Of course it is right that meals should be provided, but the provisions are a shock to someone who has not practised in the English courts.
      As the hon. Member for St. Helens, South (Mr. Bermingham) has said, the function of the police should be investigation rather than interrogation. The function of the police is to investigate the case, not to press the accused into helping them to make the case against himself. We have heard examples of confessions which subsequently proved to have been wrongly elicted. People have been convicted on evidence consisting of little more than confessions which were subsequently shown to be wholly unfounded. One thinks of the Confait case. In that case, it appeared after investigation that the police themselves were not aware of the provisions for interrogating mentally subnormal people brought in for

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      detention. In some cases, questioning has not been carried out fairly. That being so, we find the provision wholly unacceptable.
      I have described the system in Scotland because it was brought into operation by the Conservative Administration in 1980. One assumes that the system works. There have been no moves to alter it, and, indeed, Scottish Office Ministers are regularly prepared to defend it. I submit that no significant differences in levels of crime in Scotland and England have developed, and that the Scottish police forces are just as efficient as those in England. When the maximum period of detention in Scotland is six hours, I find it incredible that, in the neighbouring jurisdiction of England, a period 16 times as long is required.
      For those reasons, alliance Members will strongly resist the Government's measure and, in order to mitigate the horror of the provision, will reluctantly try to replace it by a provision for a period of 24 hours.
      4.45 pm
      Mr. Derek Spencer: I believe that new clause 17 is totally misconceived. I base that judgment on my experience of 19 years as a junior, four years as a silk and four years as a recorder at the Central Criminal Court. The last two periods were concurrent, but consecutive on the first.
      I am probably one of the few Members of this House who has participated in a case in which the defendants were kept in custody for more than 96 hours prior to being charged. In that case, the defendants were kept in custody for seven days. The circumstances of the case may perhaps serve as a pointer to the appropriateness of the rule in the Bill as drafted. There were six defendants, five of whom were from abroad. The exhibits exceeded 4,000 pages, and there were about 80 witnesses, most of whom had to be flown to this country. The case was one of conspiracy to defraud, and the action was seated variously in Vancouver, Quebec, the Channel Islands, the West Indies, and most of the commercial capital cities of western Europe. Had the fraud come to fruition, those responsible would have netted about $30 million. In the City of London, the case involved the fraudulent use of a merchant bank.
      I do not think that Opposition Members have comprehended the scale and activity of certain criminal activities with which the courts have to deal at present and the onerousness of the task of the police in any inquiry into such crimes.
      Ms. Clare Short: Will the hon. and learned Gentleman give way?
      Mr. Spencer: It is not by chance that my right hon. and learned Friend the Home Secretary had to set up an inquiry into proposed changes in the trial of serious and complicated frauds.
      Ms. Clare Short: Will the hon. and learned Gentleman give way?
      Mr. Spencer: Without some changes in the law, we shall find it impossible to do justice in such cases. Such cases require an increasing amount of the time of the police and are putting the public more and more at risk.
      Opposition Members refer to a dichotomy between interrogation on the one hand and investigation on the
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      other. I believe that they are making a great mistake. In any sensible police procedure, interrogation is part of legitimate investigation. The two walk hand in hand. In the ascertainment of justice, investigation and interrogation are not mutually exclusive. If the Opposition get their way, the public interest will be thwarted and legitimate and proper police inquiries will be rendered as nothing.
      The hon. Member for Orkney and Shetland (Mr. Wallace) gave us his account of how things work in Scotland, but the Bill is a revolutionary measure. Opposition Members might laugh at that statement but in 20 years' time those of us who practise in criminal courts will look back on the Bill and find utterly incomprehensible many of the objections and far-fetched criticisms that have been launched against it. Anyone who compares what happens in criminal courts and how they administer the law at the moment with what the Bill proposes will find that the Bill introduces additional safeguards that are way beyond anything now experienced.
      The right hon. Member for Manchester, Gorton (Mr. Kaufman) expanded on his inquiries of his Scottish friends. He did not advert for a moment on where his inquiries of his English lawyer friends led him because if he had he would have been bound to confess the extent to which the Bill introduces stages by which the police must go before magistrates. The Bill confirms restraints on police activities to a far greater extent than appertains at the moment. I am 110 per cent. against new clause 17 and completely support the framework of the Bill.
      Mr. Maclennan: I do not propose to go over again the ground that was ably covered by my hon. Friend the Member for Orkney and Shetland (Mr. Wallace) and by the right hon. Member for Manchester, Gorton (Mr. Kaufman). The Liberals and Social Democrats regard this part of the Bill as the most obnoxious. As the Government show no disposition to amend the Bill we shall be compelled to vote against it receiving a Third Reading as it seriously vitiates the rule of law and is a flagrant violation of human rights. It also interferes grossly with the right to silence. It is bizarre that the Home Secretary has absented himself from the debate.
      Mr. Hurd: If the hon. Gentleman studied the proceedings of the Standing Committee or the Royal Commission report he would find that the Royal Commission recommended no maximum limit for detention without charge. It is true that we have departed from the Royal Commission's recommendations in that regard—we have created a limit that does not exist at the moment and which the Royal Commission did not recommend.
      Mr. Hind rose—
      Mr. Maclennan: I give way to the hon. Member for Lancashire, West (Mr. Hind).
      Mr. Hind: The hon. Member for Caithness and Sutherland (Mr. Maclennan) has referred to an interference with the right of silence. The detention of someone for 96 hours does not interfere with that right because the person concerned can sit there and say nothing.
      Mr. Corbett: The hon. Gentleman must be joking.
      Mr. Hind: In my 10 years' experience practising at the Bar I have represented professional criminals who have

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      been in a police station for longer than 96 hours and have said nothing except, "Yes, Sir," "Thank you," and "Can I have a cup of tea?"
      Mr. Corbett: Why were they there?
      Mr. Hind: Because a matter was being investigated. It is nothing but nonsense to suggest that such detention interferes with the right of silence.
      Mr. Maclennan: It is clear that I should not have given way, as I intended to deal with the Royal Commission's consideration of the issue.
      Mr. Kaufman: Perhaps I might observe that it would have been a service to the House if the hon. Member for Lancashire, West (Mr. Hind) had availed himself of his right to silence. I cannot understand why the Minister says that there is no recommendation on this matter in the Royal Commission report because at paragraph 3.104 it specifically recommends that anyone
      "arrested and detained must within 24 hours be released unconditionally".
      It also calls for reviews after six hours. I therefore do not know where the Minister got his information from.
      Mr. Maclennan: I agree with the right hon. Gentleman. I assume that the Minister is not deliberately trying to mislead the House because he is not that type of man. However, he is on such an extraordinarily sticky wicket that, no doubt, he will resort to any flannel to justify the indefensible.
      Mr. Hurd: Will the hon. Gentleman give way?
      Mr. Maclennan: No. The Minister might have chosen to intervene earlier. Several speeches have been made and some have been much more critical than mine.
      I must express my indignation at the Home Secretary absenting himself from the debate. This matter is widely seen outside the House as the most unacceptable infringement of liberty in the Bill. It is not as though the Home Secretary is unable to be here. He has shown, by his popping into the Chamber for 30 seconds, that he is in the building but unwilling to hear the arguments. That is deplorable behaviour.
      With regard to the proposals on the right of silence, experience has shown that people in police detention for any length of time are at a disadvantage and can and do confess to crimes that they have not committed and could not have committed. During the speech of the right hon. Member for Gorton, I referred to the case of Barry Foster. The Confait case is even better known and there are many others.
      The Royal Commission considered the matter and put in hand a research study that was published under the title "Police Interrogation—The Psychological Approach. A Case Study of Current Practice." Commenting on that study, Mr. Marcel Berlins, the former legal correspondent of The Times said that perhaps the most striking conclusion was that the legal concepts of voluntary and involuntary confessions were almost meaningless. He also agreed with the researchers' view that everything that happens to a suspect from the moment he enters a cell block reinforces the authority of the police and puts the suspect in a weakened position when he is questioned. The research was carried out by Mr. Barrie Irving and Linden Hilgendorf of the Tavistock institute for human relations. They reviewed psychological literature and the theory and practice of interrogation.
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      The second report that the Royal Commission adopted was based on a six-month study of CID interrogation in Brighton. Justice, the British branch of the International Commission of Jurists, reported on two cases, which occurred between 1978 and 1981 concerning persons known as Binns and Coy ill, involving miscarriages of justice arising from prolonged interrogation. The hon. Member for Middlesbrough (Mr. Bell) referred to them in Committee and they were discussed in the BBC2 programme "Out of Court". It was shown that the convictions for the murder of the newspaper boy Clive Bridgewater were wrong and based on inadequate confessions. The matter is of the utmost seriousness but many of the arguments that I wished to advance have already been made.
      I am astonished that the Government have not discharged the onus of demonstrating the case for such an extremely protracted period of detention as 96 hours without charge. That is quite out of line with international experience and is shockingly out of line with the experience in Scotland, as my hon. Friend the Member for Orkney and Shetland has said. I say "shockingly" because I assume that the Government collectively arrived at the decision that a six-hour period would be adequate in Scotland. For some unknown reason, perhaps because there are more illiberal Home Secretaries in England than illiberal Secretaries of State for Scotland, the matter is treated entirely differently south of the border.
      5 pm
      I hope, even at this late hour in the Bill's consideration, and certainly when the matter is being considered in another place, that those who have more experience of criminal legal practice in England—it is many years since I appeared in a criminal case—as well as the Lords of Appeal will turn their attention to the matter, joined by the many legal luminaries in another place who, I do not doubt, will be completely outraged by the provision and the thinness of the Government's argument in its support.
      I have read the Committee proceedings carefully. The efforts of Ministers in Committee were devoted to nitpicking at the alternative proposals. They did not make a serious attempt to justify a period of 96 hours' detention. Nor have they attempted to justify it this afternoon, although we have been debating the matter for more than an hour.
      Mr. Lyell: Would the hon. Gentleman care to deal with the speech made by my hon. and learned Friend the Member for Leicester, South (Mr. Spencer)? If the sort of international fraud to which my hon. Friend referred is not a serious case that should be dealt with seriously, what is?
      Mr. Maclennan: I thought that the speech from the hon. and learned Member for Leicester, South (Mr. Spencer) was craven and unpersuasive.
      Mr. Greg Knight: There seems to be agreement on at least one matter—that the law relating to police powers of detention in England and Wales is vague, uncertain and needs to be updated. As I understand the position, under the Magistrates' Courts Act the police are under a duty to bring a person who is in their custody before the courts as soon as practicable.
      Over the years, a form of general police procedure has grown up whereby the police take a suspect into custody

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      and put him through a long period of questioning before he is charged. What tends to happen is that the police employ a sort of softening-up period as a matter of practice. A person is arrested and left to his own devices for some time before being questioned. He is then interviewed by an officer. If the suspect decides, as is his right, to say nothing or not to admit the offence into which the officers are inquiring, he may well be further left to his own devices for two or three hours while the officers attend to other matters before being visited again.
      My practice and experience in these matters shows that often the same quesions are asked for a second time. Why is that so? Because the officers wish to obtain a confession. Our existing law is defective because it does not define a period of time within which the officers need to bring that person to court. There seems to be agreement on both sides of the House that action should be taken to bring the discipline of time-keeping into detention by the police. The area of disagreement that has arisen is over the figures that should be used.
      I am sorry that my hon. and learned Friend the Member for Leicester, South (Mr. Spencer) is not in the Chamber to hear my remarks. I thought that he would conclude his speech by saying, "There rests the case for the prosecution." He mentioned an extreme example, at one end of the spectrum of crime. Many officers deal on a day-to-day basis with the other end of the spectrum, where an unsophisticated person is taken into custody—someone who may have never been into a police station before. He is left to his own devices for several hours and then interviewed by the police. He may decline to admit the offence, in which case he is left for a further period. At that point the questioning invariably prompts the accused person to ask the police, "If I admit the offence and make a statement, which you keep asking me to make, what will happen? Can I go home to my family or have bail?" Of course, the answer is given in the affirmative.
      Opposition Members have given examples of the danger, which increases with every hour that is spent in custody, that that unsophisticated person is likely to make an admission, not because it is true, but because he wishes to get away from the oppressive surroundings of a police station.
      If we are interested in justice and not merely in increasing conviction figures—and I believe that most hon. Members are interested in justice—it is right to treat the matter very seriously. That is why I am attracted to the amendment. One must ask why a person who has not been charged should be kept in police custody for the length of time that has been referred to, especially by my hon. and learned Friend the Member for Leicester, South and my hon. Friend the Member for Lancashire, West (Mr. Hind).
      Some hon. Members say that when the police keep someone in custody for a long time it is the case that, as his surroundings have been oppressive and the police have continued to question him for several hours, his confession will be inadmissible and he has nothing to worry about. In practice, that is not so. Do police officers record every question, even when they ask a question two or three times? My experience suggests they do not.
      What happens? A police officer records in his notebook those questions to which the answer gives some importance to the question. Often advocates who represent
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      defendants in court are faced with a police notebook which has questions running to two or three pages. If the police are asked whether those questions were the only ones to be asked, they reply that the questioning lasted for only a matter of minutes. Yet when the police are asked how long the person was in custody it is found that he was kept for as long as six hours or so.
      Many questions are not recorded when the replies are in the negative. It is difficult for a defendant, when he is ultimately taken to court, to challenge the way in which he was questioned when, for example, two police officers before that magistrates court or Crown court say that no pressure was put on the man to make the statement. They may say that the questions were asked properly and that he was given the opportunity of making a telephone call if he wished to do so.
      It is very difficult to convey to the court the mental pressure which the defendant may have been under in those circumstances. With respect, some hon. Members underestimate that factor. We should be interested in obtaining justice and ensuring that only the guilty are convicted. I welcome the fact that the Home Secretary has decided that the police should keep proper records of time spent in custody, but I believe that the proposed time limits are not sufficient, and for that reason I shall vote in support of the amendment.
      Mr. Stuart Bell: I am grateful for the opportunity to follow the hon. Member for Derby, North (Mr. Knight). He made a strong and cogent speech, including a courageous declaration as to how he intends to vote. I should like to have been able to say something similar after the intervention by the hon. and learned Member for Leicester, South (Mr. Spencer). It is an important and valuable experience for the House to hear views on the Police and Criminal Evidence Bill especially on new clause 17, from a member of the Bar, who has been a junior, who has taken silk, and become a recorder.
      However, there are dangers in using anecdotal evidence. I had a fleeting image in my mind of Lord Justice Birkett at the Nuremberg trials in 1945, dealing with Hermann Goering, Rudolf Hess and similar individuals. No doubt if he had expressed his views on new clause 17, they would have been similar to those of the hon. and learned Member for Leicester, South. They would have been coloured by his experience. It was clear that the views of the hon. Member for Leicester, South were coloured by a complex fraud case in which he had been involved. Of course, we are not dealing with complex fraud cases, when it is open to the police to charge and detain those suspected of being involved in the crime. The point is that we are dealing with those who are incarcerated, but at the end of the day are released.
      We are not dealing with those who will be charged, detained, and brought to trial for serious arrestable offences. We are trying to defend the individual who walks into a police station seeking to help the police with their inquiries. He is faced with a new bureaucracy, which begins with the custody officer, and then proceeds to the review officer and the superintendent. There is a whole host of codes of practice for treatment, questioning and identification of the person suspected of the crime. We are dealing with the sort of person to whom the hon. Member for Derby, North referred, who at the end of the day walks free from detention.
      Ms. Clare Short: Let us be clear on the point about complex fraud cases. Does my hon. Friend agree that the police often spend six months or more investigating complex fraud cases and that the point is that they should not arrest until they have evidence? If they have evidence, they should then charge. The case to which the hon. and learned Member for Leicester, South (Mr. Spencer) referred does not justify people being held in detention without charge for long periods
      Mr. Bell: I am grateful for my hon. Friend's intervention. I shall let her and the House into a secret. As a practising barrister, I was involved in a complex fraud case. The investigation went on for 18 months to two years, during which time evidence was collected. After that time the police swooped, detained and charged. They did not detain and charge before they had the evidence. That is the procedure in a court of law of which I have had experience.
      Reference has been made to the proceedings in a Crown court. I have been impressed by the vigilance of judges in Crown courts and of the officers involved in detaining and charging people, who ensure that they have maximum civil rights. There is no possibility of detention without charge for 96 hours.
      In Committee the Minister of State said that about 22,000 persons a year were detained without charge by the police for 24 hours or more, but the number of suspects who were not charged or who were released after 36 hours was much smaller. The figure was only a few hundred. However, the Minister did not tell us how many of those who were charged after 36 hours were brought to trial. The fact is that we are dealing with a small number of people who are likely to be charged and with a larger number of people who will not be charged, but will walk free.
      5.15 pm
      The point that we made in Committee, which I repeat now, is that the period of 96 hours is the maximum. I accepted the Minister of State's sincerity when he said in Committee that the normal detention period under the Bill would be 24 hours. He said that only in exceptional circumstances, to meet exceptional needs, would detention go beyond that time. However, we should like to draw the attention of the House and the country to the fact that the so-called maximum of 96 hours might become a minimum, which will be cloaked by a series of spurious defence mechanisms designed to protect and preserve the civil liberties and rights of the citizen while he is in custody. I have already referred to the custody officer, the review officer and the superintendent. That is the bureaucratic mechanism. However, no part of the Bill, however lengthy the clause, can hide the fact that none of those aspects inspires confidence.
      Mr. Eldon Griffiths: The hon. Gentleman is putting the argument, as a matter of anticipatory anxiety, that the maximum of 96 hours could become a minimum. At the moment there is no maximum at all, but detention is prolonged in only very few cases. That being so, why does the hon. Gentleman believe that the police service would use 96 hours as a minimum period? I do not believe that the hon. Gentleman has any evidence for that charge.
      Mr. Bell: We are dealing with the Police and Criminal Evidence Bill, which puts on the statute book the right of the police to hold for 96 hours —
      Mr. Griffiths: There is no limit at the moment.
      Mr. Bell: There is a limit, after which the case must be brought before a magistrate. We have the rights of habeas corpus. There is a host of rights that protect the individual. Now we are putting on to the statute book a 96-hour period. There is a legitimate fear that that might become a minimum rather than a maximum period.
      During that 96 hours, the suspect may be brought before a magistrate. The hon. Member for Harlow (Mr. Hayes) said that unless there is a stipendiary magistrate, one falls back on a lay magistrate. Those with experience of the magistrates courts know that one cannot be entirely sure whether the lay magistrates will just accept the thesis and dossier of the police and automatically rubber-stamp the decision to keep the person in custody for much longer.
      We do not wish to prolong the debate by referring to all the points that were made in Committee, which are familiar to members of the Committee, but once again we have returned to the balance. We are always discussing the balance between the citizen's fundamental rights and the powers of the police, that reassure the public and help to reduce crime. We accept that balance. We repeat what we have said many times, that we are not anti-police and that we are for the principles of law and order. We wish the police to have the appropriate powers to go about their business, seek out crime and arrest those who might be involved or are likely to be charged for what are known as "serious arrestable offences".
      However, at the same time we do not want the balance to be tilted too far against the rights of the citizen. The Minister of State and the Home Secretary will probably say that the balance is right, which was the view expressed in Committee. We say that it is not right. It tilts against the citizen and in the favour of the police. That is likely to have consequences for the police in future. Drop by drop, the cup is filled. It will be a cup full of bitterness for the police as more citizens fall within the net of this measure and are detained for 96 hours. I refer particularly to those who walk out of the police station free, and return home to their families. Little by little the word will spread throughout the country that the police hold people for 96 hours without charge. That will be to the detriment of the police, our concepts of civil liberties and our country as a whole.
      Mr. Christopher Hawkins: In fairness to the Government, we should accept that this part of the Bill is an improvement on existing circumstances. The question is whether the improvement goes far enough. It should go further. Therefore, I am sympathetic to the new clause and urge the Minister to accept it.
      The Minister is aware of my reservations on the issue because I have been in extensive correspondence with him about it. It saddens me to rise to speak against a Bill introduced by my party, especially as the Bill is important and necessary. However, I cannot accept that if I were arrested at 11 pm on grounds of mistaken identity, I could be held tonight, tomorrow and tomorrow night without my family knowing where I was, and before anyone needed to go to a magistrate for permission. I cannot, then, accept that happening to other people, either. By then most families would be out of their minds with worry. Even six hours is too long. In that time I may well confess to something that I had not done to get out of custody and let

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      my family know where I am. That is not acceptable in a free, democratic country. Therefore, I ask the Minister to think again.
      Ms. Clare Short: I rise briefly to clarify the underlying reasons why the Opposition are unhappy about the extended period of detention.
      I visited Turkey this summer to attend two trials. One involved people arrested for advocating disarmament and the other concerned people arrested for organising normal trade union activity. Many people there told us that the police practice of picking up a person, holding him for a long time and beating a confession from him was widespread. I am not suggesting that it is as bad as that in Britain. When we discussed why it was so bad in Turkey, the apologists for the regime said that the normal traditions of policing had broken down, and that there was no tradition of investigating crimes and finding evidence before arresting and charging an individual.
      I fear that we are beginning to go down that road. The original concept of British law and of the principle of the right to silence was that a citizen was free to go about his normal business and could not be arrested and deprived of liberty unless there was clear evidence against him. In the Bill, we are witnessing a shift of principle of deep significance. It provides that if the police suspect that a person is involved in an offence, they can pick him up, and hold him for questioning for four days. Evidence from cases which we now know went wrong, and from psychological research, shows that if people are detained for a long time, they will confess to deeds of which they are not guilty. That will happen if the Government make 96 hours a provision in the law.
      The Government claim that they are not taking new powers, but simply rationalising and tidying up current practice. That is a dangerous argument. They surveyed practice, found what was the longest time that an individual had been held, and wrote it into the law as an acceptable time for every case. Inevitably, the provision to hold suspects for four days will become the norm. We shall know that in a year's time. I am certain that that will happen.
      The Government are saying to the police, "Come on, it is now legitimate to arrest people and hold them for questioning for a long time." By making the change, the Government are undermining a fundamental principle of British law: that no one should be deprived of his liberty unless there is evidence that he is guilty of a crime.
      The Government's pretence of rationalising current practice is far from accurate. I speak strongly in favour of the new clause. The public are uneasy about the provision, especially my constituents. All hon. Members must know of arrests, for example, of a member of a constituent's family, members of which telephone in a panic, and of people being held in police stations for up to 12 hours. When they are held overnight, it throws the whole family into consternation. Compulsory detention fills people with fear and trembling, yet we are readily talking of holding people for four days. That is a major diminution of our liberty, which is dangerous and will lead to a reduction in the quality of policing. We are inviting the police to pick up a person on a vague suspicion, question him, and frighten him into making a confession. That is a bad move.
      Mr. Eldon Griffiths: Bearing in mind the anxiety of both sides of the House to reach a conclusion, I shall speak more briefly than I would otherwise have done. All hon. Members who served on the Committee will agree that, whatever his conclusion, the speech of the hon. Member for Caithness and Sutherland (Mr. Maclennan) was wholly devoid of serious study and homework. His speech betrayed an all too typical absence of conscientious homework.
      I shall offer the House two practical considerations. First:
      "Police are called to a house where a man has killed his wife and attempted to kill himself. He is alive, but has serious injuries. At present the person would be taken to hospital under arrest and kept under guard until released".
      He has most certainly been arrested, but as he is seriously injured, it would be quite impossible, indeed it would be inhuman, for the police to implement the new clause if it were included in the Bill.
      The second case is this:
      "A serious house fire took place. The living room was severely damaged. It was a scene of rubble, water and smoking debris. The husband was found alone in the house … His wife was not present. When he was asked the whereabouts of his wife he replied that she was visiting her sister for a few days but it was suspected by the police that he had murdered her and tried to burn the body in the house. He was arrested and detained in custody. We searched the garden for her body except for an area close to the house where the fire debris was piled. The debris was thrown through the window by the fire service".—[Official Report, Standing Committee E, 16 February 1984; c. 1204.]
      The superintendent in charge of the case wrote:
      "I gave instructions to leave that debris untouched until it could have been examined by forensic scientists. When given clearance to remove the rubbish, 48 hours had elapsed, and then on searching the ground beneath that pile, her body was found. It was impossible to move quicker without destroying the evidence but that man was none the less detained for three days before he was charged."
      If the new clause had been law, it would have been impossible for that murderer to have been convicted.
      I share the anxieties of hon. Members about the possibilities of unfair detention. Nevertheless, according to the police, they would find it impracticable to bring to justice serious criminals if the new clause were passed as it stands.
      Clause 37 actually limits the period for which an arrested person may be detained without charge. It imposes a limit that does not currently exist. In practice, it will apply to all but the most serious cases the 24-hour limit on detention without charge on police authority, which currently applies only to those cases not judged by the police to be serious. Therefore, far from following the hon. Member for Birmingham, Ladywood (Ms. Short) down the road to the Turkish police state I must point out that the Bill actually limits rather than extends the ability of the police to detain without charge. That is the view of the Royal Commission and it is what is achieved by the Bill.
      5.30 pm
      If it is desired to authorise detention beyond the initial 24 hours, clause 38 provides various mechanisms for extension. To obtain a warrant for further detention, application must be made to a magistrates court. The hearing in the magistrates court is inter partes and the person concerned, legally represented, may show cause why he should not be held. In contrast with the Royal

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      Commission proposals, there is thus an absolute limit on detention without charge without a magistrates court dealing with the matter.
      Clause 36 provides complex requirements for reviews in connection with police detention and I welcome those requirements, as I believe did every member of the Standing Committee.
      It has been alleged today that the Government are somehow creating a new power of detention for four days. As every member of the Standing Committee knows, we are talking about a very small number of extremely serious cases and detention for that period could occur only if a court of law had decided at an inter partes hearing that it was necessary. I recognise the difference between that and the provisions in Scotland, but at present the law of England provides no limit. The Bill provides a limit for the first time. The Government deserve credit for imposing that limit, not attack for allegedly removing civil liberties.
      Mr. Ashby: I am grateful for the opportunity to speak at this late stage in the debate.
      My hon. and learned Friends the Members for Mid-Bedfordshire (Mr. Lyell) and for Leicester, South (Mr. Spencer) both described the Bill as revolutionary. Certainly it illustrates the frightful mess that our criminal law has been in for so long. It is sad, indeed, that we should wait until 1984 to try to regularise matters already regularised in other countries.
      I agree with the right hon. Member for Manchester, Gorton (Mr. Kaufman) that this is the most important part of the Bill. In any other country it would be a major constitutional point. It is sad that we have had so little time to debate a subject which in many countries would be enshrined in the constitution. It is also sad that so few Members are present. In most countries, decisions on a matter of this kind would require a two thirds majority, or even a two thirds majority of the electorate. I do not think that I have put that too high.
      The excuse made for the 96-hour limit is that at present there is no limit at all. In fact, however, we have habeas corpus, which has been settling at around 48 hours in Sherman v. Apps and other cases. I believe that the Magistrates' Courts Act 1980 repeats that. Therefore, there have been safeguards, but that is not the real point. It is argued that there has been no fixed limit and that we must now accept 96 hours as second best and lump it.
      This matter goes to the very heart of civil liberties and individual rights. When, at long last, we come to debate it and to make a decision, surely we must get it right. The issue of freedom and the right not to be imprisoned was dealt with as long ago as 1215 in Magna Carta. We have come a very long way since then. If it could be dealt with as long ago as that, surely we can deal with it properly in this day and age—and is not 48 hours a proper period?
      The argument falls into two parts: first, the strict constitutional aspect in relation to civil liberties and the rights of the individual; and secondly, the evidential point so squarely raised by my hon. Friend the Member for Harlow (Mr. Hayes), when he pointed out that judges could hold that 96 hours was oppressive in any event. In the case of Hudson in 1981, it was indeed held to be oppressive. What frightens me is that once 96 hours is enshrined in legislation, judges will no longer regard it as oppressive. If that is what the law says, they are likely to admit whatever takes place within that period. I am sure that that will be the result.
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      Like my hon. and learned Friend the Member for Leicester, South, I have been practising for a long time—
      Mr. Alfred Dubs: The hon. Gentleman is better.
      Mr. Ashby: I am very grateful to the hon. Gentleman. Perhaps he will tell that to my solicitors.
      I have had experience—professional experience only, I hasten to add—of what happens in police cells. I imagine that very few hon. Members have ever seen a police cell or what happens there. How many have seen
      people taken into custody and searched? Detainees' belts and shoe laces are taken away, albeit for their own protection. They have no writing paper or books. They are put in a narrow room without any outside window or natural light. They are then simply kept there and time goes by. They have no watch or clock and thus no idea of how long they have been there. In almost every case with which I have had to deal, defendants have told me that they could not say at what time they were questioned or when something happened.
      The complete sense of timelessness, with the feeling that nobody wants them and nobody can do anything for them, saps the will of those so detained. In the case of Priestley, it was said that oppression
      "imports something which tends to sap and has sapped that free will before a confession is voluntary."
      Any kind of detention is an oppression— a necessary oppression—but 48 hours is quite enough. Beyond that length of time statements can have no evidential value. Juries will be asked to accept statements which anyone with experience of these matters knows to be valueless. Barristers will be made mealy-mouthed about it, referring in court to statements and confessions made after 50 or 60 hours of detention, when in their heart of hearts they know that such statements are utterly valueless. I am bound to have to deal with such a case if the Bill is not amended, and I shall do so with great distaste.
      It has been argued that the measures are needed because criminals are so much cleverer these days. Two hundred years ago Voltaire said that is was better to risk saving a guilty person than to condemn an innocent one. Sir William Blackstone, that great English common lawyer, said:
      "It is better than ten guilty persons escape than one innocent suffer."
      I wonder what has happened to the heart of our criminal law, which has always been that it is better that a guilty man should go free than that an innocent man should be convicted and condemned. This provision will make it more possible that an innocent man could suffer. It is striking at the heart of our criminal law, and is bad for that reason if for no other.
      We shall be told that this will affect only a small minority of cases, but we are dealing with absolutes and we cannot detract from that. As Martin Luther King said in 1963:
      "Injustice anywhere is a threat to justice everywhere."
      This is a threat to justice everywhere, and I shall vote with. the Opposition.
      Mr. Dubs: I congratulate the hon. Member for Leicestershire, North-West (Mr. Ashby) on an excellent exposition of the case against the Government's proposals, and I endorse everything he said. It may help the House if I say that although we should like to see new clause 17

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      accepted, we also accept in principle the amendment in the name of my hon. Friend the Member for St. Helens, South (Mr. Bermingham) which also seeks to limit the length of the period in custody suggested in the Government's proposals.
      The speech by the hon. Member for Leicestershire, North-West was a clear exposition of the case, and also reflects the widespread unease about the Government's proposals felt on both sides of the House, even if it has not been expressed in many speeches today, although there were some welcome contributions to that effect from Conservative Members. I sense that if this widespread unease were to be fully reflected in the Division Lobbies in a few minutes, it would be quite a shock to the Minister and his colleagues. That unease may not be fully reflected, because some Government Back Benchers will probably put their loyalty to their Government above their unease. I hope that it will be otherwise, because I am satisfied that, if there were to be a free vote of the House, there would be a majority against the Government's proposals to have 96 hours in detention without charge as the future basis of our criminal law, as expressed by the Bill.
      Any hon. Member who has talked to constituents or others who have been detained without charge, even for a much shorter period than the suggested one, will know what a shattering experience it is for ordinary people. A woman came to visit me who had been detained for only two hours and who was shattered by the experience. It is an unusual individual who does not have that feeling of depression and unease and who is not shattered by such an experience of being held in custody even for a short period, yet here we are talking about holding people in custody for up to 96 hours.
      I looked at the Bill to see what justification there could be for this departure from our civil liberties. The Minister may say that such a long detention period will be used only occasionally, but I take the view expressed by the hon. Member for Leicestershire, North-West that if the House passes legislation saying that 96 hours is the period permitted, it will hardly be surprising if the courts and the police say that if Parliament says 96 hours, that must be the period. There will be a dramatic increase in the number of individuals held for a longer period than they are now.
      I take the wording of clause 38(1)(a) to be the justification for this proposal, as it gives two reasons for holding people for so long. One is to "secure or preserve evidence" and the second is
      "to obtain such evidence by questioning him".
      Let us examine the first one. The hon. and learned Member for Leicester, South (Mr. Spencer) talked about a complicated case of fraud and used that to justify holding people for longer than 96 hours—he mentioned seven days. We all know how complicated fraud cases may be, but to suggest that therefore it follows that people should be held in custody for as long as it takes the police to do all their investigations suggests that people should be held for 14 days or even longer. That should be unacceptble to the British people with our tradition of civil liberties—a tradition that is being eroded by the passage of this Bill.
      5.45 pm
      The second justification is
      "to obtain such evidence by questioning him."
      To me, there is a real chill in those words. We all know, and if we do not know we should, that a period of sustained
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      questioning results in people who are innocent agreeing to sign a confession because they cannot stand the coercion of prolonged interrogation. That is a reasonable and understandable human reaction and it would take an unusual individual to withstand such pressure.
      Of course in most instances, and perhaps in all instances, the police will question individuals because they believe that the individual is guilty, but that is not the same as the individual being guilty, and the police are quite frequently mistaken in that belief. However, if they persist in such questioning, it is not surprising, given the provisions about which we are talking, that some individuals give in, say that they cannot take it any more and agree to sign anything that is put to them. We know that this happens because a number of cases were quoted in the House and in Committee in which individuals reacted in precisely this way.
      Mr. Corbett: Will my hon. Friend accept that even if the provisions of the draft code of practice on detention are strictly observed, it is possible that individuals detained in this way may be questioned for up to 13 hours a day?
      Mr. Dubs: That is so, and we have our reservations about the ability to enforce the code of practice if the individual who is being questioned feels that a police officer is not sticking to it. Even the code as it is contains the problem to which my hon. Friend has referred.
      There is a likelihood that people will be held for questioning for a length of time. There have been a number of cases that show that people give in to such questioning. A few years ago a constituent of mine called Errol Madden was involved in a case that is so well known that I can probably just mention the details in passing. He was arrested because the police believed that he had had in his plastic bag a number of items that had been stolen from a shop. He was held in the police station not for 96 hours but for a shorter period, and was persuaded to sign a confession that he had stolen those goods.
      When Errol Madden got out, it was revealed that he had in his pocket all the time receipts from the shop where he had legitimately bought the goods. There can be no other interpretation of that incident except that the individual concerned, Errol Madden, found the intimidation of questioning by the police such that he signed a confession rather than have it continue. In essence, that is our reason for being so concerned about the Government's proposal and that is why we wish to shorten the period for which people can be held in detention without charge.
      I understand that informally some police forces, perhaps in London some police districts, have provisions whereby, purely under internal arrangements, they do not hold people in custody for nearly as long as the Bill suggests. Will the Minister say a little about those arrangements? If the police themselves — I have discussed this with them on a number of occasions—believe that, whatever powers they have under the law, they wish to limit the length of time that anybody can be held for questioning, that suggests that the police, although perhaps not all of them, do not believe that this power is necessary or desirable.
      It will be a sorry day for the House and for the country if we pass a Bill and a set of provisions that allow us to do something that is unparalleled among Western countries and democracy. It will be a sorry day when we say that civil liberties need not count for much any more.

      179
      Under this Government and this Bill, we shall do something that will make us a country to be scorned and abused by other countries, because we will have sadly let down the tradition of civil liberties in which many of us believe.
      Mr. Hurd: Detention without charge is a serious matter and a serious erosion of civil liberties, and therefore it is right that the Government in preparing the Bill and this House in debating it should take time to have a long and serious discussion on this matter. I believe that every hon. Member who has spoken in the debate is agreed that the present law is, to a considerable extent, vague and unsatisfactory.
      Under section 43 of the Magistrates' Courts Act 1980 a person arrested without a warrant and detained in custody must be brought before a magistrates court as soon as practicable. [Interruption.] I was not expecting applause so early in the proceedings. Recent judgments in the courts have made it clear that, under that Act, two points are clear. Some Opposition Members may disagree with them, but they are a part of the existing legislation. First, the courts conclude that detention without charge is acceptable to enable the police to conduct inquiries. Secondly, the courts accept that there is no rigid time limit for this process.
      Again, I must make the point, which becomes blurred as people, understandably, oppose particular provisions in the Bill—yesterday, I made this point about road checks —that we are not giving the police fresh powers in this clause. We are seeking to clarify, regulate and, to some extent, reduce the powers the police already have. For the first time, there will be an absolute time limit on detention without charge, and a process of systemaic reviews before the maximum time limit is reached. That process of systematic reviews will include two appearances before a magistrates court— [Interruption.] I concede the point that the right hon. Member for Manchester, Gorton (Mr. Kaufamn) is keen to make—that when we started this round of the Bill, there would not necessarily have been two appearances, but now there are. We agreed that in Standing Committee.
      Twice, before there can be any question of detention for 96 hours, the police must come before the magistrate in the presence of the detained person and the detained person's lawyer, and twice the magistrates court must be satisfied, in terms of clause 39, that further detention is necessary. Those new elements are high hurdles and tight safeguards. For that reason, I do not agree with the conclusion reached by some hon. Members that the result of this process is likely to be an edging towards 96 hours as the average.
      I accept the sincerity of the indignation of the hon. Member for Caithness and Sutherland (Mr. Maclennan), but the adjectives with which he was so free were absurd. His main indignation was against the maximum of 96 hours. He was wrong— I do not blame him for that, except that he persisted in the error—about the Royal Commission's statements. The right hon. Member for Gorton tried to rescue the hon. Gentleman, but without success. I tried to inform the hon. Gentleman that, under the Royal Commission's proposals, warrants for further detention would, in cases of necessity—only in those cases—be renewable by a magistrates court at 24-hour intervals. The Royal Commission's report contains no recommendation on an overall limit. The hon. Member for
      180
      Caithness and Sutherland repudiated that point with further adjectives. We are imposing an overall limit. It is too long a limit, in the hon. Gentleman's view, but it is an improvement on the present position and, with respect, on the Royal Commission's recommendations.
      I ask the hon. Members for St. Helens, South (Mr. Bermingham) and for Middlesbrough (Mr. Bell) to accept one point crucial to the Government's case on this matter. The deduction made from their suggestions is that the police should prefer charges early, as soon as there is a prima facie case. That implies—I believe that both hon. Gentlemen, who have listened to the debate in Standing Committee, would accept this point—the prosecution of many people whom further inquiry might show to be innocent and the prosecution of many guilty people on perhaps insufficient evidence.
      Mr. Bermingham rose—
      Mr. Hurd: It is crucial for the House to understand that, once there is a charge, questioning comes to an end. I shall return to that point when I consider the detail of 96 hours' detention.
      Mr. Kaufman: If the right hon. Gentleman is allowed to continue unchallenged in his statements about the Royal Commission's recommendations, he will be doing a disservice to the record. The right hon. Gentleman is proposing up to 36 hours' detention without application to a magistrate or up to 96 hours' detention after two applications to a magistrate. That is what the Bill is stating. It is true that the Royal Commission did not impose an upper limit on detention without charge after application to a magistrate. In a way, the Royal Commission's statements were even more stringent. In paragraph 3.104 the Royal Commission stated:
      "persons suspected of an offence for which they have been arrested and detained must within 24 hours be released unconditionally, released on bail for further enquiries, charged and released on bail to appear at court, or charged and brought before the court that day".
      The Royal Commission went much further than putting an upper limit. It imposed four possibilities, in three of which the person must be released and in the fourth of which he must be brought before the court on the same day.
      Mr. Hurd: The right hon. Gentleman has conceded the point on which I sought to correct the hon. Member for Caithness and Sutherland—the Royal Commission, in talking of the necessity for renewable warrants of detention, imposed no maximum limit. That was the sole point on which I took issue with the hon. Gentleman, and on which he wrongly said that I was mistaken.
      Mr. Maclennan: Will the right hon. Gentleman allow me to intervene?
      Mr. Hurd: The hon. Gentleman did not give way to me.
      Mr. Maclennan: On a point of order, Mr. Deputy Speaker.
      Mr. Hurd: I give way.
      Mr. Maclennan: I am grateful to the Minister for now giving way. He will recall that I gave way to him once. — [Interruption.] The Home Secretary has no business to interfere. He was not even in the Chamber at the time. He has absented himself throughout the debate in a most disgraceful fashion. He should make his partisan points elsewhere.

      181
      The point I addressed to the Minister of State was that the Royal Commission had not set an upper limit of 96 hours. I said to the Minister—he has still not dealt with this point —that he had not discharged any onus for claiming a specific 96-hour upper limit. I have refreshed my memory on what the right hon. Gentleman said on that point. He said:
      "Any period must be chosen arbitrarily". — [Official Report, Standing Committee E, 16 February 1984; c. 1242.]
      The Minister then went on to make it perfectly plain that he had no reason whatever for choosing 96 hours.
      6 pm
      Mr. Hurd: If the hon. Gentleman reads paragraph 3.106 of the Royal Commission's report, he will see that everything that I have said on that matter today is strictly accurate.
      In Committee I made a considerable speech in which I justified the 96-hour period, and I shall seek to do that again now. The new clause requires that the first independent review of detention by the court should take place after six hours, and not 36 hours as provided in the Bill. It is important to be clear that even a 36-hour review is a substantial improvement on the present situation. That time period is the end point of a series of progressively more demanding and more independent reviews of the need for detention by the police. Under the Bill, when an arrested person is first brought to a police station his case must be considered by the custody officer—[nterruption.] I must go through the issues, because the debate has not included much discussion of them.
      If the arrested person remains uncharged after six hours, the case must be reviewed by an officer of at least inspector rank, who must be unconnected with the investigation in progress. Thereafter, detention without charge must be reviewed every nine hours until the person is released or brought before a court. By the 24-hour point, an officer of superintendent rank must have reviewed the case, and whereas under the present law detention beyond 24 hours is possible in any case which appears to the police to be serious—which is clearly a subjective test—under clause 38, the superintendent must, in order to authorise continuing detention, apply the objective test of whether the offence under investigation is a serious arrestable offence.
      Thus there is a whole framework of supervision and review, which is intended to ensure that detention is controlled, and that inquiries are conducted, in the words of clause 38, "diligently and expeditiously". It is worth quoting from the Royal Commission's report when dealing with the suggestion of either a four-hour or six-hour period. The report pointed out that those who suggest such a limit—and it is suggested in the new clause—
      "do not appear to have based their proposals upon any close study of police work in this country but to be using proposals from elsewhere".
      Perhaps a quarter of all cases involve detention over six hours. A survey in the third quarter of 1982— which has already been quoted—showed that in the Metropolitan police district about 83,000 people were detained for more than six hours. Thus, the effect of the new clause would be that the London courts alone could expect an extra 80,000 or so applications for warrants of further detention each year.
      182
      The House will agree that that would place a massive new burden on the courts without any specific advantage in return. The Magistrates Association has recently confirmed to us again its view that the 36-hour review is the right and practicable point for the courts to become fully involved in a review of detention.
      Mr. Bermingham rose—
      Mr. Hurd: I have already given way several times, and I think that the House is anxious that the debate should come to a conclusion. As usual, the hon. Gentleman has had a fair whack.
      I return to the question of the absolute limit. I have spent a little time on the successive reviews of detention, because without understanding them it is impossible to understand the Government's case for the Bill. The Bill imposes a general limit of 96 hours on detention without charge. The new clause would reduce that to 30 hours. We took the view that the Royal Commission's judgment that it should be possible for the courts to renew detention at any time, as necessary, was wrong and that an open-ended scheme of detention could not command public confidence. We chose 96 hours — and I was rightly questioned about this—on the basis of actual cases, and on a judgment about the length of time in which it would be reasonable, in the light of experience, to require investigations to be concluded. We are certainly talking about only a few cases, but they are nevertheless very important.
      One point is occasionally overlooked. Many hon. Members who question this provision talk as though it was simply a matter of the police sitting in a police station asking the detainee questions, and multiplying the pressure in the hope of obtaining a confession. But that was not a characteristic of the cases that we looked at when drafting the Bill. Those cases were concerned with investigations. In investigations, there is an interplay between the external investigation of alibis, for example, and the questioning of the suspect. Unless the external investigation of possible witnesses and alibis and the questioning of the person being detained can proceed, those who are probably guilty of very serious offences may be allowed to go free.
      The hon. Member for Caithness and Sutherland said that I had not made out my case in Committee. However, in Committee I cited cases, which I shall not go through again, as many hon. Members heard me mention them. Last year, there was a drugs case in Manchester. Four people were held in custody for 66 hours because complicated forensic examination was necessary. If they had been released after 30 hours, they would probably have escaped the consequences of their crime. In 1981 there was a case involving armed robbery in Aylesbury. Several people were arrested. A mass of alibis was produced and it took a long time to check them all. Those involved were held in detention for 72 hours. There was also a case in Marlow in which witnesses to the alibis were themselves involved in crime. That case took a long time to clear up. Some of those arrested were held for three days, and others for two days.
      Mr. Frank Dobson: I am not a lawyer and have not been subjected to the arguments in Committee, but surely if the police are simply investigating alibis, they can charge people, and if the alibis prove to be correct, they can drop the charges.
      Mr. Hurd: The hon. Gentleman has not been listening Most investigations include both the external investigation of, for example, alibis, and the questioning of the person held. Once a person is charged, the questioning must stop Therefore, in many cases the investigation would collapse. Hon. Members must ask themselves whether they are prepared to see investigations occasionally brought—as we are talking about a very small number of cases—to an arbitrary end, because the person detained has had to be released and so all questioning of him must be brought to an end.
      We came to the conclusion that the time period should not be open-ended and that there should be a cut-off point. However, I hold to the view that if we reduced the period to less than 96 hours, the number of people guilty of very serious offences against whom no action could be taken would be increased to an unacceptable level. That is why, after much thought and renewed consideration by different sets of Ministers, we came to the conclusion that 24 hours should be the limit for detention without charge to be authorised by the police, containing within that 24 hours a series of reviews and an increasing series of difficult tests; that the case should go to a magistrates court at the 36-hour point—we have now accepted that there would have to be two sessions at the magistrates court, inter partes, with lawyers present—and that there should then be an absolute maximum of 96 hours.
      In the light of real experience of policing in this country, and of the balance between safeguards for the individual and the needs of justice, we believe that those three pillars of this part of the Bill are justified, and should be retained.
      Question put, That the clause be read a Second time: —
      The House divided: Ayes 181, Noes 250.

      Division No. 298]

      [6.8 pm

      AYES

      Abse, Leo

      Clay, Robert

      Alton, David

      Clwyd, Ms Ann

      Anderson, Donald

      Cohen, Harry

      Archer, Rt Hon Peter

      Coleman, Donald

      Ashby, David

      Concannon, Rt Hon J. D.

      Ashdown, Paddy

      Conlan, Bernard

      Ashley, Rt Hon Jack

      Cook, Robin F. (Livingston)

      Ashton, Joe

      Corbett, Robin

      Atkinson, N. (Tottenham)

      Corbyn, Jeremy

      Banks, Tony (Newham NW)

      Craigen, J. M.

      Barnett, Guy

      Crowther, Stan

      Barron, Kevin

      Dalyell, Tam

      Beckett, Mrs Margaret

      Davies, Ronald (Caerphilly)

      Beith, A. J.

      Davis, Terry (B'ham, H'ge H'l)

      Bell, Stuart

      Deakins, Eric

      Benn, Tony

      Dewar, Donald

      Bennett, A. (Dent'n & Red'sh)

      Dixon, Donald

      Bermingham, Gerald

      Dobson, Frank

      Blair, Anthony

      Dormand, Jack

      Boyes, Roland

      Dubs, Alfred

      Bray, Dr Jeremy

      Duffy, A. E. P.

      Brown, Gordon (D'f'mline E)

      Dunwoody, Hon Mrs G.

      Brown, Hugh D. (Provan)

      Eadie, Alex

      Brown, Ron (E'burgh, Leith)

      Eastham, Ken

      Bruce, Malcolm

      Ellis, Raymond

      Caborn, Richard

      Evans, John (St. Helens N)

      Callaghan, Rt Hon J.

      Fatchett, Derek

      Callaghan, Jim (Heyw'd & M)

      Faulds, Andrew

      Campbell, Ian

      Field, Frank (Birkenhead)

      Campbell-Savours, Dale

      Fisher, Mark

      Canavan, Dennis

      Flannery, Martin

      Carter-Jones, Lewis

      Foot, Rt Hon Michael

      Clark, Dr David (S Shields)

      Forrester, John

      Clarke, Thomas

      Foster, Derek

      184

      Foulkes, George

      Oakes, Rt Hon Gordon

      Fraser, J. (Norwood)

      O'Brien, William

      Freeson, Fit Hon Reginald

      O'Neill, Martin

      Gourlay, Harry

      Orme, Rt Hon Stanley

      Hamilton, W. W. (Central Fife)

      Park, George

      Hardy, Peter

      Parry, Robert

      Harman, Ms Harriet

      Patchett, Terry

      Harrison, Rt Hon Walter

      Pavitt, Laurie

      Hart, Rt Hon Dame Judith

      Pendry, Tom

      Hattersley, Rt Hon Roy

      Pike, Peter

      Hawkins, C. (High Peak)

      Powell, Raymond (Ogmore)

      Haynes, Frank

      Radice, Giles

      Healey, Rt Hon Denis

      Randall, Stuart

      Hogg, N. (C'nauld & Kilsyth)

      Redmond, M.

      Home Robertson, John

      Rees, Rt Hon M. (Leeds S)

      Howell, Rt Hon D. (S'heath)

      Richardson, Ms Jo

      Howells, Geraint

      Roberts, Allan (Bootle)

      Hughes, Dr. Mark (Durham)

      Roberts, Ernest (Hackney N)

      Hughes, Robert (Aberdeen N)

      Robinson, G. (Coventry NW)

      Hughes, Roy (Newport East)

      Rogers, Allan

      Hughes, Sean (Knowsley S)

      Rooker, J. W.

      Janner, Hon Greville

      Ross, Ernest (Dundee W)

      John, Brynmor

      Ross, Stephen (Isle of Wight)

      Jones, Barry (Alyn & Deeside)

      Ryman, John

      Kaufman, Rt Hon Gerald

      Sedgemore, Brian

      Kennedy, Charles

      Sheerman, Barry

      Kilroy-Silk, Robert

      Sheldon, Rt Hon R.

      Kirkwood, Archibald

      Shore, Rt Hon Peter

      Knight, Gregory (Derby N)

      Short, Ms Clare (Ladywood)

      Lambie, David

      Short, Mrs R.(W'hampt'n NE)

      Lamond, James

      Silkin, Rt Hon J.

      Leadbitter, Ted

      Skinner, Dennis

      Leighton, Ronald

      Smith, C.(Isl'ton S & F'bury)

      Lewis, Ron (Carlisle)

      Smith, Cyril (Rochdale)

      Lewis, Terence (Worsley)

      Smith, Rt Hon J. (M'klds E)

      Litherland, Robert

      Snape, Peter

      Lloyd, Tony (Stretford)

      Soley, Clive

      Lofthouse, Geoffrey

      Spearing, Nigel

      Loyden, Edward

      Steel, Rt Hon David

      McCartney, Hugh

      Straw, Jack

      McDonald, Dr Oonagh

      Thomas, Dafydd (Merioneth)

      McGuire, Michael

      Thomas, Dr R. (Carmarthen)

      McKay, Allen (Penistone)

      Thompson, J. (Wansbeck)

      Mackenzie, Rt Hon Gregor

      Wallace, James

      Maclennan, Robert

      Wardell, Gareth (Gower)

      McNamara, Kevin

      Wareing, Robert

      Madden, Max

      Weetch, Ken

      Marek, Dr John

      Welsh, Michael

      Marshall, David (Shettleston)

      White, James

      Martin, Michael

      Williams, Rt Hon A.

      Mason, Rt Hon Roy

      Winnick, David

      Maxton, John

      Woodall, Alec

      Maynard, Miss Joan

      Wrigglesworth, Ian

      Meacher, Michael

      Young, David (Bolton SE)

      Michie, William

      Mikardo, Ian

      Tellers for the Ayes:

      Millan, Rt Hon Bruce

      Mr. James Hamilton and

      Mitchell, Austin (G't Grimsby)

      Mr. Lawrence Cunliffe.

      Morris, Rt Hon J. (Aberavon)

      NOES

      Adley, Robert

      Biggs-Davison, Sir John

      Aitken, Jonathan

      Blaker, Rt Hon Sir Peter

      Alexander, Richard

      Bonsor, Sir Nicholas

      Alison, Rt Hon Michael

      Boscawen, Hon Robert

      Amery, Rt Hon Julian

      Bottom ley, Peter

      Amess, David

      Bottomley, Mrs Virginia

      Arnold, Tom

      Bowden, A. (Brighton K'to'n)

      Aspinwall, Jack

      Braine, Sir Bernard

      Atkins, Rt Hon Sir H.

      Brandon-Bravo, Martin

      Atkinson, David (B'm'th E)

      Brinton, Tim

      Baker, Nicholas (N Dorset)

      Brittan, Rt Hon Leon

      Baldry, Anthony

      Brooke, Hon Peter

      Beggs, Roy

      Browne, John

      Bellingham, Henry

      Bruinvels, Peter

      Bendall, Vivian

      Buchanan-Smith, Rt Hon A.

      Bennett, Sir Frederic (T'bay)

      Buck, Sir Antony

      Benyon, William

      Budgen, Nick

      Berry, Sir Anthony

      Bulmer, Esmond

      Biffen, Rt Hon John

      Burt, Alistair

      185

      Carlisle, John (N Luton)

      Holt, Richard

      Carlisle, Kenneth (Lincoln)

      Hooson, Tom

      Carlisle, Rt Hon M. (W'ton S)

      Hordern, Peter

      Carttiss, Michael

      Howard, Michael

      Cash, William

      Howarth, Gerald (Cannock)

      Chapman, Sydney

      Howell, Rt Hon D. (G'ldford)

      Chope, Christopher

      Howell, Ralph (N Norfolk)

      Clark, Dr Michael (Rochford)

      Hubbard-Miles, Peter

      Clark, Sir W. (Croydon S)

      Hunt, David (Wirral)

      Clarke, Rt Hon K. (Rushcliffe)

      Hunt, John (Ravensbourne)

      Cockeram, Eric

      Hunter, Andrew

      Colvin, Michael

      Hurd, Rt Hon Douglas

      Conway, Derek

      Jessel, Toby

      Cope, John

      Johnson-Smith, Sir Geoffrey

      Cormack, Patrick

      Jones, Robert (W Herts)

      Corrie, John

      Jopling, Rt Hon Michael

      Couchman, James

      Joseph, Rt Hon Sir Keith

      Cranborne, Viscount

      Kershaw, Sir Anthony

      Crouch, David

      King, Rt Hon Tom

      Currie, Mrs Edwina

      Knight, Mrs Jill (Edgbaston)

      Dicks, Terry

      Knox, David

      Dorrell, Stephen

      Lamont, Norman

      Douglas-Hamilton, Lord J.

      Lawler, Geoffrey

      Dunn, Robert

      Lawrence, Ivan

      Dykes, Hugh

      Lawson, Rt Hon Nigel

      Eggar, Tim

      Leigh, Edward (Gainsbor'gh)

      Emery, Sir Peter

      Lennox-Boyd, Hon Mark

      Evennett, David

      Lester, Jim

      Eyre, Sir Reginald

      Lewis, Sir Kenneth (Stamf'd)

      Fairbairn, Nicholas

      Lilley, Peter

      Fallon, Michael

      Lyell, Nicholas

      Farr, John

      McCurley, Mrs Anna

      Favell, Anthony

      Maclean, David John

      Fenner, Mrs Peggy

      Major, John

      Finsberg, Sir Geoffrey

      Malins, Humfrey

      Fletcher, Alexander

      Mather, Carol

      Fookes, Miss Janet

      Mawhinney, Dr Brian

      Forman, Nigel

      Maxwell-Hyslop, Robin

      Forsyth, Michael (Stirling)

      Mayhew, Sir Patrick

      Fowler, Rt Hon Norman

      Mellor, David

      Fox, Marcus

      Merchant, Piers

      Franks, Cecil

      Meyer, Sir Anthony

      Fraser, Peter (Angus East)

      Miller, Hal (B'grove)

      Freeman, Roger

      Mills, Iain (Meriden)

      Gale, Roger

      Mills, Sir Peter (West Devon)

      Galley, Roy

      Molyneaux, Rt Hon James

      Gardiner, George (Reigate)

      Monro, Sir Hector

      Gilmour, Rt Hon Sir Ian

      Moore, John

      Goodhart, Sir Philip

      Morrison, Hon C. (Devizes)

      Goodlad, Alastair

      Neubert, Michael

      Gorst, John

      Nicholls, Patrick

      Gow, Ian

      Onslow, Cranley

      Gower, Sir Raymond

      Ottaway, Richard

      Grant, Sir Anthony

      Page, John (Harrow W)

      Greenway, Harry

      Page, Richard (Herts SW)

      Gregory, Conal

      Parkinson, Rt Hon Cecil

      Griffiths, E. (B'y St Edm'ds)

      Pattie, Geoffrey

      Griffiths, Peter (Portsm'th N)

      Pawsey, James

      Grist, Ian

      Peacock, Mrs Elizabeth

      Ground, Patrick

      Powell, Rt Hon J. E. (S Down)

      Grylls, Michael

      Powell, William (Corby)

      Gummer, John Selwyn

      Powley, John

      Hamilton, Hon A. (Epsom)

      Proctor, K. Harvey

      Hamilton, Neil (Tatton)

      Pym, Rt Hon Francis

      Hanley, Jeremy

      Raffan, Keith

      Hannam, John

      Raison, Rt Hon Timothy

      Hargreaves, Kenneth

      Rifkind, Malcolm

      Harvey, Robert

      Robinson, Mark (N'port W)

      Haselhurst, Alan

      Rossi, Sir Hugh

      Hawksley, Warren

      Rost, Peter

      Hayhoe, Barney

      Rowe, Andrew

      Hayward, Robert

      Rumbold, Mrs Angela

      Heathcoat-Amory, David

      Ryder, Richard

      Henderson, Barry

      Sackville, Hon Thomas

      Hickmet, Richard

      Sainsbury, Hon Timothy

      Higgins, Rt Hon Terence L.

      Sayeed, Jonathan

      Hind, Kenneth

      Scott, Nicholas

      Hirst, Michael

      Shaw, Giles (Pudsey)

      Hogg, Hon Douglas (Gr'th'm)

      Shepherd, Richard (Aldridge)

      Holland, Sir Philip (Gedling)

      Shersby, Michael

      186

      Sims, Roger

      van Straubenzee, Sir W.

      Skeet, T. H. H.

      Vaughan, Sir Gerard

      Smith, Tim (Beaconsfield)

      Viggers, Peter

      Smyth, Rev W. M. (Belfast S)

      Wakeham, Rt Hon John

      Soames, Hon Nicholas

      Waldegrave, Hon William

      Speller, Tony

      Walden, George

      Spencer, Derek

      Walker, Bill (T'side N)

      Spicer, Michael (S Worcs)

      Waller, Gary

      Squire, Robin

      Ward, John

      Stanbrook, Ivor

      Wardle, C. (Bexhill)

      Stanley, John

      Watson, John

      Steen, Anthony

      Watts, John

      Stern, Michael

      Wells, Bowen (Hertford)

      Stevens, Lewis (Nuneaton)

      Wells, John (Maidstone)

      Stewart, Allan (Eastwood)

      Wheeler, John

      Stewart, Andrew (Sherwood)

      Whitfield, John

      Stewart, Ian (N Hertf'dshire)

      Whitney, Raymond

      Sumberg, David

      Wiggin, Jerry

      Tapsell, Peter

      Winterton, Mrs Ann

      Taylor, Teddy (S'end E)

      Winterton, Nicholas

      Temple-Morris, Peter

      Wolfson, Mark

      Thomas, Rt Hon Peter

      Woodcock, Michael

      Thompson, Donald (Calder V)

      Young, Sir George (Acton)

      Thompson, Patrick (N'ich N)

      Younger, Rt Hon George

      Thornton, Malcolm

      Townend, John (Bridlington)

      Tellers for the Noes:

      Tracey, Richard

      Mr. Tristan Garell-Jones and

      Twinn, Dr Ian

      Mr. Ian Lang.

      Questions accordingly negatived

    New Clause 18

      CODES OF PRACTICE FOR STOP AND SEARCH BY POLICE OFFICERS
      `(1) It shall be the duty of the Secretary of State to issue a code of practice in connection with the exercise by police officers of their powers and duties under sections 1, 2 and 3 of this Act.
      (2) The Secretary of State shall prepare and publish a draft of that code, and shall consider any representations made to him about the draft and may modify the draft accordingly.
      (3) The Secretary of State shall lay before both Houses of Parliament a draft of any code of practice prepared by him under this section.
      (4) When the Secretary of State has laid the draft of a code before Parliament, he may bring the code into operation by order made by statutory instrument.
      (5) No order under subsection (3) above shall have effect until approved by a resolution of each House of Parliament.
      (6) An order bringing a code of practice into operation may contain such transitional provisions or savings as appear to the Secretary of State to be necessary or expedient in connection with the code of practice thereby brought into operation.
      (7) The Secretary of State may from time to time revise the whole or any part of a code of practice issued under this Act and issue that revised code, and the foregoing provisions of this section shall apply (with appropriate modifications) to such a revised code as they apply to the first issue of a code.
      (8) A failure on the part of any person to observe any provision of this code of practice may render him liable to criminal or civil proceedings.
      (9) A police officer shall be liable to disciplinary proceedings for a failure to observe any provision of such a code, unless such proceedings are precluded by section 94 below.
      (10) This code of practice shall come into force not later than the date on which sections 1, 2 and 3 of this Act come into force.'.—[Mr. Dubs.]
      Brought up, and read the First time.
      Mr. Dubs: I beg to move, That the clause be read a Second time.
      Mr. Speaker: With this it will be convenient to take the following:
      Government amendment No. 3
      Amendment No. 1, in page 1, line 7, leave out clause 1.

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      Government amendments Nos. 4 to 11.
      Amendment No. 305, in clause 1, page 2, line 24, at end insert —
      '(aa) a controlled drug that is capable of creating or satisfying an addictive habit; or'.
      Amendment No. 306, in page 2, line 39 at end insert—
      and '(e) trafficking in controlled drugs.'.
      Government amendment No. 12.
      Amendment No. 13, in page 3, line 16, leave out clause 2.
      Government amendment No. 14.
      Amendment No. 307, in clause 2, page 4, line 46 after `gloves', insert
      'or any hat or other form of head gear or head covering save one that is customarily worn by the detained persons for a religious purpose.'.
      Amendment No. 16, in page 5, line 5, leave out clause 3.
      Government amendments Nos. 17 to 25.
      Mr. Dubs: New clause 18 deals with codes of practice for stop and search by police officers. Throughout the long discussions on the Bill, the question of stop and search has always loomed large. Of all the provisions in the Bill, and of all the powers that the Bill gives to the police, or confirms as being given to the police, the use of the powers of stop and search inevitably will have the widest impact on the largest number of people.
      The use of the existing power of stop and search is seen frequently as arbitrary by nature, and difficult to control in any effective way. Last autumn, we had the report of the Policy Studies Institute commissioned by the previous Metropolitan commissioner of police, which went in great detail into the use of stop and search powers by the Metropolitan police. It is regrettable that we have less information about the use of these powers by other police forces. However, London is a sufficiently large area for the findings to be relevant to our consideration today.
      The report of the Policy Studies Institute estimated that there were 1·5 million stops in London in 1982. In considering those 1·5 million stops, it suggested, on the basis of the evidence of impartial researches, that about one third, or 0·5 million, were exercised by the police beyond, or without having, any legal powers to do so. That was surely a disturbing conclusion.
      Those figures contrast with answers given to parliamentary questions which suggest, according to the information that the Home Secretary has, that in 1982 and in 1983 some 780,000 to 790,000 people were stopped in the streets of London. In both years, those stops led to about 70,000 arrests. What the Home Office has not been able to tell us is how many of these arrests led to people being brought before the courts, and how many people were convicted. Of equal importance, we do not know how many of the people subsequently convicted were convicted because they were carrying an article or an item which was the basis of the original stop by the police officer, and how many were convicted because of a confrontation or a hassle resulting from the unpleasant circumstances of the stop.
      We all know that stops are resented by people. When they have been stopped many times, there is an understandable feeling of resentment. This will lead to a hassle, and sometimes to a person being arrested for obstructing a police officer in the course of his or her duty, which can lead to a person appearing in court. It would be
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      useful to have this information to assess the impact of the Government's new proposals. We would then have a fuller basis in arguing the case for new clause 18, although there is ample justification for the clause without the extra desirable information.
      Who are the people who are stopped by the police on so many occasions? We have some evidence on this. The Home Office produced a document entitled "The use, effectiveness and impact of police stop and search powers". That booklet deals at some length— it goes beyond the London area—with the use of these powers by the police. Table 3 on page 14 indicates in a tabular form the reasons given for recorded stops and searches in the four stations visited — Kensington, Peckham. Watford and Luton, thus going a little beyond the Metropolitan police area. It analyses the people stopped by ethnic origin and sex.
      We know from general experience, and from research studies such as this, that most of the people stopped are young, male and typically between the ages of 16 and 24. A comparison of the stop and search rates for all males and for black males in the age group 16 to 24 shows that a significantly larger number of blacks were stopped than males as a whole. This is true of all the police stations that were the subject of the investigation. In Kensington, the likelihood of a black being stopped was more than twice that of a white being stopped. The same ratio applies in Peckham. In Watford, the ratio was three times as great as it was in Luton, where the figures were lower. The figures for males in the age group 16 to 24 were much higher than for the population as a whole.
      The conclusion on page 22 of the research document confirms what the figures show, that
      "blacks, and particularly young black males, are much more likely to be stopped and searched by the police than whites."
      I should like to draw to the attention of the House another piece of research, carried out by Hillingdon legal resource centre in 1984, which dealt with stop and search. The survey dealt with 295 pupils in six schools in the borough of Hillingdon. It came to the alarming conclusion that 52 per cent. of the sample claimed to have been stopped and questioned or stopped and searched by the police. It must be a matter of concern that the Metropolitan police are using their powers in such a way that a sample of pupils from typical schools in a London borough reveals that slightly more than half of them had been stopped and searched.
      6.30 pm
      Anyone who has spoken to those who have been stopped and searched will know that many people find it an extremely humiliating and unpleasant experience. It is not surprising that the young people from Hillingdon who were covered by the survey came to similar conclusions. They complained that it had not been a pleasant experience, that the police picked on them and that they were generally disconcerted and upset by what had happened to them. One of the quotations from the report reads:
      "It makes you anti-police."
      Another section of the report states:
      "Teenagers searched when innocent distrust the police."
      The use of police stop-and-search powers, even under the present law, which is significantly more limited than the provisions that are proposed by the Government, has the effect of increasing the hostility of young people

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      towards the police. It is bad for relationships between young people, especially young black people, and the police. This has had many unfortunate results in many inner-city areas. We all know that there are many inner-city areas, apart from Brixton at the time of the riots, where young people and the police are at daggers drawn instead of co-operating. As the police constantly say—I believe them fully — their best chance of catching criminals is through the co-operation of the public. It is a sorry state of affairs when a significant sector of the public —young people, and especially young black people—are not willing to co-operate with the police because of antagonism and resentment following stop-and-search activities. That must be a matter of concern to the House.
      The Government are proposing significantly to increase stop-and-search powers. They are rationalising police powers throughout the country —that that is something to which no one will object — and proposing additional powers for the police in many areas, including the London area. It is proposed that the police should have additional powers to deal with offensive weapons. Most people would say that there is nothing wrong with the police having the power to stop and search those whom they suspect of having offensive weapons. That might be true if an offensive weapon were something which everyone could identify as such. The difficulty is that in the past the courts have held that items that are innocently carried in the normal course of events may, on occasion, be offensive weapons. This includes items such as coins, bunches of keys and penknives.
      This means that if the Bill is interpreted rationally, the police will legitimately be able to say, "This gives us much wider powers to stop and search, and we need have no reason to hesitate before we use these powers." It is my contention that the Bill gives the police the power to stop and search almost anyone. I hope that they will not go so far as to use these powers. I hope also that the new clause will be accepted by the House, for it provides a framework within which the powers of the police are to be exercised. However, if the police use these powers widely, I fear that the effects will be devastating.
      Some will say that there is nothing to worry about because the Policy Studies Institute report stated that about 500,000 stops and searches took place in London without there being any legal sanction, and that if we increased the legal powers of the police, we should be making legal that which has been illegal in recent years. I hope that that argument will not be advanced. To say that the police have been going beyond their legal powers and that we should legalise illegal activities would be an odd way of justifying proposed legislation.
      If we increase the powers of the police to stop and search, it is likely that the police will make use of the powers and that there will be a significant increase in the number of occasions when stops and searches take place. I remember speaking at a public meeting about the Bill when a woman—she seemed elderly—asked, "What is the matter with being stopped and searched? I have nothing to hide." The Minister of State beams with pleasure to hear me say that. As I explained to the elderly woman, the first time that a person is stopped and searched will probably not lead to him expressing his objection, nor will the second, third, fourth or fifth occasions; but if it happens 10 times or 15 times, he will begin to feel that
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      police powers are not being used in the right way. I put it to the elderly woman that even she would begin to take that view.
      It is sad that no research has been carried out to ascertain the number of times that a typical inner city young person, especially a black person, is stopped and searched by the police. If that research had been undertaken, I think that even the Minister would be shattered by its findings. I commend the Minister to initiate that research. The typical pattern of young people's experience in inner-city areas is that they are frequently stopped and searched by the police. This happens so frequently that they regard it as a matter of course, even if they bitterly resent the way it goes on.
      I accept that police officers may often be extremely polite and that no exception can be taken when they request someone to stop and to allow a search to take place, but how often does a police officer stop a young person in an inner-city area and say, "Good evening, sir. Would you mind coming over here while I have a look to see what you are carrying in your pockets?" That may happen, and in the Hillingdon area it seems it does. Quotations from teenagers appear in the Hillingdon report which describe polite experiences when being stopped by the police, but I suggest that that is not always so. I suggest that some of the methods by which stops and searches are carried out are discourteous to say the least, are positively aggressive and sometimes racist if the person being stopped is black. That is why we are so concerned about increasing the powers of the police and about the way in which the powers are to be exercised.
      I shall quote from the Metropolitan police newspaper, The Job. The edition which appeared on 9 March commented on the stop-and-search powers that appear in the Bill. Part of the report read:
      "A search in the street must be superficial and only the outer clothes—jacket and gloves—can be removed. In private, such as in a police van, the search can be extended."
      There are many who might say, "If an individual is to be searched, it is better that the search does not take place in the street because it is humiliating for an individual to be searched publicly, perhaps in front of his neighbours, colleagues or friends." Nevertheless, there is a chill implication in the way that the quotation from The Job reads to me. It suggests that what can be seen publicly is one thing and that what happens privately is another. That is another reason for me being concerned about the way in which stop-and-search powers are to be used.
      I understand that the Metropolitan police are finding it necessary to consider developing a code of practice for their officers on how stop-and-search operations are to be conducted. I welcome the fact that this is to happen. The knowledge that the Metropolitan police were considering such a code was one of the reasons that led the Opposition to table the new clause. If the Metropolitan police find it necessary to develop a code of practice for stop-and-search operations, why should there not be an explicit arrangement rather than something which the Metropolitan police develop privately for their own purposes?
      I do not know what will be in the code of practice that is developed by the Metropolitan police, and I can only assume that my information that it intends to develop one is accurate. Perhaps the Minster will be able to inform the House whether that is so. If that is what the Metropolitan police are doing, it is right that the House should know about it. It is right also that we should be able to consider

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      the code of practice as we are considering other codes of practice as part of the Bill. We may wish to influence the contents of the code, and it would be right for the House to have a chance to make its criticisms, if it had any. Above all, we should applaud the fact that the Metropolitan police are moving in this direction. Let us make it an explicit decision affecting not just one police force but governing the conduct of stop-and-search operations by all police forces in England and Wales which come within the scope of the Bill.
      It would not be a great concession for the Minister to say that he agrees in principle with the new clause and that he will introduce in another place proposals to give effect to it. We have had experience of codes not only about questioning people in police stations but about the tape recording of interviews in police stations. The precedents are already in force for such a code. Apart from the clauses relating to detention, the most critical subject covered by the Bill is the way in which stop and search operations are to be conducted.
      I appeal to the Minister to treat this as a reasonable and sensible proposal which already has the support, by implication, of the Metropolitan police and which, I think, would have widespread support. If the police must be given extra powers—I wish they were not, but we have to take that for granted at the moment — the House should be able to say that the powers would be coercive if misused, that they have been misused in the past and, therefore, we wish to influence the way in which the police will use them in future. We can then put into the code all sorts of things about the manner in which people are stopped, how they should be spoken to, and how they should be searched so that dignity is not taken away from the individual and the whole process does not become threatening, humiliating or intimidating which, alas, it often is.
      That is a reasonable proposal, which would be of benefit to the police. What could be better for the police than for them to be able to say, "We know we are under criticism for the way in which we carry out stop-and-search activities, but if we have a code of conduct to which we will subscribe, and which is available publicly, that will lay down the way in which stop-and-search operations should be carried out."?
      I do not want to go into the details of what a code should contain beyond the few references I have already made. That would be trespassing too much on the time of the House. I know that many other hon. Members are so concerned about stop-and-search activities that they wish to speak. All I do is repeat my plea that this is a sensible proposal which would be of benefit to the police, to young people and to most people who are liable to be influenced by stop and search powers. I hope the Minister will accept the new clause as a proposal that will help and improve the Bill.
      Mr. Hurd: It might be helpful if I intervene briefly at this stage. There are a number of Government amendments in this group to which I should like to speak, and at the same time I should like to comment on the new clause. I shall leave on one side the other amendments in the group, particularly those tabled by my hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths). If need be, perhaps I may catch your eye briefly at the end of the debate, Mr. Deputy Speaker.
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      The hon. Member for Battersea (Mr. Dubs) started with a familiar critique, which he has thoroughly researched, about stop and search. This is relevant to the amendments in the names of members of the Liberal party to delete clauses 1, 2 and 3. As the hon. Gentleman said, clause 1 will permit the police, subject to the safeguards contained in clauses 2 and 3, to stop arid search a person whom they reasonably believe to be in possession of stolen goods, offensive weapons or housebreaking equipment. It is already an offence to be in possession of such articles in a public place. The clause provides the police with the power which they need to enforce the law. It gives effect to the recommendation of Sir Cyril Philips' Royal Commission, which was endorsed by Lord Scarman in his report on the Brixton disorders. Comparable powers exist throughout the Western democratic world, many of them wider than those proposed in the Bill, which are limited to the suspected possession of certain specified articles, so there is a good pedigree to this part of the Bill.
      6.45 pm
      The case deployed by the hon. Gentleman against the conferment of additional powers to stop and search is that they are not in practice efficient in controlling crime but are effective in damaging community relations. Both claims depend upon how the powers are used—this is surely the point—and this is where the new safeguards in clauses 2 and 3 come into the picture. The effectiveness of stop-and-search powers where they exist has been fully established. Home Office research and planning unit paper 15, with which the hon. Gentleman is familiar, shows that a substantial proportion of all arrests in London are made as a direct result of the use of these powers.
      The PSI report, which has been properly used in the Standing Committee and on the Floor of the House to buttress criticisms of the way in which these powers are used, shows that about a third of all arrests in the metropolis resulted from their use. Probably because of that finding, the authors of the PSI report, although they reported evidence critical of the way in which these powers were used, nevertheless did not recommend that they should cease. Having studied the PSI report, and having discussed it, not just with the Metropolitan commissioner but with the police in general throughout the country, we think it important that the exercise of these powers should be subject to effective controls. That is what the Bill tries to do.
      The hon. Member for Orkney and Shetland (Mr. Wallace) will probably try to put me right, but we believe that the power to search for offensive weapons, which was introduced in Scotland in 1981, has already proved its worth. On average, 27 per cent. of those searched under this power have been found to be carrying offensive weapons and have been successfully prosecuted. That is just a statistic, but it suggests that scores of horrible injuries may have been averted by the timely use of this power in Scotland.
      The power can also have an important deterrent effect on the streets. It can help to make them a safer place by deterring people from carrying offensive weapons when they know that the police will have power to stop and search for such weapons before they can be used.
      The other side of the case against clause 1 concerns the fears about the way in which the proposed powers will be used. As I have said, the PSI report undeniably confirms much other evidence to show that these powers need to be

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      used more responsibly, more carefully and more accountably. The kind of random, untargeted stopping and searching pinpointed in the PSI report damages relations between the police and those whom they are serving.
      The provisions of clauses 2 and 3 address the deficiencies exposed in both the PSI and Scarman reports. As I tried to show in the debate on Friday, the new safeguards push in the same direction as the Metropolitan Commissioner is pushing for strictly policing reasons in London. They will reinforce the fundamental safeguard that police action should be based on reasonable suspicion of the individual concerned, and they will make abuse, over-use or insufficiently directed use of the powers both less likely to occur and easier to detect.
      There is a question which we are entitled to put to those who criticise the provisions: what action should an officer take if he finds someone behaving in a way or in circumstances which give him reasonable grounds to believe that a stolen or prohibited article is being carried? Is he to do nothing?
      Ms. Clare Short: Arrest him.
      Mr. Hurd: Quite so. The hon. Lady has intervened helpfully and said, "Arrest him." The point about arrest is that it is much more coercive than stopping and searching. This is one of my difficulties with the critics of this part of the Bill. They are constantly pushing for the police to arrest at an earlier stage. Part of the Bill's philosophy is that powers should be used only to the extent that they are necessary. I am simply not happy with earlier and more frequent arrest as an alternative to stopping and searching. It blows up straight away the argument that the Opposition are concerned with the liberties of the subject, because the intervention of the hon. Lady is not a civil rights objection at all.
      Ms. Clare Short: It is my view and, I think, the view of the Opposition, that if the police had to arrest in such circumstances they would be more careful, they would use the power more selectively, they would have better grounds for their suspicion before they arrested and, therefore, there would be a better protection of liberty.
      Mr. Hurd: That is a tortuous argument. The Opposition's proposal for the deletion of stop and search would compel the police to make arrests which may not be justified and which they would not need to make. That is a far more coercive power than stop and search.
      Stop and search is a real alternative to arrest. Provided that it is used carefully and responsibly, it is a valuable tool in the hands of those charged with maintaining public tranquility and protecting the public, particularly in relation to street crime—one of the main new afflictions in our cities.
      When there is criticism of a power, one must decide whether to abolish that power, even if it is needed to protect the public — which would be foolish — or to surround it with safeguards. That is what we are trying to do.
      I am not opposed in principle to the new clause. As the hon. Member for Battersea said, the Metropolitan police are considering such a code. I am pleased about that, but I am a little reluctant to add to the codes annexed to the Bill. One of the problems is that the Bill is already
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      multiplying paperwork. Clauses 2 and 3 are already very detailed. I have not yet looked at the Metropolitan police draft, and I do not know whether it contains additional safeguards. If such a code were included in the Bill it would apply throughout the country under clauses 59 and 60.
      I am not happy with the new clause, because it is not needed, and I hope that the hon. Gentleman will not press the clause. I have laid out our considerations and I should like to consider the principle without commitment. I have no doubt that other hon. Members will have views and I should like to consider the practicalities.
      Government amendments Nos. 4, 5, 10 and 11 fulfil an undertaking given in Committee to make it clear that all searches under the clause are limited to searches for stolen or prohibited articles. Amendments Nos. 3, 6, 7, 8, 9 and 12 deal with a problem which caused the Committee substantial difficulty in its early stages. They relate to the scope of the powers conferred by clause 1. In Committee we undertook to table amendments to clarify the various points.
      First, a new subsection is inserted at the beginning of the clause which sets out its scope. The House will see that this does not employ the concept of a public place, which caused the right hon. Member for Manchestr, Gorton (Mr. Kaufman) difficulty. The definition of "public place" varies from statute to statute. On reflection, I agree that it is desirable to avoid adding a new variant. Instead, the new subsection provides that a police officer may exercise his powers under clause 1 either in a place to which the public have a right or permission to enter, or in a place to which there is no right of entry, but where people can readily enter. Whether there is ready access in a particular case is a matter of fact and observation. Obviously one cannot lay down hard and fast rules in abstract terms.
      Mr. Dubs: May I take the Minister back to what he said about new clause 18? He made comments about the suggested code of practice and seemed to be sympathetic to it. It would help us to decide whether to press the issue to a vote if we knew how firm the Minister's commitment is to developing a code, perhaps not in the form suggested in the new clause.
      Mr. Hurd: I said that I should like to consider the matter without commitment.
      Mr. Dubs: I should like some commitment.
      Mr. Hurd: I am sure that the hon. Gentleman would like a commitment. I am trying to be fair and to explain the considerations for and against the proposition. I do not recommend my right hon. and hon. Friends to vote for the new clause, but I am prepared to consider the proposition that in addition, alongside, or in place of the Metropolitan code, a code should be annexed to the Bill. If we come to a favourable conclusion after consideration, there will be an opportunity to make a change in another place.
      The philosophy underlying the definition of the scope of the stop-and-search power is simple. If a person can readily get from the street to any place and is seen there by a police officer in circumstances which justify reasonable suspicion that he has on him stolen or prohibited articles, the police officer should be able to follow him to check that suspicion—unless, of course, the person is on his own residential property.
      If, for example, a police officer sees someone loitering in suspicious circumstances in a front garden, what is he

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      supposed to do? He would be failing in his duty if he did not investigate. The amendment makes it clear that he has the legal authority to do so. The majority of people would be glad for the police to search a stranger found on their property. The amendment makes it clear that a police officer is not debarred from exercising that power merely because a suspicious person has left the street and happens to be in somebody else's garden.
      Amendments Nos. 14 and 17 recast subsections (1) to (7) of clause 2, give effect to a number of undertakings given in Committee and set out the provisions of the clause in a more simple and comprehensive way. I hope that they will be acceptable to the House.
      Government amendments Nos. 18, 19, 23, 20, 21, 22, 24 and 25 simplify or give effect to relatively minor undertakings in Committee, and I hope that they commend themselves to the House.
      Mr. John Fraser: I represent a constituency where crime is far too high. The prime duty of a Member of Parliament is to protect the victims of crime, as much as to care for civil liberties. I represent a constituency where in the past relations between the community and the police reached rock bottom. It was at the epicentre of the race riots in Britain. Our job is to weigh carefully the interests of the victims of crime, the development of police powers and those who suffer searches and stops, arrests and sometimes harassment.
      I observe the principle of defending people's rights, but I make a pragmatic judgment about how one should phrase the law. I have no wish to defend criminals. On the whole they do not support the Labour party—they tend to be Tory supporters. I remember canvassing in my constituency and telling one man many reasons why he should vote Labour. He said, "You are very convincing, but there is one single reason why I shall not vote Labour — under a Labour Government a working man is not prepared to do an honest day's work." Mr. Charles Richardson, a constituent of mine who was subsequently sent down for a long period, was a supporter of the Tory party. In my experience, criminals in general tend to support the party of exploitation rather than the party of equality.
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      It is often said that it is better that 10 guilty men should go free than that one innocent man should be found guilty. We should be able to refine our law to the point where the choice is between five guilty men going free and one innocent man being found guilty. I take a pragmatic view. I have no objection to developments in the law which are fair and consistent with civil rights and which — emphasise this—will be effective in practice. That is the heart of the matter. If the extended powers of stop and search are not effective, but counter-productive, we may as well do without them.
      The House must choose between the view of the Royal Commission that police powers should be developed—admittedly, that view was endorsed by Lord Scarman—and the view which is the result of experience. Experience suggests to me that if there are to be stop-and-search powers, a code of practice should be attached to them.
      In paragraph 4·2 of his report on the causes of the riots in Brixton, Lord Scarman said:
      "The loss of confidence and the attitudes and beliefs to which it gave rise represented a serious break-down in relations between the police and the community they were serving."
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      I hope that I shall not be accused of being selective if, for the sake of brevity, I do not quote all the causes suggested by Lord Scarman for that breakdown. Lord Scarman said that one of the causes was
      "the 'hard' vigorous policing directed particularly against street crime".
      In other words, he was referring to the power to stop and search. He also referred to
      "methods which caused offence and apprehension to many."
      Those included the sus law, which has now been abolished, and
      "the exercise of the statutory power to stop and search".
      Lord Scarman was referring to the statutory power to stop and search which is available to the Metropolitan police and which the Government wish to extend to the whole country. He referred to "Swamp '81". which was a stop-and-search operation of the type which should be controlled by a code of conduct.
      Finally, Lord Scarman said that one of the causes of the breakdown of relations was the
      "unlawful, and, in particular, racially prejudiced, conduct by some police officers when stopping, searching and arresting young blacks suspected (or allegedly suspected) of street crime."
      Lord Scarman's conclusions were based on facts. They were distilled from the cauldron of the Brixton riots, and the House should consider them carefully. If the extension of the stop-and-search powers leads to a lack of confidence in the police and growing tension between the police and the community, street crime will not be stopped and the crime figures will not be reduced.
      Experience in Brixton and Lambeth supports that view. In that area, under supervision and after discussion with the community-police consultative group, there has been a change in the way in which the police use the stop-and-search powers and undertake the policing of the borough. As a result of that liaison with the community, there has been a reduction in crime, as the Home Office would be the first to claim. One of the reasons for that reduction must be the less hard, less vigorous and more sensitive exercise of police powers. The lesson that we must learn is that the hard and vigorous use of statutory powers—Lord Scarman never suggested that the powers were improperly used—is not helpful and that the powers should be used in a way which is sensitive to the feelings of the community and gains its co-operation.
      The Home Office lays great store by the views of the police-community consultative group for Lambeth. That group echoed what has been said by my hon. Friend the Member for Battersea (Mr. Dubs). It pointed out that the Metropolitan police are drawing up a code of conduct, and added:
      "The Group considers that this police intention to draw up their own code of practice on stop and search in the street reinforces the Group's request that there should be amendment empowering the Home Office to introduce a code of practice in general terms on stop and search, that can be interpreted sensitively to meet the needs of different areas."
      The Government have paid attention to what is happening in Lambeth, and take some credit for the reduction in crime. I ask the Government to listen to the views of the consultative group which endorses the view expressed from the Government Front Bench that there should be a code of conduct on these matters. We should remember that when the power becomes statutory it is likely that there will be more searches.
      There are two subsidiary matters which are likely to be raised by the hon. Member for Bury St. Edmunds (Mr.

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      Griffiths). I agree with him on one of them and disagree on the other. I am referring to amendments Nos. 305 and 307.
      I disagree with the hon. Gentleman's attempt to make provision for searches of headgear as part of the stop-and-search operation. The hon. Gentleman's amendment would exclude the searching of headgear worn for religious reasons. No doubt the hon. Gentleman is thinking of the Sikhs. However, in Brixton and other areas of the country where there are many Rastafarians, offence is likely to be caused if a Rastafarian is obliged to take off his tam in public. That sometimes happens in the course of a search for drugs.
      It would be better not to involve ourselves in an argument about whether Rastafarians are members of a religious group. The sensible course would be to leave out of the Bill any reference to a power to search headgear, and to leave the matter to negotiation between the policeman and the person concerned in the street. Someone who refuses to allow his headgear to be searched can be taken to the police station if there is a reasonable suspicion that he is carrying something which would constitute the commission of an offence. I ask the Government to resist the hon. Gentleman's proposal. The Bill at present does not mention the search of headgear, and I think that that is right.
      I agree with the hon. Member for Bury St. Edmunds on the other matter, on the assumption that he supports the repeal of section 23 of the Misuse of Drugs Act 1971. The hon. Gentleman proposes that the powers of stop and search should be extended to those who are likely to be carrying or trafficking in addictive drugs. I believe that he means that the power to stop and search should be extended to those who are carrying or dealing in drugs such as heroin or cocaine, but not cannabis.
      Mr. Eldon Griffiths indicated assent.
      Mr. Fraser: The hon. Gentleman nods his head. The power to stop and search for cannabis and all controlled drugs rests in section 23 of the 1971 Act, but only section 24 is to be repealed by the Bill. I believe that section 23 should be repealed and, if necessary, re-enacted. If the Government believe that the power to stop and search should be available only for serious offences or offences involving prohibited objects such as offensive weapons, they are wrong to maintain the power to stop and search—as opposed to the power of arrest—for non-addictive drugs such as cannabis.
      Many of the stops made in my constituency involve cannabis. Last year there were 33,000 searches in Lambeth. In the Brixton division alone, there were 1,700 stops for the misuse of drugs, and in most cases the drug in question was cannabis. If the view of the Home Office is that stop and search should be reserved for the more serious offences, cannabis should not be subject to stop-and-search powers. My view is wholly consistent with what I said last Friday. I believe that we should fight as hard as possible against those who traffic in—or even carry—addictive drugs such as heroin.
      I believe that there should be a code of conduct to regulate the use of stop-and-search powers. My views were hammered out on the anvil of the Brixton riots and have been matured and confirmed by the views of Lord Scarman and of the consultative group. I hope that in the
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      interests of law and order and of the good relations between the police and the public which, above all, reduce the incidence of crime, new clause 18 will be accepted.
      Mr. Eldon Griffiths: It is always a pleasure to speak after the hon. Member for Norwood (Mr. Fraser). Although I have scored only one out of two possible successes with him, I share his thinking on virtually all of the subjects on which he touched. I shall speak to my amendments, Nos. 305, 306 and 307, but before doing so I should like warmly to welcome the way in which my right hon. Friend the Minister, not for the first time, has honoured the undertakings that he gave in Committee. The amendments which the Government have tabled meet in every respect the undertakings he gave.
      As to the Opposition's proposal, in principle I have no objection to a code of conduct in respect of stop-and-search powers, but I imagine that it would be extremely complicated to produce. However, the Bill empowers the Secretary of State to produce such codes. As my right hon. Friend considers the matter further, he might feel that there is a case for trying to draft such a code. I am sure, however, that he would be wise to wait and see how the Metropolitan police code comes out first. There might then be some discussion in the House. I thought the speech of the hon. Member for Norwood persuasive in regard to a code of conduct. I have no advice from the Police Federation on the matter, but I see no objection in principle to such a code of practice, provided that it can be drafted in a workable way. That is where the burden of proof must rest.
      For those who served on the Standing Committee, amendment No. 307 is literally old hat, as I am trying once again, as the hon. Member for Norwood forecast, to instate a police power to require a person who is suspected of having criminal matter hidden under his or her headgear to remove it at the point of superficial search. I can summarise the reasons briefly.
      It is the experience of the police in many parts of the country that street crime, especially the mugging of elderly people and the stealing of their purse, bracelet or money, is often accompanied by the mugger of thief putting the fruits of his crime under his hat. It is also police experience in regard to some gangs in Glasgow, London and Liverpool that weapons, notably razor blades and flick knives, are hidden under a hat. The hat might be a peaked cap or a motorcycle helmet. It is also police experience that the pickpocket or dip on the tube or in a football crowd will secrete what he or she has stolen under a bonnet or beret. Many football hooligans at grounds, whether at Chelsea, Birmingham or Anderlecht, where they caused chaos, carry the knife, the booze and sometimes the drugs—for example amphetamines—in their bonnets.
      A superficial search is just a quick frisk in the street to determine whether someone has weapons or the fruits of crime on him. If he has not, he can be sent on his way quickly. When the police do that, the Bill will allow the removal of overcoat, jacket and gloves, no matter how cold it is. The suspect will stand there without all those items, but will still have his hat on because the police may not require him to remove it. I find that anomalous, to put it mildly. It is absurd, except for the fact that there are reasons for it. One is that it has been conventional wisdom in the Metropolitan police for a long time that clothing does not include a hat. The time–honoured language is therefore that of the Bill. It includes the overcoat, the

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      jacket and the gloves, but the hat has never been mentioned. Nevertheless, the police have always required people to remove their headgear if they think that there are weapons or the fruits of crime beneath it. Moreover, I am sorry to say that I believe they will continue to do that for their own protection.
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      The Bill does not include the power to remove the hat, and because such removal is explicitly excluded, any police officer who requires the removal of the hat will be in breach of the criminal law and therefore be subject to disciplinary action. A second reason for the Bill excluding headgear is, as my right hon. Friend the Minister said in Committee—he had the support of the Opposition—the religious sensitivities of three groups of people—Sikhs, Orthodox Jews and Rastafarians.
      Mr. John Fraser: And nuns.
      Mr. Eldon Griffiths: Indeed. They were not mentioned in Committee, but I am sure that they would have been if Opposition Members had thought of them. I entirely understand such religious sensitivities. Indeed, it was my responsibility, when a Minister, to put through the motorcycle helmet legislation. I had the greatest difficulty over turbans when we required Sikhs to wear hard helmets. I understand the problem of the Orthodox Jew. It would be monstrous for a policeman to require a breach of a religious sanction in a street. It would be found to be deeply offensive. That is why my amendment is carefully drafted to say that there should be no obligation to remove head covering if it is worn for a religious purpose.
      I take the point made by the hon. Member for Norwood that that leads us into the argument whether Rastafarians are a religious group. Such matters can be determined by the courts. Much greater argument between the police and Rastafarians would be caused by the police, because they could not require the removal of the head covering, having to make an arrest so that the person in question could be put into a police van, police station or public house where they could carry out a search and forcibly remove the headgear. That would be a far greater source of altercation. The matter would be far simpler if amendment No. 307 were carried.
      Mr. John Fraser: The unanimous view of the police consultative group in Brixton, and a view from which the police did not dissent, was that the Home Office was correct and the hon. Gentleman was wrong on this matter.
      Mr. Eldon Griffiths: I am aware of that. I am not surprised that that was the view of the Home Office, because it is the author of the Bill. I believe that I speak for the police service as a whole. The superintendents association has made it clear that the amendment should be made, and the Police Federation is crystal clear that it should be included. I also understand that the crime committee of the Association of Chief Police Officers favours its inclusion. Therefore, while I accept what the hon. Gentleman says, I hope that he accepts that there is a fair weight of operational experience on my side.
      It is important that the amendment be argued out. As I have redrafted it to avoid giving offence to people who wear headgear for a religious purpose, I ask my right hon. Friend to re-examine it.
      One of the things that has deeply offended the British public recently has been the rise in football hooliganism.
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      Time and again we have appalling incidents in this country and abroad after which Ministers come to the House—I have been a Minister with responsibility for sport—deeply to deplore it and to say that it must stop. They say that the clubs, the football leagues or the police must deal with the problem, but that in any case it is a disgrace, as the Prime Minister rightly said recently, and must be dealt with. Yet many football fans going through the turnstiles into the grounds or getting off coaches carry with them the liquor and the knives that cause most of the problems.
      From time to time the police do quick checks at the turnstiles or when fans are coming out of coaches or trams. The police pat the pockets of fans and ask them, if necessary, to remove their overcoats, because the police want to find out whether they are carrying booze or knives. Once it becomes known—it will become known—that all one needs to do when carrying booze, drugs or knives is to stick the item in the bonnet, so to speak, for the police to do nothing unless they make an arrest, that is where the items will be secreted.
      If hon. Members say, "Let the police arrest them," I must put it to them that the police would have no choice at turnstiles or railway station exits but to arrest large numbers of football fans, with all that is associated with arrest, such as the deprivation of liberty, altercations and the inability of young people to get to the football fields. The police would have to go through the process of arrest to be able to search headgear or at least to ascertain that fans were not carrying booze or knives. It would be so much simpler for the police to have the power to say, "Take off your hat. If there is nothing underneath, you may go on your way."
      The House does not really seem to understand the operational realities which the police face when they are dealing with football fans. I must say to the Government, whom I am trying to support throughout the Bill, that they are misguided on this matter. It is, with respect to my right hon. Friend, no use the Prime Minister coming to the House and saying that football hooliganism is a humiliation to Britain and that she must offer apologies, when, in a Bill of this magnitude, we inhibit the police in their attempts to deal with the problem.
      I am sorry to have delayed the House on the matter. I shall deal now with amendments Nos. 305 and 306, which touch upon drugs. During the debate last Friday on the policing of London, my hon. Friend the Member for Kensington (Sir B. Rhys Williams) spoke at length about the drugs menace. The hon. Member for Norwood has adverted to it as well. It is only right to say, using very measured language, that the use of hard drugs in Britain is in danger of taking on epidemic proportions. I use those words carefully, because that has not yet happened, but it is on the way. The evidence is all to hand.
      My hon. Friend the Member for East Lindsey (Mr. Tapsell) often visits the far east. He will know that the problem arises there, and much of the problem that is impacting on the United Kingdom comes from south-east Asia. As a result of the middle east war authority has broken down in Iraq and Iran, and much larger quantities of drugs are flowing on to the world market. The United Nations commission said recently of Italy that the heroin laboratories that have recently been unearthed in Sicily are numerous and include signs of the re-emergence of the Mafia dope rings.
      A Health Service bulletin said recently that the total number of registered drug addicts in Britain had risen from

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      about 4,000 to about 8,000 in the past 10 years, but that the actual number of users was probably closer to 40,000 of whom at least 20,000 were on hard drugs. The problem is coming to our shores, and it has an intimate connection with crime.
      I shall give just three examples. I am obliged to the chief constable of Sussex for the information that in 1983 he executed 69 search warrants in his police area with a positive result. So far in 1984 he has successfully executed 120 such warrants, which is nearly double the 1983 figure. In the case of heroin, seven arrests were made in 1982, 50 in 1983 and 29 have been made so far this year. The progression is clear and upwards.
      In relation to the Lothian police area, I shall refer to a, report by the chief constable of Lothian and Borders. He said in his annual report:
      "Drug abuse in Edinburgh has reached the stage where heroin is in prolific use in several districts of the city."
      He reported that there was a serious involvement of the criminal fraternity in the market for heroin, morphine and cocaine, that large sums of money were readily available for financing drug dealings, and that there was evidence that the so-called customers were turning to crime to raise the money to feed their addiction. Those are the considered words of the chief constable in his report to his police authority.
      The Times, in a report on the matter, said that a survey of those arrested for theft or housebreaking in Edinburgh in a six-month period last year showed that more than 34 per cent. of those offences had direct links with drug abuse. The connection between drugs and violent crime is proven.
      I mention finally the Thames Valley police authority. I have deliberately left out London, because the Metropolitan police were dealt with adequately in the debate last Friday.
      I am obliged for my information on Thames Valley to the police authority's chief constable, Mr. Peter Imbert, who said that the epidemic, as he called it, was spreading from the cities into the towns and was affecting more and more young people. He spoke of the tragedy of that situation and said that in the past few years the age of addicts had become younger and the accessibility of drugs was moving towards young people in our society. Mr. Imbert was chairing a three-day conference of the Association of Chief Police Officers, at Hutton in Lancashire, where they discussed the drugs problem.
      Lord Lane, the Lord Chief Justice, said it all in a speech not so long ago. I do not have his exact words with me, but he said that the hard drugs problem was becoming deadly serious in this country and that its link with crime was clear-cut.
      The Police and Criminal Evidence Bill is a major provision. It is a very good Bill, but it ought to deal with this matter. My amendments would make certain that it does. The hon. Member for Norwood divined my intention correctly. I do not wish to see the police conducting large-scale searches for cannabis, even though I am old-fashioned enough to believe that cannabis is a damaging drug which should not be legalised, and I have little patience with those who say that it should be. However, I understand their point of view. It is not the cannabis problem that concerns me, save only in so far as cannabis
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      can be a way-station on the road to harder drugs. I am concerned about the cocaine, heroin and morphine coming into Britain in ever-increasing quantities.
      The amendments would make it clear that the police have the right to search for those drugs and that the offence of trafficking in drugs has been clearly identified by the House as a crime which we can no longer accept. I believe that when he replies to the debate my right hon. Friend the Minister of State will be able to give us some comfort, in the sense that he will be able to point to the existing legislation and demonstrate that the police have statutory powers — not common law powers — to carry out the searches that I wish. If my right hon. Friend can convince the House that that is so I shall accept it, but I draw his attention to the suggestion made by the hon. Member for Norwood, that the drugs legislation might itself require reform. I shall not press any of my amendments to a Division, but I hope that the fact that the House has expressed its concern on the matter will lead the Government to take all the steps that they can to contain this appalling abuse.
      7.30 pm
      Mr. Wallace: All hon. Members share the concern of the hon. Member for Bury St. Edmunds (Mr. Griffiths) about the increase in drug-taking and drug abuse. We look forward to hearing whether the Minister considers that the present statutory provision is adequate in that respect.
      Amendments Nos. 1, 13 and 16, in the names of my right hon. and hon. Friends and myself, delete clause 1 and, consequentially, clauses 2 and 3. Early in his speech, the hon. Member for Bury St. Edmunds hit—totally unconsciously — on one of the reasons why we view with great concern the powers in the Bill for statutory stop and search. We oppose those powers because they are unnecessary and undesirable. The powers to stop and search are used when the police officer has reasonable grounds for suspecting that he will find stolen or prohibited articles, but we believe that the police already have sufficient substantive powers for those occasions when they reasonably suspect that someone is in possession of such articles.
      If a policeman has reasonable cause to suspect that a person is in possession of stolen articles, clearly he also has reasonable cause to suspect that an offence has been committed. It may be the offence of theft, being in possession of stolen property, burglary or robbery. Likewise, if the prohibited article is an offensive weapon, there is provision for him to make an arrest on that ground. He can either make an arrest or make a report for summons.
      The hon. Member for Bury St. Edmunds stumbled across our fear when he said that if we did not extend the powers of stop and search to include headgear, the police would have to arrest numerous people such as football supporters coming out of a railway station or entering a football ground. Our great fear is that those powers will be used on a mass basis. There is probably no particular reason for the police to think that each individual is contravening the law. We fear that the power will be used against sections of the community, and the police officer will not consider each individual when he has reasonable cause to suspect that some people are secreting bottles under their hats, which might be used as an offensive weapon.

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      The Minister said that we were forcing the police into using the power of arrest. A constable must justify any arrest that he makes. He takes account of the situation before he takes the important step of arresting someone. We believe that that prevents policemen using the power indiscriminately on a mass scale. If the power of stop and search is used indiscriminately on a mass scale, ill-feeling could be bred in certain sections of the community and the police force. For that reason, the power is undesirable as well as unnecessary.
      I do not want to elaborate on the speech made by the hon. Member for Battersea (Mr. Dubs), who referred to the reports and the work that has been done on stop and search. He made the argument as crystal clear as it could be, referring to the grave concern in many parts of the country that if the power of stop and search were used indiscriminately, there would be—there are already—increasing tensions between the coloured community and the police, and particularly between young people and the police. For that reason we do not believe that those powers add anything to the existing powers. If the police have reasonable grounds to suspect that someone is committing an offence, they have the power to arrest, and that should be sufficient.
      Mr. Eldon Griffiths: The hon. Gentleman will know, as a distinguished Scotsman, that the powers put into Scottish legislation some years ago are virtually identical to these powers. Does he agree that they have been relatively successful?
      Mr. Wallace: The hon. Gentleman almost took the words out of my mouth. I was about to take that very point. The Minister referred to the powers in section 4 of the Criminal Justice (Scotland) Act 1980. In the first year of its operation, about 881 persons were stopped and searched. I make it clear that that provision relates only to offensive weapons. Of those people, 292 were found to be in possession of offensive weapons. That information was given by the Solicitor-General for Scotland in a written answer to the hon. Member for Glasgow, Cathcart (Mr. Maxton) on 28 July 1982. At that time he was unable to add how many people had been subsequently convicted.
      One can take two points from those figures. First, it is not clear how many of the 292 found to be in possession of offensive weapons could equally well have been apprehended under the law as it previously stood—under the powers to make an arrest on the basis of a suspected contravention of the Prevention of Crime Act 1953. Secondly, one must equally consider that almost 600 people were stopped and searched who were not found to be in possession of offensive weapons, which is twice as many as those who were in possession of offensive weapons.
      The point is simple. We believe that adequate power for the police already exists. It is unnecessary for an additional power to be given to them. It is undesirable, for the reasons given by the hon. Member for Battersea. If, as appears likely, the power of stop and search is given, we acknowledge and accept the arguments for a code of conduct. That would ease the fears felt by many people and communities who feel threatened by such powers. We hope that in this matter the Government will not take a partisan view. It is a constructive proposal, to which I hope the Minister will give a sympathetic hearing and make a positive or at least an encouraging reply.
      Mr. Ivan Lawrence: There has been a recent rise in street crime, violence and the possession of drugs. The public are heartily sick of it and want something done about it. Only the SDP-Liberal alliance think that the law is adequate; the Royal Commission does not think that it is adequate. It is absurd that people with stolen property should be protected from being searched, except in London and certain other parts of the country. It is absurd that the police can search a person carrying birds' eggs but not a person carrying offensive weapons or house-breaking implements. It is absurd for Parliament to define an offence and for the police riot to be allowed to search for evidence of it. It is absurd to seek to remove clauses 1, 2 and 3.
      Civil liberties must be protected. However, is it not better to have rules that are rational, include safeguards, are clear, and certain to deter the police from taking unauthorised action, rather than to allow the existing position to continue, which gives the police the greatest temptation to abuse their rights and powers, and exploit the rights of individuals? The hon. Members for Birmingham, Ladywood (Ms. Short) and for Orkney and Shetland (Mr. Wallace) said that it was better to have the existing powers of arrest than the power to stop and search. I wonder whether they have thought through their argument. They are both worried about civil liberties. When a person is arrested, the temptation to abort the arrest is slight, and to justify it, considerable. Our system obliges the police to justify an arrest in order to protect themselves against criticism for having done something unjustified. That leads to the abuses of civil liberties, about which many hon. Members have complained. It is necessary first to search for evidence to justify the arrest. In that way, the liberty of the individual will be better protected. It is unbelievable that hon. Members think it right to arrest somebody without evidence rather than to find the evidence first before justifying the, often irrevocable, step of arrest.
      The hon. Member for Battersea (Mr. Dubs) said that if half a million people have been stopped without legal sanction, it is absurd to say that that therefore justifies an extension of the rule to cover these offences. If there have been half a million cases of unauthorised stopping and searching, does it not underline the fact that the existing law is neither clear nor easily understandable? We should make the law clearer and more certain. If, at the same time, we can rationalise it, make it more sensible and better able to protect the public, we should do so. The Bill allows us to do that. The Royal Commission thought that the improvements to the law — rationalising it, improving the safeguards, clarity and certainty — were justified. The overwhelming majority of people will agree. The Government provided more safeguards than the Royal Commission recommended.
      7.45 pm
      People are heartily fed up with and sick about the crime of football hooliganism. They do not want to be stopped from going to football matches. They do not wish to board up the shops that are en route to the football ground. Nor do they want the police to be subject to personal violent attacks, and our hospitals are cluttered up with injured people because young thugs and hooligans get out of hand. My constituents ask me what we are doing about it. One answer is that we are giving the police more power to prevent it at source.

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      The stop-and-search provision will deter some people from carrying knives, razors, sharpened coins, and from wearing spiked shoes and all the horrible paraphernalia of modern soccer hooligans. In Scotland one third of those searched were found to be carrying offensive weapons, which means that a lot of violence was avoided. That shows that the power works. The public want to see that power introduced into our law to avoid that sort of crime. Who will complain if, instead of being arrested and taken to a police station where he will undergo slow, humiliating and inconvenient activities that follow from, for example, contacting parents, he is searched peripherally in the street, and then allowed to go on his way if he is not in possession of illegal articles? What has the ordinary, law-abiding person to fear from that?
      Ms. Clare Short: When were you last searched?
      Mr. Lawrence: The police do not usually latch on to me when I leave a football ground—I concede that. I would have no objection to being searched. I should have less objection to being searched than to being carted off to a police station and slapped up in a cell for three or four hours, while they searched the hundred people there for evidence.
      Ms. Short: What about harassment?
      Mr. Lawrence: The hon. Lady is concerned about harassment, but it goes on now, and will always go on. It is much better to have a system of rules, regulations and safeguards which make harassment less likely than to have a free-for-all system, in which one must fight to explain and justify one's peace-loving activities. That is not necessary. We shall remove the temptation to harassment if we pass these powers.
      I support a code of conduct because it would provide certainty and clarification, and would reduce the threat of indiscriminate searches. Conservative Members are as worried about the maintenance of civil liberties and individual freedom as Opposition Members.
      I now turn to the question of hats. It is better not to argue in the street about whether a person has a religious reason for wearing a hat. It is difficult to hide a weapon in a skull cap, although not impossible. It is unlikely that nuns carry drugs under their cowls.
      Ms. Short: People might be disguised as nuns.
      Mr. Lawrence: It is possible that a Sikh will carry drugs in his turban, or that a Rastafarian will hide drugs or offensive weapons in his hat. Those who do not, may be slighted by being searched. Therefore, it is wholly sensible, if a person says that he is wearing his hat because he is religious and requests not to be searched and humiliated in the street, to take him to the nearest police station. Religious people who want law and order will not object to proving that they are law-abiding citizens in that way.
      The only people to object will be the lawless—those who are indeed hiding things under their hats. I do not think that we should worry too much about the susceptibilities of the lawless as it is to deal with those people that the legislation exists. We should thus not be too tender about hurting people's susceptibilities by looking under their hats if it provides protection for the public. People carrying offensive weapons could easily
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      hide them under their hats if the police had no power to search there. I therefore support my hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths) on that.
      The same applies with regard to drugs — a terrible and growing evil. As my hon. Friend said, the increased production of drugs in the middle east and elsewhere means that they are cheaper and more easily available to ever younger people. We are thus breeding a society in which the age of drug-taking and possession is constantly falling, and I believe that we shall find more drugs than ever before hidden in the clothes, hats and other parts of young people. If we wish to stop that, we must allow the police to search peripherally. If people object and feel that they would be humiliated by being searched in the street, they may go to a police station, but I should certainly rather be searched in the street and allowed to go than be taken to a police station and perhaps delayed for a couple of hours so that I miss my train and a vast audience is left waiting to hear my speech in my constituency. Moreover, my wife and family would not know where I was if the police had only one telephone and 50 people to investigate after a particular outburst of public lawlessness.
      I do not believe that any of these measures will stop all this crime, but they will be a deterrent. I believe that it is straining our sensitivities to suggest that any of them are fragrant infringements of the liberty of the individual. As a practitioner in the courts I have seen all the abuses for which the police have been challenged, charged, sometimes convicted and often disciplined in the past, which have arisen because the rules are not clear and the police are tempted to take powers that the law does not provide. I believe that there is much to be gained from simplification, rationalisation and clarification to make it clear to the police that if they infringe clear rules the penalties will be substantial.
      I therefore support my hon. Friend's proposals, although I do not suppose that the matter will be pressed to a Division. Indeed, I do not believe that we should command a majority if there were a vote as there are so few of us present. Nevertheless, my right hon. Friend the Minister of State has listened closely in the months since his appointment and the Government have listened closely to the matters urged upon them over the years. They have learned much and given effect to it. I am sure, therefore, that my right hon. Friend and the Government will take these matters to heart and I hope that they will seek ways to improve the legislation along the lines so sensibly recommended by my hon. Friend the Member for Bury St. Edmunds.
      Ms. Clare Short: I support new clause 18 and the concept of a code being introduced by the Government to control the use of stop-and-search powers. The Minister has said that he is prepared to consider this. In view of the support for the proposal in all parts of the House, I hope that he will take that undertaking very seriously and consider introducing such a code.
      I wish to share with the House some of the experiences of my constituency in the use and abuse of stop-and-search powers and the subsequent very wise police decision to limit the use of those powers. Such powers and the problems generated by their abuse have existed in the west midlands for a long time. As far back as 1976–77, relations were very bad indeed between the police and young black people in Handsworth, which includes a large part of my constituency and that of my hon. Friend the Member for

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      Birmingham, Perry Barr (Mr. Rooker). The police frequently stopped and searched young West Indians, making them turn out their pockets and bend over cars and using abusive and racist language. If one lived in the area, one heard of more than one such incident every day. The practice led to a substantial number of arrests, not because anything was found in the searches but because they led to conflict and fighting. A real problem was thus generated by the stop-and-search practice itself, not because the practice produced any evidence of previous criminal offences.
      As time went on, so much tension, conflict and distrust was generated between the police and young black people in the area that a series of incidents took place in which large groups of young black people were involved in attacks on police cars and fights with the police. Anyone living in the area at that time who knew any young black people was aware that the powers were being abused by the police. I lived in the area with a large number of sisters and brothers, but none of us and none of the young white people that we knew had similar experiences. There is no doubt at all that the powers were being abused. I remember a methodist vicar who ran a youth club in Handsworth telling how members of his church choir were stopped and searched and harassed on their way to and from choir practice. Utterly innocent, law-abiding, hard-working young black people lived in constant fear of being stopped by the police.
      The atmosphere in Handsworth in terms of law and order was thus one of fear, bitterness and hostility and stories in the local press generated the belief that it was a violent area, so that old people feared to go on to the streets. Far from making people feel safe on the streets, the extensive use of stop and search generates tension, anger, hostility, bad publicity and, consequently, fear because much of the fear of street crime is generated by the press, which often exaggerates the situation. Certainly in my area the prominence given by the press to crimes against old people probably causes more fear and upset than the crimes themselves, because exaggerated publicity about one incident can lead to all the old people in the area living in fear.
      None of us wishes to make any apology for street crime, and we all want to prevent it. Nevertheless, it is important that the House should be aware that in practice the use of such powers may often generate the opposite effect from that intended by Ministers and others who support them. The resulting climate of tension, hatred, distrust and clashes between the police and the community means that the entire community lives in a heightened atmosphere of fear and conflict.
      The west midlands is fortunate to have a chief constable whom I regard as probably the best in Britain. When things became so bad in 1976–77 in Handsworth, a number of us put it to him that something must be done because the police were out of control and the situation was deteriorating. He took the complaints seriously and responded with one of the early experiments in what is now widely known as community policing—indeed, the phrase has been used so much that we are anxious to replace it with something better. He sought to change the system of policing in Handsworth by bringing in older, more experienced policemen, getting policemen out of their panda cars and on to the streets and requiring them to meet the local community. The police were encouraged to visit youth clubs and choirs attended by young black
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      people so that they could see them as law-abiding, intelligent young black citizens instead of believing that every young black person in Britain was somehow involved in street crime—a stereotype view which leads to many unjust policing decisions.
      Therefore, the use of stop and search in Handsworth was scaled down, because we have a wise chief constable who realised that we had a serious problem, basically generated by the abuse of stop-and-search powers, and who decided to transform the policing and encourage the police to use the power more selectively. The number of incidents of stop and search — I do not know the statistics, but I know from experience — reduced massively, as did the amount of distrust between the police and the local community. The trust between the two is not perfect by any means, but it is now much greater. The sense of fear felt by many of the older people in the area diminished.
      8 pm
      It is easy to argue in generalities about law and order, crime and the need to give enlarged powers to the police. That sounds right, but in practice we know that in areas such as Handsworth and Brixton, insensitive policing and the crude use of powers against innocent people generate such an atmosphere of mistrust and hostility that law and order diminishes. I ask the Minister to take seriously his undertaking to put out guidance in a code. I hope that other areas of the country, if they have not been through the experiences of Handsworth, will not have to learn the lesson the hard way and will not unleash police abuse of the stop-and-search powers with the conflict and hostility that that generates, and will not have to learn painfully and individually that the powers, if they are there, must be used selectively in the interests of the decent relationship between the police and the community. It is only out of a decent relationship and a sense of community confidence that we get law and order, with people supporting each other and going to each other's aid and comfort when crimes are committed.
      Mr. Hurd: With the permission of the House, I should like to speak again to answer the speeches of my hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths) and those who supported his amendment, such as my hon. and learned Friend the Member for Burton (Mr. Lawrence). Although we have considered again and pondered anew the problem of hats since the debate in Committee, and although I recognise that my hon. Friend the Member for Bury St. Edmunds has made a valiant attempt to meet the points made in Committee, I cannot advise the House to accept his amendment.
      It is not desirable to allow, for example, the possibility of officers being empowered to remove, by force if necessary, a Sikh's turban. My hon. Friend has tried to deal with the point, but it is difficult to ask a police officer to detain a person in the street for the purposes of a search, and for him to know whether headgear is customarily worn by the person concerned for religious or secular purposes. That is putting a rather difficult burden on the police officer. The scope for argument in court, and even more important in the street, about the status of a particular item of headgear is a recipe for confrontation and hostility.
      The removal of headgear can be done privately off the street, as my hon. Friend acknowledged, and can he done in cases where arrest is justified after arrest, as my hon. Friend also acknowledged. Having looked at the matter

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      again, my right hon. and learned Friend the Home Secretary and I came to the conclusion that the risk of conflict outweighed the possible advantages.
      However, on the matter of drugs, I can be more helpful to my hon. Friend. I agree with his points, as I do with a large part of what the hon. Member for Norwood (Mr. Fraser) said. I agree that the police need the power to stop and search a person if they reasonably suspect him of being in unlawful possession or control of drugs. Such a power already exists under section 23(2) of the Misuse of Drugs Act 1971, as the hon. Gentleman rightly said. The Bill does not repeal that power. It will be subject to the safeguards that we are introducing in clauses 2 and 3, but it will remain as a power.
      We are not enthusiastic about going down the road advised by the hon. Member for Norwood of distinguishing in this legislation between cannabis and other drugs. That is not how the law stands at the moment, and it would be a mistake to start introducing that distinction into the Bill. The power exists under the 1971 Act and is not altered by the Bill, except that it is subjected to the safeguards of clauses 2 and 3.
      Mr. John Fraser: One of the real problems of young people and drugs is that there is not a sufficient distinction between drugs such as cannabis and those such as cocaine and heroin. Having universal powers of arrest, and having them all treated as controlled drugs, does not make a clear enough distinction between one and the other. In places such as south London, a very clever criminal fraternity has realised that because people sniff heroin they can market it in a way that makes it less distinct from the more readily accepted cannabis. Therefore, drawing a distinction between one and another might lead to fewer people going on to hard drugs.
      Mr. Hurd: My hon. Friend the Member for Kensington (Sir B. Rhys Williams) made that case in his speech on Friday, and I know that he would have liked to be here tonight. However, that is really a matter for drugs legislation and, whatever the merits of the hon. Gentleman's case, I do not think that this is something that can be smuggled into this Bill. It would be a major change which would need to be argued through. Obviously in policing—attention was drawn to this on Friday—more attention should be paid to those who traffic in hard drugs than to others. That is accepted as a matter of fact. To enshrine that distinction in law through an amendment to this Bill would be a mistake.
      Mr. Eldon Griffiths: I understand my right hon. Friend's difficulty in seeking to frame amendments to the drugs legislation in the course of this Bill. However, bearing in mind that it is what is known as the snorting and the smoking of hard drugs that are now the real mischief, can he at least go as far as to say that before the Bill goes to the other place he will have another look to see whether this unique opportunity to amend the law can be taken to assist the police?
      Mr. Hurd: The power already exists, and if my hon. Friend is suggesting that it should be diluted or the part of it concerned with cannabis should be removed, I must tell him that that would run into the difficulties that I have mentioned. Perhaps my hon. Friend and I can discuss this matter.
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      I do not dissent from the main thrust of what the hon. Member for Birmingham, Ladywood (Ms. Short) said. She made a powerful speech in favour, as I understood it, of the selective use of stop and search and the improvements which she said were brought about in the west midlands after Sir Philip Knights' decision. To a large extent these improvements are now in force throughout the country, because we have added the safeguard of clauses 2 and 3. This is the main point of my argument. The selective use of stop and search is the right use of this power. Chief officers are realising that, and that is to be reinforced in the law.
      I am glad that the hon. and learned Member for Montgomery (Mr. Carlile) is here, because in the absence of his steadying influence the alliance party has been saying some strange things. It has just proposed, I hope not with his consent, the complete abolition of stop and search. This means, to pin it down as my hon. Friend the Member for Bury St. Edmunds did, a difficult choice for the police. For example, at the entrance to a football match there may be people whom the police have reasonable grounds for supposing are carrying offensive weapons because that is their habit. Are the police to make many arrests, which may not turn out to be justified and exercise a coercive power, or are they to let these people pour in without making any effort to remove offensive weapons which may cause damage afterwards? The suggestion of the alliance party would put the police in a dilemma in which they should not be put.
      The figures that I have cited and to which the hon. Member for Orkney and Shetland (Mr. Wallace) referred in his intervention confirm that there are people walking the streets of Scotland at night who, had it not been for the power of stop and search, might have been injured by offensive weapons which were found following the exercise of those powers which we wish to give to the police, with safeguards, in England and Wales.
      Mr. Dubs: In the light of the encouraging response given by the Minister of State to new clause 18, I beg to ask leave to withdraw the motion.
      Motion and clause, by leave, withdrawn.

    New Clause 19

      POWERS AND DUTIES OF AUTHORITY IN INVESTIGATION OF COMPLAINTS &C.
      '(1) Where the Authority receives a complaint against a member of a police force either from a member of the public or from a chief officer of police in accordance with section 75 above it shall (unless the complaint alleges that the person complained against has committed a criminal offence with which that person has at the time the complaint is received been charged) forthwith record the complaint.

      (2) The Authority shall determine whether the complaint is suitable for informal resolution or whether it should be formally investigated.

      (3) A complaint is not suitable for informal resolution unless—

      (a) the member of the public and the police officer concerned each gives his consent; and

      (b) the Authority is satisfied that the conduct complained of, even if proved, would not justify a criminal charge.

      (4) The Authority may require a member of its investigative staff to make inquiries to assist it in determining whether informal resolution would be appropriate and desirable in the interests of promoting public confidence in the police force.

      (5) Where it appears to the Authority that informal resolution of a complaint is suitable and desirable then the Authority shall

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      attempt to achieve such informal resolution and, if succesful, the Authority shall not exercise its powers to recommend disciplinary proceedings.

      (6) Save where a complaint is resolved informally the Authority shall cause all complaints to be investigated by a member of its investigative staff.

      (7) A member of the Authority's investigative staff who is required under subsection (6) above to investigate a complant shall on the completion of his investigations or otherwise at the direction of the Authority furnish to the Authority a written report of the conclusion of the investigation.

      (8) Notwithstanding that no complaint has been made by a member of the public under section 75 above, the Authority may undertake an invetigation of any matter coming to its attention in relation to the conduct of any police officer or the death or injury to any person whilst that person was in police custody and which, by reason of its gravity or other exceptional circumstances, appears to require independent investigation, and shall make a report of such investigation to the Secretary of State.

      (9) The Authority shall send a copy of any report under subsection (8) above to the police authority and the chief officer of police of any police force which appears to the Authority to be concerned or involved in the matter investigated.

      (10) Officers and servants of the Authority who are not constables may by authority in writing given by the Chairman of the Authority be given the powers and privileges of constables either generally for the purposes of their duties as officers or servants of the Authority or for such particular purposes as the written authority may specify.

      (11) The Authority shall issue adequate means of identification to any person authorised in accordance with subsection (10) above, which shall be produced on demand to any person in respect of whom or whose property that authorised person is permitted to act by virtue of the said authorisation.'.—[Mr. Dubs.]

      Brought up, and read the First time.
      Mr. Dubs: I beg to move, That the clause be read a Second time.
      Mr. Deputy Speaker (Mr. Harold Walker): With this it will be convenient to take the following amendments:
      No. 322, in clause 74, page 64, leave out line 4 and insert 'Authority for Police Complaints'.
      No. 323, in page 64, line 5, leave out 'Police Complaints Authority' and insert 'Authority for Police Complaints'.
      No. 187, in page 64, line 8, leave out 'supervision of investigations' and insert 'investigation'.
      No. 188, in clause 75, page 64, line 16, leave out from
      'take' to 'evidence' in line 17 and insert
      'only such steps as appear to him essential to prevent the concealment, loss or destruction of.
      No. 189, in page 64, line 19, leave out
      'record the making of the complaint and its nature'
      and insert
      'forward the complaint forthwith to the Authority'.
      No. 190, in page 64, line 22, after 'submitted', insert
      'either to the chief officer of police or directly to the Authority—'.
      No. 193, in page 64, line 28, leave out clauses 76 to 80.
      No. 247, in schedule 4, page 99, line 28, at end insert—
      '6A. In exercising its powers under this Schedule the Authority shall ensure that sufficient staff are appointed to carry out the Authority's investigative duties under section 74 and section (Powers and Duties of Authority in Investigation of Complaints etc.) of this Act.
      6B. In appointing staff to carry out the Authority's investigative duties, the Authority may appoint serving members of police forces within the United Kingdom, provided that no serving member of a force is appointed for a period of more than three years, and provided also that the number of investigative
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      staff appointed from amongst serving members of police forces does not exceed one third of the total number of investigative staff.
      6C. The powers of the Secretary of State to make regulations under section 33(1) of the Police Act 1964 shall be deemed to include power to make, and the Secretary of State shall accordingly make, regulations to provide that any serving member of a police force, who is appointed to the staff of the Authority, shall continue to hold office as a constable, and shall retain his continuity of employment with the force of which he was a member immediately prior to his appointment by the Authority.'.
      Mr. Dubs: In an average year—1983 was typical—about 16,000 different complaints against the police are considered by the Police Complaints Board. In addition, it is clear that many people with a grievance against the police do not bother to complain. I know that from the conversations that I have had with constituents and from the people whom I have advised to complain who have said, "It is not worth doing," because they have no confidence in the present system for investigating complaints against the police.
      A substantial number of complaints are put to the police but are withdrawn at an early stage and therefore do not feature in the statistics produced by the Police Complaints Board. An estimated 15,000 such complaints are not proceeded with, sometimes because the individual is persuaded that it is not worth going ahead and sometimes because gentle pressure is applied to the complainant, along the lines that a complaint would be a lot of bother, or a police officer's career would be at stake. Whatever the truth and the precise number of complaints, we know that a significant number of complaints are not proceeded with. That adds up to a series of serious criticisms by the public of the present system of investigating complaints against the police.
      The purpose of the new clause is to establish an alternative and better system for investigating such complaints. It is right for me to deal briefly with what the present system consists of and the criticisms of it and to relate those details to the system suggested by the Government in the Bill. The present system consists basically of the police investigating any complaints raised against them. Although, occasionally, outside police officers are brought in to a police force to investigate, in the main, the complaints are investigated by the police officers from the force against which the criticisms were made. The result of that investigation, together with a recommendation which is usually made by the deputy chief constable, go before the Police Complaints Board. Where a criminal charge is a possibility, it is considered by the Director of Public Prosecutions.
      Although I welcome many aspects of the report of the Police Complaints Board, I am worried that the statistics, although clear in themselves, do not present the picture in a form as easily assimilated as it might be because they do not distinguish as clearly as they could between cases before the Director of Public Prosecutions and those dealt with merely by the board.
      In 1983 the board dealt with 16,231 complaints of all types. Normally, the board rubber-stamps the recommendations of the deputy chief constable, but in a small number of instances the board has decided that it wants more information or that it will recommend disciplinary charges. In 1983, the board recommended disciplinary charges in 34 instances. In 69 instances it requested further information from the police force before it felt that it could

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      come to a decision. About 234 complaints resulted in a charge being preferred. Advice was given in 1,346 complaints. Advice is really a form of discipline, less than the normal disciplinary procedures.
      8.15 pm
      The Government have acknowledged that there is serious criticism of the way in which the present system operates, at least to the extent of coming forward with alternative proposals. The proposals involve establishing a Police Complaints Authority which will, for the more serious categories of complaint, not merely receive the reports of the police but oversee the way in which the complaints are investigated by the police. No longer will the chief constable or the deputy chief constable of the police force be responsible for overseeing the investigation of the complaint. That responsibility will now lie with the new Police Complaints Authority.
      There is now the possibility of a conciliation procedure. For the lesser categories of complaints — we must recognise that what seems to be a lesser category of complaint may often be a serious matter to the complainant—there will be a conciliation procedure. I welcome that procedure, and it is carried forward in new clause 19.
      It is difficult, in terms of the Government's scheme of things, to understand how the police can be effective at conciliating between themselves and a complainant, because it departs from the concept that a third party independent of the issue at stake would be best placed to achieve such conciliation. The Government go some way towards acknowledging that difficulty in talking about having lay people in the police stations to reconcile the different interests of the police and the complainants. Nevertheless, that does not add up to a convincing approach. I should have thought that the object of conciliation could best be achieved by an independent body. That is part of the proposal recommended in new clause 19.
      The main difference between new clause 19 and the Government's proposals is that the police will no longer investigate complaints against themselves. That responsibility will rest upon investigators who are the servants or employees of the new Police Complaints Authority rather than upon serving police officers. The new clause represents a major and significant change from present practice, which will go a long way towards lessening the suspicions of the public that police complaints are not worth pursuing because of the way in which they are handled—a feeling that will not be diminished by the Government's proposed new system. The question is not so much who overseas the investigation of the complaint but who carries out the investigation. The public's concern will not be stilled by the Government's proposals, but will be met fairly and squarely by the scheme suggested in new clause 19.
      The following questions will be raised. From where are these investigators to come? How can we find people qualified and capable of doing the job? I readily concede that one cannot find them instantly and that there should be an interim period during which there must be a compromise between the present system and the new one until it is possible for the police complaints authority to find and train sufficient investigators to carry out the tasks suggested. In the meantime, there would have to be an
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      interim arrangement, and serving or possibly retired police officers would have to fill the gap. That interim period would have to last for some time to allow for training. Nevertheless, other than in the short term, the difficulty of finding inspectors is not a substantial point. Given the will and desire to train people, it is surely possible to set up a force of investigators who could do the job now done by the police force. I can see no serious difficulty in that course of action.
      I should like to make three points about the suggestion of using independent investigators. First, it has the merit of being supported by the Police Federation, although regrettably not by the hon. Member for Bury St. Edmunds (Mr. Griffiths), who normally speaks up very loyally for that body's wishes and policies. However, in this case he is not in agreement with it, so I fully understand his absence from the Chamber. Secondly, the new scheme would have the confidence of the public, and would meet a great deal of the public's criticism of the present arrangements. Thirdly, it would save police time.
      At present, if a burglary is to be investigated, it will be investigated by a fairly junior police officer, normally a police constable. However, if the person who has been burgled complains to the police about the way in which the burglary has been investigated, his complaint will be investigated at a much more senior level, possibly even by a police inspector. The police know that they are under pressure from the public, who are sceptical of the objectivity with which their complaints are investigated. I am sure, that in the main, such complaints are investigated fairly, but the public do not see it like that, and that is one reason for the change.
      The public therefore are critical of the investigations made by the police and of the time that they take. However, the police are nevertheless under pressure to go into the details of many of the complaints—although I readily concede that some of them may be frivolous, vexatious, or ill founded—and cannot readily dismiss them by saying that there are no prima facie grounds for looking into them.
      An independent body would not be so inhibited. It could say very quickly that a complaint was rubbish, that there was nothing in it and that no more time should be wasted on it. Thus, valuable police time would not be spent on such complaints and the total time spent might also be reduced. That would allow investigators to concentrate on the serious complaints against the police, about which there are many misgivings. Of course, the independent investigators would also be able to help in achieving conciliation over the lesser complaints, and that would also be an advantage.
      I just do not believe that this issue will go away. We have to arrive at a scheme along the lines envisaged in the new clause. The Government will say that they have responded to criticism and have made changes and that everything is all right. However, that is not how the public see it. I accept that the publicity given to the change in the system may persuade the public to give it a fair go, but I am strongly of the view that it will not be long before public unease will again loom, and we shall all be aware of it. The issue will not go away, and public criticism will continue as a result of the Government's approach, that the police should continue to investigate complaints against themselves. That public feeling will not be stilled and we shall all be made aware of it. It would be far better if the Government recognised public feeling and concern, and

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      agreed to meet the public's criticisms and to have an independent police complaints system. That is why I hope that the House will accept the new clause.
      Mr. Alex Carlile: While the police are involved in the investigation of complaints against the police, the public will never have the confidence that those complaints are being investigated properly. That proposition is supported not only by me, my party and those with whom we are allied, but, I would suggest, by the public at large, and in particular by police officers.
      Although the hon. Member for Bury St. Edmunds (Mr. Griffiths) was not prepared to espouse that view in Committee, it was put forward by the Police Federation in the helpful briefings and arguments that were presented in great detail to members of the Committee. From a speech that the Minister made in Committee, I gained the impression that the Government recognised that the public would not have confidence in the investigation of complaints by the police, even with Police Complaints Authority supervision; but that they took the view that there was no feasible way of creating a sufficiently experienced and adequate independent investigating group. Thus, I gained the impression that it was a practical consideration which led the Government to reject amendments similar to the new clause.
      There are several reasons why it is essential that totally independent investigative procedures should be introduced at some point. Many cases have been documented in which complaints against the police have been rejected for reasons varying from the banal to the casuistic, but which have led to great dissatisfaction among those who have complained. Many of the rejected complaints have not found their way into publications or newspaper articles dealing with the problems and inadequacies of the complaints procedure. Members of the public are afraid enough to complain, let alone to pursue a rejection via Members of Parliament or other channels.
      It is also essential to have an independent investigative procedure at some point, because of things which have happened during the course of what is broadly called plea bargaining in the magistrates and Crown courts. At present, plea bargaining in the crude sense is not permitted. The practice is frowned upon severely by the Court of Appeal Criminal Division, and by the Divisional court. However, the practice of plea bargaining is being followed to great advantage in some other jurisdictions, and the feeling is developing that the use here of controlled plea bargaining could serve a very useful purpose in shortening the length of criminal trials and speeding up the administration of justice.
      A practising lawyer knows that in the informal plea bargaining that takes place from time to time, one of the matters sometimes raised is whether a complaint against the police will be pursued. Quite unfair pressure is occasionally put on the accused to agree to abandon a complaint against the police, effectively in return for the prosecution accepting a plea of guilty to a lesser offence than that charged on the indictment, or a plea of guilty to the least offence on the indictment. That form of unfair pressure would be avoided if the police complaints procedure was removed from investigation by the police service.
      A third reason why it is essential that there should be an independent investigative body is for the protection of police officers. Hon. Members who have prosecuted and
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      defended police officers charged in the criminal courts—often charged with extremely serious offences; any officer charged in the Crown court faces not only financial and social ruin but, almost inevitably, an immediate prison sentence — have found that considerable pressure is sometimes put on police officers by police officers.
      8.30 pm
      I speak not of the investigation of disciplinary complaints but of alleged criminal offences. However, the same, according to the Police Federation, applies to the investigation of disciplinary complaints. Indeed, police officers are sometimes subjected to the most unreasonable pressure when investigations are carried out by police officers. That can often lead to injustice. There is, therefore, an overwhelming case for an independent investigative body from that viewpoint too.
      What practical objections lead the Government to shrug off the proposals in the new clause? Is it really correct to say that such a body could not be created or that, over a transitional period, it could not become effective and efficient? Neither point is an effective argument against the new clause. The hon. Member for Battersea (Mr. Dubs) referred to ex-police officers. Many of them—former senior police officers in large numbers — are working for firms of solicitors throughout the country conducting investigations into defence cases and briefing their principals in the magistrates courts, and counsel for the defence in the Crown court.
      Those former police officers — they may be gamekeepers turned poachers—are, as a body, the most effective group in looking after defendants' interests. Ex-senior officers with years of experience could be the backbone of an independent investigative body, at least during the transitional period.
      There are many investigating services with enormous experience of carrying out inquiries of the utmost complexity. For example, the investigating officers of Her Majesty's Customs and Excise have immense experience of, and skill in, carrying out difficult investigations, often in complex and hard circumstances requiring a great deal of subtlety. The Post Office investigation department has people of similar experience. The investigators of the DHSS—although they have come in for much criticism — have considerable experience of difficult investigations. Above all, the Inland Revenue's investigating officers have enormous skills in carrying out difficult inquiries.
      Those are some examples of bodies from which the expertise required for the initial setting up of such a service could be drawn. I do not for a moment accept that it would be impossible to set up such a service. It is plainly in the public interest to create one, and the fact that there would be a difficult transitional period should never be a reason for not taking a necessary step such as this.
      The new clause also provides that the new Police Complaints Authority would not only investigate complaints made about police officers' behaviour, but would also be able to institute inquiries, of its own volition, into circumstances brought to its attention concerning the police service.
      Disquiet is sometimes caused by police activity, and one can think of many examples of that; for example, the death of a prisoner in custody. Such a prisoner may have no one, no friends or relatives, to make a complaint on his

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      behalf. He may have been on the loose in London. There are examples of people on the loose in big cities who have died in police custody.
      I make no comment on the merits of it for the purposes of arguing for the new clause, but another obvious example would be the stopping of alleged pickets—say, in the Dartford tunnel on their way to wherever.
      Those are two examples of circumstances in which the authority might wish to instigate an investigation, not so much to decide whether particular officers have misbehaved; more to allay public anxiety which has arisen as the result of events which have come to public attention. There is, therefore, merit in the new clause, which I hope will be supported in the Lobby.
      Mr. Martin Stevens: This is a difficult issue to resolve. Naturally, everyone who hears the superficial, in my view, criticism that a man should not be judge in his own cause will feel an instinctive sympathy with the new clause. In practice, however, the question that must be resolved is not one of abstract justice but of practical and difficult administration.
      As a magistrate, I have tried dozens of cases in which complaints have been brought by members of the public against police officers and in which the police complaints procedure has led to the judgment that there was a case to answer. Not that one person's experience proves anything, but I have never presided over a case in which the bench felt that the criticism of the police was justified.
      It is a fact—perhaps alone among all the legislative processes that take place in courts and elsewhere in Britain—that people blame, criticise and harass the police as a means of evading the consequences of their actions. If we were to set up the kind of mechanism advocated in the new clause the result would be an immense consumption of police time.
      Such an investigation would have to be carried out in more formal circumstances than the police complaints procedure at present follows. It would be immensely expensive and the sole benefit that we should gain would be that some members of the public who interest themselves in these matters might feel that there was a greater play of abstract justice.
      Mr. Robert Kilroy-Silk: Would the hon. Gentleman not accept that an independent system for investigating complaints against the police need not necessarily be any more formal or extensive than the system currently obtaining? The most important consideration is not, as he suggests, administrative inconvenience, but the system that reaches the right decisions and, more important in many ways, one that has the confidence of the public. If there were an independent system for investigating complaints against the police, that would be more likely to elicit the confidence of the public, which would be to the advantage of the police as well as of the individual complainant.
      Mr. Stevens: I began by saying that this was a difficult point to judge. Of course I accept the force of what the hon. Gentleman says, as I am sure that my right hon. Friend does. However, I do not accept the hon. Gentleman's claim that an independent complaints procedure could be carried out in the relatively informal, well-informed way in which the present system works. It
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      would be slower, more expensive and time-consuming. I do not think that it would produce findings that were immeasurably fairer or more just than the findings that are produced now. I am not sure that the level of public mistrust and concern is as high as Opposition Members suggest. There are many criminologists and specialists, and people who may have been the victims of hard cases—
      Mr. Alex Carlile: Would the hon. Gentleman not agree that the present system is expensive and wasteful of police time? Wherever a complaint has been made against the police, if the person making the complaint is prosecuted, even for the most trivial complaint, an officer of at least the rank of superintendent has to sit in court at the trial. He is employed full time on discipline, so he is taken out of active police service, and he is usually an experienced operational senior officer who should be catching criminals. Would the hon. Gentleman not agree also that the fact that his court, the decisions of which I respect, has never convicted a policeman as the result of a disciplinary investigation shows that the present procedure results in a large number of unjust prosecutions being brought against police officers? The present investigative procedure is unfair to police officers, because it tends to be so hard-hearted.
      Mr. Stevens: The hon. and learned Gentleman raises an interesting point. When I said that the independent procedure would consume more police time, I did not have in mind the point that the hon. and learned Gentleman raised about the time spent in court by officers in such cases. I was thinking of the time taken by the investigation, since, however well-informed an outside person may be, the police still have to conduct their investigation with more formality and better records than is the case at present.
      It is not that the Government are doing nothing about the matter. My right hon. Friend—and it is not for me to make his case for him—has introduced into the Bill a number of guidelines and a number of new protections for the citizen which I support, and which I believe will work.
      Mr. Barry Porter: It has been suggested that an independent board or investigation procedure would reduce the amount of police time spent on complaints. Does my hon. Friend not think that it is likely that, even with an independent board, the senior officer will still attend the court and independent boards, and rightly so, to look after the interests of his officers? In my view, there would be no saving in time or in money.
      Mr. Stevens: I am sure that my hon. Friend is right. However, I do not want to seem to be arguing that there is no merit in what Oppposition Members are saying, or that their proposals are foolish—far from it. I am saying that it is the matter of the nicest judgment which way one jumps on this argument, and that I for one am prepared to support my right hon. Friend, and the provisions in the Bill, which go considerably further than the present system. I believe that there is a good chance of their working, and I shall vote to give the new proposals a chance.
      8.45 pm
      Mr. Bell: I am pleased to follow the hon. Member for Fulham (Mr. Stevens) in his attempt to grasp the points that are being made and to attribute to our proposals the

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      sincerity that they merit. Hon. Members who have sat through the Committee proceedings and who have listened to the various statements of the Minister are familiar with them.
      From personal experience, we believe that an independent Police Complaints Board or Authority is the appropriate course of action. I base that judgment on the various proceedings that have taken place in the county of Cleveland. Like other authorities, we have had a series of complaints against the police which were investigated by the police. The reports of the police on the police were not acceptable to the wider public in Cleveland, and certainly not to the police committee in Cleveland. These affairs rumbled on to a greater extent than they should have done. There was dissatisfaction among members of the police committee in Cleveland, and among the public who, on reading the newspaper reports, fell back upon the old saying that there is no smoke without fire and that there must be something more to this than met the eye.
      The police investigating themselves was not a happy formula in the view of the police, the public or the police committee, which has the duty to oversee police operations. This matter caused much dissension in Cleveland, a great deal of dissatisfaction in the police force and much public discontent. Even Her Majesty's Inspectorate of Constabulary, on its regular overseeing visits to Cleveland, refers to these matters, and to the fact that they are not resolved. The Police Complaints Board will be abolished under the Bill. We are not satisfied that the body that will replace it will be satisfactory from the point of view of the public or of the police.
      In its triennial review in 1983, the Police Complaints Board, in response to the Government's proposals in the previous Police and Criminal Evidence Bill, said:
      "Overall, the ultimate test of new arrangements must be whether they reassure the public of the integrity of these investigations, and remove the sense of unfairness which has been claimed."
      In a sense, that is the Police Complaints Board passing judgment upon itself, and it could well be described as a fitting epitaph on the board.
      In 1982, the Home Department in its evidence to the Select Committee on Home Affairs acknowledged public dissatisfaction with the present police complaints system and set out three objectives for a changed system. The first objective was to seek an increase in public confidence, while retaining genuine police service co-operation. The second objective was to contain or reduce costs and if possible increase effectiveness. The third objective was to give as much importance to satisfying the complainant as to determining whether the officer had offended, by retaining fairness for the police officers. That was the balance which the Select Committee sought to achieve in the setting up of a new procedure. In using those three objectives as guidelines we should examine the proposed scheme in the Bill, which had its origins in the White Paper of 1983 entitled "Police Complaints and Discipline Procedures".
      The purpose of the new clause is to impress upon the House the official Opposition's view, which in this instance is supported by the Liberal and Social Democratic parties, as so ably put by the hon. and learned Member for Montgomery (Mr. Carlile), that there should be a fully independent system for the investigation of complaints against the police. We believe that an independent body would meet the guidelines set down by the Select
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      Committee in 1982. We believe also that the scheme for investigating complaints that is proposed by the Government continues to be centred on the police. We contend that it is in the public interest, and in the interests of complainants, that that should cease. Justice should be done and be seen to be done, and we cannot accept the concept that the police investigating the police is appropriate and meets the satisfaction of the public.
      Complaints are to be made to the chief officer of police, or are to be directed to him, and he will determine whether informal resolution or conciliation is appropriate. He will appoint an investigating officer, who will be a police officer, to investigate the complaint. There will be a requirement that certain complaints should be notified to the new Police Complaints Authority. Certain other complaints may also be referred to that authority. The authority will have to supervise the investigation by the police of certain complaints, and it may supervise other investigations. At the conclusion of the investigation a report will be sent to the authority, and the authority will issue a certificate to the complainant that will show whether the investigation was carried out satisfactorily. The report will then be referred to the chief officer of police, who will determine how the matter should be dealt with.
      The Opposition do not believe that that is an appropriate method of handling the serious nature of complaints against the police. It must be accepted that some complaints are of a serious nature. In Cleveland there have been some complaints alleging violence by the police, which have had to be investigated. One complaint was supported by a decision of a High Court judge in a court of law. These matters are of the utmost importance to the complainant and we do not believe that the Government's proposals will meet the criterion of satisfying the complainant, let alone the public.
      We must ask ourselves whether the present system is wasteful of financial and human resources. The Government's scheme includes the supervision of an unspecified number of complaints. There will be those which are considered to be serious because they involve death or serious injury, the public image or the reputation of the police. We believe that those matters should be heard by an independent Police Complaints Authority.
      Are there hidden costs in the present proposals? We believe that the Government have failed generally to quantify the costs of the present system, which the Bill will abolish, in which thousands of police hours are spent working on complaints against the police. We believe that those costs will not be ameliorated by the Government's proposals. If the police involvement in the investigation of complaints were removed by the creation of a fully independent system, there would be significant benefits for the community, in that many officers would be returned to their normal policing duties, for which they were employed. In the debate on alternative systems for investigations, the true costs in money and human resources of the present structure must be put into the equation.
      The new clause and the Opposition's proposals generally turn on the issue of effectiveness. It is the experience of the National Council for Civil Liberties that so long as the investigation is carried out by the police, complainants and their witnesses, if any, will often be deterred from pursuing a complaint because they do not want any further involvement with the police. The council

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      has given me an example, which might be described as an extreme one, of a woman whose complaint concerned the unpleasant sexual behaviour of a police constable. It is not surprising that she withdrew her complaint when she was informed that it would be investigated by another constable visiting her home to take a statement. That is the sort of case which the council has referred to me and it represents a point of view which I wish to bring to the attention of the House.
      The Opposition's proposals are fully set out in the new clause. They are meant to allay some of the fears of those who do not believe that an independent complaints board would be appropriate. We have gone to some lengths in our proposals to assist both the police officer, who may be the subject of a complaint, and members of the public. According to our proposal, a complaint is not suitable for informal resolution unless the member of the public and the police officer concerned each gives his consent. The authority may require a member of its investigative staff to make inquiries to assist in determining whether an informal resolution would be appropriate and desirable in the interests of promoting public confidence in the police.
      Our proposals take on board the concept of public confidence. We wish to support public confidence in the police and it is no part of the official Opposition's argument — I surmise that this can be said of the arguments of the Liberal party and Social Democratic party—to seek to undermine it. That was made clear in Committee, which consisted of 59 sittings, and it has been made clear on Report as well as on Second Reading. I have no doubt that it will be made clear on Third Reading tomorrow. We shall say again and again that we are not here to weaken or erode the authority of the police. We are here to support and promote public confidence in the police. The new clause has been proposed because, as I pointed out in regard to our experience in Cleveland, public confidence in the police was eroded because complaints against certain officers were not properly resolved.
      In the new clause we seek to promote public confidence in the police. We want the informal resolution of complaints, which would be in the interests of the claimant and of the police officer. We would also give the authority the right not to exercise its powers to recommend disciplinary proceedings. In subsection (8) we try to cover the situation which could arise, as we have heard from the hon. and learned Member for Montgomery, through the death or injury of a person while in police custody.
      During the past few years the public have been gravely concerned about the number of persons who have died in police custody. Some years ago I was involved in the investigations which centred on Liddle Towers, a man from Chester-le-Street who died while in police custody in Gateshead. That led to two inquests and to a great deal of concern in the north-east of England; there was a series of investigations of one form and another. It was many years before public fears were allayed. That cannot be in the interests of the police.
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      Mr. Greg Knight: Can the hon. Gentleman explain to the House why he thinks there should be an investigation when there has been no complaint? Surely if there is public disquiet over an issue there is likely to be a complaint.
      Mr. Bell: The hon. and learned Member for Montgomery referred to those who died or suffered grevious injury while in police custody and who did not have relatives to bring attention to the matter. Such is the value we place on human life that we say that any death or serious injury to a person while in police custody should be the matter of an automatic investigation. I cannot, in equity or justice, see that that would be wrong. Often cases would go by the board if the press did not draw them to the attention of the wider public, and this has led to their investigation.
      Mr. Knight: Surely if someone died while in police custody the coroner would seek to pursue an investigation. If any irregularities came to light as a result, action would be taken in any event.
      Mr. Bell: The question then arises as to who would initiate the investigation once the coroner had found that there was an unnatural cause of death. Subsection (8) of the new clause says:
      "Notwithstanding that no complaint has been made by a member of the public under section 75 above, the Authority may undertake an investigation of any matter coming to its attention in relation to the conduct of any police officer or the death or injury to any person whilst that person was in police custody"
      Therefore we answer the question by saying that there should be an automatic independent investigation.
      We are not seeking to create another empire within the bureaucracy. We are not trying to create an authority which would of its own accord go all over the place to investigate a series of matters which are beyond its purview and its powers of investigation. We feel that an indpendent authority should have the right to investigate cases of death or injury. This is based on my personal knowledge of what happened in county Durham.
      As it stands, the Government's scheme involves the division of complaints into a large number of categories—the category that is suitable for informal resolution, the category that must be referred and supervised by the authority, the category that must be notified to the authority, the category that includes allegations of possible criminal offences and the category to be investigated but not supervised. A whole host of agencies or departments may be involved in the processing of the complaint—the chief officer of police, the preliminary investigating officer, the Police Complaints Authority, the Director of Public Prosecutions, the police authority itself, Her Majesty's Inspectorate of Constabulary, even the Home Secretary, the deputy chief constable and the appeal-stribunal. It would be almost impossible to advise a prospective complainant what would be done, and by whom, after a complaint had been submitted.
      We must also take into account the need for simplicity. We have the ombudsman to help people who wish to complain about maladministration in government. Someone who wishes to complain about the police and has a grievance should be able to complain. That right is covered by new clause 19. The new clause covers the policeman or someone else in the police service who has committed a criminal offence and against whom a complaint is made. If someone is in prison, such a case might go as far as the Director of Public Prosecutions.
      The Bill is not perfect and does not meet the criteria which we believe can be met only by an independent body. I do not see why we cannot move towards such independence as a matter of principle. We seek wider

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      public confidence in the police and a proper complaints procedure. Such a procedure should not be hampered by police bureaucracy. It should be handled by an independent body.
      Later in the year we shall perhaps discuss the possibility of setting up an indpendent service for the prosecution of crimes in the Crown and magistrates courts. If such an independent prosecution service is to be written into statute, we should also have an independent police complaints service.
      Sir Antony Buck: We are seeing the House of Commons at its best. We are striving for a solution to a vexed problem. Getting the police complaints procedure right is important to our society. Up to now we have considered it in a civilised and intelligent way. The arguments by Opposition Members have substance, but I work on the basis that I give my Government the benefit of the doubt. I doubt whether what the Opposition propose in their interesting new clause is much preferable to that which is set out in the Bill.
      The arguments are fairly evenly balanced. It is right to concede that. I do not believe in yabooism in politics. The Opposition should not condemn our Bill just because we proposed it, and I certainly do not condemn their interesting new clause just because they propose it. The argument for the independent element created by new clause 19 has substance.
      I hope that the Minister will compare the new clause witt the contents of schedule 4 so that we can consider the merits and demerits of the two schemes. It is very important that we should get the complaints procedure right. We are lucky in this country to have a high standard of policing and a police force of high quality. Public confidence, and the efficacy and credibility of the police, can be ruined by the existence of what the police themselves call a bad copper. There can be no greater canker than that. The vast majority of members of the police force are more keen than anyone else that someone who has let down the standards of the police force should be rooted out and dealt with.
      Some years ago I had the privilege of spending a week with the police. I went on patrol in the police car all night, and saw the scenes of crime. After that time my admiration for the police was even greater than it had been. They have a difficult, arduous and nasty task, especially in the case of road traffic cases and other incidents involving numbers of dead. However, we must not forget that the vast majority of policemen—the good coppers—are very keen to see that police officers who let the side down are dealt with fairly but strenuously.
      I hope that my right hon. Friend will compare the contents of schedule 4 with the contents of new clause 19. Certain aspects of clause 19 are worrying. It seems to me that the authority would be too autonomous. The members of the authority created by new clause 19 would be given almost untrammelled powers to investigate any sphere. That would not be healthy from the point of view of the creation of a sensible authority, and it would not be good for the morale of the police if they suddenly found that the new authority had the power to investigate any aspect of police affairs. No doubt the members of the authority would not act on a whim, but the police might feel that they were in some jeopardy.
      Mr. Barry Porter: Is not new clause 19 based on the supposition that there is a lack of public confidence in the
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      present procedures of the police force? There seems to be no evidence for that assertion. Has my hon. and learned Friend's experience within the legal profession suggested to him that there is a lack of public confidence in the ability of the police to judge themselves when complaints are made?
      Sir Anthony Buck: I do not think that there is much evidence of that, but I believe that justice must not only be done but be seen to be done. I therefore consider that the present system is not totally satisfactory. It is perhaps somewhat too incestuous.
      Under schedule 4 a new authority would be set up and the police would no longer be investigating the police. I am afraid that I have not studied in depth the deliberations of the Committee on this matter. I hope that my right hon. Friend will tell us what sort of person would be appointed as chairman of the authority, and how the authority would be composed. I apologise for not reading the Committee proceedings, which would probably have made that plain. My hon. Friends may feel incline to say, "Tut, tut." I challenge them to look me squarely in the face and say that they have read the many volumes of the deliberations of the Committee. I hope that my right hon. Friend will treat new clause 19 with the seriousness it demands and compare its provisions with what he recommends.
      Mr. Greg Knight: Can I take my hon. and learned Friend back to his point about incest? Is it not better than an investigation be carried out fairly by those who know what they are looking into, even if they are not completely independent, rather than by an independent body that renders the investigation something of a sham because of lack of experience?
      9.15 pm
      Sir Anthony Buck: As one expects from my hon. Friend, that is a cogent point. Ideally, we want a mixture of an independent element and the services of the police force. No doubt my right hon. Friend will deal with the composition of the Police Complaints Authority. It is the police who really know about investigation. If there is an independent element perhaps, for once, we shall be able to have our cake and eat it.
      My final point concerns what might appear to be a minutiae but we who are devoted to efficiency in government and clarity in drafting should pay attention to it. The Police Complaints Authority will, as is always the case in Whitehall—it is a habit that we have learnt from Washington—be abbreviated to PCA. The ombudsman is known as the Parliamentary Commissioner for Administration, or the PCA. We should concern ourselves with broad issues and administrative minutiae so that we do not create confusion when it is unnecessary. I have tabled amendments Nos. 322 and 323 so that the body shall be called the Authority for Police Complaints to avoid such confusion. I hope that my right hon. Friend the Minister will not reject the amendments out of hand because they are constructive, have an impeccable pedigree and have been discussed by the Parliamentary Commissioner for Administration. Government must be flexible and we should get concessions from our Front Bench on small but important matters.
      The Opposition's proposal is interesting and has considerable merit. On balance, however, what is proposed in the Bill is just preferable, but the matter is

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      nicely balanced. The House is at is best when avoiding yah-booism and discussing matters sensibly so that we do what is best for those whom we have the privilege to represent and the police force. I look forward to my right hon. Friend's winding-up speech in which he might finally convince us that the Government's proposals are marginally preferable to those advanced by the Opposition.
      Mr. Corbett: We should do our best to get the matter right, because it is probably our only opportunity for the next decade. We have had one stab at it and it is generally believed in the House and outside that the first attempt at establishing a police complaints board was not a success.
      In a sense, one complaint against the police is one complaint too many. That is not to say that I expect the police force to discharge perfectly the duties that have been laid upon them, but to put into perspective the fact that we must take very seriously any complaint made against police officers when carrying out their duties.
      Complaints will arise, so we need to be sure that the arrangements proposed in the Bill are the most sensible and sensitive way to deal with them properly. We know from the report of the Royal Commission on Criminal Procedure that the police rely overwhelmingly on the cooperation of the public when they solve crimes. We know, regretfully, that in the Metropolitan police area the clear-up rate of crimes has fallen, although there are more police on the streets to deal with burgeoning crime under this Government.
      It is important in the detection and cleaning-up of crime for the public to have confidence in the police force. Hand in hand with that, the public should have confidence in the system that we devise to deal with complaints made against the police.
      I regret very much that, during our discussions before the general election, more attention was not paid to procedures enabling conciliation to be used when complaints are made against the police. It is a grave mistake that the police committees are not, as I understand it, informed of complaints against the police. Neither are they invited, whether or not by their own choice, to attempt conciliation. The last thing that we need is a public who are increasingly hostile to the police, which should be part of the community that it is there to serve.
      There is scope for conciliation in many complaints that are levelled against the police, but the opportunity has been missed.
      A complaint about the existing Police Complaints Board—I lay it at the door of the system of which the board is the apex, rather than of the board itself—is that many complaints received by the board are subsequently withdrawn. That must be of great concern. The Under-Secretary will remember from our discussions in Committee that the Police Complaints Board reminded Committee Members in its letter that it had taken note of the many withdrawn complaints. It asked the Home Office to undertake research to discover why complaints were not proceeded with.
      It is too easy to say, in our system, that someone who is knocked off, whether or not he is charged, will lash back at the police. I remember that the hon. Member for Bury St. Edmunds (Mr. Griffiths) used the phrase in Committee, "If you do me, I shall do you," or words to
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      that effect. I believe that the hon. Gentleman is marking his 20th anniversary in this place tonight. I hope that he has done that in the best way possible, in the time available, although the night is still young. With respect to him, and I am sure that he did not mean it in this way, it is too flippant and easy to say that the major reason why complaints are withdrawn is that the complaints are put in an "I'll do you, you'll do me" manner in the heat of the moment. There is evidence that that is not so.
      Sir Antony Buck: Might not an informal conciliation have caused the complaints to be withdrawn? I have known that to happen. Peace has been made on an informal basis in the way that the hon. Gentleman advocates.
      Mr. Corbett: Yes, but regrettably no one knows why. That is why the Police Complaints Board asked the Home Office to carry out some research. A constituent of mine properly put in a complaint because of the way in which he was treated by the police. After the initial interview with the policemen who came to his home by arrangement—there is no complaint about that—my constituent said that he would withdraw the complaint because he had the strong impression that if he proceeded with it, every time he got into his motor car, someone would be waiting at the end of the road to knock him off. I do not know how well founded that belief was. I am just relating what my constituent said to me.
      The House will remember that in his report on the Brixton disorders, Lord Scarman touched on this matter. Having received evidence recommending various reforms for the complaints procedure, he concluded at paragraph 7.21:
      "My own view is that if public confidence in the police complaints procedure is to be achieved any solution falling short of a system of independent investigation available for all complaints — other than the frivolous — which are not withdrawn is unlikely to be successful. Any such system should include a 'conciliation process'."
      Parallel to that, research was carried out into the use of stop-and-search powers in the Notting Hill area in London. It showed a high rate of dissatisfaction—76 per cent. in the All Saints road area and 65 per cent. in the Holmefield estate area. There was almost total rejection of the police complaints procedure. Less than 6 per cent. of those who were dissatisfied made a complaint. As the Criminal Law Review 1983 recorded on page 612:
      "The most common reason given for not complaining about being stop-searched was, in both areas, a lack of faith in the police complaints system".
      I am sure that no one in the House wants in any sense to lend credence or support to a system of dealing with complaints against the police that does not stand a fair chance of winning, and deserving to win, the confidence of the public. That is the nub of the matter. In an ideal world, we would have tried to develop a system that was truly and wholly independent. I am talking about straight complaints, not complaints touching upon disciplinary matters. There is an important distinction to be made. One of the welcome changes in the Bill is that when disciplinary complaints are made, the police officer concerned will be able to have legal representation. Leaving that aside, we are now talking about more general complaints.
      Another of my constituents reported to me—I shall not go into detail, as it would be wrong to do so—that he felt that he had cause to lay a complaint against an officer of the West Midlands police force. The complaint

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      was filed, and an officer was appointed to deal with it. He was instructed to telephone my constituent's solicitor. I am told that the police officer opened the conversation—the solicitor was known to him—with the words, "You are surely not going to pursue this complaint, are you?" Alleged remarks of that sort do not help relations between the police and the public, nor do they encourage a belief in the independence of the system that analyses complaints about the police.
      9.30 pm
      The Government have no confidence in the Police Complaints Board. When the Minister replies he may say that that is not the case, and that, having listened to what was said about it, they propose this new authority. Since the Police Complaints Board has been in operation, the Government have presided over a worsening position. The report of the Police Complaints Board 1983 states:
      "The average time taken by the Board to complete action on a case was 46 days in 1983"—
      —that may not sound too long, but
      "compared with 34 days in 1982".
      The board is taking longer to deal with complaints. That is not satisfactory, and the Government are responsible for it. The report continues:
      "In … our last annual report we referred to the steps we had taken to increase the productivity of our small staff, steps which resulted in an increase in output of almost 9 per cent. for each caseworker, an improvement with which we were well pleased".
      So they should be. It continues:
      "It became clear, however, that we had insufficient staff to do the work".
      My complaint against the Government is that it took until 30 June for the Home Office to approve a temporary increase in the board's complement of three executive officers, and until 1 December for the new staff to be in post. The report continues:
      "By this date the backlog of cases not touched by the Board's staff had increased to almost 900. We plan to clear this backlog by the Autumn of 1984".
      We cannot have it both ways. We are all worried that the Police Complaints Board system does not work. We know from the Scarman report and the Policy Studies Institute report what the public's attitude to the Police Complaints Board is, yet it has taken us until now to respond. In that time there has been an increase in crime and an increased need to improve police-public relations. A more sensitive and thorough system of complaints about the police, whether or not they were frivolously lodged, was necessary.
      The West Midlands constabulary sets an example to most police forces. In 1982 it came ninth for the time its board took to deal with non-sub judice cases. In 1983 it climbed to fourth position. I hope that they will reach first position. They have had a smaller number of cases with which to deal. That may have contributed to the way in which the police carry out their duties in a disparate area, which includes the major city of Birmingham. I hope that the Minister will encourage the Home Office to consider the figures and what lies behind them, as the way in which the West Midlands police have managed to improve the position may provide useful lessons for other forces.
      I hope that we have got the provisions for the new complaints authority right, although I very much doubt it. Certainly, the Opposition in no way wish to impede the authority's work. I hope, therefore, that the Government
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      will come forward with a chairman and members with a real will to make the new body far more responsive and sensitive to those whom it is being set up to serve.
      Mr. Peter Bruinvels: I welcome clause 75 and the establishment of the Police Complaints Authority, and I am surprised that we should have to debate new clause 19 at all. The Bill makes it clear that appointments to the authority will be for a maximum of three years, so there will be an independent element in the senior officials serving on the authority.
      I cannot understand why Opposition Members consider that complaints will not be properly investigated by the authority. I am sure that the chief officer instructed by the authority to carry out an investigation will institute the correct facilities and call in a senior officer to handle the complaint. It seems something of a slur to imply that there might be difficulties there. I assure Opposition Members that they should not worry. The officer will certainly take down all the details and keep and protect all the evidence, because that is his duty under the Bill.
      We want professionals to investigate any complaint against the police, and that is what the Bill provides. We should leave it to the experts rather than bringing in outside people. The public need have no fear of making formal complaints, because I believe that the investigations will be properly carried out. Therefore, I cannot see any need for the new clause. The Opposition should appreciate that the senior officer handling the investigation will be brought in from outside the area to carry out the investigation. We must not cast doubt on the professional integrity of that officer, who will be instructed by the authority to carry out the investigation.
      The Police Complaints Authority will monitor all complaints at all times. How will monitoring be carried out under the system envisaged in the new clause? We all agree that we need to increase public confidence in the way in which investigations are carried out, and I understand—no doubt my hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths) will confirm this — that the police themselves support the new authority. I support the police and I believe that we should have confidence in them.
      Mr. Alex Carlile: The hon. Gentleman says that the police support the authority. I do not think that he was present earlier when the House was reminded that the Police Federation favours an independent investigative body. Had the hon. Gentleman overlooked that? If so, what has he to say about it now?
      Mr. Bruinvels: I am grateful to the hon. and learned Member for that information. However, the Police Federation has accepted that only up to a point. What concerns me more is who will be on the board that the hon. and learned Gentleman is suggesting, and what kind of experience such people will have. It seems to be the case that new clause 19(10) will create too many tiers of bureaucracy. I want to see experts not talkers, workers not stirrers, and that will not be the result if the new clause is passed.
      We want to enable the authority to carry on supervising the investigations. We want an independent element in the enquiry and that will be done by bringing in senior officers from outside the area. The chairman of the authority will be able to select a member of the authority to supervise the investigation and it will go on from there. The Secretary

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      of State will have the power to impose requirements on the investigation and a report will be properly submitted. What is wrong with that? I cannot understand what hon. Members are worrying about.
      After all this, we will know whether the investigation has been properly carried out. The report will be sent to the DPP if any extra action has to be taken. For that reason, I urge the House to throw out this new clause and support clause 75.
      Mr. John Fraser: One does not represent an area such as Brixton for many years without having to deal with many complaints about the police. I have come to three conclusions. The first is that there are many so-called complaints that should not be dealt with under the police complaints procedure. They are complaints about attitude and are grudges rather than formal complaints. They are best solved informally and when that happens, more often than not they are dealt with to everybody's satisfaction and result in an apology and the resumption of a good relationship between the person making the complaint and the police officer.
      My second conclusion is that the police complaints procedure centres far too much on whether the policeman has committed a criminal offence. When I have to make a complaint, I find that one of the most effective ways to start is by saying that I am not complaining of any criminal conduct on the part of the police officer. In that way, the police cannot evade the central thrust of the complaint by referring the complaint to the DPP and then getting a report back from the DPP saying that no criminal offence has been committed. If there is any advice that I can offer to fellow Members of Parliament, is to start one's letter, or get the constituent to start his letter, by saying that there is no complaint of criminal conduct and that it is simply a matter of attitude. This is a very effective way to deal with the problem and I am sure that the police are more receptive to it than to some other procedures.
      My third conclusion is that, apart from those cases involving informal resolution of these matters, it is most effective in the interests of the police as well as in the interests of the public to have a completely independent element. It does not cut any ice with members of the public to be told that the independent element in a complaints case is an officer from another police force, or in London a senior officer from another division.
      A recent case, which I mentioned last Friday, has given rise to much discussion in the black press and to some extent on television and radio programmes. It concerns a man called Junior Service who alleges that he was brutalised by the police. I wish to say nothing about the merits of the matter, but only that, in my view, the interests of the police in my division and the interests of both the black community and the entire community in such a case are best served by having a completely independent and rapid investigation. That is the most recent case that has come to my attention and it led to a huge rumpus in the local consultative police group, which I have been lucky enough to go to see since the beginning of the debate. It also supports the idea of a completely independent investigation.
      I do not wish to detain the House for long, but merely to speak with experience of an area where there has been great tension and to point out that I firmly believe that the
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      interests of everybody are best served by an independent element in the complaints procedure and by excluding the police. That will save police manpower, especially in places such as London. Rather than having a senior officer from another division dealing with these matters, there should be somebody from outside, who will probably be a lawyer, who will quickly build up experience in dealing with these matters and will be trusted by both sides.
      There will be another spin-off. I cannot recall a complaint by a professional criminal. The theory used to be that most complaints came from professional criminals who wanted to snarl up the investigation against them. I have never come across such cases, although I do not doubt that they exist somewhere. A totally independent element would mean that the ability to reject frivolous complaints early would be received with much greater confidence than if the complaints were treated as frivolous by investigating officers.
      It is believed—I hope that the Minister of State can tell us whether it is true — that the records of the Metropolitan police and, perhaps, of other authorities, eventually record whether a person has made a complaint against the police. It is a matter for alarm if that is correct, and the fact that someone has made a complaint is recorded in a secret way to which they have no access. I hope that the Minister of State will put that myth, if it is one, to rest.
      9.45 pm
      Mr. Eldon Griffiths: It is a pleasure, as I have said before, to follow the speech of the hon. Member for Norwood (Mr. Fraser).
      Mr. John Fraser: Do not keep congratulating me.
      Mr. Griffiths: The hon. Gentleman speaks with much knowledge and always in a reasonable fashion, and I share many of his views. I hope that I do not embarrass him.
      I welcome in general terms the reform that the Bill brings in. I do not believe that the Opposition's proposals are necessary. We went into these matters fairly fully in Committee. My difficulty — I believe that I candidly, admitted this to the Committee — is that the Police Federation has publicly said that it wishes to go all the way towards the independent investigation of complaints, but I believe that is not entirely the right way in which to go.
      My difficulty is practical. If the principle of going outside the police service for investigation were accepted, we would be faced with three new propositions. The first is that there are certain crimes which the police cannot be trusted to investigate. It is unpalatable to be asked to accept that the police can investigate the treason of a Minister, the activities of any hon. Member and any form of the most serious state crime, yet they are not to be trusted to investigate another serious crime—the failure of a police officer to do his duty properly. That suggestion is almost an insult to the police service.
      Secondly, we would have great difficulty in rapidly recruiting a core of competent independent investigators. They do not grow on trees. It may be that, if we follow the FBI fashion in the United States, sooner or later we could bring in lawyers, accountants or other professional people, but the House would be stretched to find the necessary core of competent investigators. Investigations of alleged crimes, complaints or other malpractices by the police are exceedingly difficult areas. Nothing proved that as conclusively as the Countryman affair. That matter was

      231
      not to the credit of the police service. It demonstrated the need for a sophisticated group of people to do the job. They are certainly not available.
      Thirdly, Britain is uniquely fortunate that the police service is broadly consistent across the country. I shall never favour a national police force. The police force should be locked into the territorial identity of our people. I believe that that creates a better sense of consent and of community. The British police are unique in wearing virtually the same uniform, being paid in the same way, being subject to the same laws and recognisable across the entire kingdom.
      If we created a separate body, we would for the first time be providing for a two-tier police service. There would be one group of policemen who could do most jobs, and another small group who could do only one job. Yet often both police officers and civilians will be involved in a complaint againt the police. For example, in a fraud case a policeman may have connived with outsiders in some improper way at breaking the law. It is an extraordinary proposition that the police should investigate the civilian aspects of that crime, but an entirely different body of people should be brought in to investigate the matter in so far as it affects the police, despite the fact that they are all involved in the same conspiracy. That would not work. It is impractical.
      The Government have achieved roughly the right balance. However, like many other hon. Members, I have some reservations, and I should like to ask just one question. My right hon. Friend will know that recently, in a Queen's Bench case, Mr. Justice Hirst ruled that a police officer was entitled to see a copy of the complaint made against him. Previously, there had been a question whether he was so entitled. I am sure that the judge arrived at the right conclusion, but I should like to know whether my right hon. Friend the Minister feels it necessary to embody the conclusions of that case in the Bill. I know that he cannot answer that question now, but perhaps he will consider it before the Bill goes to the other place.
      Mr. Hurd: I must tell my hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths) that I should like to consider that point.
      A procedure for handling complaints against the police is obviously crucial, and that is why it plays a large part in the Bill. That is not because there is a lot of suspicion about the police, or because they are markedly unpopular. All the evidence available suggests that neither of those things is true. However, it is important that there should be a procedure for handling individual complaints against the police which not only works well but which, as many hon. Members have said, is seen to work well. Within that procedure for handling complaints, an independent element is crucial.
      We have an independent element in the present Police Complaints Board. No hon. Member, either in this debate or in Committee, has questioned the integrity or independence of the Police Complaints Board. Indeed, I believe the House is indebted to the board for its painstaking and successful work, but the board was among the first to suggest that further change was necessary. The change that we propose in the Bill is, as my hon. Friend the Member for Fulham (Mr. Stevens) pointed out, radical and substantial. We are setting up a new body called the Police Complaints Authority.
      232
      I am sorry that the name distresses my hon. and learned Friend the Member for Colchester, North (Sir A. Buck). However the change is not just a change of name, but symbolises a change, or addition of function. For the first time, the investigation of complaints will be supervised by members of the authority. In the process we have advanced the role of the independent element. The importance of that has not yet been fully understood. So far, it is a matter of a White Paper and clauses in a Bill, but when it comes into effect, it will increasingly be seen by those who follow such matters and by the public that the change is more weighty than has so far been acknowledged.
      My hon. and learned. Friend the Member for Colchester, North has quite understandably tabled an amendment and spoken about the title of the new authority. I think he will allow me to say that he raised the issue with my right hon. and learned Friend the Home Secretary earlier in the year, and that my right hon. and learned Friend looked at the suggestion. After considering it he held to the conclusion, of which I told my hon. and learned Friend at the time, that it would be more sensible to stick to the description that we had devised. It is more straightforward to use the name in the Bill than the name which my hon. and learned Friend suggested.
      There is the duplication—the doubling, as it were—to which my hon. and learned Friend understandably and correctly referred. Probably he will accept that most people think of the Parliamentary Commissioner for Administration as the ombudsman, and that those who do not — those who, like my hon. and learned Friend, describe him correctly as the Parliamentary Commissioner for Administration—will not have much difficulty with the fact that there is another body, the Police Complaints Authority, set up by this House for a different purpose. Among the public at large, therefore, there will not be confusion; they will think of this important gentleman as the ombudsman, and those who know the correct title will not be confused by the fact that there is another body called the Police Complaints Authority.
      The idea in new clause 19 was rehearsed in Committee and has been rehearsed outside the House on many occasions. The idea of a separate corps of investigators is one with which we are all familiar. It is a beguiling idea at first sight, and achieves many adherents, because many people are interested in appearances at first sight. While, therefore, it is an idea which has an immediate impact, its merits deserve examination, as my hon. and learned Friend the Member for Colchester, North said, and those merits begin to disintegrate as they are exposed to examination.
      It is not just a matter of practicalities, as the hon. and learned Member for Montgomery (Mr. Carlile) supposed I believed. There is a philosophical point here, which some of my hon. Friends mentioned. The police are a disciplined force. That discipline is the responsibility essentially of the chief officer. It is essentially a self-disciplined force. That is the foundation of British policing and of public confidence in the police.
      If things go wrong in a police force they may be discovered from within, and that is clearly a matter for internal investigation and, if necessary, discipline. Or they may be discovered from without as the result of a complaint, and that needs a special procedure with a strong independent element.
      If the investigation of a complaint were taken away from the police, that would be a bodyblow to the idea of

      233
      a self-disciplined force. The bonds of discipline in a police force could begin to relax in those circumstances and they would spend more time protecting themselves against what they saw as an outsider.
      The hon. and learned Member for Montgomery spent some time on the question of who would comprise the new corps. The corps would obviously have to contain a wide range of experience and skills. It would have to be a big and expensive force, and many of those skills are peculiar to the police. Without those skills, the new force of investigators would be ineffective.
      It has been suggested that it could start off with seconded or ex-police officers. If that were to happen, the connection with the police would be clear enough. It would not take long for people to see through that, and the advantage allegedly to be gained from an independent corps would be dissipated straight away. Experience overseas, particularly in the United States, on which the Home Office has published a research paper, is not particularly hopeful in that regard.
      The basic problem of complaints would still remain. The problem which gives rise to difficulties and occasional frustrations is not connected with the uniform worn by, or the name of, the people who investigate. There is the basic
      234
      difficulty of the conflict of evidence—of two witnesses who do not agree, with nobody to corroborate or deny —and that is the essential cause of dissatisfaction and why the problems will not go away, even with an independent corps of investigators.
      It is a safe bet, as I said in Committee, that if there were a new corps—if the new clause were passed and a new corps of independent investigators with their own uniform, structure and expense were brought in — they would soon be subject to probing and dissatisfaction because it was thought that they were too much under the influence of the police, or because there was constant friction and rowing between them.
      I hope that I have said enough to show the House that the proposals in the new clause would be less effective in practice than those contained in part IX. I think that in the longer term they would also cause harm to police accountability, morale and effectiveness, and to public confidence in the complaints system and in the police as a whole.
      I therefore ask the House to reject the clause and its associated amendments.
      Question put, That the clause be read a Second time:—
      The House divided: Ayes 177, Noes 245.

      Division No. 299]

      [10.00 pm

      AYES

      Alton, David

      Harman, Ms Harriet

      Anderson, Donald

      Harrison, Rt Hon Walter

      Archer, Rt Hon Peter

      Hart, Rt Hon Dame Judith

      Ashdown, Paddy

      Healey, Rt Hon Denis

      Ashley, Rt Hon Jack

      Hogg, N. (C'nauld & Kilsyth)

      Ashton, Joe

      Holland, Stuart (Vauxhall)

      Atkinson, N. (Tottenham)

      Home Robertson, John

      Banks, Tony (Newham NW)

      Howell, Rt Hon D. (S'heath)

      Barnett, Guy

      Howells, Geraint

      Barron, Kevin

      Hughes, Dr. Mark (Durham)

      Beckett, Mrs Margaret

      Hughes, Robert (Aberdeen N)

      Beith, A. J.

      Hughes, Roy (Newport East)

      Bell, Stuart

      Hughes, Sean (Knowsley S)

      Benn, Tony

      Hughes, Simon (Southwark)

      Bennett, A. (Dent'n & Red'sh)

      Janner, Hon Greville

      Bermingham, Gerald

      John, Brynmor

      Blair, Anthony

      Jones, Barry (Alyn & Deeside)

      Boyes, Roland

      Kaufman, Rt Hon Gerald

      Bray, Dr Jeremy

      Kennedy, Charles

      Brown, Gordon (D'f'mline E)

      Kilroy-Silk, Robert

      Brown, Hugh D. (Provan)

      Kirkwood, Archibald

      Brown, Ron (E'burgh, Leith)

      Lambie, David

      Bruce, Malcolm

      Lamond, James

      Buchan, Norman

      Leadbitter, Ted

      Caborn, Richard

      Leighton, Ronald

      Callaghan, Jim (Heyw'd & M)

      Lewis, Ron (Carlisle)

      Campbell, Ian

      Lewis, Terence (Worsley)

      Campbell-Savours, Dale

      Litherland, Robert

      Canavan, Dennis

      Lloyd, Tony (Stretford)

      Carlile, Alexander (Montg'y)

      Lofthouse, Geoffrey

      Carter-Jones, Lewis

      Loyden, Edward

      Clark, Dr David (S Shields)

      McCartney, Hugh

      Clarke, Thomas

      McDonald, Dr Oonagh

      Clay, Robert

      McGuire, Michael

      Clwyd, Ms Ann

      McKay, Allen (Penistone)

      Cocks, Rt Hon M. (Bristol S.)

      Maclennan, Robert

      Cohen, Harry

      McNamara, Kevin

      Coleman, Donald

      Madden, Max

      Concannon, Rt Hon J. D.

      Marek, Dr John

      Conlan, Bernard

      Marshall, David (Shettleston)

      Cook, Robin F. (Livingston)

      Martin, Michael

      Corbett, Robin

      Mason, Rt Hon Roy

      Craigen, J. M.

      Maxton, John

      Crowther, Stan

      Maynard, Miss Joan

      Cunliffe, Lawrence

      Meacher, Michael

      Davies, Ronald (Caerphilly)

      Michie, William

      Davis, Terry (B'ham, H'ge H'l)

      Mikardo, Ian

      Deakins, Eric

      Millan, Rt Hon Bruce

      Dewar, Donald

      Morris, Rt Hon J. (Aberavon)

      Dobson, Frank

      Oakes, Rt Hon Gordon

      Dormand, Jack

      O'Brien, William

      Douglas, Dick

      O'Neill, Martin

      Dubs, Alfred

      Park, George

      Duffy, A. E. P.

      Parry, Robert

      Dunwoody, Hon Mrs G.

      Patchett, Terry

      Eadie, Alex

      Pendry, Tom

      Eastham, Ken

      Penhaligon, David

      Ellis, Raymond

      Pike, Peter

      Evans, John (St. Helens N)

      Powell, Raymond (Ogmore)

      Fatchett, Derek

      Prescott, John

      Field, Frank (Birkenhead)

      Radice, Giles

      Fisher, Mark

      Randall, Stuart

      Flannery, Martin

      Redmond, M.

      Foot, Rt Hon Michael

      Rees, Rt Hon M. (Leeds S)

      Forrester, John

      Richardson, Ms Jo

      Foster, Derek

      Roberts, Ernest (Hackney N)

      Foulkes, George

      Robinson, G. (Coventry NW)

      Fraser, J. (Norwood)

      Rogers, Allan

      Freeson, Rt Hon Reginald

      Rooker, J. W.

      George, Bruce

      Ross, Ernest (Dundee W)

      Gilbert, Rt Hon Dr John

      Ross, Stephen (Isle of Wight)

      Gould, Bryan

      Sedgemore, Brian

      Gourlay, Harry

      Sheerman, Barry

      Hamilton, James (M'well N)

      Sheldon, Rt Hon R.

      Hamilton, W. W. (Central Fife)

      Shore, Rt Hon Peter

      Hardy, Peter

      Short, Ms Clare (Ladywood)

      236

      Silkin, Rt Hon J.

      Wardell, Gareth (Gower)

      Skinner, Dennis

      Wareing, Robert

      Smith, C.(Isl'ton S & Fbury)

      Weetch, Ken

      Smith, Cyril (Rochdale)

      Welsh, Michael

      Snape, Peter

      White, James

      Soley, Clive

      Wigley, Dafydd

      Spearing, Nigel

      Williams, Rt Hon A.

      Steel, Rt Hon David

      Winnick, David

      Stott, Roger

      Woodall, Alec

      Straw, Jack

      Young, David (Bolton SE)

      Thomas, Dafydd (Merioneth)

      Thomas, Dr R. (Carmarthen)

      Tellers for the Ayes:

      Thompson, J. (Wansbeck)

      Mr. Don Dixon and

      Wainwright, R.

      Mr. Frank Haynes.

      Wallace, James

      NOES

      Aitken, Jonathan

      Currie, Mrs Edwina

      Alexander, Richard

      Dicks, Terry

      Amess, David

      Dorrell, Stephen

      Ancram, Michael

      du Cann, Rt Hon Edward

      Arnold, Tom

      Dunn, Robert

      Ashby, David

      Eggar, Tim

      Aspinwall, Jack

      Emery, Sir Peter

      Atkins, Rt Hon Sir H.-

      Evennett, David

      Atkins, Robert (South Ribble)

      Eyre, Sir Reginald

      Atkinson, David (B'm'th E)

      Fairbairn, Nicholas

      Baker, Nicholas (N Dorset)

      Fallon, Michael

      Baldry, Anthony

      Farr, John

      Batiste, Spencer

      Favell, Anthony

      Beaumont-Dark, Anthony

      Fenner, Mrs Peggy

      Beilingham, Henry

      Finsberg, Sir Geoffrey

      Bendall, Vivian

      Fletcher, Alexander

      Bennett, Sir Frederic (T'bay)

      Fookes, Miss Janet

      Benyon, William

      Forman, Nigel

      Berry, Sir Anthony

      Forsyth, Michael (Stirling)

      Best, Keith

      Fowler, Rt Hon Norman

      Biggs-Davison, Sir John

      Fox, Marcus

      Blaker, Rt Hon Sir Peter

      Franks, Cecil

      Bonsor, Sir Nicholas

      Fraser, Peter (Angus East)

      Boscawen, Hon Robert

      Gale, Roger

      Bottomley, Peter

      Galley, Roy

      Bottomley, Mrs Virginia

      Gardiner, George (Reigate)

      Bowden, A. (Brighton K'to'n)

      Garel-Jones, Tristan

      Bowden, Gerald (Dulwich)

      Goodhart, Sir Philip

      Boyson, Dr Rhodes

      Gorst, John

      Braine, Sir Bernard

      Gower, Sir Raymond

      Brandon-Bravo, Martin

      Grant, Sir Anthony

      Brinton, Tim

      Greenway, Harry

      Brittan, Rt Hon Leon

      Gregory, Conal

      Brooke, Hon Peter

      Griffiths, E. (B'ySt Edm'ds)

      Brown, M. (Brigg & Cl'thpes)

      Griffiths, Peter (Portsm'th N)

      Browne, John

      Grist, Ian

      Bruinvels, Peter

      Ground, Patrick

      Buchanan-Smith, Rt Hon A.

      Grylls, Michael

      Buck, Sir Antony

      Hamilton, Hon A. (Epsom)

      Budgen, Nick

      Hamilton, Neil (Tatton)

      Bulmer, Esmond

      Hanley, Jeremy

      Burt, Alistair

      Hannam, John

      Butler, Hon Adam

      Hargreaves, Kenneth

      Carlisle, John (N Luton)

      Harvey, Robert

      Carlisle, Kenneth (Lincoln)

      Haselhurst, Alan

      Carlisle, Rt Hon M. (W'ton S)

      Hawksley, Warren

      Carttiss, Michael

      Hayhoe, Barney

      Cash, William

      Hayward, Robert

      Chalker, Mrs Lynda

      Heathcoat-Amory, David

      Chapman, Sydney

      Henderson, Barry

      Chope, Christopher

      Hickmet, Richard

      Clark, Dr Michael (Rochford)

      Hicks, Robert

      Clark, Sir W. (Croydon S)

      Higgins, Rt Hon Terence L

      Clarke, Rt Hon K. (Rushcliffe)

      Hind, Kenneth

      Cockeram, Eric

      Hirst, Michael

      Colvin, Michael

      Hogg, Hon Douglas (Gr'th'm)

      Conway, Derek

      Holland, Sir Philip (Gedling)

      Coombs, Simon

      Holt, Richard

      Cope, John

      Hooson, Tom

      Cormack, Patrick

      Hordern, Peter

      Corrie, John

      Howard, Michael

      Couchman, James

      Howarth, Gerald (Cannock)

      Cranborne, Viscount

      Howell, Rt Hon D. (G'ldford)

      237

      Howell, Ralph (N Norfolk)

      Mayhew, Sir Patrick

      Hubbard-Miles, Peter

      Mellor, David

      Hunt, David (Wirral)

      Merchant, Piers

      Hunt, John (Ravensbourne)

      Miller, Hal (B'grove)

      Hunter, Andrew

      Mills, Iain (Meriden)

      Hurd, Rt Hon Douglas

      Mills, Sir Peter (West Devon)

      Johnson-Smith, Sir Geoffrey

      Molyneaux, Rt Hon James

      Jones, Robert (W Herts)

      Monro, Sir Hector

      Jopling, Rt Hon Michael

      Moore, John

      Joseph, Rt Hon Sir Keith

      Moynihan, Hon C.

      Kershaw, Sir Anthony

      Nicholls, Patrick

      Key, Robert

      Ottaway, Richard

      King, Rt Hon Tom

      Pattie, Geoffrey

      Knight, Gregory (Derby N)

      Pawsey, James

      Knox, David

      Porter, Barry

      Lamont, Norman

      Powell, Rt Hon J. E. (S Down)

      Lang, Ian

      Powell, William (Corby)

      Latham, Michael

      Powley, John

      Lawler, Geoffrey

      Raffan, Keith

      Lawrence, Ivan

      Raison, Rt Hon Timothy

      Lawson, Rt Hon Nigel

      Robinson, Mark (N'port W)

      Leigh, Edward (Gainsbor'gh)

      Ross, Wm. (Londonderry)

      Lennox-Boyd, Hon Mark

      Rost, Peter

      Lester, Jim

      Rumbold, Mrs Angela

      Lilley, Peter

      Ryder, Richard

      McCurley, Mrs Anna

      Sackville, Hon Thomas

      Maclean, David John

      Sainsbury, Hon Timothy

      Maginnis, Ken

      Sayeed, Jonathan

      Malins, Humfrey

      Scott, Nicholas

      Mates, Michael

      Shaw, Giles (Pudsey)

      Mather, Carol

      Shelton, William (Streatham)

      Mawhinney, Dr Brian

      Shepherd, Richard (Aldridge)

      Maxwell-Hyslop, Robin

      Shersby, Michael

      238

      Sims, Roger

      Trippier, David

      Skeet, T. H. H.

      van Straubenzee, Sir W.

      Smith, Tim (Beaconsfield)

      Vaughan, Sir Gerard

      Smyth, Rev W. M. (Belfast S)

      Viggers, Peter

      Soames, Hon Nicholas

      Wakeham, Rt Hon John

      Speed, Keith

      Waldegrave, Hon William

      Speller, Tony

      Walden, George

      Spencer, Derek

      Walker, Rt Hon P. (W'cester)

      Spicer, Michael (S Worcs)

      Waller, Gary

      Squire, Robin

      Ward, John

      Stanbrook, Ivor

      Wardle, C. (Bexhill)

      Stanley, John

      Watson, John

      Steen, Anthony

      Watts, John

      Stern, Michael

      Wells, Bowen (Hertford)

      Stevens, Lewis (Nuneaton)

      Wells, John (Maidstone)

      Stevens, Martin (Fulham)

      Wheeler, John

      Stewart, Allan (Eastwood)

      Whitfield, John

      Stewart, Andrew (Sherwood)

      Winterton, Mrs Ann

      Stewart, Ian (N Hertf'dshire)

      Winterton, Nicholas

      Sumberg, David

      Wolfson, Mark

      Taylor, Teddy (S'end E)

      Wood, Timothy

      Temple-Morris, Peter

      Woodcock, Michael

      Thomas, Rt Hon Peter

      Young, Sir George (Acton)

      Thompson, Donald (Calder V)

      Younger, Rt Hon George

      Thompson, Patrick (N'ich N)

      Thorne, Neil (Ilford S)

      Tellers for the Noes:

      Thornton, Malcolm

      Mr. Michael Neubert and

      Townend, John (Bridlington)

      Mr. John Major.

      Tracey, Richard

      Question accordingly negatived

    BUSINESS OF THE HOUSE
    It being after Ten o'clock, the debate stood adjourned.
    Ordered,
    That, at this day's sitting, the Police and Criminal Evidence Bill may be proceeded with, though opposed, until any hour.—[Mr. Garel-Jones.]

  Police and Criminal Evidence Bill
    New Clause 21

      SEARCHING OF DIPLOMATIC BAGS
      '(1) If, on an application made by a constable, a county court judge is satisfied that there are reasonable grounds for believing that a diplomatic bag which is presented at a port of entry of the United Kingdom for importation may contain firearms, ammunition, or materials for causing explosions, and that both of the conditions specified in subsection (2) below are satisfied, he may issue a warrant authorising a constable to perform a search of the diplomatic bag in accordance with the provisions of subsections (5) to (7) below.
      (2) The conditions mentioned in subsection (1) above are—

      (a) that a member of the diplomatic mission entitled to open the diplomatic bag has refused to do so on request by a constable who has stated his grounds for believing that the bag may contain any of the items specified in that subsection; and

      (b) that the Secretary of State has not given permission for articles of a description falling within that subsection to be imported.

      (3) A constable may detain a diplomatic bag at the port of entry into the United Kingdom until an application under subsection (1) above has been decided; provided that the diplomatic mission may remove the bag from the United Kingdom at any time after the request mentioned in subsection (2)(a) above has been made, in which case the application under subsection (1) above may be abandoned.
      (4) The hearing of any application under subsection (1) above shall be decided inter partes, and shall be held as soon as reasonably practicable after the application is made.
      (5) If a warrant is issued under subsection (1) above, the diplomatic mission may remove the bag from the United Kingdom, but if they do not, a constable shall first make an external search of the diplomatic bag and then, if he still has reasonable grounds for believing that the bag contains any of the articles mentioned in subsection (1) above, he may search the bag for the articles, and seize any which he finds.
      (6) In subsection (5) above, "external search" means a search made by non-invasive means, without opening the bag, that is to say by x-rays, magnetometry, ultrasonic or other similar means.
      (7) Any search under this section shall be conducted in the presence of a member of the diplomatic mission responsible for the diplomatic bag and of a person appointed for the purpose by the Secretary of State for Foreign and Commonwealth Affairs.
      (8) In this section "diplomatic bag" has the same meaning as in the Diplomatic Privileges Act 1964; and that Act and any other enactment relating to privileges and immunities shall have effect subject to the provisions of this section'.—[Mr. Eldon Griffiths.]
      Brought up, and read the First time.
      10.15 pm
      Mr. Eldon Griffiths: I beg to move, That the clause be read a Second time.
      This new clause stems from a unique and terrible killing —I prefer to say murder—of a young police officer in London.
      I make no apologies for recalling in some detail the death of Yvonne Fletcher. She was 25 years of age, full of life and with all to live for. She was doing her job, as she had always been determined to do. As she walked in St. James's square one April morning, her thoughts might
      240
      well have been on her forthcoming engagement to another police officer, Michael Liddle, who was on duty with her. Her task that day could not have been more routine. It was to escort one of the many hundreds of small demonstrations that take place in central London every year.
      The demonstrators were a group of foreigners anxious to protest against their country's regime outside their embassy in London. It had nothing to do with us—or so the police might have thought—but Britain prides itself on allowing free speech to all who are resident here. The police go along with such marches to ensure that there is no breach of the peace, that the traffic is not unduly disrupted and that those who wish to protest may do so.
      Suddenly, there is a burst of gunfire and Yvonne Fletcher is among the wounded, lying on the ground. An hour later, after a vain fight by doctors and nurses who tried to save her life, she is dead.
      That is one of the only two certainties about the tragedy. The other is that Yvonne Fletcher's killer was one of the Libyans expelled from Britain on the same day that her funeral took place.
      When a police officer is murdered in the execution of police duty in London and it is then discovered that the killer cannot be brought to justice in this country because of overriding political and legal complications, a sense of outrage and disgust is the natural reaction of all other police officers. I believe that that goes for the people of this country at large.
      It would be wholly wrong and against every tradition of the House to allow a single incident to precipitate changes in our legislation. Therefore, when I addressed myself to this problem, I thought it my duty to do some careful research into whether this kind of terrorist incident has become so serious and, indeed, so common in the modern world that general action against it is required.
      I was glad to read that my right hon. and learned Friend the Foreign Secretary has moved, in the EEC meeting in Brussels, for common action to be taken among the western nations. I also congratulate my right hon. and learned Friend the Home Secretary on his robust stand on this matter during the difficult days through which he had to live.
      The incident that led to the death of Yvonne Fletcher is only part of what is coming to be a sinister pattern. In the years in which I have been connected with the police service, I have done a fair bit of research into these matters but rather than weary the House with my own experience, I shall quote some of the findings of Patricia Clough, the correspondent of The Times, who has studied the matter in depth.
      The Times reported that, though diplomatic bags may not be opened or detained, it is now the fact that throughout the world they are frequently used as cover for the trafficking in drugs, guns, missiles, ammunition, artworks, antiques, and in at least one case a man. Diplomatic bags, it said,
      "have been used to take alcohol to 'dry' countries, contraceptives to the Irish Republic, a naval officer's collars from Moscow to London for starching and espionage equipment almost everywhere. Some Arab states have made"—
      and do make
      "their diplomatic bags and diplomatic 'passports available to Arab terrorists."
      I shall give four examples. The Pakistan authorities recently found 300 sub-machine guns, 60,000 rounds of ammunition, a radio receiver, a transmitter and guerrilla

      241
      training equipment in the office of an Iraqi consular affairs attaché, and the Pakistan Government said that they had all been shipped into that country as diplomatic baggage.
      A Palestinian guerrilla who took part in the kidnap of the OPEC officials in Vienna in 1976—
      Mr. Greville Janner: Terrorists.
      Mr. Griffiths: Terrorists, if the hon. and learned Gentleman wishes to call them that. The guerrilla subsequently said that the weapons used in that incident were smuggled in in the diplomatic bag of an Arab ambassador.
      The third example — the hon. Member for Birmingham, Ladywood (Ms. Short) may agree that it supports the case that I made a few moments ago—is that of a diplomatic trunk belonging to the Egyptian embassy in Rome. The trunk was found by the Italian police to be giving off what was described as a muffled thumping from inside. They did not hesitate. They required the bag to be opened and found that the trunk, lined with leather and fitted with a chair and clamps for ankles and the head, was well worn, as well it might have been, because it also contained Mordecai ben Masuud Louk, an Israeli on his way, gagged and drugged, to Cairo. It was obvious that that diplomatic bag had been used for this purpose on previous occasions.
      I shall give one final example. The bags being carried by Mr. Manlio Blais, a courier for the Italian embassy in Paris, proved at the airport to be too heavy for the porters to lift. That was not surprising, because when opened it was found to contain 2,000 watches.
      A case can be made out for saying that while the vast majority of diplomats—certainly all our own diplomats —never indulge in such malpractices, there is today an increasing use of diplomatic baggage for the support of terrorist organisations. Plainly, that must stop, but what is this country to do about it? This is not a matter that divides the House, or divides the Government from the country.
      I welcome the robust stand of the Home Secretary and the clear-cut statement made by the Foreign Secretary in seeking the support of our allies at the EEC meeting in Brussels. But it behoves the House to support the Government when trying to achieve international action to prevent the misuse of diplomatic bags such as we know contributed to the death of Yvonne Fletcher. In Parliament we must take what opportunities present themselves and I have taken the opportunity to propose one way in which our domestic law could be amended—the House can do it if it wishes—to make a start in containing the terrorist use of diplomatic bags.
      New clause 21 has been drafted carefully with the benefit of parliamentary counsel. I propose that if the police—almost certainly the Special Branch acting on intelligence from international sources, including our own —formed the judgment that a diplomatic bag presented at a British port for entry contained weapons, ammunition or the means of making an explosion such as microdetonators, new clause 21 would allow them to hold the bag while they went to a county court for an order allowing the bag to be searched if the court was satisfied that the police had made out a case. Once the court determined that the police had a prima facie case for believing that the bag contained such items, it could make an order that would operate in two phases. The first would
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      be for a non-invasive search that involved no opening of the bag but the use of all the techniques that are available to make an external survey of its contents.
      I listened carefully to my right hon. and learned Friend the Home Secretary when he assured the House that X-ray techniques can be thwarted and are by no means conclusive. He will accept that other devices, including the magnetometer and scanners, could be brought to bear, if necessary, to make a non-invasive preliminary investigation. It would be open to the diplomat, when the police sought the court order, to remove the bags from the country if he did not wish such a surveillance to take place. If the preliminary search sustained the police's suspicion and there was prima facie evidence tending to confirm what they believed, the second phase of the court order would come into play and the police would be allowed to open the bags and search them.
      I must emphasise, however, that it would always be open to the diplomat, if he did not wish to allow a search, to remove his bags from the country. I also expect that the Foreign Secretary would need to be informed and consulted.
      The hearing at the court should be inter partes, so that all concerned are aware of what is going on. Subsection (8) of the new clause says:
      "'diplomatic bag' has the same meaning as in the Diplomatic Privileges Act 1964; and that Act and any other enactment relating to privileges and immunities shall have effect subject to the provisions of this section".
      In other words, we should amend our domestic law and our domestic law would take precedence over the Vienna convention.
      I am well aware that when the Government enter a treaty, it becomes the sovereign law of our country. I know too that if the House were to pass the amendment, an anomaly would be created, as our domestic law would be in conflict with our treaty obligations. I hope that my right hon. and learned Friend will not rebuke me for not recognising that position.
      10.30 pm
      The important point is that we should take the opportunity tonight, not necessarily in the Division Lobby, to strengthen the arm of the Government—that objective need not divide the House — and of the Foreign Secretary in his negotiations. I believe that we shall have assisted the Government in the difficult negotiations that lie ahead if the Foreign Secretary is able to show that the House, our sovereign legislature, demands that action be taken to prevent further outrages.
      We cannot let the killing of WPC Fletcher pass by and do nothing. The very least that we must do is seek to change the convention. If the amendment receives support tonight, it will assist the Government in doing that.
      Mr. Janner: The House has listened with interest to the speech of the hon. Member for Bury St. Edmunds (Mr. Griffiths) and will associate itself fully with his sentiments regarding the assassination, murder, killing — call it what one will—of Policewoman Yvonne Fletcher. We take every opportunity in the House to tell her family how we feel with them in the awful disaster that has struck them. What steps can be taken? Are those proposed by the hon. Member for Bury St. Edmunds appropriate? We must approach the problem with care for two reasons, the first of which stems from a sentence of Freudian significance that was slid in by the hon. Gentleman who said that, as

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      usual, the demonstrators were foreigners. One of the glories of this country is that we have the freedom to demonstrate in peace.
      Mr. Dennis Skinner indicated dissent.
      Mr. Janner: People who live and work here have the freedom to demonstrate in peace. When there is interference with that freedom, there is an immediate outcry. The hon. Member for Bolsover (Mr. Skinner) is waiting to cry out because the police are involved throughout the country in an attempt that is causing dismay because many people regard it as going beyond the area of crime prevention that is the proper duty of the police.
      We are concerned tonight to preserve the rights of citizens of this country and of our visitors to express their views in freedom. The fact that they happen to be foreigners is totally irrelevant. What matters is that we should preserve the right to demonstrate in freedom.
      We must consider what is possible and what is right to meet the situation. It has not arisen after the recent tragedy, but it is something for which some hon. Members have been campaigning over many years; namely, the abuse of diplomatic immunity by many of those who come here, presumably to serve and to work, but who misuse the rights conferred upon diplomats and their families and staff by the Vienna convention.
      That is not a new problem. What is new is that on this occasion a British person, rather than a foreigner, was killed. I answered the hon. Member for Bury St. Edmunds because there is a temptation to call a person a guerrilla when he kills other nations' civilians and a terrorist when he kills our own. So far as we in the House are concerned, I hope, a terrorist is a person who kills civilians and innocent people in the pursuit of his political aims.
      The Vienna convention was passed in May 1961. It was published along with other accounts and papers. It sold so well that it was reprinted in 1962 at the fabulous cost of 1/6d. It deals with matters that came before the electronic age to which the hon. Member for Bury St. Edmunds referred. Before we decide whether new legislation is necessary, it is essential at least to look at the convention and see whether any such amendment as this is required. It is my contention that the Government had the power, which they saw fit not to exercise, to examine the diplomatic bags taken out of the Libyan embassy and to prevent anything from being exported from this country, including the gun that was undoubtedly used by a diplomatic terrorist to shoot at civilians, which eventually killed the unfortunate policewoman.
      The convention, which was signed by representatives of countries including Libya, includes article 27, which states:
      "The diplomatic bag shall not be opened or detained. The packages constituting the diplomatic bag must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use."
      One would presume that "articles for official use" do not include guns or ammunition to be used by officials.
      In my contention, there was no need for the diplomatic bag to be opened if there was a real suspicion that it contained weapons, explosives and articles other than
      "diplomatic documents or articles intended for official use."
      The Government, particularly the Home Secretary, could have ordered that either the bag be returned whence it came or that the diplomats concerned themselves opened
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      the bag to show that they were not abusing diplomatic privilege and article 27.4 of the Vienna Convention by using the bag for purposes other than for
      "diplomatic documents or articles intended for official use."
      In article 36, the convention says that
      "The personal baggage of a diplomatic agent shall be exempt from inspection, unless there are serious grounds for presuming that it contains articles not covered by the exemptions mentioned in paragraph 1 of this Article".
      Those exemptions are not relevant to this argument.
      Therefore, we have yet another article that the Home Secretary may consider, on reflection, could have enabled him to prevent the export of the murder weapon from this country. Were it possible to do what the hon. Member for Bury St. Edmunds wishes—to introduce into our law a new and vibrant power that does not exist in the Vienna Convention — I might support him, but in my submission, first, it is not possible to do that, as the hon. Gentleman well-nigh admitted, and secondly, far from strengthening the Government's determination to achieve change, the hon. Gentleman is giving the Government the opportunity once again not to use the powers that they already have.
      While it is true, as Ministers have frequently stated, that most countries do not permit diplomatic bags to be opened even if they contain such oddities as the articles and people to which the hon. Gentleman referred, there are exceptions to that rule. While the convention also makes it improper to search people on the diplomatic list, it is notable that when people left the so-called Libyan People's Bureau, they were not only subjected to search but were taken away, and, we were told by the press, cross-examined before they left the country. If that is incorrect, no doubt the Home Secretary will correct me in due course.
      If I am right in my interpretation of the Vienna convention, there is no need for the hon. Gentleman's amendment. If I am wrong, and there is need for an amendment to the law, it cannot be brought about in the way that the hon. Gentleman seeks. It has to be achieved by the nations that introduced the Vienna convention; it has to be done on an international basis. Either way the amendments do not assist. All hon. Members wish to see change and an end to incidents, such as were described by the hon. Member for Bury St. Edmunds. However, his new clause will not assist that end. For that reason, I shall not vote for it, as I may have done in other circumstances.
      Mr. Peter Bottomley: My hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths) did the House and the country a service by tabling new clause 21.
      Mr. Bermingham: Cheap political propaganda.
      Mr. Bottomley: I hope that the hon. Member for St. Helens, South (Mr. Bermingham) will at least allow me to deploy my arguments before he accuses me of cheap political propaganda.
      Mr. Bermingham: I was referring to the hon. Member for Bury St. Edmunds (Mr. Griffiths).
      Mr. Bottomley: We must first consider the position of the police in controlling demonstrations and protecting foreign missions. The events in St. James's square brought from many experienced members of the press —both domestic and international—who covered the developments, many tributes to the Metropolitan police. During the hours after the start of the incident many of them said to me that they could not think of a better police force for handling such an incident once it had started.

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      The new clause seeks to prevent such incidents from happening. I admire the family of Police Constable Yvonne Fletcher for their bravery and forthrightness in speaking openly after her death. The House will wish to pay tribute to them as well as to the police officers in St. James's square.
      I do not support the new clause. My hon. Friend the Member for Bury St. Edmunds talked about drugs and people in diplomatic bags, as well as about guns and ammunition. The smuggling of hard drugs can kill as many, if not more, people as the gun that was used at the Libyan People's Bureau.
      As the hon. and learned Member for Leicester, West (Mr. Janner) said, we must work within the international convention, which either gives the powers, or prevents them from being taken unilaterally. My approach is different. If we are to take a unilateral step, it should be to say to other countries that as we do not abuse the dipolmatic bag, we are willing for our bag to be examined by non-intrusive methods — ultra-sonic examination, X-ray, sniffer dogs and other apparatus—to show that we are not moving drugs, people, weapons or missiles. Among the community of nations, a growing majority of countries will be prepared to make the same offer. It is always better for us to say what we are willing to do, than to force conditions on others.
      Where we have evidence, which a constable would need in order to go to court to ask for permission to examine diplomatic bags, we should use it whether or not a diplomatic bag is returned to the country of origin unexamined, or is allowed into the country, having been inspected. It is not sufficient merely to rely on special information. If we believe that foreign missions or diplomats are misusing privileges, although we perhaps cannot examine their bags or—on a more minor scale—prosecute them for accumulating 4,000 parking tickets during a year, we should ensure that the country concerned knows that the diplomats are no longer acceptable and should be removed within a reasonable period, or as soon as possible.
      If we have information we should use it and not have to rely on the odd occasion when a diplomatic bag is held up for examination. For the benefit of those who do not know what diplomatic baggage looks like, I should say in passing that it is not just a small sack of mail. It may be an enormous packing case containing all manner of things. We should use the information that we have to ensure that others do not abuse privileges and we should lay ourselves open to reasonable, non-intrusive examination of what we carry in our diplomatic bags. Therefore, although I support my hon. Friend's aims, I do not support his new clause.
      10.45 pm
      Mr. Bermingham: I begin by apologising to the hon. Member for Eltham (Mr. Bottomley) and putting it clearly on the record that my jibe about cheap political propaganda was not aimed at him.
      The background to this debate is an extremely tragic and almost unforgivable occurrence in terms of international incidents. It is utterly wrong that anyone should die on our streets at the hands of any other person, especially if the deed is carried out from an embassy. We should not, however, allow that incident to drive us to precipitate action.
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      In this context, if I may pay a rare tribute to a member of the Government, I pay it to the Foreign Secretary for the answers that he gave in the House at that time. His answers were important in that he counselled caution in considering the Vienna convention. In answer to a question from me about seeking variations in the terms of that convention, he agreed that any variation would affect not only foreign diplomats here but our own diplomats abroad and that if we sought to withdraw any privileges from foreign diplomats here our own diplomats abroad would be similarly affected. At a time when international diplomacy is perhaps more valuable to us than it was in the past, it is important that in dealing with these matters we consider the interests not only of our own sovereign state but of those who serve it abroad.
      It is against that background that I turn my mind to the new clause and hope that the House will reject it, for a series of reasons.
      First, I regret to say that, although I usually listen with care to the hon. Member for Bury St. Edmunds on these matters, I was saddened by much of what he said on this occasion. The new clause is ill-conceived, ill-thought out, ill-constructed and would probably do more harm than good in the long term. It suggests that on the basis of information from our security services and so on an order may be sought in the court to examine a bag.
      It was a pity that the hon. Member for Bury St. Edmunds declined to allow my intervention, as I intended merely to ask how the evidence was to be obtained. How is the officer making the application to know what is in the bag? Is it suggested that the bags should be subject to some form of electronic surveillance when they enter the country or that a member of our secret service should apply to the court in camera? The new clause, however, specifies that the application must be inter partes, so presumably any security source would have to be revealed when the application was made. The whole idea is nonsense. I hope that the House now understands the basis for my sedentary interjection about cheap political propaganda. As there is clearly no way in which such evidence could be available to an English court, the whole basis of the new clause falls.
      Ms. Clare Short: Does my hon. Friend agree that the Government's approach is the wrong way to solve the problem of what happened from the Libyan people's bureau? The Government's fault was that they failed to act against the Libyans when they were attacking their own people for many months before the incident. It is virtually impossible to ensure that any foreign Government cannot obtain arms here. That problem was caused by the Government's lack of readiness to act, and it is happening again with the Iraqis, who are harassing their students who are critical of their Government.
      Mr. Bermingham: I appreciate my hon. Friend's point, because it has highlighted mine. Such incidents happen not only through the Iraqi embassy, but through the Iranian and other embassies. However, that is a side road down which we should not go while we are pursuing the matter before the House.
      I find it remarkable that when an hon. Member introduces a new clause, which has been reported in the press long before it came to the House, he says that he will not press it to a vote in any event. One has to ask why he has brought it before the House. I apologise if I have his words wrong, but, if I understood him, the matter is not

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      being put to the vote. These matters should be put in another way if they are to be put before us in the appropriate spirit. It is important that the House should not be used in an almost cavalier approach to matters that are of the utmost importance, not just in the context of one event, because we are here dealing with matters that are broader and wider than the events in St. James's square. I say that with great care and feeling to the hon. Gentleman. We are dealing with the whole problem of how we conduct our international relations.
      I put down a question for oral answer to the Foreign Secretary, which asked whether there had been any vetting of South African embassy employees as to their involvement with security forces. I have now received notification that that question will be transferred to the Home Secretary. No doubt, I shall receive a reply from the Home Secretary in due course. However, that raises a simple question. If the Foreign Office is not vetting the employees of an embassy who are coming into the country, and the Home Office is, one must ask the Home Secretary whether, when people come here to an embassy, they are vetted. We have the right to refuse entry into the country, and might it not be in our interests if we refused entry to those who are known to be involved in security whether they are South African, Iranian, Russian or anybody else? We might think more carefully and say, "No" occasionally. If we did, we might not give leave for entry to people who may be of danger to our citizens.
      Mr. Lawrence: The hon. Member for St. Helens, South (Mr. Bermingham) did not do justice either to himself or to the seriousness of the matter before the House by spending so much of his speech criticising my hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths) for raising a matter that is at the forefront of the minds of everybody in the country, and certainly in the House.
      One thing is clear. Although the Libyan embassy siege has highlighted the matter, it is a fact that the diplomatic bag has been abused, in Britain and in other parts of the world, over many years. Although it is sickening to note the killing of WPC Fletcher and it is timely to understand the risk at which the British police place themselves when patrolling embassies and doing their duty in preserving the right to demonstrate, the fact is that in recent years there has been a long list of assassination attempts and killings, even in London. The British public are heartily sick of waking up in the morning and reading in the newspaper or hearing on the radio that once again the streets of London are being used as an arena for middle east hit men and their assassination squads.
      It is equally clear that the application of the law has been inadequate to prevent the entry into this country of weapons of the types used by the hit squads. There is ample evidence throughout the world that the use of the diplomatic bag has been abused. Why, if it has been abused elsewhere, should it not be abused here? Common sense says that if a man does not want to be exposed as a hit man bringing in a weapon to be used to assassinate, he will not carry it on his person as he walks through the doors of Heathrow airport. He will probably not buy his gun here, because there is a scarcity of adequate weapons and, even if he could, he would not want to do so. The hit man would not want the guns and the ammunition to go in the hold of the plane because they would be out of his sight and he could not be sure that the hold would not be
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      searched. The one place about which he can he secure when bringing such guns and ammunition into this country is the diplomatic bag.
      When the hit man arrives here, he remains secure. I asked my hon. Friend the Member for Putney (Mr. Mellor), the Parliamentary Under-Secretary of State for the Home Department, whether it was necessary for accredited diplomatic representatives to obtain licences or register firearms in their possession. On 11 May 1984, he replied that they
      "are already expected to comply with the law and … are reminded of this requirement."—[Official Report, 11 May 1984; Vol. 59, c. 482.]
      There is, however, no way of proving that they have done so, and no means of checking the source.
      I asked my right hon. Friend the Minister of State, the hon. Member for Witney (Mr. Hurd), about the sources of the guns at the Libyan embassy. I was told that there was
      "no evidence that any of them were obtained legitimately in the United Kingdom."—[Official Report, 11 May 1984; Vol. 59, c. 482.]
      That seems to underline the fact that they were likely to have been imported by the only secure means available to them.
      On 15 March — a long time before the Libyan embassy seige—I asked whether the Government were satisfied that weapons were not being brought into the United Kingdom secretly in diplomatic bags. The interesting answer I received stated:
      "We cannot be certain of this, since we are precluded by article 27 of the Vienna convention on diplomatic relations, from opening or detaining diplomatic bags; but we regularly remind diplomatic missions of the need for strict compliance with our laws … If evidence were to come to light that these laws had been flouted by a person enjoying diplomatic immunity, we should not hesitate to take firm action."—[Official Report, 19 March 1984; Vol. 56, c. 324.]
      That statement is not very reassuring. If the bags are not searched, the evidence will not be found. The mere restriction upon "opening or detaining" does not, as the hon. and learned Member for Leicester, West (Mr. Janner) has said, prevent an electronic search.
      I wrote a letter to that effect to my right hon. and learned Friend the Foreign Secretary pointing out that article 27 does not preclude us from taking an electronic scan of the diplomatic bag and praying in aid the leading authority as a guide to diplomatic practice, Satow's "Guide to Diplomatic Practice", 1979 edition, page 117, paragraph 14.30 of which states:
      "The receiving state of the airline authorities may subject a bag to detector devices designed to show the presence of explosives, metal or drugs, since this does not involve opening or detaining it."
      In due course, my right hon. and learned Friend the Foreign Secretary wrote to me and conceded that article 27 did not expressly rule out the electronic scanning of diplomatic bags. He went on to say:
      "Scanning would be of only limited usefulness in preventing the use of the bag for the unlawful import of weapons which could be disguised."
      11 pm
      I have made some inquiries about that, and I am told that, although it is perfectly possible to wrap ammunition in tin or metal foil and so defeat the scanner, it is much more difficult to disguise, for example, a gun, by virtue of the metal used in making it. A thorough investigation should be made into the matter. I simply do not accept the assurance that my right hon. and learned Friend the Home

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      Secretary has given, that it is impractical to scan the diplomatic bag because an electronic scanner would not discover such things. A thorough inquiry should be carried out into the methods by which we can adequately scan items to detect the presence of guns, ammunition, and so on.
      I shall not criticise the new clause, other than to say that it is too long, too complicated and involved, and too contrary to the convention to be accepted. However, I am sure that my hon. Friend introduced it as an issue, and did not seriously expect the Government immediately to accept it, and include it in the Bill. That is a proper way of raising things, and we should not complain. Indeed, we should congratulate my hon. Friend on taking the initiative in introducing such a new clause.
      If the law means that we can electronically scan a diplomatic bag, we should do that. We should not need to be afraid of infringing article 27 of the Vienna convention. If the machine pings because there is something suspicious in the bag, we do not need to go through the complicated procedure of raising the matter before a county court, or any other court. All that is necessary is that the officer who notices it should say, "I'm awfully sorry, Sir, but there appears to be something wrong. Could you very kindly open your bag and just make sure to my satisfaction that there are no guns or ammunition in it?" If the man refuses to do that, he can be given his ticket back. He does not have to be let into the country. He can be turned round. If that happens a few times, it will not be long before his country does something about the attempt to abuse the diplomatic bag.
      The man can be sent back under, I think article 36 of the Vienna convention, which says that such people have no right to bring in anything other than the normal and proper contents of the diplomatic bag.
      I am heartened by the fact that my right hon. and learned Friend the Foreign Secretary has raised this matter in the councils of the EEC. I am also heartened that he should have asked the Foreign Affairs Committee to consider the Vienna convention. We shall shortly be starting on that. I shall be even more heartened when I hear that a firm stand is being taken in the United Nations International Law Commission. I know that the issue is being raised and discussed there. In that way, a thorough and determined effort can be made to bring together all those countries that are seriously concerned about international terrorism, in order to agree that the rules should be properly followed and obeyed.
      There will be a successful outcome only if countries are determined to stamp out international terrorism. We only expect my right hon. and learned Friend the Home Secretary to declare his utter and complete determination to do whatever he can in the international councils of the world, and to stand ready to fulfil the Vienna convention to the full. That means scanning diplomatic bags electronically if necessary. If, occasionally, that does not reveal all the weapons that they contain, it is no reason for not scanning them. We must make every effort to ensure that this disgraceful state of affairs is brought to an end. Our Governments can do more than they have done to end the abuse of the diplomatic bag.
      Mr. Skinner: When I came into the Chamber and heard the discussion about diplomatic bags, I thought that
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      at long last we were going to see some real action on the subject. After all, the rent-a-quote crowd who say that something must be done every time there is an incident at an embassy were in evidence.
      The hon. Member for Bury St. Edmunds (Mr. Griffiths), who sometimes speaks on behalf of the police, had tabled a new clause, and taking part in the discussion was my hon. and learned Friend the Member for Leicester, West (Mr. Janner), who I hope is not about to leave the Chamber. Whenever there is trouble with people at an embassy, he is ready to sort them out. There is bound to be a vote on the issue, I thought, after all the talk about diplomatic bags, and I began to consider how I would vote.
      The hon. Member for Bury St. Edmunds was not long into his speech before he was retreating. Indeed, he referred to the Home Secretary as having acted in a robust fashion over the Libyan issue. He could have fooled me. Most people feel that the Home Secretary and the Foreign Secretary failed dismally. One reason why they failed, and certainly did not act robustly, was that not long before the Libyan incident the Government sent 12,000 policemen into the coalfields to kick lumps out of the miners.
      When two coaches filled with hooded anti-Gaddafi demonstrators came to London from Manchester the police did not stop them—though they stopped miners in Kent from taking part in a peaceful picket — but escorted them to the Libyan embassy picket line. That showed the double standards that the Conservatives operate. The Government allowed demonstrators to come to London by coach, whereas miners who were fighting for the right to work were stopped, when their only desire was to alter the Government's policy, save jobs in the pits and prevent more people from joining the dole queues.
      The hon. Member for Bury St. Edmunds gave the story away when he said that diplomatic bags could not be opened. Then he spoke of the Italian bag and said that when it was opened a body was found inside. How was it opened without breaking the Vienna convention? Is the hon. Gentleman saying that the Italians are more robust than the British Home Secretary? It seems that the Italians are prepared to break the convention, whereas the British Government will go crawling to Vienna, and hopefully in 20 or 30 years a conclusion will be arrived at.
      Any suggestion of taking the matter to the Common Market is laughable. What could be done there, apart from spending British taxpayers' money? Do the Government intend to set up another EEC committee to go into this issue — another gravy train that will cost a small fortune? Do the Government expect the Common Market, bankrupt as it is, to solve this Libyan diplomatic bag problem? They must be joking. It is shadow boxing, and we all know it.
      It is ridiculous. Here we are debating a vital issue—the opening of diplomatic bags—and the hon. Member for Bury St. Edmunds says that he will not put it to a vote, and his hon. and learned Friend the Member for Burton (Mr. Lawrence) agrees with him. We know why. They do not want to embarrass the Home Secretary. They do not want to go down this road because, with embassies in about 146 countries, Britain has 146 diplomatic bags. I have no doubt that the Home Secretary will come to the Dispatch Box and try to kid hon. Members, but he will not kid me. The Government are hoping tonight to get by

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      without a vote, and then they will move back to attacking the miners and the wealth creators in the country, because that is their main purpose.
      One of the most galling things is that, while the House is discussing the Police and Criminal Evidence Bill, as it has been for two days, and the police chief in Nottingham today is talking about introducing charges of riot against the miners, the Libyans go off scot free. That puts it in a nutshell. The Home Secretary thinks he will ensure that the miners are driven into the ground, while those diplomats are allowed to escape.
      The diplomats in this country and all the rest of them are part of the club, but the millions of people who have to earn a living, and those who would like to earn a living but have been deprived of the opportunity to do so by the Government, have been given very different treatment.
      We have had the promise of a great rebellion, but it has all fizzled out. Tory Members have not the guts to go through with their intentions.
      Mr. John Farr: I support the clause, and the sooner that something is put into effect along these lines, the better.
      I wish to pay tribute in particular to the police in St. James's square, and to the relatives of the dead policewoman. The House extends its sympathy to them.
      My hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths) is rightly seeking to call the House's attention to what is a disgraceful state of affairs. I think that he is right in not pressing the matter to a vote. However, it is important that the House should know the reaction of my right hon. Friend to the suggestions that have been made by both sides of the House of how we can overcome the problem that arises here. Some countries have been named, and others have not. Indeed, one could compile a long list of suspect countries which could well have compiled an arsenal of weapons and ammunition in Britain over the years through the use of diplomatic bag. None of us would wish to see that continue.
      Reference has been made by my hon. and learned Friend the Member for Burton (Mr. Lawrence) to examples of murders of diplomats that have occurred in Britain. In these cases, the weapons have not been traced to any owner in Britain. Indeed, they are regarded as probably having been smuggled into the country in the diplomatic bag. These instances serve to illustrate how large is the pool of illegally held hand weapons in Britain at present.
      An examination of the Firearms Act 1968 shows that legal ownership of a hand gun in Britain is limited by that Act, and 17,000 to 18,000 such weapons are licensed. They are difficult to obtain, and they have to be kept under lock and key, generally on a range armoury, in safe conditions. It is estimated that there are approximately 100,000 illegally held hand guns in Britain. It is clear that that vast reservoir of illegal weapons—handguns such as pistols and revolvers are the preferred weapons of the criminal when he is committing an armed robbery—has not come into Britain from other countries via the diplomatic bag over the years. It is important that my right hon. and learned Friend the Secretary of State for the Home Department should recognise that there is real concern on both sides of the House about the source of the vast reservoir of illegally possessed firearms. It is not coming from the licensed law-abiding owner. Much of it
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      is coming in in the hand baggage of ordinary travellers at the port of entry, but no doubt some of it is coming in through diplomatic bags.
      11.15 pm
      I support the new clause of my hon. Friend the Member for Bury St. Edmunds, which has the germ of a very good idea. When my right hon. and learned Friend replies, I hope that he will give us some idea of the knowledge that the police have of the origin of some of the weapons which appear on the scene in crimes of violence in Britain. I hope also that he will be able to give the House some idea of the extent to which the exterior surveillance of non-diplomatic baggage is carried out at ports of entry. There is undoubtedly a vast flow of illicit weapons entering Britain and I think that the clause helps to draw attention to a pressing problem.
      Mr. John Browne: I support the sentiments that are set out in the new clause which has been introduced by my hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths). Right hon. and hon. Members on both sides of the House have talked about the abuse of the diplomatic bag and have paid tribute to Woman Police Constable Fletcher, who was so tragically killed. The killing of a police officer is considered to be an extremely serious matter in this country, but in other countries, including the United States, it happens every day of the week.
      I understand that we cannot agree to a new clause that would go against our international obligations. Indeed, it would be ridiculous if we were to do so. However, I ask my right hon. and learned Friend the Secretary of State for the Home Department to recognise that there is a vast ground swell of opinion, which is reflected in the House, that something must be done to prevent the abuse of the diplomatic bag continuing. I urge my right hon. and learned Friend to take effective international action to ensure that that is proceeded with.
      The Secretary of State for the Home Department (Mr. Leon Brittan): I welcome the fact that my hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths) has given the House the opportunity to express its concern over the abuse of the diplomatic bag and to show that the events in St. James's square have raised considerable concern in the country generally, to which a response is called for. It is wrong for any Labour Member to seek to denigrate my hon. Friend's admirable motives and action.
      There is no doubt that we have a problem and that there has been abuse of the diplomatic bag. There is no doubt also in my mind that the present position requires consideration. It was for those reasons that in the statements made in the House on the events in St. James's square both my right hon. and learned Friend the Foreign Secretary and I made it clear that the enforceability and operation of the Vienna convention required serious consideration. My right hon. and learned Friend has begun that consideration. He is raising related issues in various international forums and I am sure that he will be greatly assisted by the fact that the House, though not necessarily uniting on a particular proposition, has expressed its concern.
      The hon. and learned Member for Leicester, West (Mr. Janner) kindly told me that he would not be able to be here for my response to his remarks, but for the record I should make it clear that I cannot accept his interpretation of the

      253
      law, which is that it would be permissible under the law as it exists, or under the Vienna convention, to open diplomatic bags. That is not so.
      There is a very important distinction to be drawn between articles 27 and 36 of the Vienna convention. Article 27 relates to the diplomatic bag, and article 36 relates to the personal baggage of the diplomatic agent. Whereas article 36 makes it clear that in certain circumstances inspection of the personal baggage of the diplomatic agent may be permissible, article 27 does not contain, in relation to the diplomatic bag itself, any such exception. It is therefore clear, as a matter of construction and as a matter of law, that it is not permissible to inspect the diplomatic bag. Indeed, the language of the article is quite unequivocal on this point.
      Similarly, the proposal that scanning should be attempted and that if anything suspicious is shown the diplomat concerned should be required to open the bag or to return it cannot be carried out because of the provisions of article 27.
      Ms. Clare Short: I am sure that we are all deeply honoured that the Home Secretary has joined us to discuss this important piece of legislation. May I ask for his comments on the piece from The Times read out by the hon. Member for Bury St. Edmunds (Mr. Griffiths), who told us that there was a live human body in the Egyptian diplomatic trunk when it was opened by the Italians? May we know what happened to them when they opened the trunk?
      Mr. Brittan: The answer is simple. That incident occurred before Italy became a party to the Vienna convention.
      Under the Diplomatic Privileges Act 1964, the Vienna convention is incorporated into the law of this country and therefore the only way in which it would be possible to take the sort of action that has commended itself would be to remove it from the law of this country. There is no doubt that, in regard to our domestic law, it would be open to Parliament at any time to do that. If we were to do that unilaterally we would be in breach of our obligations in international law. I am sure that both sides of the House would not commend that course.
      It is exactly for that reason that my right hon. and learned Friend the Foreign Secretary, recognising and agreeing entirely with the views expressed in the House about the problems caused by the recent incidents, of which the tragic incident in St. James's square was the most blatant and the most serious, has begun to embark upon a review of these matters and to raise them in international forums. The purpose that my hon. Friend advanced of strengthening my right hon. and learned Friend's arm in this matter by showing the concern of the House has been well used. I am sure that my right hon. and learned Friend will be as grateful as I am for the opportunity in considering these matters to be aware of the strength of feeling in the House and the country.
      Mr. Eldon Griffiths: I am most obliged to my right hon. and learned Friend. I think the House now wishes to get on. I have achieved the purpose that I had in mind. I think that the House has been able tonight to demonstrate its feelings in this serious matter and to give to my right hon. and learned Friend the Foreign Secretary and to my
      254
      right hon. and learned Friend the Home Secretary the support that they need and deserve in the important task that they are undertaking.
      Mr. Deputy Speaker (Mr. Ernest Armstrong): Is the hon. Gentleman seeking to withdraw the motion.
      Mr. Griffiths: Yes, Sir. I beg to ask leave to withdraw the motion.
      Hon. Members: No.
      Mr. Deputy Speaker: Then I must put the Question.
      Question put, That the clause be read a Second time:—
      Mr. Griffiths: I am not going to take part in this charade.
      The House divided: Ayes 40, Noes 180.

      Division No. 300]

      [11.24 pm

      AYES

      Alton, David

      Maginnis, Ken

      Ashdown, Paddy

      Marek, Dr John

      Banks, Tony (Newham NW)

      Maxton, John

      Barron, Kevin

      Molyneaux, Rt Hon James

      Beckett, Mrs Margaret

      Nellist, David

      Beith, A. J.

      Parry, Robert

      Bruce, Malcolm

      Penhaligon, David

      Campbell-Savours, Dale

      Pike, Peter

      Carlile, Alexander (Montg'y)

      Powell, Rt Hon J. E. (S Down)

      Conlan, Bernard

      Ross, Wm. (Londonderry)

      Davies, Ronald (Caerphilly)

      Sheerman, Barry

      Evans, John (St. Helens N)

      Skinner, Dennis

      Fisher, Mark

      Smith, Cyril (Rochdale)

      Howells, Geraint

      Smyth, Rev W. M. (Belfast S)

      Hughes, Sean (Knowsley S)

      Steel, Rt Hon David

      Hughes, Simon (Southwark)

      Walker, Cecil (Belfast N)

      Kennedy, Charles

      Wallace, James

      Kirkwood, Archibald

      Whitfield, John

      Lloyd, Tony (Stretford)

      Loyden, Edward

      Tellers for the Ayes:

      Maclennan, Robert

      Ms. Clare Short and

      Madden, Max

      Mr. Stuart Bell.

      NOES

      Alexander, Richard

      Butler, Hon Adam

      Amess, David

      Carlisle, John (N Luton)

      Ancram, Michael

      Carlisle, Kenneth (Lincoln)

      Arnold, Tom

      Carttiss, Michael

      Ashby, David

      Cash, William

      Atkinson, David (B'm'th E)

      Chalker, Mrs Lynda

      Baker, Nicholas (N Dorset)

      Chapman, Sydney

      Baldry, Anthony

      Chope, Christopher

      Batiste, Spencer

      Clark, Dr Michael (Rochford)

      Beaumont-Dark, Anthony

      Clarke, Rt Hon K. (Rushcliffe)

      Bellingham, Henry

      Colvin, Michael

      Bendall, Vivian

      Conway, Derek

      Benyon, William

      Coombs, Simon

      Berry, Sir Anthony

      Cope, John

      Best, Keith

      Corrie, John

      Biffen, Rt Hon John

      Couchman, James

      Biggs-Davison, Sir John

      Cranborne, Viscount

      Blaker, Rt Hon Sir Peter

      Currie, Mrs Edwina

      Bonsor, Sir Nicholas

      Dorrell, Stephen

      Bottomley, Peter

      du Cann, Rt Hon Edward

      Bottomley, Mrs Virginia

      Dunn, Robert

      Bowden, A. (Brighton K'to'n)

      Dykes, Hugh

      Bowden, Gerald (Dulwich)

      Eggar, Tim

      Brandon-Bravo, Martin

      Evennett, David

      Brinton, Tim

      Eyre, Sir Reginald

      Brittan, Rt Hon Leon

      Fairbairn, Nicholas

      Brooke, Hon Peter

      Fallon, Michael

      Brown, M. (Brigg & Cl'thpes)

      Favell, Anthony

      Browne, John

      Fenner, Mrs Peggy

      Bruinvels, Peter

      Forman, Nigel

      Buck, Sir Antony

      Forsyth, Michael (Stirling)

      Burt, Alistair

      Fox, Marcus

      255

      Franks, Cecil

      Moore, John

      Fraser, Peter (Angus East)

      Moynihan, Hon C.

      Gale, Roger

      Neubert, Michael

      Galley, Roy

      Newton, Tony

      Gardiner, George (Reigate)

      Nicholls, Patrick

      Garel-Jones, Tristan

      Ottaway, Richard

      Goodhart, Sir Philip

      Powley, John

      Gorst, John

      Raffan, Keith

      Gregory, Conal

      Robinson, Mark (N'port W)

      Griffiths, Peter (Portsm'th N)

      Rumbold, Mrs Angela

      Ground, Patrick

      Ryder, Richard

      Hamilton, Hon A. (Epsom)

      Sackville, Hon Thomas

      Hamilton, Neil (Tatton)

      Sainsbury, Hon Timothy

      Hanley, Jeremy

      Scott, Nicholas

      Hannam, John

      Shelton, William (Streatham)

      Hargreaves, Kenneth

      Sims, Roger

      Harvey, Robert

      Smith, Tim (Beaconsfield)

      Hawksley, Warren

      Soames, Hon Nicholas

      Hayward, Robert

      Speed, Keith

      Heathcoat-Amory, David

      Speller, Tony

      Henderson, Barry

      Spencer, Derek

      Hickmet, Richard

      Squire, Robin

      Hind, Kenneth

      Stanbrook, Ivor

      Hirst, Michael

      Stanley, John

      Hogg, Hon Douglas (Gr'th'm)

      Steen, Anthony

      Holt, Richard

      Stern, Michael

      Hooson, Tom

      Stevens, Lewis (Nuneaton)

      Howard, Michael

      Stevens, Martin (Fulham)

      Howarth, Gerald (Cannock)

      Stewart, Allan (Eastwood)

      Howell, Rt Hon D. (G'ldford)

      Stewart, Andrew (Sherwood)

      Howell, Ralph (N Norfolk)

      Stewart, Ian (N Hertf'dshire)

      Hubbard-Miles, Peter

      Sumberg, David

      Hunt, David (Wirral)

      Taylor, Teddy (S'end E)

      Hunt, John (Ravensbourne)

      Temple-Morris, Peter

      Hunter, Andrew

      Thompson, Donald (Calder V)

      Hurd, Rt Hon Douglas

      Thompson, Patrick (N'ich N)

      Johnson-Smith, Sir Geoffrey

      Thorne, Neil (Ilford S)

      Jones, Robert (W Herts)

      Tracey, Richard

      Jopling, Rt Hon Michael

      Trippier, David

      Kershaw, Sir Anthony

      van Straubenzee, Sir W.

      Key, Robert

      Viggers, Peter

      King, Rt Hon Tom

      Wakeham, Rt Hon John

      Knight, Gregory (Derby N)

      Waldegrave, Hon William

      Lamont, Norman

      Walden, George

      Latham, Michael

      Waller, Gary

      Lawler, Geoffrey

      Ward, John

      Lawrence, Ivan

      Wardle, C. (Bexhill)

      Leigh, Edward (Gainsbor'gh)

      Watson, John

      Lennox-Boyd, Hon Mark

      Watts, John

      Lilley, Peter

      Wells, Bowen (Hertford)

      McCurley, Mrs Anna

      Wheeler, John

      MacGregor, John

      Winterton, Mrs Ann

      Maclean, David John

      Winterton, Nicholas

      Malins, Humfrey

      Wolfson, Mark

      Mates, Michael

      Wood, Timothy

      Mather, Carol

      Woodcock, Michael

      Maxwell-Hyslop, Robin

      Mellor, David

      Tellers for the Noes:

      Meyer, Sir Anthony

      Mr. John Major and

      Mills, Iain (Meriden)

      Mr. Ian Lang.

      Question accordingly negatived
      Mr. Cyril Smith: On a point of order, Mr. Deputy Speaker. Is it in order for an hon. Member to delay the House for 17 minutes when moving a new clause and, when it is put to a Division, refuse to vote for it and, furthermore, describe those who vote for it as taking part in a charade?
      Mr. Deputy Speaker: It is in order. It is not for me to compel anyone to go into the Division Lobby.

    New Clause 24

      REMOVAL OF EXCLUDED MATERIAL
      'Where in criminal proceedings the prosecution has any excluded material which has been removed from the possession or control of a person accused in those proceedings, and an application is made at any stage of the proceedings by the accused person that such removal was an abuse of the process of the court, the court—

      (a) where the removal was unlawful, shall and

      (b) where the removal was lawful, may order that the proceedings against the accused person be stayed.'.—[Mr. Alex Carideo]

      Brought up, and read the First time.
      Mr. Alex Carlile: I beg to move, That the clause be read a Second time.
      The hour is late and a great deal of work remains to he done. Believe it or not after the debate of the last hour or so, we are still discussing the Police and Criminal Evidence Bill. I am not diluting the importance of new clause 24 if I move its Second Reading quickly. It is designed to overcome the decision of the Court of Appeal in the case of Regina v. Heston-Francois, which was reported in [1984], 1 All England Reports, at page 785.
      It has long been the practice in civil actions in the High Court for the defendant to the claim to be able to make an application to strike out a claim that is frivolous, vexatious, or an abuse of the process of the court in any way other than being frivolous or vexatious. It is a jurisdiction which the courts have frequently exercised. Although precise figures of such cases are not readily available, even claims made by or on behalf of Government Departments have occasionally been struck out for being an abuse of the process of the court.
      As a result of the case of Heston-Francois, it appears that, in contradistinction to the circumstances in civil proceedings, where a case can be struck out for being an abuse of the court's process, in criminal proceedings there is no preliminary jurisdiction to strike out a prosecution to stop it before it is proceeded with, on indictment, on the ground that it is an abuse of the process of the court. As a result, it is possible that trials will be proceeded with when the Crown has acted quite disgracefully.
      I shall use the case of Heston-Francois as example. The conduct complained of involved police searching premises in relation to an offence charged against the accused, finding files that related to the accused person's defence on an entirely different charge and taking them away and handing them over to police officers involved in the first charge. That was such an abuse of the process of the court, and such monstrous misbehaviour, that the prosecution should not have been entitled to proceed with the trial of the charge to which the removed documents related. At the very least, at the preliminary stage the court should have the discretion in such circumstances to prohibit the prosecution from proceeding. The Court of Appeal held in the case of R v. Heston-Francois that there was not even such a discretion.
      There have been cases in the past in which the prosecution was not allowed to proceed. I recall a case in which, as prosecuting counsel, I was forbidden by a High Court judge from proceeding with a prosecution on the ground that there had been an abuse of the process of the court by the Crown. It was thought that the power could be exercised, and it was exercised in some cases. Now we find that that may not be so.

      257
      It is fundamentally offensive for the Crown to be entitled to proceed in criminal proceedings when there has been monstrous misbehaviour of the type which I have mentioned and which is illustrated in the case that I mentioned.
      I hope that we shall hear from the Minister that at least the principle of the new clause is acceptable. Otherwise, I fear that we must force the House to a Division.
      Mr. Hurd: I shall outline the present law briefly, starting at a slightly earlier point than the hon. and learned Member for Montgomery (Mr. Carlile). In 1964, in the course of his speech in the case of Connelly v. DPP, Lord Devlin added to the accepted grounds for a stay of proceedings — that, where criminal proceedings constitute an abuse of process the court may refuse to allow the indictment to go for trial. All of the noble and learned Lords who gave judgment in Connelly were agreed that the court has a general and inherent power to protect its process from abuse and that that includes a power to safeguard an accused person from oppression or prejudice.
      The question raised by the new clause is whether the seizure by the prosecution of excludable material from the accused amounts to an abuse of the court process and, if so, whether it is necessary to enshrine in statute a pre-trial review procedure, together with the power to order a stay of proceedings as a sanction against such activities by the police.
      As the hon. and learned Member for Montgomery has told us, the issue was the subject of a recent judgment in the case of R v. Heston-Francois. The police had seized documents prepared for the accused's defence. Before arraignment, the defendant alleged that the prosecution was guilty of oppressive conduct that was said to constitute an abuse of the court's process. The trial judge refused a pre-trial review on the issue and the accused was convicted.
      On appeal, the Court of Appeal held that the trial judge was under no special duty to conduct a pre-trial inquiry on that issue, either on agreed facts or after hearing evidence, and on so finding to exercise discretion on whether to stay the proceedings. The Court of Appeal took the view that such conduct by the prosecution falls to be dealt with in the trial, whether by judicial control on the admissibility of evidence, or by the judicial power to direct, usually at the close of the prosecution's case, a verdict of not guilty, or by the jury taking account of it in evaluating the evidence before them.
      Naturally, the court, as one would expect, affirmed that the unlawful and unjustified seizure of the defendant's documents should not occur and was, in the words of the judgment:
      "deserving of censure, and probably the activation of the police disciplinary code".
      That seems to be the sensible and proper view to take on the matter.
      The hon. and learned Member for Montgomery clearly believes— I have heard him say so in Committee in other contexts — that the best way to control police behaviour is through the sanction of a stay of proceedings. We do not agree that that prospect is a more effective deterrent to police misconduct than the existing prospects of the officer facing disciplinary proceedings, possibly losing his job and perhaps facing separate criminal and
      258
      civil proceedings. We would be misunderstanding human nature to suppose that those deterrents are lesser ones than the stay of proceedings sought by the hon. Gentleman. The court's inherent powers already provide protection to the accused from an abuse of process. The new clause would materially alter the role of the judge and the function of the trial in our criminal justice system—
      11.45 pm
      Mr. Alex Carlile: Will the right hon. Gentleman tell us in what way the court's inherent powers can be operated to prevent an abuse of the process of the court, in the light of the Heston-Francois decision? My understanding of the effect of that decision is that the trial judge should not consider such applications any more but should deal with the issues arising in them in some way during the trial, presumably when the evidence is being given, is about to be given, or has just been given.
      Mr. Hurd: I listed in my account of the judgment the three ways in which the court believed that there was a remedy during the trial.
      The new clause, in trying to deal with the situation, would materially alter the role of the judge and the function of the trial in our criminal justice system in a way that we, and I believe the judges, would regard as unsatisfactory, by turning it into an instrument for disciplining the police. I therefore urge the House to reject the new clause.
      Mr. Stuart Holland: Heston-Francois was one of my constituents. I stress to the Minister that the situation was inadequate. I have raised the case several times on the Floor of the House, as well as when his appeal was thrown out in the other place. I wrote to the Minister about it, expressing grave concern and asking whether he would clarify or re-issue instructions to the police on the search of premises.
      In the Heston-Francois case, the premises were entered and his defence files taken away by the local police, who then made them available to police at another police station, who were so inadvertent and careless that they returned the files first to Brixton police station and then to Mr. Francois himself with a photocopied note saying, "Thank you very much for sight of the Francois files. Do contact us further if necessary on another phone number." In such a case, when the man's defence files had been seen, and it is clear that he could not defend himself, the Minister and the House must reflect on the seriousness of the sitution, where a series of appeals had been made and rejected, and where the individual concerned languished at pleasure in detainment at one of Her Majesty's prisons without having been able properly to defend himself.
      I urge the Minister to reconsider the matter. It is just conceivable that he could consider it under new clause 29, on the search of premises. The situation is inadequate. It is a blatant miscarriage of the natural principles of justice for which this country is renowned. For the Minister to reply that he cannot even issue instructions to the police in such matters is quite unacceptable.
      Mr. Alex Carlile: With the leave of the House, I should like to make one fundamental point in reply to the Minister.
      The Minister is saying that if the prosecution has committed a monstrous act against justice amounting to an abuse of the process of the court, it is adequate to leave

      259
      that to police disciplinary procedures, which, with great respect to the Minister, is unworthy both of him and of the House. Surely the position should be exactly as it is in civil proceedings, when important issues may also be involved. If there is an abuse of the process of the court—such extreme conduct as to fall clearly within that category—the prosecution should be forbidden from proceeding.
      Mr. Ashby: One might use the phrase, "to go to court with clean hands".
      Mr. Carlile: I am obliged to the hon. Member for reminding me that in civil proceedings it is necessary to go to court with clean hands. Why should the prosecution — the guardian of the public conscience, which sets public standards and asks the jury to confirm them—not also be required to go to court with clean hands?
      Question put, That the clause be read a Second time:—
      The House divided: Ayes 33, Noes 186.

      Division No. 301]

      [11.50 pm

      AYES

      Alton, David

      Loyden, Edward

      Ashdown, Paddy

      Madden, Max

      Banks, Tony (Newham NW)

      Marek, Dr John

      Barron, Kevin

      Maxton, John

      Bell, Stuart

      Nellist, David

      Bermingham, Gerald

      Parry, Robert

      Bruce, Malcolm

      Penhaligon, David

      Campbell-Savours, Dale

      Randall, Stuart

      Carlile, Alexander (Montg'y)

      Rogers, Allan

      Cook, Robin F. (Livingston)

      Ross, Stephen (Isle of Wight)

      Corbett, Robin

      Skinner, Dennis

      Davis, Terry (B'ham, H'ge H'l)

      Smith, Cyril (Rochdale)

      Dubs, Alfred

      Steel, Rt Hon David

      Fisher, Mark

      Wallace, James

      Holland, Stuart (Vauxhall)

      Howells, Geraint

      Tellers for the Ayes;

      Hughes, Simon (Southwark)

      Mr. Alan Beith and

      Kaufman, Rt Hon Gerald

      Mr. Robert Maclennan.

      Kirkwood, Archibald

      NOES

      Alexander, Richard

      Butler, Hon Adam

      Amess, David

      Carlisle, John (N Luton)

      Ancram, Michael

      Carlisle, Kenneth (Lincoln)

      Arnold, Tom

      Carttiss, Michael

      Ashby, David

      Cash, William

      Atkinson, David (B'm'th E)

      Chalker, Mrs Lynda

      Baker, Nicholas (N Dorset)

      Chapman, Sydney

      Baldry, Anthony

      Chope, Christopher

      Batiste, Spencer

      Clark, Dr Michael (Rochford)

      Beaumont-Dark, Anthony

      Clarke, Rt Hon K. (Rushcliffe)

      Bellingham, Henry

      Conway, Derek

      Bendall, Vivian

      Coombs, Simon

      Benyon, William

      Cope, John

      Berry, Sir Anthony.

      Corrie, John

      Biffen, Rt Hon John

      Couchman, James

      Biggs-Davison, Sir John

      Cranborne, Viscount

      Blaker, Rt Hon Sir Peter

      Currie, Mrs Edwina

      Bonsor, Sir Nicholas

      Dorrell, Stephen

      Boscawen, Hon Robert

      du Cann, Rt Hon Edward

      Bottomley, Peter

      Dunn, Robert

      Bottomley, Mrs Virginia

      Dykes, Hugh

      Bowden, A. (Brighton K'to'n)

      Eggar, Tim

      Bowden, Gerald (Dulwich)

      Evennett, David

      Braine, Sir Bernard

      Eyre, Sir Reginald

      Brandon-Bravo, Martin

      Fairbairn, Nicholas

      Brinton, Tim

      Fallon, Michael

      Brittan, Rt Hon Leon

      Favell, Anthony

      Brooke, Hon Peter

      Fenner, Mrs Peggy

      Brown, M. (Brigg & Cl'thpes)

      Fookes, Miss Janet

      Browne, John

      Forman, Nigel

      Bruinveis, Peter

      Forsyth, Michael (Stirling)

      Buck, Sir Antony

      Fox, Marcus

      Burt, Alistair

      Franks, Cecil

      260

      Fraser, Peter (Angus East)

      Moynihan, Hon C.

      Gale, Roger

      Newton, Tony

      Galley, Roy

      Nicholls, Patrick

      Gardiner, George (Reigate)

      Ottaway, Richard

      Garel-Jones, Tristan

      Powell, Rt Hon J. E. (S Down)

      Goodhart, Sir Philip

      Powley, John

      Gorst, John

      Raffan, Keith

      Gregory, Conal

      Robinson, Mark (N'port W)

      Griffiths, E. (B'y St Edm'ds)

      Ross, Wm. (Londonderry)

      Griffiths, Peter (Portsm'th N)

      Rumbold, Mrs Angela

      Ground, Patrick

      Ryder, Richard

      Hamilton, Neil (Tatton)

      Sackville, Hon Thomas

      Hanley, Jeremy

      Sainsbury, Hon Timothy

      Hannam, John

      Scott, Nicholas

      Hargreaves, Kenneth

      Shelton, William (Streatham)

      Harvey, Robert

      Sims, Roger

      Hawksley, Warren

      Smith, Tim (Beaconsfield)

      Hayward, Robert

      Smyth, Rev W. M. (Belfast S)

      Heathcoat-Amory, David

      Soames, Hon Nicholas

      Henderson, Barry

      Speed, Keith

      Hickmet, Richard

      Spencer, Derek

      Hind, Kenneth

      Squire, Robin

      Hirst, Michael

      Stanbrook, Ivor

      Hogg, Hon Douglas (Gr'th'm)

      Stanley, John

      Holt, Richard

      Steen, Anthony

      Hooson, Tom

      Stern, Michael

      Howard, Michael

      Stevens, Lewis (Nuneaton)

      Howarth, Gerald (Cannock)

      Stevens, Martin (Fulham)

      Howell, Ralph (N Norfolk)

      Stewart, Allan (Eastwood)

      Hubbard-Miles, Peter

      Stewart, Andrew (Sherwood)

      Hunt, David (Wirral)

      Stewart, Ian (N Hertf'dshire)

      Hunt, John (Ravensbourne)

      Sumberg, David

      Hunter, Andrew

      Taylor, Teddy (S'end E)

      Hurd, Rt Hon Douglas

      Temple-Morris, Peter

      Johnson-Smith, Sir Geoffrey

      Thompson, Donald (Calder V)

      Jones, Robert (W Herts)

      Thompson, Patrick (N'ich N)

      Jopling, Rt Hon Michael

      Thorne, Neil (Ilford S)

      Kershaw, Sir Anthony

      Tracey, Richard

      Key, Robert

      Trippier, David

      King, Rt Hon Tom

      van Straubenzee, Sir W.

      Knight, Gregory (Derby N)

      Viggers, Peter

      Lamont, Norman

      Wakeham, Rt Hon John

      Lang, Ian

      Waldegrave, Hon William

      Latham, Michael

      Walden, George

      Lawler, Geoffrey

      Walker, Cecil (Belfast N)

      Lawrence, Ivan

      Waller, Gary

      Leigh, Edward (Gainsbor'gh)

      Ward, John

      Lennox-Boyd, Hon Mark

      Wardle, C. (Bexhill)

      Lilley, Peter

      Watson, John

      McCurley, Mrs Anna

      Watts, John

      MacGregor, John

      Wells, Bowen (Hertford)

      Maclean, David John

      Wheeler, John

      Maginnis, Ken

      Whitfield, John

      Major, John

      Winterton, Mrs Ann

      Malins, Humfrey

      Winterton, Nicholas

      Mather, Carol

      Wolfson, Mark

      Maxwell-Hyslop, Robin

      Wood, Timothy

      Mellor, David

      Woodcock, Michael

      Meyer, Sir Anthony

      Mills, Iain (Meriden)

      Tellers for the Noes:

      Molyneaux, Rt Hon James

      Mr. Michael Neubert and

      Moore, John

      Mr. Archie Hamilton.

      Question accordingly negatived.

    Clause 1

      POWER OF CONSTABLE TO SEARCH PERSONS, VEHICLES ETC.
      Amendments made; No. 3, in page 1, line 6, at end insert—;
      '( ) A constable may exercise any power conferred by this section—

      (a) in any place to which at the time he proposes to exercise the power the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission; or

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      (b) in any other place to which people have ready access at the time when he proposes to exercise the power but which is not a dwelling.'.

      No. 4, in page 1, line 7, leave out from `a' to 'may' in line 9 and insert
      'constable—

      (a) may search—

      (i) any person or vehicle;

      (ii) anything which is in or on a vehicle, for stolen or prohibited articles; and

      (b).'.

      No. 5, in page 1, line 11, leave out from beginning to `unless' in line 12 and insert—
      '(2) This section does not give a constable power to search a person or vehicle or anything in or on a vehicle'.
      No. 6, in page 1, line 15, leave out 'yard or other place' and insert `or yard'.
      No. 7, in page 1, line 16, after `dwelling', insert
      'or on other land so occupied and used'.
      No. 8, in page 2, line 8, leave out 'yard or other place' and insert `or yard'.
      No. 9, in page 2, line 9, after `dwelling', insert
      'or on other land so occupied and used'.
      No. 10, in page 2, line 10, after 'search', insert
      'the vehicle or anything in or on'.
      No. 11, in page 2, line 20, leave out subsection (6).
      No. 12, in page 3, line 2, leave out from 'person' to end of line 15.—[Mr. Hurd.]

    Clause 2

      PROVISIONS RELATING TO SEARCH UNDER S. I AND OTHER POWERS
      Amendments made; No. 14 in page 3, line 16 leave out subsection (1) to (7) and insert—
      '(1) A constable who detains a person or vehicle in the exercise—

      (a) of the power conferred by section I above; or

      (b) of any other power?

      (i) to search a person without first arresting him; or

      (ii) to search a vehicle without making an arrest,

      need not conduct a search if it appears to him subsequently—

      (i) that no search is required; or

      (ii) that a search is impracticable.

      (1A) If a constable contemplates a search, other than a search of an unattended vehicle, in the exercise—

      (a) of the power conferred by section I above; or

      (b) of any other power, except the power conferred by section 6 below and the power conferred by section 27(2) of the Aviation Security Act 1982—

      (i) to search a person without first arresting him; or

      (ii) to search a vehicle without making an arrest,

      it shall be his duty, subject to subsection (1C) below, to take reasonable steps before he commences the search to bring to the attention of the appropriate person—

      (i) if the constable is not in uniform, documentary evidence that he is a constable; and

      (ii) whether he is in uniform or not, the matters specified in subsection (1B) below,

      and the constable shall not commence the search until he has performed that duty.
      (1B) The matters referred to in subsection (1A)(ii) above are—

      (a) the constable's name and the name of the police station to which he is attached;

      (b) the object of the proposed search;

      (c) the constable's grounds for proposing to make it; and

      (d) the effect of section 3(7) or (8) below, as may be appropriate.

      (1C) A constable need not bring the effect of section 3(7) or (8) below to the attention of the appropriate person if it appears to the constable that it will not be practicable to make the record in section 3(1) below.
      (1D) In this section "the appropriate person" means—
      (a) if the constable proposes to search a person, that person;
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      and
      (b) if he proposes to search a vehicle, or anything in or on a vehicle, the person in charge of the vehicle.
      (1E) On completing a search of an unattended vehicle or anything in or on such a vehicle in the exercise of any such power as is mentioned in subsection (1A) above a constable shall leave a notice—

      (a) stating that he has searched it;

      (b) giving the name of the police station to which he is attached; and

      (c) stating that an application for compensation for any damage caused by the search may be made to that police station.

      (IF) The constable shall leave the notice inside the vehicle unless it is not reasonably practicable to do so without damaging the vehicle.'
      No. 15 in page 4, line 33 leave out subsection (8).—[Mr. Hurd.]

    Clause 3

      DUTY TO MAKE RECORDS CONCERNING SEARCHES
      Amendments made: No. 17, in page 5, line 6, leave out
      '(a)'
      No. 18, in page 5, line 12, leave out from beginning to first 'as' in line 13 and insert—
      '(2) if—

      (a) a constable is required by subsection (1) above to make a record of a search; but

      (b) it is not practicable to make the record on the spot, he shall make it'.

      No. 19, in page 5, line 20, at end insert—
      '(4A) The record of a search of a vehicle shall include a note describing the vehicle.'.
      No. 20, in page 5, line 21, at end insert 'of a person or a vehicle'.
      No. 21, in page 5, line 26, leave out 'and'.
      No. 22, in page 5, line 27, leave out `(v) its result;' and insert—

      '(v) whether anything, and if so what, was found;

      (vi) whether any, and if so what, injury to a person or damage to property appears to the constable to have resulted from the search;'.

      No. 23, in page 5, line 29, leave out subsection (6).
      No. 24, in page 5, line 31, leave out from beginning to 'if' in line 32 and insert—
      '(7) If a constable who conducted a search of a person made a record of it, the person who was searched shall be entitled to a copy of the record. '.
      No. 25, in page 5, line 34, leave out subsection (8) and insert—
      '(8) If—

      (a) the owner of a vehicle which has been searched or the person who was in charge of the vehicle at the time when it was searched asks for a copy of the record of the search before the end of the period specified in subsection (9) below; and

      (b) the constable who conducted the search made a record of it,

      the person who made the request shall be entitled to a copy.'.
      No. 26, in page 6, line 4, leave out Clause 4.—[Mr. Hurd.]

    Clause 8

      POWER OF JUSTICE OF THE PEACE TO AUTHORISE ENTRY AND SEARCH OF PREMISES
      12 midnight
      Mr. Hurd: I beg to move amendment No. 28, in page 9, line 24, leave out 'is not' and insert
      'does not consist of items subject to legal privilege,'.
      Mr. Deputy Speaker: With this it will be convenient to take Government amendments Nos. 32, 33, 40, 295, 31, 35, 36, 37, 41, 46, 47, 48, 49, 86, 218, 233, 234, 239 and 241.
      Mr. Hurd: These amendments relate to the power of entry and search that part II of the Bill provides together with schedule 1. Some were designed to clarify the scope of the powers and exceptions from them, most notably in respect of legally privileged material, on which we had a discussion in Committee. These amendments ensure for such material absolute protection.
      The amendments are also to meet the concern expressed in the Committee that certain probation service records might not be covered. Other changes provide additional safeguards in respect of powers of entry and search after arrest, in clause 18, to make clear that the required record of the search should be made in the custody record of the detained person. These changes and other incorporated into this group of amendments are either minor clarifications or they respond directly to undertakings that my hon. Friend and I gave in Committee.
      Amendment agreed to.
      Mr. Simon Hughes: I beg to move amendment No. 29 in page 9, line 29, at end insert—
      '(1A) On the hearing of every such application a person entitled to grant entry to the premises and a person entitled to grant access to the evidence shall be given notice of the application and shall have the right to be heard and to be represented by solicitors and counsel unless on an application made ex parte by a constable the justice of the peace is satisfied that any of the conditions specified in subsection 2(a), (b) or (e) below applies'.
      The amendment deals with the entry powers in this part of the Bill, and in particular it would place a restriction greater than that presently proposed by the Government on the circumstances in which a constable can gain access for the purpose of obtaining evidence. As at present proposed, the provision for search warrants provides for an application to a justice of the peace. If he is satisfied that there are reasonable grounds for believing
      "that a serious arrestable offence has been committed; and that there is material on premises specified in the application which is likely to be of substantial value … to the investigation of the offence"
      in certain circumstances, a warrant can be issued.
      When this matter was debated in Committee, there was much support, although sadly not enough to win a majority, for the Royal Commission's view that such applications should be made before a judge rather than before a justice of the peace. If that does not command the support of the House, the second best option is that which we are seeking. Although we welcome the Government's concession in one of the amendments that have just been dealt with, amendment No. 295, which removes one of the categories on which the JP may grant a search warrant, when
      "a person entitled to grant entry to the premises has unreasonably refused a constable entry",
      we should like the other, similar but more subjective, provision removed. The appropriate premise governing the powers of the police to enter premises, and to obtain, act upon and execute search warrants should be granted under compulsion only in exceptional circumstances. The old phrase is, "An Englishman's home is his castle." That right to possession should be infringed only with the most stringent safeguards. Whereas the conditions for which
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      provision is made in subsection (2)(a) and (b) are practical requirements, there should be a satisfactory hearing about the conditions set out in subsection (2)(c) and (d) before a search warrant is granted. Both parties should be represented at the hearing of the application. The burden of the amendment is that the application for search warrants would be made by the police, but must be considered inter partes, with both parties present, so that the recipient of the police visit can put his or her point of view and be represented.
      If there is not proper representation, it is impossible to know the reasons pertaining in a particular application. Entry to premises will not be granted unless a warrant is produced. The Bill proposes that the reasons given for entry to premises, which may not be granted for any number of reasons, none of which is specified. will be sufficient to persuade a justice in a summary procedure to grant the application. We believe that if the policeman or policewoman believes that entry to the premises will not be granted, the reasons for that belief should be argued. No detriment in that case is caused to the police investigation, as there might be in other cases in which evidence is secreted. The conclusion will be that entry to the premises will not be granted. That must mean that the occupant or owner of the premises has already made that point clear. There should be a hearing about the reason for that.
      The Royal Commission was clear that only as a East resort should the power to search be granted against the will of the person occupying the premises in question. That circumstance should allow the use of that power—we accept that it might sometimes be needed—only when the case has been argued before a magistrate so that it can be determined with both sides putting their point of view. That is a long-standing and correct principle of English justice, and it should apply in this case.
      Mr. Hurd: Once again we are considering the matter of balance. As the hon. Member for Southwark and Bermondsey (Mr. Hughes) knows, an application for a search warrant under clause 8 may be made only where the police have reason to believe that substantial admissible evidence of serious crime is to be found on certain premises. The Bill introduced into Parliament in 1982 provided that in those circumstances the magistrate could issue a search warrant if he was satisfied by the police application.
      Our predecessors were persuaded that it was right to confine the issue of a warrant to those circumstances in which it was not possible to rely on the consent or cooperation of the person thought to be holding the evidence. The Bill provides that the conditions for the issue of a warrant set out in clause 8(2) require the police to satisfy a magistrate that it would be too risky to rely upon consent. Such a position could arise where the person thought to be holding the evidence had a strong motive for getting rid of it if the interest of the police in it became known, or if it was impossible to rely on consent. The hon. Gentleman wants to interpose a new obstacle to the investigation of serious crime. That is what it would amount to if the police, having unsuccessfully sought co-operation, were prevented from applying at once for a warrant.
      A hearing inter partes is absolutely right where questions of confidentiality arise. That is one reason for the provisions in schedule 1 and for the whole definition of "special procedure" and "excluded material". There,

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      there are competing considerations to be weighed, but where, under clause 8, there is no isssue of confidentiality, we believe that the public interest is that, subject to the magistrates' approval of an application, the material evidence should be secured as quickly as possible so that it may in due course be put before the court. For those reasons, and bearing in mind that it is a question of balance, I cannot advise the House to accept the amendment.
      The hon. Member for Vauxhall (Mr. Holland), who is not in the Chamber, mentioned that the might raise again the discussion that we had on a previous new clause. As I may not have another chance of doing so, perhaps I should say that in the past few minutes I have checked what I said about the Heston-Francois judgment against the concern expressed by the hon. and learned Member for Montgomery (Mr. Carlile). Once again I must stress that as a result of that judgment the inherent judicial discretion to stay the proceedings is not undermined. In the judgment it was stated that the judge was not under any general duty to conduct a pre-trial inquiry. It was the court, not I, who said that unlawful procedure was probably deserving of the activation of the police disciplinary codes. I simply cited that view.
      Of course, in an appropriate case—and I should not like to comment on this case — unlawful search and seizure could lead to a civil action by the accused against the police. In addition, following the amendments that have first been accepted, the Bill precludes the police from seizing in future, legally privileged material, in the course of a search. Government amendments strengthen that protection by making it clear that in no circumstances may the police obtain access to such material without consent, whether or not under the authority of a search warrant.
      Mr. Alex Carlile: If the right hon. Gentleman is correct and a civil action is available when such circumstances arise, what is the remedy? Is it a remedy in damages? If so, what is the damage?
      Mr. Hurd: I cannot say that, because it would depend entirely on the case. I said that in an appropriate case a civil action would be possible.
      Thus, there are three possibilities. First, there is the inherent judicial discretion to stay the proceedings. It was incorrectly said that that was undermined by the Heston-Francois judgment. We believe that it is maintained. Secondly, there is the possibility of civil action in an appropriate case. Thirdly, there is the possibility of disciplinary proceedings, which the court commended in this case.
      Mr. Simon Hughes: I have listened to the Minister, and we are grateful for the two amendments that have helped to improve the clause. However, we are not happy that a general power is being left with the police. Contrary to the royal commission's recommendation, it is not a power that is exercisable as a result of a hearing before a judge. In Committee hon. Members were concerned that the power might be used as a rubber stamp. I anticipate that several matters will be looked at together after the conclusion of this Report stage to see whether the balance tips in the right direction. We fear that it does not, but instead of detaining the House when there are other issues that may divide us later, I beg to ask leave to withdraw the amendment.
      Amendment, by leave, withdrawn.
      12.15 am
      Amendments made: No. 295, in page 9, line 37, leave out paragraph (c).—[Mr. Hurd.]
      No. 30, in page 10, line 1, leave out subsection (3).

    Clause 9

      ACCESS TO EXCLUDED MATERIAL AND SPECIAL PROCEDURE MATERIAL
      Amendments made: No. 31, in page 10, line 12, leave out
      'enactment other than this section' and insert 'Act (including a local Act) passed before this Act'.
      No. 32, in page 10, line 16, at end insert—
      '( ) for items subject to legal privilege; or'.

    Clause 10

      MEANING OF "EXCLUDED MATERIAL"
      Amendment made: No. 33, in page 10, leave out line 22.—[Mr. Hurd.]
      Mr. Maclennan: I beg to move Amendment No. 34, in page 10, line 30, leave out from beginning to end of line 8 on page 11.
      Mr. Deputy Speaker: It will be convenient to discuss at the same time the following:
      Amendment No. 38, in page 10, line 16, at end insert—
      '( ) for items subject to legal privilege; or'.
      Government amendment No. 271.
      Amendment No. 39, in page 12, leave out line 16.
      Mr. Maclennan: I do not propose to rehearse the arguments at great length on this important series of amendments and on the question whether there should be a separate category of journalistic material, because the arguments were canvassed at length in Committee, where they were eloquently argued on behalf of the journalists, who seemed at least in some cases, to be having second thoughts about the desirability of this category of exclusion.
      The Minister, when replying to the debate in Standing Committee, was not firm in his view of what was the appropriate response to the representations that had been received, particularly from the Newspaper Society and the British Guild of Newspaper Editors. The Parliamentary Under-Secretary said that his
      "right hon. Friend the Minister of State remains ready to give further consideration to that point. It must clearly be understood that the effect of removing 'journalistic material' from 'excluded material' in Clause 10, and including it as merely 'special procedure material' in Clause 14, would materially weaken the protection for journalists" — [Official Report, Standing Committee E; 19 January 1984, c. 610.]
      He added that there would be plenty of time during the passage of the Bill through both Houses for the matter to be given further consideration.
      I am now seeking to give the Government the opportunity to say what further representations they have received and what further consideration they have given to the matter. The arguments are finely balanced, but there is no doubt that the Newspaper Society retains its view about a separate category of journalistic material; it does not want a special category status for journalists and would prefer to retain the status quo.

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      It could reasonably be argued that if there is to be a special category, others should be brought within it and that the clause should be amended to include, for example, such a category as material for publication. It could be argued that academic researchers and authors of books are not in a greatly different position, nor should they be, from journalists.
      These arguments were argued in Committee. I understand that the Newspaper Society remains firmly of the view which it expressed prior to the Committee's deliberations and that it has written to my hon. and learned Friend the Member for Montgomery (Mr. Carlile) and other members of the Standing Committee reiterating its view. The Government should say what, if any, decision they have reached in the light of those further representations.
      Mr. Corbett: I will not detain the House. It is, however, a pity that this issue should have come before us at this hour. I congratulate the Home Secretary for sparing a few moments to be with us, though I do not anticipate that he will stay for more than a few minutes, and will certainly not see the debate out. He treated the Committee upstairs, and the House during these proceedings, with what I can only regard as gross contempt, especially on a Bill of this importance. I say that with some sadness. On reflection, he may wish to examine his attendance record during these proceedings. This is a Government Bill, and it is up to the Government to staff their own Front Bench.
      If I were to say that I would offer a prize to any hon. Member who would give me the author of the quotation that I am about to read, I would probably be ruled out of order. I will not do that, therefore, but I will read the quote:
      "A free society and a free media are inseparable." —[Official Report, Standing Committee E, 19 January 1984; c. 602.]
      That was said by someone for whom Conservative Members no doubt have great respect, and in whom they have confidence. It was said in 1984 by the Prime Minister. It is a pity that that sentiment has not been imported into the Bill, in spite of the discussions that took place in Committee.
      I shall not weary the House by rehearsing all the argument in detail, save to say that the last Royal Commission on the press in 1977, and most of the representative bodies of those concerned with the media subsequently, have said clearly that they want no more or no less protection in doing their job than the ordinary citizen. That is the case in a nutshell. I could quote extensively from the Royal Commission, but I will not, except to say that at page 185 in paragraph 19.8 it says:
      "we believe that, as a general rule, the press should stand before the law on the same footing as other institutions and all citizens."
      That is the case in a nutshell against the provisions in the clause.
      The hon. Member for Caithness and Sutherland (Mr. Maclellan) referred to representations from the Newspaper Society, and it adheres to that point of view. I accept that the Government responded to arguments of the Opposition in Committee that there had been a change of view by the organisations representing various parts of the media. At that stage, there was almost unanimous agreement in the media that it did not want the provisions that the Government had written into the Bill. The Minister of State smiles. I hope that he will listen to what I say. At the time that I said that, it had been put to me—and I
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      accepted this, and I hope that the Minister will accept it —that there had been a change of mind, and there was near unanimity at that date that the media did not want the provisions of the Bill. Subsequently, the Minister and I know that various organisations changed their mind yet again. It is like trying to catch a moonbeam. Much to its discredit, my own union, the National Union of Journalists, changed its mind, and snatched at the provisions that the Government had written into the revised version of the Bill. Behind the concern of those in press and broadcasting was the fact that, if they acquiesced to what the Government were proposing in the mark two version of the Police and Criminal Evidence Bill, it would set them along the road to a legal definition of a journalist. That was the fear, and journalists want nothing to do with that. In a sense, the cat has leapt out of the bag, and it is biting anybody who will walk by it.
      Government amendment No. 271 invites the House to decide who is a journalist. By the back door—and this is the disgrace of it—it defines for all practical purposes who is a journalist. It does that by the back door, in the dark, and in a blinkered manner. It says:
      "A person who receives material."
      This might be a letter that turns up on a journalist's desk. I hope that no one sends a letter to The Guardian, because it will send it back post haste and drop someone in the soup in the process. A journalist who opens the mail on his desk in the morning has received that material, and the definition in amendment No. 271 is part of the Government's description of a journalist. The amendment states:
      "A person who receives material from someone who intends that the recipient shall use it for the purposes of journalism".
      That includes material that is sent to someone who is on a newspaper, on television or in radio. This is material that has not been solicited or invited. It is a Sarah Tisdall type of communication that is sent anonymously because someone believes that the media should know what is going on. The key and chilling words of the amendment are as follows:
      "is taken to have acquired it for those purposes."
      If the Minister wants to tell me that I have misunderstood the amendment, I shall be delighted to allow him to intervene, but if the Queen's English means any thing—one has reason to read something three times if it emanates from the Home Department—the amendment has the meaning that I have described. It is stating that anyone in the occupation and trade of journalism will be clobbered if he receives material in an unsolicited fashion which the sender intends to be used for the purposes of journalism.
      This is the nearest that the Government have come to introducing a backdoor definition of a journalist. There was near unanimity in Committee in accepting that the Government, for understandable reasons, did not want to get anywhere near defining a journalist in the Bill. They shied away from doing so for reasons which we all understood. Many different interpretations were put upon the Government's reluctance to produce such a definition, but we all understood their reasons.
      The Government said in Committee that they would leave it to the courts to decide whether the material was journalistic. However, amendment No. 271—a sneaky Government amendment — offers a definition of a journalist round the back door. I do not blame the Government for using the back door because I accept that they could not use the front door. If the front door were

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      used, we would be intruding on the freedom of the press, and the occupants of the Government Front Bench see themselves as great champions of that. My interpretation is the only one that can be put upon the amendment. It is intended to be a catch-all provision. These issues were argued in Committee and it was acknowledged by the Parliamentary Under-Secretary of State that in certain circumstances anyone could be regarded as a journalist under the relevant provisions of the Bill. That is why the Government did not want to try to define a journalist. To offer the House the definition that appears in the amendment at this stage and at this hour is frightening and chilling. The Government will regret having opened this Pandora's box.
      Mr. Brittan: The hon. Member for Birmingham, Erdington (Mr. Corbett) has used strong language, including the word "chilling". Those who were not members of the Committee that discussed the Bill could be forgiven for not appreciating that the amendment seeks to provide an extra protection, in the form of an exemption, from the powers of search. The hon. Gentleman's language was less than fair to my predecessor, Lord Whitelaw, as he now is, who, in introducing the provisions which are now being challenged, sought to meet the understandable and legitimate expressions of anxiety which were put to him by the journalistic profession.
      12.30 am
      There was a long history behind that. What my right hon. and noble Friend faced was a situation in which, understandably, for many years journalists had regarded themselves as the custodians of information which was given to them in confidence, and they regarded their obligation to respect that confidence and not to disclose the information which had been so imparted to them as a matter of high journalistic importance and ethics. Indeed, journalists have been prepared to go to prison rather than yield up information. Of course, there were other people in other professions who similarly felt that their material should be protected and that it ought in no circumstances to be subject to the requirements of search.
      It was because of the strong representations that were made that the requirements of the Bill were changed and the provision of a total exclusion for journalistic material that had been obtained in confidence was introduced. That was done in response to extremely strong representations by the journalistic profession.
      It is important to say that it would not have been right for my right hon. and noble Friend to agree to those representations only because of their strength or even because of their then unanimity. He did so because he and the House were persuaded that it was right to do so and that there were special considerations which made it understandable that journalists should be protected from the disclosure of their sources or from yielding up information that had reached them in confidence.
      Amendment No. 271 does not achieve any of the sinister purposes which the hon. Member for Erdington claims. It deals with a gap that became apparent during the debate in Standing Committee. The problem was whether material was protected as being held for the purposes of journalism if it was acquired in an unsolicited form. The feeling was that if there was to be such protection, that
      270
      protection should be afforded to unsolicited material as well. Because unsolicited material is by definition not acquired or created for any purpose related to journalism or otherwise, it was necessary to deal with that situation by means of amendment No. 271, which simply fills a small but important gap and does not have any of the sinister purposes to which the hon. Gentleman referred.
      The question then arises whether, as the hon. Member for Caithness and Sutherland (Mr. Maclennan) asked, there has been a material change in circumstances which would lead the House to take the view that it was not appropriate to confer upon journalists the very special treatment of exemption and exclusion from search which had been provided by Lord Whitelaw. The principal argument put forward is twofold. It is said, first, that journalists no longer want it and, secondly, that on reflection the reason why they do not want it is that the reference to journalistic material implies a definition of journalists which is the thin end of the wedge and a dangerous position to be in, because once journalists are defined and have privileges extended to them, that definition might be used for the purpose of licensing them or for interference of some other kind.
      As to the views of the profession, as has been said candidly by the hon. Member for Erdington, there is no unanimity on this matter. It is true that many important bodies which previously asked for and were in favour of the provisions introduced by my right hon. and noble Friend have changed their mind, as they are entitled to do. As the hon. Gentleman pointed out, some have changed their minds more than once. There remains a division of opinion. Apart from those who have urged that the protection that was provided should now be removed, contrary advice is given by such bodies as the Press Council, the Institute of Journalists and the Guild of British Newspaper Editors. I do not think one can say that there is a new consensus, which has changed from the view that was put before my right hon. and noble Friend.
      We have to consider the merits of the argument. I am not persuaded that the merits of the argument put by the journalistic profession and accepted by my right hon. and noble Friend have substantially changed. I detect nowhere in that profession a readiness to abandon the desire to protect sources and not to disclose information imparted in confidence.
      One is faced with a number of general expressions of preference for journalists not to be singled out by the law. In the light of history, such protestations carry as much weight as those who make them wish them to carry only if they are accompanied by a positive statement of a readiness to comply with the law's provisions, and a readiness to yield up material imparted in confidence if, in the absence of any special protection, the ordinary processes of the law require such yielding up.
      I should have been surprised to hear of that readiness. I should not have expected it. I have not heard it. Therefore, the Government must face the fact that those who ask for such a concession to be taken back, and that the ordinary law should apply, are really saying not that they will comply with the law, but that they will take their chance with it; if the law requires the yielding up of material imparted in confidence they reserve the right to make martyrs of themselves.
      That is not a proper basis for legislation. Journalists have a special position. We do not want them to have to become martyrs from-time to time because the ordinary

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      law does not comply with their conscience. For that reason, it is preferable, in the absence of further argument and consensus, to stick to the provisions inserted at the request of the profession.
      A further argument carries even more weight. Even if one respects anxieties expressed by the journalistic profession now about the definition of journalism and believes those anxieties to be justified—in a way which I certainly find difficult to accept—the suggestion that the provision should be withdrawn would amount to a gigantic "own goal". I shall explain why.
      The House will recall that the protection provided for journalism is provided not for those defined as journalists, but to material which has been assembled for journalistic purposes. That could include anybody, from the part-time housewife who is cookery correspondent for the local newspaper, to someone who writes something on a one-off basis for journalistic purposes.
      If that protection is withdrawn, two situations in relation to material will occur. One can go to a magistrate or to a circuit judge. When does the special procedure arise? There can be no doubt that journalists would wish to avail themselves of the protection of the special procedure wherever possible.
      The special procedure provisions say that two requirements must be met. The first is that the material has to have been held subject
      "to an express or implied undertaking to hold it in confidence."
      That is to be found in clause 14 (2) (b), but the second requirement for the special procedure to operate is that the material must have been
      "acquired or created…in the course of any trade, business, profession or other occupation or for the purpose of any paid or unpaid office held by him".
      That is in clause 14 (2) (a).
      That provision is for the convenience of professional people such as doctors and social workers, who have no objection to disclosing who or what they are. If the journalists were to avail themselves of that provision they would have to show and prove that they were members of a particular profession—journalism. The position is paradoxical. If one abolished the provision introduced by my right hon. Friend there would then be, in effect, a requirement of definition and proof of whether someone was or was not a journalist.
      Quite apart from any consideration of whether a new consensus has emerged, properly construed the Bill without my right hon. Friend's provisions would be worse—from the point of view of the definition of journalism—than with them.
      For all those reasons, I should not at this stage—although I am always ready to hear further views—commend any change to the Bill other than the amendment in my name.
      Mr. Maclennan: Members of the profession of journalism will read the Secretary of State's words with great interest, particularly as he has said that he is still open to further representations. No doubt if the profession puts its act in order in a more coherent way than it has done so far, further representations may be made which may sway the Secretary of State's mind in other directions.
      I am not disposed to press the amendment to a Division, in the light of the Minister's extensive remarks, which, I gather, were heralded to the Lobby and have been awaited
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      with great interest by the journalists whose stamina at this late hour is perhaps not as great as that of some hon. Members.
      I thank the Minister for discussing the arguments with such care. His views will need to be studied with equal care before deciding whether it would be appropriate to refer to this issue in another place. I beg to ask leave to withdraw the amendment.
      Amendment by leave withdrawn.
      Mr. Deputy Speaker (Mr. Paul Dean): With the agreement of the House, I shall now put, page by page, the Government amendments already discussed.

    Clause 11

      MEANING OF "ITEMS SUBJECT TO LEGAL PRIVILEGE"
      Amendments made: No. 35, in page 11, line 28, leave out `to whom the subsection applies' and insert 'who is entitled to possession of them'.
      No. 36, in page 11, line 30, leave out subsection (2). —[Mr. Douglas Hogg.]

    Clause 12

      MEANING OF "PERSONAL RECORDS"
      Amendments made: No. 37, in page 11, line 40, leave out from `to' to end of line 7 on page 12, and insert
      'counselling or assistance given or to be given to him, for the purposes of his personal welfare, by any voluntary organisation or by any individual who—

      (i) by reason of his office or occupation has responsibilities for his personal welfare; or

      (ii) by reason of an order of a court, has responsibilities for his supervision.'—[Mr. Douglas Hogg.]

    Clause 13

      MEANING OF "JOURNALISTIC MATERIAL"
      Amendment made: No. 271, in page 12, line 13, at end insert—
      '(3) A person who receives material from someone who intends that the recipient shall use it for the purposes of journalism is to be taken to have acquired it for those purposes. '—[Mr. Douglas Hogg.]

    Clause 14

      MEANING OF "SPECIAL PROCEDURE MATERIAL"
      Amendments made: No. 40, in page 12, line 18, after `than', insert
      'items subject to legal privilege and'.
      No. 41, in page 12, line 22, leave out 'held by him'.—[Mr. Douglas Hogg.]

    Clause 16

      EXECUTION OF WARRANTS
      Amendments made: No. 42, in page 13, line 39, leave out subsection (2).
      No. 43, in page 13, line 40, at end insert—
      '(2A) Such a warrant may authorise persons to accompany any constable who is executing it'.—[Mr. Douglas Hogg.]

    Clause 17
      ENTRY FOR PURPOSE OF ARREST ETC.
      Amendment made: No. 44, in page 15, line 14, leave out 'using such reasonable force as is necessary'.—[Mr. Douglas Hogg.]
    Clause 18

      ENTRY AND SEARCH AFTER ARREST
      Amendments made: No. 45, in page 16, line 18, leave out
      'using reasonable force if necessary'.
      No. 46, in page 16, line 19, leave out 'in police detention' and insert 'under arrest'.
      No. 47, in page 16, line 21, leave out 'evidence on or in the premises' and insert
      'on the premises evidence, other than items subject to legal privilege'.
      No. 48, in page 16, line 24, after 'other', insert 'arrestable'.
      No. 49, in page 17, line 6, at end insert—
      '(7) Where this subsection applies the officer shall make the record required by subsection (6) above on the custody record of the person who at the time of the search was in occupation or control of the premises which were searched.
      (8) Subsection (7) above applies where the person who was in occupation or control of the premises at the time of the search is in police detention at that time—

      (a) in consequence of having been arrested for an offence before the search; or

      (b) in consequence of having been arrested for an offence evidence of which was found in consequence of the search.'—[Mr. Douglas Hogg.]

    Clause 19

      SEIZURE OF ARTICLES
      Amendments made: No. 50, in page 17, line 8, leave out subsections (1) and (2) and insert—
      '(1) The powers conferred by subsection (1C), (1D) and (1E) below are exercisable by a constable who is searching any premises—

      (a) in the exercise of a power conferred on him by an enactment, including an enactment contained in an Act passed after this Act; or

      (b) with the consent of the occupier.

      (1A) The powers conferred by subsections (1C) and (1D) below are exercisable in relation to any article which is on the premises, other than an item which the constable has reasonable grounds for suspecting to be subject to legal privilege, and the references in subsections (1C) and (1D) below to articles to which those subsections apply are to be construed accordingly.
      (1B) The power conferred by subsection (1E) below is exercisable in relation to any information contained in a computer and accessible from the premises, other than information which the constable has reasonable grounds for suspecting to be subject to legal privilege; and the reference in that subsection to information to which it applies is to be construed accordingly.
      (1C) The constable may seize any article to which this subsection applies if he has reasonable grounds for believing—

      (a) that it has been obtained in consequence of the commission of an offence; and

      (b) that is is necessary to seize it in order to prevent it being concealed, lost, damaged, altered or destroyed.

      (1D) The constable may seize any article to which this subsection applies if he has reasonable grounds for believing—

      (a) that it is evidence in relation to an offence which he is investigating or any other offence; and

      (b) that it is necessary to seize it in order to prevent it being concealed, lost, altered or destroyed.

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      (1E) The constable may require any information to which this subsection applies to be produced in a form in which it can be taken away if he has reasonable grounds for believing—

      (a) that

      (i) it is evidence in relation to an offence which he is investigating or any other offence; or

      (ii) it has been obtained in consequence of the commission of an offence; and

      (b) that it is necessary to do so in order to prevent it being concealed, lost, tampered with or destroyed.'

      No. 51, in page 17, line 26, leave out from beginning to end of line 24 on page 18.
      No. 52, in page 18, line 25, after 'anything', insert 'under this section'.—[Mr. Douglas Hogg.]

    Clause 21

      ARREST WITHOUT WARRANT FOR ARRESTABLE AND OTHER OFFENCES
      12.45 am
      The Parliamentary Under-Secretary of State for the Home Department (Mr. David Mellor): I beg to move amendment No. 53, in page 19, line 33, at end insert—
      '(2A) The powers of summary arrest conferred by the following subsections shall also apply to the offences of—

      (a) conspiring to commit any of the offences mentioned in subsection (2) above;

      (b) attempting to commit any such offence;

      (c) inciting, aiding, abetting, counselling or procuring any such offence,

      and such offences are also arrestable offences for the purposes of this Act.'
      Mr. Deputy Speaker (Mr. Ernest Armstrong): With this it will be convenient to take Government amendments Nos. 54 to 60, 64 to 70, 72 to 74, 76 and 77.
      Mr. Mellor: The amendments relate to arrest provisions in part III. In the main they are intended to satisfy anxieties that were expressed in Committee and to clarify certain technical points.
      Amendment made.

    Clause 22

      GENERAL GROUNDS FOR ARREST
      Amendments made: No. 54, in page 20, line 39, leave out from 'relevant' to 'an' in line 1 on page 21 and insert
      'person—

      (i) causing physical injury to himself or any other person;

      (ii) suffering physical injury;

      (iii) causing loss of or damage to property;

      (iv) causing'.

      No. 55, in page 21, line 1, leave out 'affront to' and insert 'offence against'.
      No. 56, in page 21, line 2, leave out 'an' and insert 'causing an unlawful'.
      No. 57, in page 21, line 14, leave out subsection (5).
      No. 58, in page 21, line 20, leave out subsection (6).
      No. 59, in page 21, line 23, leave out subsection (7).
      No. 60, in page 21, line 28, leave out 'affront to' and insert 'offence against'.

    Clause 24

      ARREST WITHOUT WARRANT FOR FINGERPRINTING
      Mr. Wallace: I beg to move amendment No. 61, in page 22, line 1, leave out Clause 24.
      Mr. Deputy Speaker: With this it will be convenient to take Government amendments Nos. 62 and 63.
      Mr. Wallace: Clause 24 relates to arrest without warrant for the fingerprinting of people who have been convicted of a recordable offence. A list of such offences was available in the Library to members of the Committee. Clause 24 provides statutory regulation, by instrument, of recordable offences. The second qualification for arrest without warrant for fingerprinting is fingerprints not having been taken during investigation of the offence by the police or since conviction. The third is that a request by a constable at a reasonable hour to go to a police station so that fingerprints could be taken had been made within one month of the conviction.
      We welcome the Government's slight concession that enables arrests without warrant to occur within one month of conviction. We still believe that clause 24 should have no part in the Bill. We are trying to establish a balance between giving the police adequate power to detect and prevent crime, and the important rights of the individual. There must be a good case for taking rights away from the individual. There is no doubt that full fingerprinting records would be of benefit to the police, because the use of such records is an important weapon in the police's armoury to detect crime. The House must ask what the citizen must have done to justify such a serious infringement of his liberty.
      In the terms of clause 24, the approximate cause for arrest without warrant would be a refusal to go to a police station within one month of the date of conviction if asked by a constable to do so at a reasonable hour. One step removed from that, and the real need for clause 24, is the failure to take fingerprints of the person at whom the clause is directed during the investigation or subsequent to conviction. The House should not allow the citizen to suffer the trauma of arrest without warrant for an essentially administrative purpose that arises not out of misdemeanour but out of inefficient police procedure. That is not sufficient ground to justify the power being given to the police. Detailed criticisms were raised in Committee about, for example, the way in which clause 24 would affect young people between the ages of 10 and 17. We therefore want to delete clause 24.
      Mr. Dubs: As we made abundantly clear in Committee, the Labour party is also unhappy about the clause, and we support the move by the hon. Member for Orkney and Shetland (Mr. Wallace) to have it deleted.
      Mr. Mellor: With the greatest respect to the hon. Member for Orkney and Shetland (Mr. Wallace), he has the wrong end of the stick, as the position is not due to the police being incompetent, careless, or any of the terms that he used. The amendment simply covers the case where, because proceedings were taken against a defendant by way of summons rather than arrest, the defendant may not have been to a police station, and so rendered himself liable to be detained. The clause 54 provisions would come into operation and fingerprints would be taken.
      Mr. Alex Carlile: Will the Minister give way?
      Mr. Mellor: I should like to finish the point that I am making before being told how wrong I am.
      If a defendant is convicted of a criminal offence, it is sensible to have his fingerprints record available. If he is subsequently convicted of an offence and uses a different
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      name, there would be no way of linking the two offences if the relevant fingerprints are not on record. It follows that fingerprints should be available for elementary protection of the public. Clause 24 provides a back-up to the usual power, to cover the case when a person is prosecuted by way of summons. That person is given the option of cooperating with the police. The Bill makes it clear that he must be given that opportunity at a reasonable time if a request is made for him to go to the police station and have his fingerprints taken. If he refuses to do that, a power of arrest is exercisable within a month of the conviction, for the fingerprints to be taken.
      With the greatest respect to the hon. and learned Gentleman, while I am more than prepared to consider those areas of the Bill where there is room for genuine concern, I am rather puzzled that there is such concern about a commonsense matter.
      Ms. Clare Short: Will the Minister give way?
      Mr. Mellor: We would not want to extend the number of times that a person is arrested before fingerprints must be made available. I must say to the hon. Member for Birmingham, Ladywood (Ms. Short), who is interjecting from a sedentary position, that unless she wishes to take issue with the fundamental point, which is that the fingerprints of those convicted of criminal offences should be made available as a basic and elementary safeguard for the public in the investigation of other offences or the proving of other cases against someone brought before the court, I do not see how anyone could object to it.
      Mr. Alex Carlile: If the Minister is right, and the intention of the clause is to enable fingerprints to be taken from those who have been prosecuted by way of summons, which I well understand in some circumstances, why does not the clause say that? If the Minister were prepared to amend the clause so that it said that fingerprints could be taken from people only when they had been prosecuted by summons, I suspect that the amendment would not be on the Amendment Paper tonight. Does not the Minister agree that the way in which the clause is drawn makes it open to a police force that has been sloppy and incompetent during an investigation and failed to take fingerprints, to go as an afterthought to someone who has already been convicted and say, "Come along, old chap. We are going to take your fingerprints now."?
      Mr. Mellor: I understand the hon. and learned Gentleman. It would be most unusual, however, for the power to be used in any other context. In the spirit of conciliation that always grips me when I am subjected to the eloquence of the hon. and learned Gentleman and when I am tired, although I hope not emotional, as the hon. Member for Battersea (Mr. Dubs) has said, we shall reconsider the provision to see whether it would be possible to make such a change in another place. I am not giving an undertaking that we shall arrive at the conclusion that the hon. Gentleman wants, but we shall consider it, because that is the intention that lies behind the measure. It is not intended to excuse, so to speak, those who fail. It would be a most grotesque oversight on the part of the police not to take the fingerprints of someone in custody who had already been convicted of an offence. We do not want to make special statutory provisions for that sort of position.
      Mr. Wallace: I listened carefully to what the Minister said. He has given an indication, though not a

      277
      commitment, that he will have another look at the matter. I shall stand corrected if I have not got this right. I have looked through the relevant minutes of the Committee proceedings, and did not find the reason that the Minister gave. None the less, I believe that the Minister will bear in mind what has been said by Opposition Members. In those circumstances, I beg to ask leave to withdraw the amendment.
      Amendment, by leave, withdrawn.
      Amendments made: No. 62, in page 22, line 8, leave out from beginning to first `to' in line 9.
      No. 63, in page 22, line 11, at end insert
      'at any time not later than one month after the date of the conviction.'.—[Mr. Hurd.]

    Clause 25

      INFORMATION TO BE GIVEN ON ARREST
      Amendments made: No. 64, in page 22, line 20, leave out 'Where' and insert
      'subject to subsection (5) below, where'.
      No 65, in page 22, line 20, leave out
      'constable arrests a person otherwise than by informing him';
      and insert
      'person is arrested otherwise than by being informed'.
      No. 66, in page 22, line 24, leave out 'Subsection' and insert
      'Where a person is arrested by a constable, subsection'.
      No. 67, in page 22, line 26, leave out 'No' and insert
      'Subject to subsection (5) below, no'.
      No. 68, in page 22, line 26, leave out 'by a constable'
      No. 69, in page 22, line 29, leave out 'Subsection' and insert
      'Where a person is arrested by a constable, subsection'.
      No. 70, in page 22, line 30, at end insert—
      '(5) nothing in this section is to be taken to require a person to be informed—

      (a) that he is under arrest; or

      (b) of the ground for the arrest,

      if it was not reasonably practicable for him to be so informed by reason of his having escaped from arrest before the information could be given.'.—[Mr. Hurd.]

    Clause 26

      VOLUNTARY ATTENDANCE AT POLICE STATION ETC.
      Mr. Tony Favell: I beg to move amendment No. 304, in page 22, line 40, at end insert—
      '(c) As soon as a constable has reasonable grounds for believing the relevant person has committed or has attempted to commit an arrestable offence, the relevant person shall be arrested and, if at a police station, the custody officer informed.'.
      The amendment is designed to give a suspect who assists the police voluntarily the same rights as a suspect who has been arrested. It will come as a surprise to many hon. Members to learn that someone who goes voluntarily to a police station does not enjoy the same rights as someone who is taken there under arrest. The reason is that part IV of the Bill provides as follows in clause 31(1):
      "A person arrested for an offence shall not be kept in police detention except in accordance with the provisions of this Part of this Act."
      One has to be arrested to enjoy the safeguards—many Conservative Members feel that they are very generous—contained in that part of the Act. It provides for the
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      custody officer who supervises the custody of those taken to the police station under arrest, and the draft code, to which no doubt my hon. Friend the Minister will refer, applies to a large extent to those who have been arrested.
      I have no doubt that my hon. Friend will refer to clause 26 paragraph (a), which provides that the volunteer
      "shall be entitled to leave at will unless he is placed under arrest".
      On the face of it, that appears to give adequate protection to those who voluntarily attend a police station, but that is not so. The normal law-abiding citizen, when approached by a police officer who says, "Will you accompany me to a police station?" will reply either, if he has had no experience of the police before, "Yes, certainly," in which case he will not get the protection of part IV, or he will say, "Do I have to?", to which the police officer may say, "I shall draw my own conclusions if you are not prepared to come along with me", in which case, equally, he will not get the protection of part IV.
      The only people likely to get the protection of part IV are crooks and professional criminals, who are well aware of their rights, who refuse to go voluntarily and insist on being arrested. That appears to be nonsense. The person who is not aware of his rights will not get the protection of part IV until he is placed under arrest. That could take a substantial time. I am a practising solicitor. I have had recent experience of somebody who voluntarily went to a police station and did not emerge for five days. At the end of that period, he was found innocent. Someone else was prosecuted for the offence, and found guilty. An innocent man could thus go voluntarily to the police station and possibly not emerge for five days unless and until he demands to leave. On his having demanded to leave, the police constable places him under arrest and only then is he safeguarded by part IV.
      Part IV contains important time limits. A person can be kept at a police station for 24, 36 or 96 hours. Those periods do not begin to run until a person is placed under arrest. That is totally wrong, because part IV should protect the innocent, the confused and the unintelligent, not the professional criminal who will undoubtedly take advantage of it.
      The Minister will probably draw our attention to the draft code of practice. It provides some help for a person who is voluntarily at a police station. It states that if a person who is attending voluntarily is cautioned, at the time of the caution he should once again be given the opportunity to leave. If he does not take advantage of that offer, possibly because he thinks that he will be arrested—no doubt rightly so—he does not get the advantage of part IV and the time limits will not start to run.
      My point is extremely important and I heartily recommend the amendment to the House.
      1 am
      Mr. Ashby: My hon. Friend the Member for Stockport (Mr. Favell) drew our attention to a most important loophole in the Bill. I urge the Government to do something about it.
      It is monstrous that a person, whom we might term "a goody" should be in a worse position than a criminal who is trained and knows the law. The Minister should consider the matter carefully because it drives a coach and horses through the purpose of the Bill. It will allow the weak, the naive and those who are not worldly-wise to be badly treated.

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      I can conceive of the position in which after holding a person in custody for a considerable time, it will be said that he was not arrested but had come voluntarily. It will allow the unscrupulous and clever police officer—they do exist—to take advantage of a person, who is putty in his hands, bypass the Act and detain that person for longer than he should be detained. Therefore, I am bound to support the amendment.
      Mr. Mellor: I appreciate that my hon. Friend the Member for Stockport (Mr. Favell) holds his opinion with great sincerity, but on examining the matter closely I am not persuaded that we should accept the amendment.
      The purpose of parts III and IV is to deal with the vexed question of arrest and detention at a police station and, for the first time, to erect a comprehensive structure of safeguards to ensure that a person is not detained at a police station against his will, unless it is absolutely necessary to do so. My hon. Friend made it clear that this is a carefully planned and sophisticated system. It represents a major advance in civil liberties brought about by the Bill, and all hon. Members should welcome it. It is a major advance on the present position.
      The question posed by my hon. Friend, however, is rather different. In effect, he is asking that a person who is not detained at a police station and can walk out at any time should be arrested so as to enjoy safeguards against detention. With the greatest respect, I cannot follow the logic of that, as the consequences of arrest would be to remove the one benefit which the person enjoys and which clause 26 clearly spells out—the right freely to walk out of the police station at any time because he is not under arrest but is there by invitation of the police.
      In my view, that would not help the person at all. It would indeed sanctify a situation about which many people have grave reservations—that of going to a police station to assist with inquiries—if that class of person were drawn into the protection which by its very nature exists to protect the interests of people who cannot freely decide to leave the police station and go home.
      Mr. Favell: Will my hon. Friend give way?
      Mr. Mellor: Perhaps I may first finish my explanation. Then I shall of course give way.
      Clause 26 makes absolutely clear the rights of a person in those circumstances. The provision is declaratory and perhaps did not need to be there at all, but it is there to make the position clear beyond peradventure.
      The code of practice makes it clear that if an officer who has someone at the station assisting with inquiries forms the view that the person may have committed the offence and is thus a suspect—he need not have reasonable grounds for believing that but merely only suspect it—he is obliged to inform the person by way of caution that he is not under arrest and to remind him that he is free to leave if he wishes and to obtain legal advice.
      I appreciate that my hon. Friend has a specific case in mind, although he did not say that the case involved a Japanese national and thus may not have been entirely typical of the responses of a British citizen. Although, lamentably, not everyone is as aware of his rights as he should be, I do not believe that the House should legislate on the basis that a free-thinking citizen invited by a police officer to go to the police station is unaware that he has a perfect right to decline to do so or simply to leave if, having agreed to do so, he decides that he does not wish
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      to stay any longer. Nor can we legislate on the basis that a police officer would seek to inhibit the person from so doing. At that point, the officer must elect to move into the other part of the Bill by arresting or charging he individual, or by letting him go. Moreover, it is open to the relatives to apply for the person's return at any time or to go down to the police station and get him out.
      Knowing of my hon. Friend's experience in these matters, backed up by that of my hon. Friend the Member for Leicestershire, North-West (Mr. Ashby), if we can help in redrafting the codes of practice to see whether anything further can be said to clarify the position within the very rigid lines that I have set out where I believe that there are points of principle, we are certainly prepared to do so. Nevertheless, I believe that to take away the person's one crucial entitlement—the right to walk out of the police station—far from safeguarding the position, would not help at all.
      My hon. Friend the Member for Stockport has listened patiently to my explanation. If I can assist him further by giving way, I shall certainly do so.
      Mr. Favell: My hon. Friend has indeed assisted me a great deal. The drafting of the amendment, which is my own and not based on advice from elsewhere, provides that the person should be arrested so as to secure the safeguards under part IV because I saw no other short way of achieving that. If my hon. Friend is prepared to consider providing in the code of practice that the person should be cautioned and advised of his rights by the officer supervising his attendance at the police station—the drafting will no doubt be difficult, but it may be possible—and then given the same rights as a person who has been arrested, that would satisfy me.
      Mr. Mellor: I am sure that there is a basis for proceeding in that way. I make it clear that I cannot accept the way in which my hon. Friend puts his case, because it is fundamentally wrong to assert that by arresting someone and thereby giving the police the power to detain him, and then setting in motion procedures whereby that detention has to be reviewed, one is giving him an advantage over the situation in which he can say that he is now off home and there is no legal entitlement of the part of the police to stop him going.
      With great respect to my hon. Friend, his argument is flawed and his case is built on sand, on that point. If he wants me—given that we have already shown in the code of practice that we want to assist to clarify the position of someone who is in the station voluntarily—to explore ways to improve on that without following his suggestions, although we want to do as much as we can, consistent with the view that I have expressed, I should want to do so and would accept my hon. Friend's offer. In saying that I see that I have agitated my hon. Friend the Member for Leicestershire, North-West.
      Mr. Ashby: The amendment says:
      "As soon as a constable has reasonable grounds for believing the relevant person has committed or has attempted to commit an arrestable offence".
      There is a change from the voluntary attendance. That is the time when there must be an arrest. If my hon. Friend can put that in the code of practice, I shall be satisfied.
      Mr. Mellor: I hear what my hon. Friend says, but I do not want to add to anything that I said in reply to my hon. Friend the Member for Stockport.
      Mr. Favell: With that assurance from my hon. Friend that he will give further thought to the code, and his greater assurance, I beg to ask leave to withdraw the amendment.
      Amendment, by leave, withdrawn.

    Clause 27

      ARREST ELSEWHERE THAN AT POLICE STATION
      Mr. Eldon Griffiths: I beg to move amendment No. 321, in page 23, line 5, leave out subsection (2).
      I shall not make a long speech. As I said in Committee, if a policeman is given the discretion to release, there is a risk of corruption, and of him taking the person concerned a distance from that place and releasing him on the highway in a fashion that would be punishing to him. The Police Federation and the superintendents association wish this discretion not to be available to the police.
      Mr. Mellor: As my right hon. Friend the Minister said in Committee, we think that if there as been a mistaken arrest, the quicker it is rectified the better, and it would be artificial to require the officer who was certain that he had the wrong chap nevertheless to take the person to the police station, however long that took, and however far away it was. On that basis, I continue, I hope with consistency, to advise my hon. Friend to resist the amendment.
      Mr. Kaufman: The Opposition agree with the Under-Secretary and agree that the issue that we raised in Committee and about which we expressed concern is rectified by amendment No. 72, for which we are grateful.
      Amendment negatived.
      Amendments made: No. 72, in page 23, line 8, at end insert—
      `(2A) A constable who releases a person under subsection (2) above shall record the fact that he has done so.
      (2B) The constable shall make the record as soon as is practicable after the release.'.
      No. 73, line 11, leave out 'for the effective investigation of an offence and insert 'in order to carry out such investigations as it is reasonable to carry out immediately.'.
      No. 74, in page 23, line 15, at end insert—
      '(5) Nothing in subsection (1) above shall be taken to affect—

      (a) paragraphs 16(3) or 18(1) of Schedule 2 to the Immigration Act 1971; or

      (b) paragraph 5 of Schedule 3 to the Prevention of Terrorism (Temporary Provisions) Act 1984 or any provision contained in an order under section 13 of that Act which authorises the detention of persons on board a ship or aircraft.

      (6) Nothing in subsection (3) above shall be taken to affect paragraph 18(3) of Schedule 2 to the Immigration Act 1971.'. —[Mr. Mellor.]

    Clause 29

      SUPERVISION OF COMPLAINTS BY AUTHORITY
      Mr. Mellor: I beg to move amendment No. 75, in page 23, line 34, leave out 'the offence for which he has been arrested' and insert 'an offence'.
      This amendment makes material change to clause 29, which deals with searches of a person and the vehicle and premises that he is in at the time of his arrest. As presently drafted, the clause permits an arrested person to be searched for evidence relating to the offence for which he
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      has been arrested. The amendment will permit such a search for evidence of an offence not necessarily the offence for which the person has been arrested. The original thinking behind that part of clause 29 was to permit the police to search before the defendant arrives at the police station, so that evidence of the offence is not secreted, destroyed or otherwise hidden during the journey to the police station. On reflection, it seemed that if an officer believed that the individual concerned had upon him material pertaining to another offence, it was somewhat artificial to give him the opportunity to dispose of that evidence on his way to the station. There could be no material disadvantage to the defendant and considerable advantage to the rest of us if the amendment were made.
      1.15 am
      Mr. Kaufman: The hon. Gentleman has said that this is a material change. It is, indeed, and a highly disagreeable and unacceptable one. I cannot understand why the Government have decided to make the change. There was no discussion along these lines in Standing Committee. The Government have given no sign in advance that they wanted to do this, and it is difficult to understand their reasons.
      The amendment states that the words "an offence" should be inserted in the clause. Instead, the amendment should insert the words "any offence", because the Government seek to turn this power of search into a type of fishing expedition in which someone can be examined in case he has committed any kind of offence and the police find any kind of evidence for any kind of offence. That will not do. I hope that the Government are not set on this approach. It would be helpful if the Under-Secretary of State were to withdraw the amendment. Clearly, we are not in a position to defeat the measure, but I hope that the extremely strong exception taken by the Opposition to the proposed change will be noted in the other place and it will be defeated there. It would be better if the hon. Gentleman thought about this matter between now and when the Bill goes before the other place, and did not proceed with it.
      Mr. Mellor: The amendment is in no sense an attempt to bounce the right hon. Member for Manchester, Gorton (Mr. Kaufman) on this matter. As he knows, we had a full discussion on all these issues in Standing Committee. When problems with the Bill were discovered and acknowledged as such, undertakings were given. A possible logical inconsistency occurs where an officer has arrested a person for one specific offence and believes that he is carrying items that would provide grounds to arrest him or charge him with another offence, but he cannot search him on the spot. That seems to be artificial.
      Ms. Clare Short: He could do so at the police station.
      Mr. Mellor: The hon. Lady rightly says that the search could be done at the police station. If there is legitimate ground in the provision, as it stands, to search the person at the time for evidence relating to the offence for which he has been arrested—[Interruption.] At this hour of the night it is difficult to answer one point when another is being put to me. If it is proper for the officer to have the power to search on the spot to avoid the evidence being discarded, the same logic would surely suggest that, if the

      283
      officer equally reasonably believes that the person has on him evidence of another offence, he should be able to search him for that evidence.
      Unfortunately, I cannot agree not to press the amendment, but the matter will be fully considered in the other place. The noble Lords will examine the matter. I assure the right hon. Gentleman that, although this is a material change—I acknowledge it to be such; it is not in any sense a drafting amendment—it was not intended to take the Opposition by surprise. The measure is not sinister in its overall impact.
      Amendment agreed to.
      Amendments made; No. 76, in page 23, line 36 after `to', insert 'enter and'.
      No. 77 in page 23, line 38 at end insert—
      '(2A) The power to search conferred by subsection (2) above is only a power to search to the extent that is reasonably required for the purpose of discovering any such article or evidence.'.
      No. 78, in page 24, line 14 leave out subsection (6).
      No. 79 in page 24, line 26 after 'in', sub-paragraph (i) of'
      No. 80, in page 24, line 31 leave out 'this section' and insert
      `subsection (7) or (8)(a) above'.
      No. 81, in page 24, line 33 leave out
      `seized under subsection (7) or (8)(a) above'
      and insert `so seized'.
      No. 82, in page 24 line 41 leave out from beginning to end of line 6 on page 25 and insert—
      '(10) Sections (Seized articles: access and copying) and (Retention of seized articles) above shall have effect in relation to anything seized under subsection (8)(b) above as they have effect in relation to anything seized under section 19 above.' —[Mr. Mellor.]

    Clause 31

      LIMITATIONS ON POLICE DETENTION
      Mr. Hurd: I beg to move amendment No. 84, in page 26, leave out lines 14 and 15 and insert
      `it shall be the duty of the custody officer, subject to subsection (2A) below, to order his immediate release from custody.
      (2A) A person who appears to the custody officer to have been unlawfully at large when he was arrested is not to be released under subsection (2) above.'.
      Mr. Deputy Speaker (Mr. Paul Dean): With this it will be convenient to discuss the following Government amendments Nos. 85, 87 to 94, 296, 107, 112, 113, 115, 116, 124, 126, 129 to 132, 174, 178, 213, 270 and 245.
      Mr. Hurd: These amendments fall into the two usual categories: some are technical and clarificatory, and others carry out undertakings given in Committee. We have recognised, for example, a point drawn to our attention by my hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths). There would be problems for the time limits on detentions provided by the Bill if the arrested person was in hospital and incapable of being questioned. We have met that point in amendment No. 107.
      We are also grateful to the community police consultative group for Lambeth for drawing our attention to a deficiency in clause 39, which might have appeared to permit an application for a warrant of further detention in the absence of the detained person. Those are the two principal ways in which we have met our undertakings.
      Amendment agreed to.
      Amendments made: No. 85, in page 26, line 23, at end insert
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      `and if it so appears, he shall be released on bail'.
      No. 86, in page 26, line 24, leave out subsection (4). —[Mr. Hurd.]

    Clause 32

      CUSTODY OFFICERS AT POLICE STATIONS
      Amendments made: No. 87, in page 26, line 34, leave out 'None' and insert
      `Subject to section 35(2) below, none'.
      No. 88, in page 26, line 34, leave out second 'of' and insert
      `for the time being exercisable by'.—[Mr. Hurd.]
      Mr. Eldon Griffiths: I beg to move amendment No. 317, in page 26, line 39, leave out from 'custody officer' to end of line 41.
      Mr. Deputy Speaker: With this it will be convenient to discuss the following amendments:
      No. 316, in page 26, line 39, at end insert
      'Save in case of an emergency'.
      No. 318, in page 26, line 41, at end add—
      '(5) An officer performing the duties of a custody officer shall not be required to perform any other duties save those that are directly related to the functions of a custody officer, save in case of an emergency.'.
      Mr. Griffiths: Again, this issue was discussed at some length in Committee, and so I shall not detain the House. The problem is that we will the end but we do not will sufficient means. I want the custody officer to become a success. I believe that he will be not only the keeper of the station, but the guardian of civil liberties. It is essential that he should be able to do his job properly. However, he cannot do so if he does not have the appropriate rank. I am sure that he cannot do it properly if he is overburdened with duties that will require him to leave the task of custody officer in order to do other things.
      Therefore, save in case of emergency, I suggest that the police officer required to act as the custody officer should have no other duties and should generally hold the rank of sergeant. My concern is eminently practical. I ask the Government to give the matter further thought, because, with great respect, they are badly advised.
      Mr. Hurd: We went over this matter in Committee. I agree with that the custody officer should generally hold the rank of sergeant, but the question is how closely one pins that down. It is a matter of how much operational flexibility the police have. For the reasons that I gave in Committee—and we have reconsidered the issue since then—it would be a mistake to pin the police down as tightly as my hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths) wishes. I entirely agree about the importance of the custody officer. He has a key role to play in making a success of the new provisions for detention. I entirely accept that, and that is not in question. The question is whether one needs to define his rank and the possibility of his doing other duties so closely as to deprive chief officers and others concerned of the opportunities for flexibility, which is particularly important in rural areas.
      Amendment negatived.

    Clause 33

      DUTIES OF CUSTODY OFFICER BEFORE CHARGE
      Amendments made: No. 89, in page 28, line 8, after of, insert 'section 5(2) of'.
      No. 90, in page 28, line 16, leave out from 'who' to end of line 23 and insert
      'appears to be under the age of 17 and is not excluded from this Part of this Act by section 47 below'.—[Mr. Hurd.]

    Clause 35
      RESPONSIBILITIES IN RELATION TO PERSONS ETAINED
      Amendment made: No. 91, in page 30, line 22, after `(1)', insert '(a)'.—[Mr. Hurd.]
    Clause 36

      REVIEW OF POLICE DETENTION
      Amendments made: No. 92, in page 32, line 3, at end insert—
      '(5A) The review officer shall record the reasons for any postponement of a review in the custody record.'.
      No. 93, in page 32, line 4, leave out 'Where' and insert
      'Subject to subsection (6A) below, where'.
      No. 94, in page 32, line 13, at end insert—
      '(6A) Where a person has been kept in police detention by virtue of section 33(8) above, section 33(1) to (6) above shall not have effect in relation to him but it shall be the duty of the review officer to determine whether he is yet in a fit state.'.—[Mr. Hurd.]

    Clause 37

      LIMITS ON PERIOD OF DETENTION WITHOUT CHARGE
      Mr. Hurd: I beg to move amendment No. 97, in page 33, line 16, leave out
      'for the purposes of this section'.
      Mr. Deputy Speaker: With this it will be convenient to discuss the following:
      Government amendment No. 98.
      Amendment No. 99, in page 33, line 18, leave out from second 'in' to end of line 27 and insert
      'England or Wales the time of his arrest'.
      Government amendments Nos. 100 to 108.
      Mr. Hurd: These amendments deal with the detention clock. We believe that the phrase "the relevant time" should have a standard meaning, and that is the purpose of amendment No. 97. Amendment Nos. 98, 100 and 106 are essentially drafting amendments to clarify the provisions of clause 2(a), making it clear that the limit on the detention clock does not start in respect of a person arrested by one force on beha'f of another if he is not questioned by the arresting force. Amendments Nos. 101 and 103 fulfil an undertaking that I gave in Committee to permit a maximum of 24 hours' travelling time in England and Wales before the detention clock starts in respect of a person arrested outside England and Wales.
      Mr. Kaufman: As we said on Second Reading and in Committee, we find the provisions of this clause dubious because they add to the period of detention without charge. That period runs not from the time when the person is arrested, but from a later time. While the Government are saying that the period of detention without charge shall be
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      no longer than 36 hours before the matter reaches a magistrate, and no longer than 96 hours before the person is either charged or released, these provisions add further time to that, and that is a deprivation of liberty which is not acceptable.
      I acknowledge that the Government have made an effort to meet some of our misgivings by tightening up some of the provisions. Although the mercies are small, we are grateful for them. We want to narrow down still further the time within which a person can be arrested and the 24 hours and so on begin to run. The Government should accept our amendment, because it would meet the objectives which they have accepted in principle by their amendments.
      Mr. Hurd: I am not seduced by the right hon. Gentleman's argument tonight, any more than I was in Committee, when we discussed these matters at great length. We believe that the royal commission was right to recommend that the definition of the period of detention must take factors into account other than simply the moment of arrest. If, for different reasons, no investigation can take place until the arrested person reaches a police force area, it is, surely, right to start the clock when he arrives in that area.
      We do not want to get into the position where the police will have to release a suspect before he can be interviewed simply because of the time taken in travelling. I do not see why the fact that a criminal has managed to get some distance away from the scene of his crime should enable him to escape justice in that way. We discussed these matters closely in Committee and, as the right hon. Gentleman said, we have tried to move some way in the direction in which Opposition Members wish.
      We are not talking just about administrative convenience. The role of the custody officer is central to the safeguards underlying the detention scheme. The Opposition amendments would undermine the effective ness of his control, and would be against the best interests of the detained person. The differences are likely in almost all cases to be very small. In general, offences are committed locally, and investigated locally. In the great majority of cases, an arrested person is taken speedily to the nearest police station. In the minority of cases, where there is substantial travelling time before investigation can begin, it is right that that should be taken into account in the detention clock.
      Amendment agreed to.
      Amendments made: No. 296, in page 33, line 16, leave out 'this Part of'.
      No. 98, in page 33, line 18, leave out from 'person' to 'shall' in line 21 and insert
      'to whom this paragraph applies'.
      No. 100, in page 33, line 23, leave out from beginning to 'or' in line 24 and insert 'relevant police station'.
      No. 101, in page 33, line 29, after 'be', insert—'(i)'
      No. 103, in page 33, line 32, at end insert
      'or

      (ii) the time 24 hours after the time of that person's entry into England and Wales,

      whichever is the earlier.'
      No. 106, page 33, line 35, at end insert—
      '(2A) Subsection (2)(a) above applies to a person if—

      (a) his arrest is sought in one police area in England and Wales;

      (b) he is arrested in another police area; and

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      (c) he is not questioned in the area in which he is arrested in order to obtain evidence in relation to an offence for which he is arrested,

      and in sub-paragraph (i) of that paragraph "the relevant police station" means the first police station to which he is taken in the police area in which his arrest was sought.'.
      No. 107, in page 33, line 40, at end insert—
      '(3A) When a person who is in police detention at a police station is removed to hospital because he is in need of medical treatment, any time during which he is being questioned in hospital or on the way there or back by a police officer for the purpose of obtaining evidence relating to an offence shall be included in any period which falls to be calculated for the purposes of this Part of this Act, but any other such time shall not be so included. '.—[Mr. Hurd.]

    Clause 38

      AUTHORISATION OF, CONTINUED DETENTION
      Amendments made: No. 112, in page 34, line 21, after `expiring', insert `at or before'.
      No. 113, in page 34, line 21, at end insert—
      '(1AZ) Where an officer such as is mentioned in subsection (1) above has authorised the keeping of a person in police detention for a period expiring less than 36 hours after the relevant time, such an officer may authorise the keeping of that person in police detention for a further period expiring not more than 36 hours after that time if the conditions specified in subsection (1) above are still satisfied when he gives the authorisation.'.—[Mr. Hurd.]

    Clause 39

      WARRANTS OF FURTHER DETENTION
      Amendments made: No. 115, in page 35, line 35, leave out 'inter partes'.
      No. 116, in page 35, line 40, at end insert—
      '(1A) A court may not hear an application for a warrant of further detention unless the person to whom the application relates has been brought before the court for the hearing.'.—[Mr. Hurd.]
      1.30 am
      Mr. Hurd: I beg to move amendment No. 122, in page 37, line 6, leave out `not exceed 96 hours from' and insert
      'not—

      (a) be longer than 36 hours; or

      (b) end later than 96 hours after.'.

      Mr. Deputy Speaker: With this it will be convenient to take the following: Amendment No. 123, in page 37, line 6, leave out 'exceed 96 hours from' and insert

      '(a) be longer than 12 hours; or

      (b) end later than 30 hours after'.

      Government amendment No. 127.
      Amendment No. 128, in clause 40, page 38, line 27, leave out 'not exceeding 96' and insert
      'but which shall not

      (a) be longer than 12 hours, or

      (b) end later than 30'.

      Mr. Hurd: Amendments No. 122 and 127 carry out the undertaking that we have already given which provides for a limit of 36 hours on the validity of any warrant of further detention granted by a magistrates' court, and thus makes sure that there would have to be two hearings of a magistrates' court before anyone could be detained for the absolute maximum of 96 hours.
      The Opposition amendments run counter to the provisions agreed by the House after a long and important debate. I think that no hon. Member will be surprised if I say that I cannot advise my hon. Friends to accept them.
      Mr. Kaufman: We ought not to let this group of amendments pass without noting that this is probably the most significant concession that the Opposition obtained during those 147 hours. The extra 60 hours on top of the 36 hours cannot be granted all in one go, but the police have to go to the magistrates' court twice. One hopes in those circumstances that the magistrates would grant the second extension only in rare cases. I cannot say that it gives us any great joy, but this is as much as we have got out of the Government on this issue, in the light of the serious misgiving that we have about the whole principle of detention for up to 96 hours. All the hours that we spent in Committee were justified by this concession, if nothing else. Therefore, I note it, and I trust that, in the other place, they will improve upon it.
      Amendment agreed to.
      Amendments made: No. 124, in page 37, line 25, leave out from beginning to 'shall' in line 28 and insert
      'the person to whom the application relates'.

    Clause 40

      RECORDS OF DETENTION
      No. 126, in page 38, line 24, leave out 'has' and insert
      'is satisfied that there are'.
      No. 127, in page 38, line 27, leave out 'not exceeding' and insert
      'but which shall not—

      (a) be longer than 36 hours—or

      (b) end later than'.—[Mr. Hurd.]

    Clause 42

      DETENTION AFTER CHARGE
      Amendment made, No. 129, in page 40, line 8, and end insert—
      '(9) Nothing in this section requires a person who is in hospital to be brought before a court if he is not well enough.'.—[Mr. Hurd.]

    Clause 43

      BAIL ON ARREST
      Amendment made, No. 130, in page 40, line 25, at end insert—
      '(4A) Where a person arrested for an offence who was released on bail subject to a duty to attend at a police station so attends, he may be detained without charge in connection with that offence only if the custody officer at the police station has reasonable grounds for believing that his detention is necessary—

      (a) to secure or preserve evidence relating to the offence; or

      (b) to obtain such evidence by questioning him.

      (4B) Where a person is detained under subsection (4A) above, any time during which he was in police detention prior to being granted bail shall be included as part of any period which falls to be calculated under this Part of this Act.
      (4C) Where a person who was released on bail subject to a duty to attend at a police station is re-arrested, the provisions of this Part of this Act shall apply to him as they apply to a person arrested for the first time.'.—[Mr. Hurd.]

    Clause 46

      SAVINGS
      Amendment made, No. 131, in page 42, line 27, leave out '1976' and insert '1984' .—[Mr. Hurd.]
      Mr. Hurd: I beg to move, amendment No. 132, in page 42, line 39, at end insert—
      '(iv) paragraph 5 of Schedule 5 to the Reserve Forces Act 1980 (duties of governors of civil prisons);'.
      Mr. Deputy Speaker: With this it will be convenient to take the following Government amendments: Nos. 133, 140, 141, 216, 269 and 166.
      Mr. Hurd: This group is largely technical. The intention is to tighten up the drafting of the Bill. I do not think that there are any specific points on them that I wish to pinpoint.
      Amendment agreed to.

    Clause 47

      CHILDREN AND YOUNG PERSONS
      Amendment made: No. 133, in page 43, leave out lines 2 to 5 and insert
      '(as for the time being defined for the purposes of the Children and Young Persons Act 1969) who is arrested without a warrant otherwise than for homicide and to whom section 28(4) and (5) of that Act accordingly apply.'.—[Mr. Hurd.]

    Clause 48

      SEARCHES OF DETAINED PERSONS
      Mr. Hurd: I beg to move amendment No. 134, in page 43, line 18, leave out subsection (2) and insert—
      '(2) Subject to subsection (2A) below, a person may be searched if the custody officer considers it necessary to enable him to carry out his duty under subsection (1) above and to the extent that the custody officer considers necessary for that purpose.
      (2A) An intimate search may not be conducted under this section.'.
      The purpose of the amendment is to put it beyond doubt that an intimate search may not be conducted under clause 48 and that such a search can be conducted only under clause 49.
      Amendment agreed to.
      Amendments made: No. 136, in page 44, leave out lines 6 to 8.
      No. 137, in line 11, after first 'is', insert—

      '(a) violent or likely to become violent; or

      (b) '

      No. 138, in line 13, leave out from beginning to end of line 31 and insert—
      '(8) Where articles have been seized because a constable believed that they might be used by the person arrested for any of the purposes specified in subsection (6)(a) above, subsection (9) of section 29 above shall have effect as it has effect in relation to anything seized under subsection (7) or (8)(a) of that section.
      (9) Where articles have been seized because a constable had reasonable grounds for believing—

      (a) that they might be evidence relating to an offence; or

      (b) that they might have been obtained in consequence of the commission of an offence,

      sections (Seized articles: access and copying) and (Retention of seized articles) above shall have effect as they have effect in relation to anything seized under section 19 above.'.—[Mr. Hurd.]

    Clause 49

      INTIMATE SEARCHES
      Mr. Warren Hawksley: I beg to move amendment No. 315, in page 44, line 32, leave out clause 49.
      Mr. Deputy Speaker: With this it will be convenient to take the following: amendment No. 272, in page 44, line 32, leave out subsection (1) and insert—
      '(1) If an officer of at least the rank of superintendent has reasonable grounds for believing—

      (a) that a person who has been arrested and is in police detention may have concealed on him an article which could be used to cause physical injury to himself or others and which might be so used while he is in police detention or in the custody of a court; and

      (b) that it cannot be found without an intimate search, he may authorise such a search.'.

      Amendments to the amendment: (a), in line 4, after 'him', insert '(i)'.
      (b), in line 4, after 'him', insert—

      '(i) a drug named on a list to be published from time to time by the Home Secretary; or

      (ii)'.

      (c), in line 6, after 'court', insert—
      '(ii) controlled drugs likely to create or satisfy an addictive habit'.
      (d), in line 6, after 'court', insert—
      '(ii) explosives or materials capable of being used to cause an explosion'.
      (e), in line 6, after 'court', insert—
      '(ii) the proceeds of any serious arrestable offence committed by him'.
      (f), in line 6, after 'court', insert—
      '(ii) articles intended to be used in the commission or furtherance of a serious arrestable offence'.
      Government amendments Nos. 139 and 273.
      Amendment No. 309, in page 45, line 4, after 'him', insert
      'controlled drugs likely to create or to satisfy an addictive habit, or explosives or materials capable of being used to cause an explosion, or items including jewellery and currency that are the fruits of any serious arrestable offence or may be intended to be used in the commission or furtherance of such an offence, or'.
      Government amendment No. 274.
      Mr. Hawksley: I hope that I shall not have to detain the House for long. Amendment No. 315 leads a group of amendments which deal with intimate body searching, which is an important part of the Bill. We dealt with the matter in great detail and at great length in Committee. I tried then to persuade the Government that they should accept the right for intimate body searches by police officers for particular items. I think that most hon. Members considered that the two items of greatest importance were drugs and explosives. I called the Bill a drug pedlars' charter in Committee and I repeat that charge in describing the Bill as it stands.
      I hope and believe that even at this late stage the Government will allow specific items to be mentioned. Some of the amendments that my hon. Friends have tabled would allow for that. If the Government are not prepared, even at this late stage, to reconsider the need to allow searches for drugs and explosives, I hope that the House will accept the proposition that the clause should be removed from the Bill. If that happens, the law would remain as it stands, which gives the police powers to carry out body searches to the same degree as ordinary searches. I believe that that would overcome the problem, although the result would not be as good as that which would be achieved by the original proposal that we debated in Committee.
      It is interesting that over the past few weeks we have seen my right hon. and learned Friend the Home Secretary responding to public concern by making proposals to deal with the uncontrolled increase that we have seen in heroin addiction, a problem which has alarmed the public. I

      291
      support my right hon. and learned Friend's proposals. I agree that we should be able to seize the assets of drug pedlars, but before we can do that we must catch them. If the clause were to be enacted in its present form, all the drug dealers who operate from street corners or in other public places would need only to put any drugs they may have, which are wrapped, into their mouth on the approach of a police officer. The officer would be unable to proceed further in those circumstances.
      That is not what the public want. They want the police to be able to deal with the problems they see, which they consider to be especially important in the cities. In the area of the West Mercia police, there have been many cases over the past few years where criminals have been caught because of the present right of police officers to carry out intimate body searches. Drugs have been found in the mouths of many people. They have been found strapped to the stomach or other parts of the body and they have also been recovered from intimate parts of the body. There have been important cases where criminals have tried to hide drugs and explosives away from view. If the Bill is passed in its present form, we will be inviting the criminal to use this method of conveying drugs and explosives around the country.
      No doubt we all read last November the case of Ian Fuller who died when one of the heroin capsules that he had taken internally to bring into the country collapsed. Under the law as it is and as it will be, such a person could be searched by a Customs officer. I hope the Minister will repeat the assurances we received in Committee that Customs officers will retain the right to carry out intimate body searches.
      Mr. Kaufman: Is the hon. Gentleman suggesting compulsory exploratory surgery?
      Mr. Hawksley: I am suggesting that certainly X-rays should be allowed, because they would show up the carrying of drugs. I have seen X-rays which the police had which showed drugs that had been taken and were being conveyed internally.
      It is important that we should give the police the powers they need to carry out these searches. At a time when everybody is concerned at the increase in drug addiction in this country, it is not enough to give the courts power to impose penalties to discourage people from committing further offences.
      Mr. Alex Carlile: Will the hon. Gentleman agree that, if the police drugs squad wasted less time looking for cannabis and cannabis resin and trying to improve their detection system, and went instead to the source in their search for those who peddle heroin, all the nonsense that we are hearing from him would be completely unnecessary, because we would then be dealing with the heroin and hard drugs problem where it should be dealt with?
      Mr. Hawksley: I do not intend to deal with the different types of drugs, but I accept that the increase in heroin addiction is of great concern. That is why I hope the House will accept the amendment.
      Mr. Eldon Griffiths: Despite the late hour, I hope no one in the House doubts what heroin and cocaine trafficking can do, especially to children. I hope that no one doubts either the experience of the Royal Ulster
      292
      Constabulary and the Metropolitan police, that explosive devices are quite frequently carried in the body orifices and that they cause the kind of explosions—
      Mr. Bermingham rose—
      Mr. Griffiths: No, I shall not give way. The hon. Gentleman's verbosity is well known to the House. When he combines it with pomposity it becomes for me disagreeable. I want to be brief.
      The police service regrettably has to deal with the consequences of micro-detonators, radios and explosives that are from time to time carried by terrorists in their body orifices. The purpose of the amendments is to prevent the law, as the House will pass it, making it impossible for the police to deter the criminal and to save innocent lives. Therefore, we are talking about real matters of concern, although at a disagreeably late hour.
      The arguments were made strongly in Committee. There are two pleas that I must make to the Government. First, they know perfectly well that the finance for terror is frequently carried by way of high-value drugs in a charger which is inserted into the front or rear orifice of the body. That is why we have provided, and the Bill allows to continue, the search by customs officers for such drugs. We shall be left in an extraordinary position if the Bill is not amended. If a message from Northern Ireland to the United Kingdom is received at London airport just after a person has left the customs area, notwithstanding clear evidence that he may he carrying drugs, weapons or micro-detonators, he cannot be searched.
      The reason is simple. The original Bill introduced by Lord Whitelaw contained the necessary provisions, but the present Government have removed them. I know why. The House knows why. It is because the British Medical Association said that it would not co-operate. Henceforth, the police will not have the same powers to search for the finance of terror or the implements of terror. That is not what this Government were elected for.
      1.45 am
      Mr. Bermingham: I shall be brief. I listened to the contribution by the hon. Member for Bury St. Edmunds (Mr. Griffiths). I do not propose to exchange insults with him across the Floor of the House, because that is a waste of time, but I ask again for examples of when explosives have been carried in body orifices. If we had such examples, the House might listen with care to what the hon. Gentleman says. The challenge was issued in Committee and I issue the challenge again. The allegation is easy to make, but it is based upon little known fact or substance.
      A much greater principle is involved—the sanctity of the human body. That is a greater principle and it is why the BMA and other organisations view with horror the whole concept of intimate body searches and do not intend to take part in them. I hope that the House will not extend permission for such degrading searches.
      Sometimes we must strike a balance between decency and society's needs. Decency demands that at least we accept that the human body should not become the object of grope, stealth, intimate probing and all the other things sought by the hon. Member for Bury St. Edmunds to extend body searching. I hope that his amendment is rejected.
      Mr. Hurd: We rightly spent much time on this issue in Committee. The Government have carefully considered

      293
      arguments by several of my hon. Friends, but we have come to the conclusion that it would not be right to put back into clause 49 the power for the police to conduct intimate body searches for investigative purposes.
      The arguments deserve serious consideration. Intimate searches carry some risk of inflicting injury. It is desirable, if they have to be carried out, that they are carried out by a doctor—that is in the clause. I confirm that the medical profession believes that a doctor should carry out an intimate search without the consent of the individual only if such a search is necessary to deal with an immediate and substantial risk of injury.
      The amendment would allow investigative intimate searches—as opposed to protective searches—to be carried out by police officers, with the risk that that involves. That must be the subject of serious consideration.
      My hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths) is right to argue that a cost is involved in terms of the ability of the police to prosecute serious crime. I have never denied that. A balance has to be struck.
      I should like to reply to a number of detailed questions. It is worth saying that the retention of a foreign body in a bodily orifice for any length of time is not as easy to accomplish as it might appear. Methods other than a search are available for the recovery of a concealed article and can continue to be used. Under parts of the Bill that have already been agreed, if the offence in question is a serious arrestable offence it will be open to the police to apply for an extention of detention after 24 hours if that is considered to be necessary to allow methods other than intimate search to be used or to allow nature to take its course, resulting in the expulsion of the concealed article.
      In the light of doubts expressed in Committee, we have looked at the drafting of the clause. We are satisfied that the clause as drafted covers adequately articles such as micro-detonators capable of being used to cause an explosion. The clause already provides, too, for the possibility of an intimate search where there is the real risk that concealed drugs might be taken, thereby placing life or health at risk. My hon. Friend the Member for The Wrekin (Mr. Hawksley) mentioned that possibility.
      I also confirm that the provisions of clause 49 will not affect in any way the ability of Her Majesty's Customs and Excise to undertake the intimate search of suspected drug smugglers at ports of entry into the United Kingdom.
      Having satisfied ourselves that the clause covers some of the particular points raised by my hon. Friends, we have on balance come to the conclusion, while recognising that this is a serious matter—
      Mr. Eldon Griffiths: My right hon. Friend knows as well as I do that there has been at least one occasion on which a suspect being interrogated in a police station not a million miles away from London was found to have within his body a radio transmitter which, at the material time, was relaying the interrogation that was taking place. That is the technical reality with which the police have to cope. Will the Bill cover such a situation?
      Mr. Hurd: I do not know whether the Bill will cover that situation, because I do not know exactly what the situation was, or what or where the object was. I have tried to explain where the points that my hon. Friend had
      294
      already raised are covered in the Bill, and why, having listened to my hon. Friend's views and those of the police, we have on balance concluded that it would not be right to broaden the power again.
      Amendment negatived.
      Amendments made: No. 272, in page 44, line 32, leave out subsection (1) and insert—
      '(1) If an officer of at least the rank of superintendent has reasonable grounds for believing—

      (a) that a person who has been arrested and is in police detention may have concealed on him an article which could be used to cause physical injury to himself or others and which might be so used while he is in police detention or in the custody of a court; and

      (b) that it cannot be found without an intimate search, he may authorise such a search.'.

      No. 139, in page 44, line 38, after `search', insert `under this section'.
      No. 140, in page 44, line 39, at end insert 'or at a hospital'.
      No. 273, in page 44, line 40 leave out subsections (3) and (4).
      No. 274, in page 45, line 9, leave out '(3)', and insert '(1)'.
      No. 141, in page 45, line 12, leave out subsection (6).
      No. 269, in page 45, line 16, after 'a', insert `registered'
      No. 145, in page 45, line 41 leave out from beginning to end of line 2 on page 46.
      No. 146, in page 46, line 6, leave out from beginning to end of line 14 and insert—
      "(14) Section 29(9) above shall have effect in relation to anything seized by virtue of subsection (12) (a) above as it has effect in relation to anything seized under subsection (7) or (8) (a) of that section.
      (15) Sections (Seized articles: access and copying) and (Retention of seized articles) above shall have effect in relation to anything seized under subsection (12) (b) above as they have effect in relation to anything seized under section 19 above.'. —[Mr. Mellor.]
      Mr. Mellor: I beg to move amendment No. 147, in page 46, line 14 at end insert—
      '(15A) Every annual report—

      (a) under section 12 of the Police Act 1964; or

      (b) made by the Commissioner of Police of the Metropolis.

      shall contain information about searches under this section which have been carried out in the area to which the report relates during the period to which it relates.
      (15B) The information about such searches shall include—

      (a) the total number of searches;

      (b) the number of searches conducted by way of an examination by a registered medical practitioner;

      (c) the number of searches not so conducted but conducted in the presence of such a practitioner; and

      (d) the result of the searches carried out.'.

      Mr. Deputy Speaker: With this, it will be convenient to take Government amendments Nos. 149, 150, 151, 311, 312, 156, 159, 160, 161, 162, 163, 164, and 297.
      Mr. Mellor: This group of amendments meets undertakings given in Committee in relation to clauses 49 to 53.
      Mr. Kaufman: I should just like to say that the Opposition acknowledge the Government's response to the case that we made in Committee.
      Amendment made.

    Clause 50

      RIGHT TO HAVE SOMEONE INFORMED WHEN ARRESTED
      Amendments made: No. 149, in page 47, line 3, after
      `record', insert—
      '(6A) The duties imposed by subsection (6) above shall be performed'.
      No. 150, in page 47, line 16 at end insert—'
      ' (9A) In relation to a person who had been detained under the terrorism provisions at a place other than a police station, the relevant time is the time at which he arrived at that place.'.
      No. 151, in page 47, line 20 leave out 'and' and insert—
      '(aa) Subsection (2)(a) above shall have effect as if for the words "for a serious arrestable offence" there were substituted the words "under the terrorism provisions"; and'.
      No. 152, in page 47, line 33, leave out subsection (11).—(Mr. Mellor.]

    Clause 51

      ADDITIONAL RIGHTS OF CHILDREN AND YOUNG PERSONS WHO ARE ARRESTED
      Amendments made: No. 311, in page 48, line 5, leave out
      'informed of his detention as'
      and insert
      in formed—

      (a) that he has been detained;

      (b) why he has been detained; and

      (c) where he is being detained,

      as'.
      No. 312, in page 48, line 10 leave out
      'of his detention as soon as is practicable'
      and insert
      'as described in subsection (2) above. ' —[Mr. Mellor.]

    Clause 52

      ACCESS TO LEGAL ADVICE
      Amendment made: No. 156, in page 49, line 19 after `record', insert—
      '(8A) The duties imposed by subsection (8) above shall be performed'.
      Mr. Mellor: I beg to move amendment No. 157, in page 49, line 26, at end insert—
      '(10A) In relation to a person who has been detained under the terrorism provisions at a place other than a police station, the relevant time is the time at which he arrived at that place. '
      Mr. Deputy Speaker: With this it will be convenient to take amendment No. 158, in page 49, line 27, leave out subsection (11).
      Mr. Mellor: Amendment No. 157 parallels an amendment to clause 50 that the House has already agreed. In the case of people detained under the terrorism provisions, access to legal advice may be delayed for up to 48 hours by virtue of clause 52(11)(a). The question is, 48 hours from when? The answer is "the relevant time", but the definition of relevant time in clause 37 does not work in the case of a person who is detained, as indeed he might he under the terrorism provisions, in a place other than a police station. That is why the amendment is necessary.
      Mr. Alex Carlile: I should like to speak to amendment No. 158, which the alliance has tabled. It was not intended
      296
      to be taken in isolation but as part of a package of amendments to deal with the delay that should be permitted, under clause 52, for access to legal advice. That delay should not be more than six hours in all cases.
      Many arguments have been deployed in an effort to justify a person who is held in custody being deprived of access to a solicitor. One seems to be that solicitors are a dishonest breed who leak information and that it is impossible to find any sanctions against them. What is sauce for the goose is sauce for the gander. If it is good enough to attack monstrous behaviour that amounts to an abuse of the process of the court by police officers through disciplinary proceedings—we heard that from the Minister of State—it is good enough for leaks of information and misconduct by solicitors to be dealt with by disciplinary proceedings before the Law Society.
      The Government have completely misunderstood the part that solicitors play in most criminal investigations when they go to see their clients in a police station. In the vast majority of cases the solicitor, having seen his client, ensures that there is a speedy conclusion of the inquiry, that his client does not prevaricate and that the matter is tidied up by a frank statement of confession or, if there appears to be no or little evidence against the suspect, the suspect is advised to say nothing. That, for all practical purposes, concludes interviewing by the police. Permitting early access to solicitors is efficacious, practicable and sensible. Depriving the suspect of his right to see his solicitor for as long as 36 hours in most cases and 48 hours in specified ones is a severe infringement of the liberty of the individual.
      Mr. Mellor: Lord Jellicoe considered this matter with great care. He recommended that the right of access to legal advice should be extended to terrorist suspects but that there should be modifications to reflect the essential differences between the circumstances of someone who is detained under terrorist regulations, as opposed to criminals held under criminal powers.
      Amendment No. 158 would doubly destroy the scheme which Lord Jellicoe proposed and which the Government accepted. It would reduce to 36 the period of 48 hours which received Lord Jellicoe's approval when he was consulted on the matter. We believe that 48 hours is appropriate and reflects the differences between terrorist and conventional criminal offences. Secondly, amendment No. 158 would mean that delay in granting access to a solicitor would be permitted only in accordance with clause 52(5).
      For a terrorist suspect, that would apply only when the suspect had been detained for a serious arrestable offence. In the nature of things, a terrorist suspect is not often detained for a serious arrestable offence but because of a suspicion that he may have committed a terrorist offence. He is detained to determine whether charges should be brought against him and whether the exclusion powers, deportation or other powers existing in relation to terrorists should be applied. For that reason, I believe that the amendment is fatally flawed and that the Government's scheme, which is based on Lord Jellicoe's recommendations, remains the one with which the House should keep faith.
      Amendment agreed to.
      Amendments made: No. 159, in page 50, line 35, after 'assistance', insert
      'under section 1 of the principal Act'.
      No. 160, in page 50, line 36, after 'persons', insert `arrested and'.
      No. 161, in page 50 line 38, leave out from 'subsection' to end of line 40 and insert
      'for the words from "advice" onwards there shall be substituted the words "under the arrangements—

      (i) advice and representation to which this section applies; and

      (ii) advice and assistance under section 1 of the principal Act".'.

      No. 162, in page 51, line 1, after 'representation', insert
      'to which this section applies'.
      No. 163, in page 51, line 3, after 'assistance', insert 'under section 1 of the principal Act'.
      No. 164, in page 51, line 3, at end insert 'arrested and'.—[Mr. Mellor.]

    Clause 53

      TAPE-RECORDING OF INTERVIEWS
      Amendment made: No. 297, in page 51, line 12, leave out 'such tape–recording' and insert
      'the tape–recording of interviews of persons suspected of the commission of criminal offences, or of such descriptions of criminal offences as may be specified in the order, which are so held,'.—[Mr. Mellor.]

    Clause 54

      FINGERPRINTING
      Mr. Mellor: I beg to move amendment No. 165, in page 52, line 5, after 'reason', insert
      'before his fingerprints are taken'.
      Mr. Deputy Speaker: With this we shall take Government amendments Nos. 160, 161, 162, 163, 164 and 297.
      Mr. Mellor: All the amendments are concerned with fingerprinting and the taking of samples. They mainly meet undertakings given in Committee, but amendment No. 171 corrects a drafting error.
      Mr. Kaufman: The Opposition welcome these concessions, which are made in response to cases that we made in Committee. They improve the Bill.
      Amendment agreed to.

    Clause 55
      INTIMATE SAMPLES
      Amendment made: No. 166, in page 53, line 14, after second `a', insert 'registered'.—[Mr. Mellor.]
    Clause 56

      OTHER SAMPLES
      Amendments made: No. 67, in page 53, line 20, at end insert—
      '(1 A) Consent to the taking of a non–intimate sample must be given in writing.'.
      No. 168, in page 53, line 35, at end insert—
      '(4A) Where—

      (a) an authorisation has been given; and

      (b) it is proposed that a non–intimate sample shall be taken in pursuance of the authorisation,

      an officer shall inform the person from whom the sample is to be taken—

      (i) of the giving of the authorisation; and

      (ii) of the grounds for giving it.

      (4B) The duty imposed by subsection (4A)(ii) above includes a duty to state the nature of the offence in which it is suspected that the person from whom the sample is to be taken has been involved.
      (4C) if a non–intimate sample is taken from a person by virtue of subsection (2) above—

      (a) the authorisation by virtue of which it was taken; and

      (b) the grounds for giving the authorisation,

      shall be recorded as soon as is practicable after the sample is taken.'
      No. 169, in page 53, line 36, leave out subsection (5). —[Mr. Mellor.]

    Clause 57

      DESTRUCTION OF FINGERPRINTS AND SAMPLES
      Amendments made: No. 170, in page 54, line 14, at end insert—
      '(2A) If—

      (a) fingerprints or samples are taken from a person in connection with the investigation of an offence; and

      (b) that person is not suspected of having committed the offence,

      they must be destroyed as soon as they have fulfilled the purpose for which they were taken.'
      No. 171, in page 54, line 21, at end insert—
      '(6) Nothing in this section—

      (a) affects any power conferred by paragraph 18(2) of Schedule 2 to the Immigration Act 1971; or

      (b) applies to a person arrested or detained under the terrorism provisions.'.—[Mr. Mellor.]

    Clause 58

      FINGERPRINTS AND SAMPLES—SUPPLEMENTARY
      Amendments made: No. 172, in page 54, line 32, at end insert
      'and

      (d) in relation to a person who has attained the age of 17 but who appears to be suffering from mental disorder, the consent of that person and of their nearest relative or person in whose care, custody or control he is or in the absence of such a person the appropriate local authority.'.

      No. 173, in page 54, line 36, leave out
      'the genital or rectal area of a person's body'
      and insert
      'a person's body orifice'.
      No. 174, in page 54, leave out line 37.
      No. 175, in page 54, leave out lines 39 and 40 and insert—
      '(a) a sample of hair other than pubic hair,
      (aa) a sample taken from a nail or from under a nail;'.
      No. 176, in page 54, line 42, leave out
      'the genital or rectal area'
      and insert
      'a body orifice'.
      No. 178, in page 55, line 2, at end insert—
      '"the terrorism provisions" means—

      (a) section 12(1) of the Prevention of Terrorism (Temporary Provisions) Act 1984; and

      (b) any provision conferring a power of arrest or detention and contained in an order under section 13 of that Act; and

      "terrorism" has the meaning assigned to it by section 14(1) of that Act.'.—[Mr. Mellor.]

    Clause 61

      EVIDENCE FROM DOCUMENTARY RECORDS
      Amendment made: No. 179, in page 56, line 36, at end insert—
      '(3) Nothing in this section shall prejudice the admissibility of any evidence that would be admissible apart from this section.'.—[Mr. Mellor.]

    Clause 65
      PART VII—SUPPLEMENTARY
      Amendment made: No. 180, in page 57, line 33 leave out paragraph (a).—[Mr. Mellor.]
    Clause 71

      COMPETENCE AND COMPELLABILITY OF ACCUSED'S SPOUSE
      Amendments made: No. 185, in page 62, line 16 leave out from 'Where' to 'with' in line 17 and insert
      'a husband and wife are jointly charged'.
      No. 186, in page 62, line 18 leave out
      'of the information or indictment'.—[Mr. Mellor.]

    Clause 75

      COMPLAINTS AGAINST POLICE OFFICERS
      Mr. Hurd: I beg to move, amendment No. 191, in page 64, line 24, after 'his', insert 'written'.
      Mr. Deputy Speaker: With this it will be convenient to take amendments Nos. 192, 194, 202, 195, 196, 197, 199, 200, 201 and 204.
      Mr. Hurd: These are amendments to the complaints and discipline provisions of the Bill. I should like to pinpoint two of them. Amendment No. 191 provides for written consent to a complaint being forwarded by a third party, which was a point made in Committee by my hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths). I was rather grudging about it at the time, but I see its wisdom now, so here it is.
      Amendment No. 204 introduces another point that is important to the Police Federation. It makes breaches of the guidance on these subjects admissible on appeal from first instance disciplinary hearings.
      Amendment agreed to.

    Clause 76

      STEPS TO BE TAKEN BY CHIEF OFFICER BEFORE INVESTIGATION OF COMPLAINT
      Amendments made: No. 192, in page 64, line 28 leave out from beginning to end of page 65, line 4 and insert—

      '(1) After a chief officer of police has performed the duties imposed on him by section 75 above in relation to a complaint, he shall consider whether it is suitable for informal resolution and may appoint an officer from his force to assist him.

      (2) If it appears to the chief officer that the complaint is not suitable for informal resolution, he shall appoint an officer from his force or some other force to investigate it formally.

      (3) If it appears to him that it is suitable for informal resolution, he shall seek to resolve it informally and may appoint an officer from his force to do so on his behalf.

      (4) If it appears to the chief officer, after attempts have been made to resolve a complaint informally,—

      (a) that informal resolution of the complaint is impossible; or

      300

      (b) that the complaint is for any other reason not suitable for informal resolution,

      he shall appoint an officer from his force or some other force to investigate it formally.
      (4A) An officer may not be appointed to investigate a complaint formally if he has previously been appointed to act in relation to it under subsection (3) above.
      (4B) If a chief officer requests the chief officer of some other force to provide an officer of his force for appointment under subsection (2) or (4) above, that chief officer shall provide an officer to be so appointed.
      (5) No officer may be appointed under this section unless he is—'
      No. 194, in page 65, line 8, at end insert—
      '(5A) Unless the investigation is supervised by the Authority under section 79 below, the investigating officer shall submit his report on the investigation to the chief officer.'—[Mr. Mellor.]

    Clause 79

      SUPERVISION OF COMPLAINTS BY AUTHORITY
      Amendments made: No. 195, in page 66, line 18, at end insert—
      '(2A) Sections 82 to 85 below shall apply where the Authority supervise the investigation of an allegation which is not contained in a section 75 complaint as they apply when the Authority supervise the investigation of a section 75 complaint.'
      No. 196, in page 66, line 36, leave out from beginning to 'whether' in line 42 and insert—
      '(7) At the end of an investigation which the Authority have supervised the investigating officer shall submit a report on the investigation to the Authority and send a copy to the chief officer who referred the complaint or allegation to them.
      (7A) After considering a report submitted to them under subsection (7) above the Authority—

      (a) shall submit an appropriate statement to the chief officer; and

      (b) shall supply a copy of it—

      (i) to the person who made the complaint or allegation; and

      (ii) to the officer against whom the complaint or allegation was made.

      (7B) In subsection (7A) above "appropriate statement means a statement—
      (a)'.
      No. 197, in page 67, line 1, leave out 'shall specify' and insert 'specifying'.
      No. 198, in page 67, line 3, leave out 'shall deal' and insert 'dealing'.
      No. 199, in page 67, line 4, at end insert—

      '(9) The power to issue an appropriate statement includes power to issue separate statements in respect of the disciplinary and criminal aspects of an investigation.

      (10) No disciplinary charge shall be brought before the appropriate statement is submitted to the chief officer.

      (11) Subject to subsection (12) below, neither the chief officer nor the Director of Public Prosecutions shall bring criminal proceedings before the appropriate statement is submitted to the chief officer.

      (12) The restriction imposed by subsection (II) above does not apply if it appears to the director that there are exceptional circumstances which make it undesirable to wait for the submission of the appropriate statement.'

    Clause 80

      INVESTIGATING OFFICERS' REPORTS ON INVESTIGATIONS
      Amendment made:
      No 200, in page 67, line 5, leave out clause 80.—[Mr. Mellor.]

    Clause 81
      COMPLAINTS AGAINST SENIOR OFFICERS
      Amendment made: No. 201, in page 67, line 16, leave out '75 to 80' and inset '75 to 79' .—[Mr. Mellor.]
    Clause 82

      STEPS TAKEN BY CHIEF OFFICER AFTER INVESTIGATION OF SECTION 75 COMPLAINT
      Amendment made: No. 202, in page 67, line 35, leave out from 'whether' to 'indicates' in line 38 and insert
      'a report—

      (i) which is submitted to him under section 76(5A) above; or

      (ii) a copy of which is submitted to him under section 79(7) above,'.—[Mr. Mellor.]

    Clause 89

      RESTRICTION ON DISLOSURE OF INFORMATION
      Mr. Eldon Griffiths: I beg to move amendment No. 319, in page 73, line 22, after 'proceedings', insert
      'including any civil proceedings that may be undertaken by the officer complained of.
      The purpose of the amendment is to make it clear that information that is available to a police complaints authority that can be passed on for the purpose of any civil, criminal or disiplinary proceedings against the officer complained of shall not be denied to him when he seeks an action in civil proceedings, such as defamation. I should like my right hon. Friend to confirm that that is so. He will recall that earlier in the debates I mentioned the first case, where the Queen's Bench Division ruled that the complaint must be made available to a police officer. This is the same principle, and I hope that the Government will accept it.
      Mr. Hurd: I think that what my hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths) is seeking is already in the Bill, in clause 89 (1) (b), which provides an exception to the confidential rule, where such disclosure is for the purpose of criminal, civil or disciplinary proceedings.
      Within that wide category are already included civil proceedings brought by an officer who has been the subject of a complaint. As my hon. Friend is seeking confirmation that police officers will have the right to that information, I can give it, as it is in the Bill.
      Amendment negatived.

    Clause 95

      GUIDELINES CONCERNING DISCIPLINE, COMPLAINTS ETC
      Amendment made: No. 204, in page 81, line 24 at end insert—
      '(1A) A failure on the part of a police officer to have regard to any guidance issued under subsection (1) above when determining—

      (a) whether an officer has committed an offence against discipline; or

      (b) the punishment to be awarded for such an offence,

      shall be admissible in evidence on any appeal from the determination.'—[Mr. Hurd.]

    Clause 97

      POLICE OFFICERS PERFORMING DUTIES OF HIGHER RANK
      Mr. Hurd: I beg to move amendment No. 205, in page 83, leave out lines 22 and 23.
      Mr. Deputy Speaker: With this it will be convenient to take Government amendments Nos. 207 to 212, 275, 276 and 279.
      Mr. Hurd: This is a series of technical amendments. The first increased the discretion of a chief superintendent to authorise a sergeant to act as an inspector. The other amendments in the group clarify our intentions in clauses 102 and 103. I draw particular attention to amendment No. 279, dealing with the position of the Customs.
      Amendment agreed to.

    Clause 99

      AMENDMENTS RELATING TO POLICE FEDERATIONS
      Amendment made: No. 206, in page 85, line 26, at end insert
      'or as provided by section (Representation at disciplinary proceedings) of the Police and Criminal Evidence Act 1984,'. —[Mr. Hurd.]

    Clause 102

      APPLICATION OF ACT TO ARMED FORCES
      Amendments made: No. 207, in page 86, line 21, leave out 'the investigation of offences' and insert
      'investigations of offences conducted'.
      No. 208, in page 86, line 28, leave out
      'any investigation of an offence'
      and insert
      'investigations of offences conducted'.
      No. 209, in page 86, lne 32, leave out 'an investigation' and insert 'investigations'.
      No. 210, in page 86, line 34, leave out 'an investigation' and insert 'investigations'.
      No. 211, in page 86, line 37, leave out 'in relation to' and insert 'for the purposes of.
      No. 212, in page 86, line 40, leave out
      'in the United Kingdom or elsewhere'.—[Mr. Hurd.]

    Clause 103

      APPLICATION OF ACT TO CUSTOMS AND EXCISE
      Amendments made: No. 275, in page 87, line 14, leave out `the investigation of offences' and insert
      'investigations of offences conducted'.
      No. 276, in page 87, line 17, after 'investigations', insert 'conducted'.
      No. 277, in page 87, line 21, leave out 'such officers', and insert
      'officers of Customs and Excise'.
      No. 278, in page 87, line 22, leave out 'its application by virtue of paragraph (a) above', and insert
      'relation to investigations of offences conducted by officers of Customs and Excise'.
      No. 279, in page 87, line 35, leave out from 'above."' to end of line 39.—[Mr. Hurd.]

    Clause 105

      MEANING OF "SERIOUS ARRESTABLE OFFENCE"
      Mr. Hurd: I beg to move amendment No. 286, in page 88, line 12, leave out
      '(in this section referred to as "scheduled offences")'.
      Mr. Deputy Speaker: With this it will be convenient to take Government amendments Nos. 287 to 294.
      Mr. Hurd: In these amendments we have made a valiant effort to meet some concerns expressed in Committee on the definition of "serious arrestable offence". I am sorry that the right hon. Member for Manchester, Gorton (Mr. Kaufman) is not here. That was one of the difficulties on which he concentrated. I hope that the Opposition will aknowledge that we have done our best to meet it.
      Mr. Dubs: I should like to acknowledge the improvement that has been made to the clause.
      Amendment agreed to.
      Amendments made: No. 287, in page 88, leave out lines 19 and 20.
      No. 288, in page 88, line 21, leave out 'subsection (4)' and insert 'subsections (3A) and (4)'.
      No. 289, in page 88, line 22, leave out from 'serious' to first 'to' in line 25 and insert
      'only if its commission—

      (a) has led to any of the consequences specified in subsection (6) below; or

      (b) is intended or is likely'.

      No. 290, in page 88, line 26, at end insert—
      '(3A) An arrestable offence which consists of making a threat is serious if carrying out the threat would be likely to lead to any of the consequences specified in subsection (6) below.'.
      No. 213, in page 88, line 28, leave out '1976' and insert '1984'.
      No. 291, in page 88, line 32, leave out subsection (5).
      No. 292, in page 88, line 40, leave out '(5)' and insert '(3A)'.—[Mr. Hurd.]
      Mr. Eldon Griffiths: I beg to move amendment No. 310, in page 89, line 5, at end insert
      'including the creation or satisfaction of an addiction to drugs'.
      I seek to ensure that the Bill covers the problem of hard drugs. The amendment is defective in that the word "controlled" is left out, when it should have been included.
      The trigger mechanism of much of the Bill is the term "serious arrestable offence". In the list of offences there is no reference that I can find either to drug trafficking or to the use of drugs to secure acts of terrorism. I wish to ask my right hon. Friend the Minister to have another look at the matter before the Bill arrives in another place and to see whether it is appropriate to include in the list of offences which trigger the "serious arrestable offence" provision something that will cover drugs.
      Mr. Hurd: I agree that the offence of supplying dangerous and controlled drugs is serious and that the full range of investigative powers is needed.
      Subsection (8) defines "injury" as including
      "any impairment of a person's physical or mental condition."
      Addiction to drugs such as heroin certainly constitutes a serious impairment of that sort. As a rule, the offence of supplying such drugs is likely to lead to such impairment even if the supplier did not intend it or it is impossible to establish that a person's health has been impaired. The supply of dangerous drugs in commercial quantities is likely, unhappily, to result in substantial financial gain,
      304
      and therefore subsection (6)(e) also applies. 'The definitions in the clause cover the serious point made by my hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths).
      Amendment negatived.

    Clause 106

      GENERAL INTERPRETATION
      Amendments made: No. 216, in page 89, line 17, at end insert
      "'intimate search" means a search which consists of the physical examination of a person's body orifices;'.
      No. 218, in page 89, line 23, at end insert
      '(2) A person is in police detention for the purposes of this Act if he has been taken to a police station after being arrested for an offence and—

      (a) is detained there; or

      (b) is detained elsewhere in the charge of a constable.'.—[Mr. Hurd.]

    Clause 108

      EXTENT
      Amendments made: No. 298, in page 90, line 3, leave out from '101(2)' to end of line 6.
      No. 299, in page 90, line 10, at end insert—
      'section 74(3), so far as it relates to paragraph 8 of Schedule 4;'.
      No. 300, in page 90, line 13, leave out subsection (5) and insert—
      (5) The following extend to England and Wales, Scotland and Northern Ireland—section 6(3);
      section 74(3), so far as it relates to paragrph 7(1) of Schedule 4; and section 103(1).'.
      No. 219, in page 90, line 14, at end insert—
      '(5A) So far as they relate to proceedings before courts-martial and Standing Civilian Courts, the provisions of this Act to which this subsection applies extend to any place to which the Army Act 1955 or the Air Force Act 1955 extends.
      (5B) Subsection (5A) above applies—

      (a) to Parts VII and VIII of this Act, except paragraph 10 of Schedule 3; and

      (b) to section 102(5) above.'.

      No. 220, in page 90, line 15, leave out 'extends' and insert
      '(1) to (4) and (6) extend'.
      No. 221, in page 90, line 18, leave out from '107(1.)' to first `to' in line 20 and insert
      ', so far as it relates to any provision amended by Part II of Schedule 6 extends'.
      No. 222, in page 90, line 22, leave out 'relates' and insert 'relates—(a)'.
      No. 301, in page 90, leave out line 26.
      No. 223, in page 90, line 28, at end insert
      'or—

      (b) to any provision mentioned in Part VI of Schedule 7,' —[Mr. Hurd.]

    Schedule 1

      SPECIAL PROCEDURE
      Mr. Carlile: I beg to move amendment No. 224, in page 92, line 5, leave out 'circuit' and insert 'High Court'.
      Mr. Deputy Speaker: With this amendment it will be convenient to take the following amendments:
      No. 225, in page 92, line 6, leave out from 'that' to 'fulfilled' and insert 'the access conditions are'.
      No. 226, in page 92, line 8, leave out 'first set of access conditions is' and insert 'the access conditions are'.

      305
      No. 227, in page 92, line 11, after 'is', insert 'excluded material or'.
      No. 228, in page 92, line 13, leave out 'special procedure'.
      No. 229, in page 92, line 17, leave out 'special procedure'.
      No. 230, in page 92, line 19, leave out 'special procedure'.
      No. 231, in page 92, line 30, leave out paragraph 3.
      No. 232, in page 92, line 40, leave out 'circuit' and insert 'High Court'.
      No. 236, in page 93, line 34, leave out 'circuit' and insert 'High Court'.
      No. 237, in page 93, line 36, leave out 'either set of access conditions is' and insert 'the access conditions are'.
      No. 238, in page 93, line 38, leave out from 'fulfilled' to end of line 43.
      No. 240, in page 94, line 13, at end insert—
      '(d) that an order under paragraph 4 above relating to the material has not been complied with'.
      Mr. Carlile: It is rather late to be dealing with serious matters. We are considering making orders to permit a constable to enter and search premises for excluded material and special procedure material. It gives a judge the power to permit the police to search for material which is especially confidential. It is so confidential that it falls within one or other of the categories of special procedure material or excluded material.
      It is such a serious matter for the police to obtain a warrant to search for and take such material that it should be dealt with at the highest judicial level of first instance—by a high court judge. I do not criticise circuit judges, who would consider these matters with great care, but to emphasise the importance, the significance and the extreme circumstances in which such a warrant may be applied for, it should be made by a high court judge rather than a circuit judge.
      There should be only one set of access conditions contained in schedule 1, and it should contain the more stringent requirements. The police should have to satisfy the more stringent requirements before they can obtain a warrant that enables them to search for and take away these items. I hope that the Minister will assure us that these matters, which were not discussed in Committee, will be considered and that the Government may give effect to them in another place.
      Mr. Hurd: The hon. Gentleman tabled these amendments for the Committee stage but was unable to move them at that time, so I am glad that he has had the chance to speak to them even at this late hour. I cannot however, advise my hon. Friends to accept them.
      2.15 am
      We do not believe that it is sensible to require applications under schedule 1 to be heard by a High Court judge rather than by a circuit judge. The royal commission was clear in its view that a circuit judge was a sufficiently high level of judicial authority for this purpose, and the judiciary itself agreed when we consulted it on this. When one considers the level of decision-taking allotted to judges of different ranks, it is perfectly sensible that circuit judges should have this responsibility.
      I believe that it would be misguided, especially at a quarter past 2 in the morning, to delete entirely the second
      306
      set of access conditions under schedule 1 which empower a circuit judge to make a production order or issue a search warrant in respect of excluded or special procedure material if a statutory authority now exists for the issue of a warrant to search for the material concerned.
      I shall not go through the arguments against the amendments at length, any more than the hon. Gentleman went through the arguments in favour of them at length. I merely say that we have constructed the two sets of access conditions, just as we have constructed the difference between excluded and special procedure material, to meet a very wide range of representations covering a very wide range of circumstances.
      Although the hon. Gentleman is right in saying that another place will consider this part of the Bill with care, it has already gone through many stages and is now perhaps the result of more consultation than any other part of the Bill, just as the Bill is perhaps the result of more consultation than any other legislation in recent years, and I cannot advise my hon. Friends to upset it at this hour.
      Amendment negatived.
      Amendments made: No. 233, in page 92, line 42, after 'constable', insert
      'for him to take away'.
      No. 234, in page 93, line 2, after '4', insert '(a)' .
      No. 235, in page 93, line 4, at end insert—
      '5A. The following provisions of this Act shall have effect in relation to material produced in pursuance of an order under paragraph 4 above as they have effect in relation to anything seized under section 19 above—
      section 19(12) and (13);
      section (Seized articles: access and copying); and
      section (Retention of seized articles).'.
      No. 239, in page 94, line 5, at end insert—
      '(aa) that it is practicable to communicate with a person entitled to grant entry to the premises but it is not practicable to communicate with any person entitled to grant access to the material;'.
      No. 241, in page 94, line 13, at end insert—
      '12A.—(1) If a person fails to comply with an order under paragraph 4 above, a circuit judge may deal with him as if he had committed a contempt of the Crown Court.
      (2) Any enactment relating to contempt of the Crown Court shall have effect in relation to such a failure as if it were such a contempt.'.
      No. 242, in page 94, line 14, leave out paragraphs 13 and 14.—[Mr. Hurd.]

    Schedule 2

      PRESERVED POWERS OF ARREST
      Mr. Hurd: I beg to move amendment No. 280, in page 94, line 31 leave out 'Section 186' and insert 'Sections 186 and 190B'.
      Mr. Deputy Speaker: With this it will be convenient to take the remaining Government amendments.
      Mr. Hurd: These are technical amendments and I trust that their virtues speak for themselves.
      Amendment agreed to.
      Mr. Deputy Speaker: With the leave of the House, I shall together put the Questions on the remaining Government amendments.
      Amendments made: No. 281, in page 94, line 32 leave out 'Section 186' and insert 'Sections 186 and 190B'.
      No. 282, in page 94, line 33 leave out `to 106' and insert 'and 105'.
      No. 243, in page 94 leave out line 42.
      No. 270, in page 95 leave out lines 1 and 2.
      No. 244, in page 95, line 10 after '18', insert 35(10).'.
      No. 245, in page 95 line 11 at end insert—

      '1984 c.8

      Section 12 of the Prevention of Terrorism (Temporary Provisions) Act 1984.' —[Mr. Hurd.]

    Schedule 3

      PROVISIONS SUPPLEMENTARY TO SECTIONS 61 AND 62
      Amendment made: No. 246, in page 97, line 9, leave out 'in evidence under paragraph 8 above' and insert
      'in proceedings in the Crown Court or a magistrates' court' —[Mr. Hurd.]

    Schedule 5

      SERIOUS ARRESTABLE OFFENCES
      Amendments made: No. 293, in page 101, line 22 at end insert—
      '5. Incest with a girl under the age of 13.
      6. Buggery with

      (a) a boy under the age of 16; or

      (b) a person who has not consented.

      7. Indecent assault which constitutes an act of gross indecency. ' .
      No. 294, in page 101, line 27 at end insert—
      'Sexual Offences Act 1956 (c. 69)
      1A. Section 5 (intercourse with a girl under the age of 13).'.—[Mr. Hurd.]

    Schedule 6

      CONSEQUENTIAL AMENDMENTS
      Amendments made: No. 313, in page 102, line 4 at end insert—
      'Game Act 1831 (c.32)
      The Following section shall be inserted after section 31 of the Game Act 1831—
      "Powers of constables in relation to trespassers.
      31A. The powers conferred by section 31 above to require a person found on land as mentioned in that section to quit the land and to tell his christian name, surname, and place of abode shall also be exerciseable by a police constable.".'.
      No. 314, in page 102, line 44 at end insert—
      'Game Laws (Amendment) Act 1960 (c.30)
      5A. In subsection (1) of section 2 of the Game Laws (Amendment) Act 1960 (power of police to enter on land) for the words 'purpose of exercising any power conferred on him by the foregoing section" there shall be substituted the words "purpose—

      (a) of exercising in relation to him the powers under section 31 of the Game Act 1831 which section 31A of that Act confers on police constables; or

      (b) of arresting him in accordance with section 22 of the Police and Criminal Evidence Act 1984.".

      5B. In subsection (1) of section 4 of that Act (enforcement powers) for the words from "under", in the fist place where it occurs, to "thirty-one" there shall be substituted the words ", in accordance with section 22 of the Police and Criminal Evidence Act 1984, for an offence under section one or section nine of the Night Poaching Act 1828, or under section thirty".'.
      No. 249, in page 103, line 7 at end insert—
      'Deer Act 1963 (c. 36)
      5C. In subsection (2) of section 5 of the Deer Acts 1963 (enforcement powers) after the word "subsection" there shall be inserted the words "or arresting a person in accordance with section 22 of the Police and Criminal Evidence Act 1984, for an offence under this Act". ' .
      No. 250, in page 103, line 40, at end insert—
      'Criminal Justice Act 1972 (c. 71)
      11A. In subsection (1) of section 34 of the Criminal Justice Act 1972 (powers of constable to take drunken offender to treatment centre) for the words from the beginning to "section the" there shall be substituted the words
      "On arresting an offender for an offence under—

      (a) section 12 of the Licensing Act 1872; or

      (b) section 91(1) of the Criminal Justice Act 1967, a". '.

      No. 251, in page 103, line 40, at end insert—
      'Deer Act 1980 (c. 49)
      11B. In subsection (2) of section 4 of the Deer Act 1980 (enforcement powers) after the word "above" there shall be inserted the words "or arresting a person, in accordance with section 22 of the Police and Criminal Evidence Act 1984, for an offence under the Act".
      Animal Health Act 1981 (c. 22)
      11C. In subsection (5) of section 60 of the Animal Health Act 1981 (enforcement powers) for the words "a constable or other officer" there shall be substituted the words "an officer other than a constable".
      Wildlife and Countryside Act 1981 (c. 69)
      11D. In subsection (2) of section 19 of the Wildlife and Countryside Act 1981 (enforcement powers) after the words "subsection (1)" there shall be inserted the words "or arresting a person in accordance with section 22 of the Police and Criminal Evidence Act 1984 for such an offence".'.
      No. 302, in page 104, line 4, at end insert—
      'Prevention of Terrorism (Temporary Provisions) Act 1984 (c. 8)
      12A. In paragraph 4 of Schedule 3 to the Prevention of Terrorism (Temporary Provisions) Act 1984 (search warrants)—

      (a) in sub-paragraph (4)—

      (i) for the word "If" there shall be substituted the words "Subject to sub-paragraph (4A) below, if'; and

      (ii) at the end there shall be added the words "or which could have been so given but for section 9(2) of the Police and Criminal Evidence Act 1984"; and

      (b) the following sub-paragraph shall be inserted after subparagraph (4)—

      "(4A) An order given under sub-paragraph (4) above may not authorise a search for items subject to legal privilege within the meaning of section 11 of the Police and Criminal evidence Act 1984".'.
      No. 252, in page 104, line 35, at end insert—
      '(4A) The following section shall be inserted after section 200—
      "False statements in computer record certificates
      200A.—(1) Any person who in a certificate tendered under paragraph 8 of Schedule 3 to the Police and Criminal Evidence Act 1984 (computer records) in evidence before a court-martial makes a statement which he knows to be false or does not believe to be true shall be guilty of an offence and liable—

      (a) on conviction on indictment to imprisonment for a term not exceeding two years or to a fine or to both;

      (b) on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or to both.

      (2) In this section "statutory maximum" has the meaning given by section 74 of the Criminal Justice Act 1982.".'.
      No. 253, in page 104, leave out line 36.
      No. 254, in page 105, line 29, at end insert—
      '(4A) The following section shall be inserted after section 200—
      False statements in computer record certificates
      200A.—(1) Any person who in a certificate tendered under paragraph 8 of Schedule 3 to the Police and Criminal Evidence Act 1984 (computer records) in evidence before a court-martial makes a statement which he knows to be false or does not believe to be true shall be guilty of an offence and liable—

      (a) on conviction to imprisonment for a term not exceeding two years or to a fine or to both;

      (b) on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or to both.

      (2) In this section "statutory maximum" has the meaning given by section 74 of the Criminal Justice Act 1982.".'.
      No. 255, in page 105, leave out line 30
      No. 256, in page 106, line 8, at end insert—
      'Armed Forces Act 1976 (c. 52)
      19A. The following paragraph shall be inserted after paragraph 17 of Schedule 3 to the Armed Forces Act 1976 (Standing Civilian Courts)—
      "17A. Section 200A of that Act (false statements in computer record certificates) shall have effect as if the reference to a court-martial in subsection (1) included a reference to a Standing Civilian Court".'.
      No. 285, in page 106, line 16, after 'to', insert 'offences under'.—(Mr. Hurd.]

    Schedule 7

      REPEALS
      Amendments made: No. 303, in page 108, leave out lines 28 to 31 and insert—
      'Sections 63 to 67'.
      No. 257, in page 108, line 50, at end insert—
      '14 & 15 Prevention of Offences Act Section 11.'
      Vict. c. 19. 1851.
      No. 258, in page 109, line 6, leave out 'Section' and insert 'Sections 18 and'.
      No. 259, in page 109, line 55, at end insert '(1)(c)'.
      No. 260, in page 110, line 29, at end insert—

      '1972 c. 71.

      Criminal Justice Act 1972.

      Section 34(3).'

      No. 261, in page 111, line 4, leave out from `apprehending' to end of line 7 and insert
      'and in subsection (5), the words "constable or", in the second place where they occur'.
      No. 262, in page 111, column 3, leave out lines 14 and 15.
      No. 263, in page 111, line 18, at end insert—

      '1982 c. 48.

      Criminal Justice Act 1982.

      Section 34.'

      No. 264, in page 111, line 34, at end insert—

    'PART IIA

      ENACTMENTS REPEALED GENERALLY IN CONSEQUENCE OF PART VII
      Chapter

      Short title

      Extent of repeal

      3 & 4 Eliz. 2 c. 18

      Army Act 1955.

      In section 198(1), the words "of this section and of sections 198A and 198B of this Act'. Sections 198A and 198B.

      3 & 4 Eliz. 2 c. 19

      Air Force Act 1955.

      In section 198(1), the words "of this section and of sections 198A and 198B of this Act". Section 198A and 198B.

      1965 c. 20.

      Criminal Evidence Act 1965

      The whole Act 1965.

      1969 c. 48.

      Post Office Act 1969.

      In section 93(4), the words "the Criminal Evidence Act 1965 and".

      In Schedule 4, paragraph 77.

      1981 c. 55.

      Armed Forces Act 1981.

      Section 9.

      1981 c. xviii.

      County of Kent Act 1981.

      Section 82.

      1983 c. 55.

      Value Added Tax Act 1983.

      In Schedule 7, paragraph 7(7) and (8).'.

      No. 265, in page 112, line 3, at end insert—

      '40 & 41

      Evidence Act 1877.

      The whole Act.

      ' Vict. c. 14.

      No. 283, in page 112, line 3, at end insert—

      '16 & 17

      Evidence

      (Amendment)

      Section 3.'

      Vict. c. 83.

      Act 1853.

      No. 284, in page 112, line 17, column 3, at end insert—

      'In section 6(1), the words from "notwithstanding" to the end.'

      No. 266, in page 113, leave out lines 10 to 33.—[Mr. Hurd.]

    Title
    Amendment made: No. 267, in line 2, after first 'police', insert—
    ', persons in police detention,'.—(Mr. Hurd.]
    To be read the Third time this day.

  Agriculture (Northern Ireland)
  2.18 am
  The Minister of State, Northern Ireland Office (Mr. Adam Butler): I beg to move,
  That the draft Agriculture (Miscellaneous Provisions) (Northern Ireland) Order 1984, which was laid before this House on 31st January, be approved.
  This order seeks to amend various items of legislation and to revoke others with which the Department of Agriculture for Northern Ireland is concerned. The order also provides for a levy on the Northern Ireland seed potato industry as well as for the making of schemes to aid consumers of liquid milk.
  The order has already been thoroughly debated in the Northern Ireland Assembly and more recently in considerable detail by the Northern Ireland Committee, on 11 April this year. Following debate in that Committee I also wrote to a number of right hon. and hon. Members on points that they had raised. In view of that and of the late hour, I propose to limit my opening remarks to the most important provisions of the order.
  Article 3 will enable the Department to levy the Northern Ireland seed potato industry and to allocate the money so collected for the benefit of the persons engaged in the production or marketing of seed potatoes. It is important that the work of promoting and developing the seed potato industry, previously carried on by the Northern Ireland Seed Potato Marketing Board, should be continued. Article 3 provides the means by which the funds for these functions can be collected from the industry and will enable the Department to ascribe a body to receive the levy income to carry out these functions.
  It is the Government's view that Seed Potato Promotions (Northern Ireland) Ltd. would be a suitable body to receive the levy income. The Northern Ireland Assembly, although in favour of the Department being empowered to raise a levy, expressed some reservations about this, as did the Northern Ireland Committee, and we spent some time on the matter. I can assure the House, as I did the Committee, that there will be the fullest consultation with all interests including the Northern Ireland parties represented in the House before we proceed to collect the levy and allocate the funds. This article is only in the nature of enabling legislation, and therefore I hope that it will not prove to be a stumbling block tonight.
  Article 4 provides a legislative base for making schemes to benefit consumers of liquid milk. The consumer subsidy ensures that consumers in Northern Ireland do not have to pay a higher retail price for their milk than consumers in England and Wales. For the producer, this has meant a very welcome £5·5 million of additional income in 1983–84 which is continuing at the same level in the current year. In view of the difficulties facing the producer at the moment, this is particularly important.
  The original intention of article 5 was to transfer the duty to license slaughtermen from district councils to the Department of Agriculture for Northern Ireland. However, following representations made to me when I was responsible for agriculture matters, I decided that the article should be amended to leave the licensing function with the district councils.
  The revised article amends the Slaughter of Animals Act (Northern Ireland) 1932 and makes it clear that local
  312
  authorities should check the age and competence of the applicant before issuing a licence to slaughter or stun animals.
  Article 7 extends the scope of the Agriculture (Temporary Assistance) Act (Northern Ireland) 1954 so that schemes can be made to aid persons engaged in the production, processing, packing or marketing of agricultural produce. At the moment the Act provides only for assistance to or for the direct benefit of farmers. I envisage, as I made clear in Committee, that industrial development legislation, with which there is an overlap, would be applied when the purpose behind the assistance provided was most directly for the benefit of the food processor.
  Article 11 amends the Agricultural Produce (Meat Regulation and Pig Industry) Act (Northern Ireland) 1962 to enable the Department to recover the full costs of the meat inspection service while enabling measures to be taken for a more efficient use of staff, thereby reducing costs.
  Article 16 amends the Welfare of Animals Act (Northern Ireland) 1972 to bring Northern Ireland more closely into line with Great Britain and enable the Department to exercise greater control over the running of pet shops, animal boarding, riding and zoological establishments in the interest of the welfare of animals.
  Article 17 makes a number of changes to the Diseases of Animals (Northern Ireland) Order 1981, most of which again reflect changes already made in animal health legislation in Great Britain.
  Those, then, are the main provisions. The articles I have omitted from my commentary for the most part correct deficiencies and ambiguities or deal with outdated or obsolete provisions of various enactments.
  I repeat that I have dealt with this order with some brevity despite its complexity, because of the length of the debate before this. I hope that that will not be judged as an offence to the House and I shall listen with the greatest possible care to the points that are made in the debate and reply as fully as I can to them.
  2.24 am
  Mr. Clive Soley: I shall endeavour to be as brief as the Minister of State. We spent a considerable time on the order in Committee, and there is little point in going over the ground again.
  The recent EEC decision on milk especially will have a dramatic effect on farmers in Northern Ireland, with a reduction of approximately 6 per cent. on 1983 figures. The Milk Marketing Board in Northern Ireland is estimating the reduction in farmers' incomes to be between £20 million and £30 million. The Minister might need to use some of the powers contained in the order to soften the blow, especially to those smaller and more vulnerable farmers.
  I shall concentrate on the issue raised in Committee about the ability of Northern Ireland dairy farmers to export milk, or, as the Minister preferred to call it, to "tranship" milk to Britain. The hon. Member for Upper Balm (Mr. McCusker) quoted me as saying that the milk producers in Northern Ireland were not permitted to export their milk to the mainland. He went on to say:
  "I hope that the Minister will tell him that that is wrong."
  In reply the Minister said:
  "It is absolutely true that dairy products"—
  I emphasise the word "dairy"—

  313
  "are exported—perhaps 'transhipped' is the right word—from Northern Ireland to Great Britain."
  I pursued the matter further. I said:
  "I am not 100 per cent. certain that I am right, but, as I understand it, they would not get a premium."—
  that is dairy farmers,
  "if they were exporting direct to Britain, so in fact they would not be permitted to do so unless they were to lose the premium."—[Official Report, Northern Ireland Committee, 11 April 1984; c. 22–24.]
  I asked the Minister to clarify that point.
  I am grateful to the Minister for replying to me in a letter dealing with two matters. I thank him for his comments on local slaughter facilities, to which he appropriately referred. The concluding two sentences of the letter state:
  "As regards Article 4 you asked whether the consumer subsidy would be payable on milk exported to Great Britain. Under the current scheme the subsidy is not paid on UHT milk and"—
  I emphasise this point—
  "since there is no trade at present in pasteurised milk between Northern Ireland and Great Britain because of legislative restrictions"—
  I stress that aspect—
  "the situation does not arise."
  The letter continues:
  "If trade in pasteurised milk should commence the position of consumer subsidy will be reviewed."
  It is hard to interpret that letter in any other way than as a concession of the point that I made in Committee. It is clear that, if the Minister says that there are legislative restrictions on the export of milk from Northern Ireland to Great Britain, the substantive point that I made in Committee was correct. I should be grateful if the Minister would clarify those points.
  2.27 am
  Mr. William Ross: I have looked carefully at the order. It contains many points, which is why there has been much discussion on the matter. I hope that the Minister can clear up some of my problems.
  The new organisation — Seed Potato Promotions (Northern Ireland) Ltd. — in Northern Ireland is a peculiar body. It is not a private firm in the normal sense of the word. It was set up for a specific reason. Have any costings of that organisation been done? If so, what will be the total cost? The levy will be collected by the Government, who will even sue the producer for the money if it is not forthcoming. The Government will treat the money as though it is a civil debt, and hand it over to the organisation.
  At some point, accounts will clearly have to be produced. Before handing money over, people want an assuranace that they will get something in return. If the money is not paid, the producer can be fined, and he cannot sell his potatoes, because they will not be sealed as ware or seed potatoes if he has not come up with the cash. As a result, many potato growers work on the conacre system, and their cash flows may not be what they might wish at certain times of the year, especially if it is a bad year. They may find it difficult to do what is required. It seems harsh that there should be no leeway in demanding that payment. People may sometimes find it very difficult to raise the cash.
  It seems that high-quality seed is to be produced. I assume that that means that the body involved will be
  314
  responsible for the production of the basic stock. I know quite a lot about this issue, because under the old system of producing high-quality basic seed in Northern Ireland, my father grew the basic seed on his farm for 20 years. Thus, I have a fair idea of the procedure that was followed. I know that it has changed somewhat over the years as a result of advances in agricultural production, but it is still very costly to get those potatoes up to a saleable quality before being sold to farmers.
  I wonder what price will be charged for that stock when it is sold to the commercial grower. It will obviously make a much higher price than the normal commercial crop. However, I am worried about whether the sale price of that basic stock to the commercial grower will cover the cost of production up to that level. If not, what proportion of the production cost will it cover? After all, all growers will be contributing, but it seems that only a fairly small number of them will benefit from the seed. There simply is not enough of it to go round. It has to go through a long and difficult process before the lower qualities are dissipated through the seed potato producing community.
  The farmers will also face other costs. I think that they would like to be clear about exactly what those costs will be. It is a costly business to grow seed potatoes. We now find that certain sums are being sought for levies. I am not sure whether there is only one levy or two. There is a fee for inspecting the growing crop, which works out, I understand, at £19 per hectare this year. Whenever the crop is harvested and the point of sale is reached, there is a fee of £2·10 per tonne, or part of a tonne, which has to be paid as a Sealing fee.
  I want to know whether one of two levies are involved per hectare. Is there one levy for inspecting the growing crop and does it go to the Department of Agriculture or to Seed Potato Promotions? If it goes to the Department of Agriculture, does the SPP have another levy? I believe that the sum of £21 per hectare has been mentioned. Is that two levies per hectare on the crop—one for the Department of Agriculture, to pay for inspecting the growing crop, and the other for the SPP?
  If that is the case, there are a number of problems, the first being the sheer cost in fees to the farmer per hectare. If £19 goes to the Department, £21 to SPP and £2·10 per tonne, on say, 25 tonnes per hectare, I calculate the total at about £82·50 per hectare in the cost of inspection fees alone before the farmer gets down to selling anything. It is all very well to say that the £2·10 per tonne is paid by the merchant, but we know what that means; the farmer pays for it at arm's length, and it is a considerable sum on top of all the other costs.
  Some growers find difficulty in understanding why various other functions are carried out by Department of Agriculture officials for no charge, yet the potato grower foots the bill for all the functions carried out for his crop. It may not be apparent to the Minister, but I assure him that it is a sore point that is rumbling around in the undergrowth of the potato fields of Northern Ireland. While they are not the most profitable of crops, they absorb a great deal of time, effort and money and they provide considerable employment in the rural areas at certain times of the year. It is a useful crop in the economy of Northern Ireland and anything that can be done to encourage it is to be welcomed.
  I am curious to know what users of the River Bann will get in return for their tolls. It is a considerable waterway, with tremendous tourist potential, but unless people are

  315
  able to get boats up and down the river—clearing away the rocks and removing the silt in Lough Beg—the full potential of the waterway will never be realised. I hope that the Government will consider how best to realise the important potential of the Bann for the benefit of Northern Ireland.
  I have been pleased with the explanation that I have seen from the Minister about the drainage and other activities that were necessary to protect the existing drainage works in Lough Neagh and on the River Bann system generally. The Minister will recall the correspondence that he and I have had about Lough Neagh in recent weeks and of my concern lest there should be further interference with the water level of the lough without first carrying out the most detailed investigations into the effect of any change in the mean water level.
  It seems that the dropping of the water level in the past has not been a total success—certain difficulties were caused by it — and I have observed the extensive flooding in the upper Bann. It is a dreadful sight after a long period of heavy rainfall. The extensive drainage operations that have taken place over the years in the rivers flowing into Lough Neagh must have had some effect on water levels. The wearing away of peaty soils once they are exposed to the air and when they come under cultivation is an aspect which has largely been overlooked. I hope, therefore, that before there is any fiddling with water levels, careful consideration will be given to the long-term effects that such changes might have on the whole ecology of the area.
  If these changes in the legislation mean that the interference with the various lock gates in the course of the large-scale salmon poaching that went on over the years will he regarded as an illegal activity that will be curtailed, I think that the anglers will have a special word of thanks to the Minister. I would be pleased if he could confirm that that is so.
  In a letter on 11 May, reference was made to the grants, a matter that was raised in relation to egg packing in Committee. A firm in my constituency applied for one of the grants that are given to agriculture from the Common Market. The firm fulfilled all the rules and regulations, and then discovered that the grant was not necessarily payable. If a person embarks upon a scheme, having completed all that he is required to complete, I suggest to the Minister that the grant should be payable automatically. That apparently does not happen at present. I hope that the Government will give serious consideration to the possibility of tidying up those matters relating to the Common Market grants.
  The hon. Member for Hammersmith (Mr. Soley) spoke about the milk situation in Northern Ireland. He referred briefly to the problem of the smaller producers. A man who had 50 cows in 1981, but who did not increase his production very much, has been hit very much harder by the recent changes than the man with 100 cows in 1981 who now has 200 cows. Even with a loss of 90 per cent., the man with 200 cows is bound to end up better off than the small man. The people who have achieved the greatest increase have benefited the most, and those who achieved no increase, or only a small increase, have been hard hit by the changes.
  I have in my possession a considerable amount of correspondence, answers to questions in the House and various press releases from the Department of Agriculture in Northern Ireland, and from the Ministry of Agriculture,
  316
  Fisheries and Food in Great Britain, concerning the quotas. I do not wish to go into that too deeply now. The Minister has heard it all before, and is aware of the figures and the claims that have been made. He will be aware that he, the farming organisations and the Milk Marketing Board of Northern Ireland do not agree about the situation relating to milk quotas for Northern Ireland. This does nobody any good.
  If we are to continue to pump money into milk, and if the people in Northern Ireland who are producing milk are to be encouraged to keep at it, I suggest to the Minister that the Government should produce the full facts in relation not only to the figures used but to the years in which they were used, and to the method of calculation. I ask that the Minister produce all the statements made by the Minister of Agriculture, Fisheries arid Food, and by the Secretary of State for Northern Ireland before and after the quota for Northern Ireland was decided.
  The Minister of Agriculture went to Europe and did a deal that appears to have been painted with a fairly broad brush that left fuzzy edges.
  The deal was agreed in general terms long before the details were worked out. The ill was done to Northern Ireland when the details were worked out and the same remark can be made for the United Kingdom generally. The end result has been confusion for farmers and the Government and accusations from the farmers of bad faith on the part of the Government.
  I ask the Minister to consider the suggestion which was made by my right hon. Friend the Member for Lagan Valley (Mr. Molyneaux) on 3 May following the statement of the Minister of Agriculture, Fisheries and Food, in which he asked for a White Paper setting out all the details of the deal. The Government have been a wee bit too coy for they have failed to produce the full details and calculations and a clear statement that everyone can follow.
  My hon. Friend the Member for Antrim, East (Mr. Beggs) and I tabled questions which were answered on 4 May but I am not satisfied with the answers. The answers skirt around the edges and fail to give the details that we sought. They do not produce the information that we need, and until that information is produced in full the bald statements of Ministers at whatever level will not be believed in Northern Ireland. The people of Northern Ireland will be satisfied only when the full facts are made available and the full truth is revealed. If the Government have nothing to fear, they have no good reason for withholding the full facts and calculations for which we are asking. The sooner that the full facts and figures are produced, the better it will be for us all.
  Mr. James Molyneaux: Does my hon. Friend agree that the detailed figures and calculations which have been issued by the Northern Ireland milk marketing board reinforce the plea that he has made to the Minister? The results of the calculations of the Minister of Agriculture are clearly at variance with the intentions of the Prime Minister, which she described in a statement and in answer to questions in the aftermath of the summit. As there is such a clear discrepancy, does my hon. Friend agree that there is all the more need to reiterate the demand for a White Paper?
  Mr. Ross: My right hon. Friend is supporting what I have been saying throughout my speech. So many

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  statements and assurances were given before the quota for Northern Ireland was announced. So many different figures have been bandied about and so many arguments have been advanced. Against that background, we need to have all the information and the facts so that we may ascertain the true position. The questions tabled by my hon. Friend the Member for Antrim, East and myself should have extracted all that information. The fact that it was not given to us serves only to increase suspicion, and that does no one any good. The sooner that this matter is cleared up once and for all, the better it will be. It seems to farmers and to my right hon. and hon. Friends that it was the Prime Minister's intention that Northern Ireland should not suffer. It appeared from statements made by various Government spokesmen before the quota was arrived at that it was the Government's intention that Northern Ireland should not suffer, yet it has suffered to a much greater extent than any other part of the United Kingdom. The figures have not been forthcoming to prove the Government's contention or that of the farmers. Why cannot we have the figures if the Government have nothing to fear?
  2.49 am
  Mr. J. Enoch Powell: In his characteristically lucid and painstaking, albeit somewhat brief, exposition of the order the Minister referred to the anxieties that had been expressed at earlier stages of debate in regard to article 3 of the order, the seed potato levy. It is natural that there should be these anxieties. After all, Parliament is imposing upon a class of persons a levy and directing the sums which that levy will produce to be applied either by the Government themselves or by some public body. It is a matter that naturally excites more curiosity if the product of the levy is to be used through a body that is not itself directly an organ of government.
  I realise that the Minister has given an assurance that before executive action is taken in implementation of article 3 there will be an opportunity for those of us who are interested to understand more clearly what is in the Government's mind and the way in which the moneys raised will be expended, not to mention the general outlines of the scheme which would be regarded as appropriate. Nevertheless, I hope the Minister will think it worthwhile not only to engage upon those consultations but to put forward in definite form an outline of the scheme as the Government expect it to work when the levy is in place, for there is certainly considerable confusion and probably misunderstanding at the moment on the subject.
  A day or two ago I was reading, as is my custom, Farming Life; there is no reason for the Minister to look so sceptical at that declaration. In Farming Life of 12 May I read an article entitled:
  "Cash boost for potato co-op".
  It begins with the announcement that
  "An Ulster potato co-operative is to receive a cash boost from the Government."
  Actually, apparently, it is not to be from the Government but no doubt from the product of the levy which is under consideration. Then there is a reference to a gentleman who is the chairman of something called Expotato who had announced at his
  "annual general meeting that the co-op would receive some of the funds of the Seed Potato Marketing Board."
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  This is a curious statement in view of the fact that to the best of my understanding the Seed Potato Marketing Board is no longer in operation, so I can only assume that the reference must have been to the product of the levy and scheme which will be instituted under article 3. This gentleman Mr. Peden,
  "would not say how much this would be".
  However, I read in a later paragraph:
  "Farming Life understands that the sum of money involved is in excess of £50,000, but that it will not be available for some months."
  This is the sort of information that is trickling out to those who have a direct interest in the seed potato industry, in the levy which will be imposed upon growers, and in the use to which the levy will be put. This seems to strengthen the case for the Government to produce as soon as possible, in whatever may be the appropriate form, an indication of the type of scheme, an estimate of the sums which will be raised by way of levy and the manner in which that levy will be expended.
  Perhaps the Minister would confirm that although the body through which the activity will be promoted, Seed Potato Promotions (Northern Ireland) Limited, is for convenience in the form of a private company—I am quoting what the Minister said in a letter that he kindly wrote to my right hon. Friend the Member for Lagan Valley (Mr. Molyneaux) on 2 May—in spite of that, the accounts and a regular report by the organisation will be available to Members of the House so that we can judge and, if necessary, debate the way in which sums raised under statutory authority are being expended. That is the most substantial element of the order.
  I make no apology for expressing anxieties about the degree of information that we so far have upon the operation of the scheme. I hope that my suggestions are acceptable to the Minister.
  2.55 am
  Mr. Butler: I am glad that we have been able to examine the provisions in the order again. I shall try to answer hon. Members, as I promised.
  I shall start where the right hon. Member for Down, South (Mr. Powell) finished—on the question of the seed potato levy. I smiled at the right hon. Gentleman's reference to his farming reading only because I wondered whether he read the type of newspaper that suggests intrigue between brothers in agricultural matters. I do not think that the right hon. Gentleman was referring to that, but the article to which he referred had nothing to do with the order. It was concerned with the possible ways in which the residual assets of the now defunct Seed Potato Marketing Board should be disposed of. The levy is not involved.
  The right hon. Gentleman acknowledged assurances that I gave in Committee and repeated clearly tonight. Of course, it is up to whoever has responsibility for agriculture to decide exactly what form the consultation should take, but it makes sense to agree to something on the lines of what the right hon. Gentleman suggests. I have made it clear that we are dealing only with enabling legislation.
  Article 3 states the purposes for which the levy would be used. That goes some way towards clarifying the points upon which the right hon. Gentleman sought assurances.
  The hon. Member for Londonderry, East (Mr. Ross) asked about the cost of Seed Potato Promotions (Northern

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  Ireland) Ltd. That has been made public in terms of grant aid and about £130,000 in each of the last two years is involved. The hon. Gentleman made some extremely important points, which will need to be studied about the growing, development and marketing of seed potatoes. This is not the time to deal with that since it is not relevant to enabling powers to raise a levy.
  Mr. William Ross: Did the £130,000 come from the residue of the old Seed Potato Marketing Board funds? Why are Seed Potato Marketing Board funds, which came from all producers, now to benefit only Expotato, which is limited to a small number of growers?
  Mr. Butler: The answer to the first question is no. The grant did not come from the residual assets of the Seed Potato Marketing Board but from the special aid made available in those past two years to Northern Ireland agriculture and on the last occasion, I believe, at the special request of the Ulster Farmers Union.
  There is a fairly general requirement about how the funds are to be used. It is a matter of judgment. At this stage I shall say only that not all the funds would be used for Expotato. I shall ask my noble Friend Lord Lyell if he will make the matter somewhat clearer for the hon. Gentleman, but it is certainly not the intention to make those funds available for just one organisation such as Expotato.
  Mr. Ross: Expotato now seems to be running into the same difficulties as troubled the old Seed Potato Marketing Board in that when the price of potatoes rises, they tend to disappear and Expotato does not get them. When the price falls and it is difficult to make a profit, all the potatoes arrive on Expotato's doorstep. Is it not a fact that Expotato was not able to meet its commitments last year and, as a result, lost a considerable amount of money?
  Mr. Butler: I think that, like you, Mr. Deputy Speaker, I am known to be a fairly tolerant and lenient person, but neither Expotato nor the residual assets of the Seed Potato Marketing Board are the subjects of the order. The best way to deal with this problem is for my noble Friend to write to the hon. Gentleman about the question of the disposal of the residual assets. I am sure that the hon. Gentleman could pursue those points either on another occasion in this House or by correspondence.
  The question of the export of milk to Great Britain was raised by the hon. Member for Hammersmith (Mr. Soley), and I wrote to him about it. As he rightly said, in the debate in Committee I referred to the export of dairy products and not precisely to the export of milk. The position is as I confirmed in my letter. The sale of Northern Ireland pasteurised milk in Great Britain is effectively prohibited by legislation. Discussions are at present taking place between the Ministry of Agriculture, Fisheries and Food and the Department of Agriculture to see whether the present mutually exclusive bans on pasteurised milk should be removed. I do not doubt but that some announcement will be made when, or if, a decision is reached.
  Mr. Soley: The Minister is still skirting round the point that I made. The hon. Member for Upper Bann (Mr. McCusker) said in Committee:
  "The hon. Member for Hammersmith (Mr. Soley) said that milk producers in Northern Ireland were not permitted to export their milk to the mainland. I hope that the Minister will tell him that that is wrong."
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  In his response to that invitation, the Minister said:
  "It is absolutely true that dairy products are exported".—[Official Report, Northern Ireland Committee; 11 April 1984, c. 22.]
  I am giving the Minister the benefit of the doubt about the word "dairy", but I know that he used that word instead of milk because he knows that what I said in Committee was correct. In his letter, and in what he has just said, the Minister is skirting round that point. He must recognise that there is a difference in the treatment of the milk producers of Northern Ireland. Does he now acknowledge that that treatment should be brought into line with the rest of the United Kingdom? He must make his position clear.
  Mr. Butler: I do not think that I have hidden anything. I stated that it was a matter of fact that dairy products are exported or transhipped. In respect of butter and other milk products, that is quite correct. It is a matter of fact that pasteurised milk is not permitted to be shipped at the present time. I confirmed that fact in my letter. The matter is under consideration. The point raised in Committee was, as I remember, whether or not the consumer subsidy—the subject of the order—would apply in respect of those exports to Great Britain. As I said in my letter, when and if the export of pasteurised milk is liberalised, the subsidy will be reviewed. There the matter rests. There is no question of hiding facts. I certainly do not intend that to be the case.
  Mr. Soley: Is the Minister therefore saying that what I said in Committee is correct? The answer is a straight yes or no.
  Mr. Butler: The hon. Gentleman said many things in Committee and I had to take him to task on some of them. I do not need to repeat what I have just said. If what the hon. Gentleman said in Committee is in tune with what I have said in the past few minutes in regard to indisputable matters of fact, of course he was right. If he is trying to make another point, we shall have to consider it separately. There is not much in this for the hon. Gentleman to pursue as much of it is factual and therefore indisputable.
  It would probably be preferable for Northern Ireland dairy producers to be able to export pasteurised milk. That is a matter for discussion.
  Mr. William Ross: The Minister said that if Northern Ireland farmers are allowed to export pasteurised milk, the Government will reconsider the consumer subsidy. Can we take it from that that he is really saying that once Northern Ireland is allowed to compete in the United Kingdom liquid milk market, the consumer subsidy that Northern Ireland enjoys will disappear?
  Mr. Butler: I am not saying that. The point at issue is simple. It is whether, if milk was exported to Great Britain, the consumer subsidy, as legalised by the order, would be applicable to those quantities of milk. There is no question of the subsidy being withdrawn in respect of milk consumers in Northern ireland just because of liberalisation of trade.
  The subjects of FEOGA grant and egg packing have been raised. It was made clear in the letter to the right hon. Member for Lagan Valley (Mr. Molyneaux) that the funds under FEOGA are limited and that Northern Ireland gets its full share. There might be circumstances in which grant cannot be paid or is paid out in respect of one commodity at the expense of others.

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  The hon. Member for Londonderry, East mentioned the use of the Lower Bann for tourism. The Government would like it to be used more. The tolls that the order enables to be raised should help to make it more attractive and to deal equitably with the boats that now use it. The lowering of Lough Neagh is a subject of which I am well aware. One would have hoped that the levels that now operate and which the authority is required to keep the water between, where possible, were thought right when they were instituted. Because of seasonal factors the water often rises much higher and flooding such as has been mentioned occurs. There is only one exit from the lough and it is difficult to see how much more quickly the water could be evacuated to avoid the problems of flooding.
  The hon. Members for Londonderry, East and for Hammersmith mentioned the milk quota. I am sorry that the hon. Member for Londonderry, East does not feel that the Government have been open on the matter. He suggested that no full statement has been made, although he had the goodness to refer to my press statements. If he re-reads them and my speech at the Ulster Farmers Union dinner—I shall happily send him a copy—he will find that they are remarkably clear.
  When the hon. Gentleman referred to a deal, I take it that he was referring to the deal between the regional Agriculture Ministers in general terms. Surely nothing could be more precise than the exact amount of milk that now forms Northern Ireland's quota. What could be more precise than 1,321 million litres? It is not 1,320 million litres or 1,300 million litres, but 1,321 million litres. That precise information was communicated shortly after the final decision was taken by the Ministers.
  We made it absolutely clear that Northern Ireland had been given the full benefit of the 65,000 tonnes. We made clear the process of reasoning for the quota. Despite the apparent hardship that some farmers will suffer— no producer of any commodity will like having his production cut back by 9 per cent., 13 per cent. or even larger amounts in some instances—it was necessary for that to happen, for the reasons that we spelt out. We must make it clear that, although the reductions throughout the United Kingdom were on a par, if one compares Northern Ireland's position with, for instance, 1982, which was a record year, one finds that the quota for Northern Ireland is in excess of that by about 2 per cent.
  Mr. Soley: Will the Minister confirm that if the application on behalf of Northern Ireland had been in line with that of the Republic of Ireland, the benefit would have been considerably more than 65,000 tonnes?
  Mr. Butler: The Council of Ministers decided that the Republic of Ireland should have exceptional treatment and should be allowed a quota that gave it an increase on its 1983 production levels. My right hon. Friend the Minister of Agriculture, Fisheries and Food made it clear that the Government's initial view was that there should be no exception. He equally made it clear that if the Republic of Ireland was to get exceptional treatment, special consideration should be given to Northern Ireland. The outcome was that Northern Ireland was allocated the additional 65,000 tonnes, which, as I have said on several previous public occasions, flowed completely to Northern Ireland.
  The hon. Gentleman said that in theory at least the article in the order that deals with the subsidy could be used to improve incomes of Northern Ireland farmers. My right hon. Friend the Secretary of State and my noble Friend the Minister responsible for agriculture are seriously considering the options for providing additional assistance if they believe that that is fully justified. I am happy to repeat that. The order could be one way of providing that extra assistance.
  With regard to quotas, the hon. Member for Londonderry, East is right that unfortunately some details still have to be cleared up. My noble Friend has written to milk producers individually informing them of the way in which the levy will work, as precisely as he can at this stage. He has undertaken to provide them with more information as it becomes available, so I believe that he is doing everything that he reasonably and properly can to keep them informed.
  I think that I have dealt with the points raised in the debate. I am glad to find that, as in Committee, there is no real objection to the order. Indeed, I suggest that there is generally a welcome for it. Therefore, I once more recommend it to the House.
  Question put and agreed to.
  Resolved,
  That the draft Agriculture (Miscellaneous Provisions) (Northern Ireland) Order 1984, which was laid before this House on 31st January, be approved.

  Fines and Penalties (Northern Ireland)
  3.14 am
  The Parliamentary Under-Secretary of State for Northern Ireland (Mr. Nicholas Scott): I beg to move,
  That the draft Fines and Penalties (Northern Ireland) Order 1984, which was laid before this House on 15th March, be approved.
  Since 1977 fine levels in Northern Ireland have lagged behind those in Great Britain, when the Criminal Law Act 1977 commenced the task of standardising and rationalising fines, which was completed by the Criminal Justice Act 1982. By creating a new structure of five levels of maximum summary fines and providing for a general increase and a power to inflation-proof, the order will bring the structure of fines in Northern Ireland into line and enable recent increases in Great Britain to be followed in Northern Ireland easily and quickly by negative resolution order to bring fines generally to present Great Britain levels.
  The order is largely technical, and, while it contains 19 articles, there are a few key articles to which I should perhaps draw special attention.
  Article 3 removes any limit on any fine that may be imposed on indictment.
  Article 4 introduces the prescribed sum, set at £1,000, which will he the maximum fine that a magistrate may impose when dealing with an offence also triable by judge and jury. The article sets a pattern, which is applied to other fines later in the order, of abolishing "enhanced penalties" where the maximum fine varies according to the number of the defendant's previous convictions for the offence. The article leaves unchanged penalties related to periods of time over which an offence has been committed, as well as penalties contained in subordinate instruments. That pattern is followed throughout the order.
  Articles 5, 6 and 7 contain the main thrust of the order. Article 5 establishes for offences triable only summarily a five-level standard scale of maximum fines. Its purpose is to provide the basis for increasing fines and for enabling maxima to be altered easily from time to time in line with changes in the value of money.
  Article 6 increases to the appropriate levels on the standard scale all maximum summary fines in primary legislation. For reasons of parity with Great Britain special provision is made for £20 fines in some Acts of this Parliament which have effect in Northern Ireland. The other provisions of article 6 deal with fines per quantity, for offences with maxima that vary according to circumstances, and for daily and other periodic fines.
  There are, of course, some exceptions, which I do not propose to deal with individually, but, in broad terms, fines that have been reviewed in recent years are not to be increased, and some fines are increased by more than the general level. These are covered by article 7 and listed in schedules 2, 3 and 4.
  Article 8 has an effect similar to article 6, but it deals specifically with provisions in primary legislation that confer power to prescribe maximum fines by subordinate instrument. It uprates the maximum fines which may be prescribed under relevant primary legislation, but leaves untouched fines already specified in existing subordinate instruments.
  The abolition of enhanced penalties for summary offences is achieved by articles 9 and 10. Enhanced
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  penalties are a thing of the past. In recent years maximum penalties have been set at a level considered adequate to deal with the most serious examples of the offences concerned, and the courts have been left free to determine the level in individual cases.
  Articles 11 to 16 contain a number of minor amendments. Article 17 contains another of the main elements of the order. It sets out the monetary amounts which the Secretary of State is empowered by instrument to vary in the light of changes in the value of money. These include the maximum fine on summary conviction for an offence also triable on indictment, the standard scale and a number of fines, mainly for contempt, which may be imposed without a conviction being recorded. This article also establishes 29 July 1977—the same date as has been used in Great Britain—as the date from which the computation of changes in the value of money will be made.
  Finally, schedule 1 provides for Northern Ireland the same level of penalties as exists elsewhere in the United Kingdom for certain drugs offences, and one minor change made to schedule 3 since the proposal for this order was published includes some increases to penalties under the Education and Libraries (Northern Ireland) Order 1972 not included in the published proposal.
  As I said at the outset, this order is mainly technical. By bringing the fines structure in Northern Ireland into line with the rest of the country it will enable recent increases to be followed quickly and allow future increases pari passu. I commend the order to the House.
  3.20 am
  Mr. Clive Soley: I accept that the purpose of the order is to deal with the inflationary effect of fines and to attempt some standardisation, and I do not intend to oppose the order. However, I shall raise one or two matters that give me cause for concern.
  On a number of my visits to Northern Ireland recently it has been put to me that for offences not related to paramilitary actions there is a harsher standard of justice in Northern Ireland than in Britain. This can be measured on a number of scales such as the use of imprisonment, heavy fines and so on. The ladder of escalation up which an offender goes in receiving sentences handed out by a court appears to be travelled much more rapidly in Northern Ireland that in Britain as whole.
  I note that one of the provisions in the order is to increase the fine from £50 to £200 for a breach of a community service order. I give advance warning to the Minister that I shall want to look rather harder, at some other stage, at the way in which fines are meted out for offences not related to paramilitary activity in Northern Ireland. It has been put to me strongly by a number of people connected with the criminal justice system there that Northern Ireland would not come out well if the use of fines and other sentences there were compared with those in the United Kingdom as a whole.
  The Minister has missed an opportunity, which can at times develop in Northern Ireland, to experiment and develop new methods that are ahead of what is happening here. The least that we should be asking for is the minimum standards that apply in the United Kingdom. There would, for example, have been a good case for considering the use of day fines. By day fines we mean, as I am sure the Minister will realise, a fine related to the offender's income. This is particularly important in

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  Northern Ireland where incomes are lower and, on the Government's recognition, the daily living costs, particularly for housing, energy and other crucial parts of the daily budget, are considerably higher than in the rest of the United Kingdom. The use of day fines could have been a useful innovation, and the order could have shown a little more imagination by the Minister.
  I should also emphasise that, given the increasing burden of unemployment in Northern Ireland, it would be a drastic mistake for courts to start to impose heavy fines for people on supplementary benefit. There are occasions when people have little left out of their income, and the Minister will not dispute with me the evidence that load limiters have to be used on electricity meters, which shows the seriousness of the problem in Northern Ireland, which does not apply here.
  One of the other curious anomalies in the Northern Ireland criminal justice system is the relatively low level of the seriousness of the view taken by the judiciary towards drink-driving offences. Although this has been toughened up recently, this part of the system is the reverse of the picture that I painted to start with. It is obvious that if one has to be caught drunk in charge of a vehicle, it is better to be caught in Northern Ireland than in the rest of the United Kingdom. One is more likely to get a lenient sentence for that in Northern Ireland, but if one commits a property-related offence one is more likely to be more heavily penalised. That is a rather curious balance when one thinks that the effects of driving under the influence of drink can lead to the death or sometimes serious life-long injury of an innocent individual.
  I recognise that it is not possible for the Minister to do anything about this tonight, but perhaps he can take on board that comment. I hope that we shall have an opportunity to look in more detail at the way in which the criminal justice system in Northern Ireland is structured, apart from the problems posed by the para-military activity. If we take a long hard look at the system we shall find that there are ways to improve it considerably, and I should not like the Minister to lose the opportunity to do so.
  3.25 am
  Mr. J. Enoch Powell: The determination of successive Governments during the past 12 years that the law in Northern Ireland should not be made by the same processes as it is made for the rest of the United Kingdom takes on an added poignancy when the House considers, as we approach half-past 3 in the morning, a very important piece of substantive legislation.
  Perhaps those hon. Members who were present until about half-past 2 to see the unseemly scramble with which the House despatched the Police and Criminal Evidence Bill felt that that was hardly consonant with the principle of good legislation. Now we are presented with a legislative scandal in the form of this order. It is a scandal that the Minister did not seek to conceal in his introductory words as he laid the order before the House. He said that the law in Northern Ireland in the respects that are covered by the order had lagged behind the rest of the United Kingdom. It has indeed. A statute of 1977 and another statute of 1982 are being applied to Northern Ireland by the order so that, for seven years in the case of some penalties and provisions and for two years in the case of
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  others, there has been a difference that I do not think, if I understood his argument correctly, the hon. Member for Hammersmith (Mr. Soley) would seek to justify, between the provisions of the law on the mainland of Great Britain and that in Northern Ireland.
  From this, it should be possible to say without encountering disagreement that the maximum penalties for the same offences and the scale of penalties available for the same offences ought to be the same throughout the United Kingdom. The manner in which most of the legislation for Northern Ireland has been carried out in the past 12 years has resulted in that principle being breached for a period of between two and seven years, which is being closed tonight only by the order.
  A few weeks ago, I tabled a written question to the Secretary of State for Northern Ireland asking him
  "why it was not possible or was not thought desirable, that increases in fines…should take effect in Northern Ireland at the same time as the rest of the United Kingdom."
  One would have thought that that was not merely an innocent inquiry, but almost unnecessary, as the natural answer would be that they ought to take effect at the same time and, as a corollary, that they should be enacted at the same time. But that was not the reply that I got from the Secretary of State. He said:
  "The quickest way to bring fines in Northern Ireland into line with those in the rest of the United Kingdom is to proceed in the manner set out in my reply to the right hon. Gentleman on 7 March."—[Official Report, 21 March 1984; Vol. 56, c. 496.]
  The reply by the right hon. Gentleman on 7 March said that the right manner was to do it by draft Order in Council under paragraph 1 of schedule 1 to the Northern Ireland Act 1974. I must beg leave to differ with the Secretary of State. If he thinks that that is the way to ensure that fines are brought into line in Northern Ireland in the quickest possible way, we need go no further for refutation than this order and the gross time lag that, belatedly, it remedies.
  The excuse sometimes given for this proceeding is that somehow there is a separate body of law in Northern Ireland the virginity of which must not be challenged of interfered with, that that body of law must be left inviolate and that the procedures whereby it is amended or added to must be separate and distinct from those whereby law is made for the rest of the United Kingdom.
  The proposition does not survive perusal of the order, because in more than one place—I shall refer to just one—are set out the "relevant provisions," which is the term of art, being amended by the order in respect of the size of fines. According to article 4(8),
  "relevant provision means a provision contained in—

  (a) and Act of the Parliament of the United Kingdom;

  (b) and Act of the Parliament of Ireland"—

  which ceased to exist in 1921, I believe—

  "(c) an Act of the Parliament of Northern Ireland",

  and as if that were not enough,

  "(d) an Order in Council under section 1(3) of the Northern Ireland (Temporary Provisions) Act 1972; or

  (e) an Order in Council under Schedule 1 to the Northern Ireland Act 1974"

  That is the supposedly inviolate, beautifully rounded and complete "separate body of law" for Northern Ireland. This order amends Acts of the Parliament of the United Kingdom and Acts of the Parliament of Ireland as well as Acts of the Parliament of Northern Ireland since 1922 and Acts under the various cobbled-together constitutions that have fleetingly existed there since 1972. It simply will not do to try to defend what has been perpetrated on the ground

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  that there is a separate body of law that must be dealt with separately and belatedly when the Government get around to it.
  I do not expect the Minister to be able to give me a complete and satisfactory reply to the complaint that I have addressed to him so far. Indeed, that complaint and grievance is bound up with the grievance of Northern Ireland in the past 12 years that, while it has been claimed to be an integral part of the United Kingdom, it has not been so treated and that indeed the endeavour seems to have been to treat it as differently as possible. I hope, however, that I shall be able to carry the Minister with me in a more modest proposal—that phrase should always be introduced wherever possible into a debate on any part of the island of Ireland—for the future presentation of orders of this description.
  As the Minister made clear, the purpose of the order is to apply to Northern Ireland the provisions for increases in fines and penalties in two United Kingdom statutes—the Criminal Law Act 1977 and the Criminal Justice Act 1982. As is customary, the proposals for the draft order were accompanied by a very useful and workmanlike explanatory note. Faced with an order of this sort, however, it is extremely difficult to see exactly what provisions in the United Kingdom statutes are being reproduced in the order. With careful study, it is possible to piece together the jigsaw puzzle, but it is a difficult and uncertain task, at the end of which the student will be uncertain how completely or with what omissions the application to Northern Ireland of the United Kingdom statute has been accomplished.
  I submit to the Minister that in future in the case of legislation of this type, so long as we have to have it by Order in Council, Orders in Council that apply England and Wales or Scottish statutes to Northern Ireland should be accompanied not just by the usual explanatory memorandum but by an analysis which clearly displays the equation between the two forms of legislation and highlights—with reasons, if any—the differences and omissions involved. I hope that my request will not fall on stony ground.
  I hope that, when a draft order is brought forward, which has previously been made in the form of proposals and made available for comment, criticism and suggestion, we shall be told whether it is identical and unchanged, what proposals for alteration have been received, whether account has been taken of them and how account has been taken of them. I admit that my two suggestions would result in an elaboration of the accompanying material, but I do not believe that the Government would begrudge that, since these are necessary aims to the study of the legislation, which, in the case of Northern Ireland, we must deal with in an hour and a half, very often at a late hour. Particular importance attaches to previous study, since we cannot learn about the legislation as we go through it, in the way the House learns about a Bill's contents by studying it in Committee and on Report.
  I proceed to a number of specific problems that presented themselves to me in studying this order, and which I hope the Minister's brief will enable him to resolve. Paragraph 4 of the article states:
  "shall not affect so much of any relevant provision as…makes a person liable on summary conviction to a fine of a specified amount…for each period of a specified length during which a continuing offence is continued."
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  I gather that, in the jargon, that is called a periodic fine. There are many circumstances in which a periodic fine would appear to be highly desirable. A continuing offence is a continuing affront to the law and often represents a continuing injury by the offender to his fellow citizens. That characteristic of a periodic fine appears to be eliminated in that article, as it appears to have been eliminated in England and Wales by the 1977 Act. Has that happened? If so, what is the justification for eliminating periodic fines?
  My next point, which is more detailed, relates to paragraph 3 of article 9, which assures the reader:
  "This Article does not apply to offences under section 13 of the Criminal Law Amendment Act 1885 (brothel-keeping)."
  Excited by curiosity as to why that exception has been made, the student discovers from the explanatory memorandum that the offence of brothel-keeping is under separate review. As the relevant legislation was made in 1885—admittedly, I do not know how long the review has been going on — how is the review of brothel-keeping, whether of the United Kingdom as a whole or restricted to Northern Ireland, getting on? Obviously, we are awaiting the conclusion of that review in order to be able to complete the legislative edifice of this order.
  Article 17 is the very important inflation-proofing article. It enables fines to be upped by statutory instrument. I should like to put two questions to the Minister. In paragraph (1), the article provides that new sums may by order be substituted for the sums in the order
  "If it appears to the Secretary of State that there has been a change in the value of money since the relevant date".
  We are treading on very dangerous ground. Whole epochs of economic theory and controversy have revolved around the concept of the value of money. My inquiry is very innocent and simple—namely, what measure will be applied? Is it our old friend the retail price index, or is it some other index which the Secretary of State has in his bosom by which he will judge the movement in the value of money? Before we give this power to the Secretary of State to enhance fines by statutory instrument, we should know on what principles he intends to proceed in assessing the value of money.
  That is the first of my two questions on article 17. The second, and—the Minister may be relieved to know—last question, relates to the starting date. I think that I caught an expression in the Minister's introductory speech that may partly contain the answer to my query. The relevant date, or base line, from which the change in the value of money is to be measured before the Secretary of State sets out on making his statutory instruments, is 29 July 1977. What a world of woe and what oceans of inflation have intervened since then! In the past seven years, inflation has scaled heights, under a previous Labour Administration, that touched on 30 per cent. and, under this Administration, 20 per cent. Thus the order envisages adjustment for the change in the value of money during so long and tempestuous a period. One deduces—I thought that it might be implicit in the Minister's words—that no sooner will the order become law than we shall almost immediately have statutory instruments taking advantage of the provisions of article 17. Otherwise, it might well be asked how much longer we will go on after 1977 without adjustment for the fall in the value of money during all those years.
  Therefore, I hope that the Minister will say whether we are on the verge of a rash of instrument making, which will

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  bring us up to date since 1977, and whether that instrument making will apply to all the possible provisions set out in article 17(2). I make that last query because, if the Secretary of State uses this power in relation to some penalties only and not others, he will not merely be adjusting the fines for a fallen value of money but will be altering the relativities as they stand at present in the law in England and Wales, and in that order. I hope that the briefing of the Minister — which was, no doubt, thorough and excellent — will enable him to resolve these difficulties.
  3.46 am
  Rev. Martin Smyth: My right hon. Friend the Member for Down, South (Mr. Powell) argued cogently why we should have been legislated for along with the rest of the kingdom. We should not then have been behind in the level of fines. I thought, when he was dealing with the question of measuring inflation, that he might have mentioned using the snake, but that can wait for another debate.
  The hon. Member for Hammersmith (Mr. Soley) referred to certain people not being in a position to pay their fines. Last week I had discussions with Housing Executive members, tenants and representatives of the Royal Ulster Constabulary about the prevailing vandalism in the community. They referred to the tardiness with which some policemen followed through certain problems. The reason for that, they said, was that when the police brought a person before the court, the punishment frequently consisted of a derisory fine of £2, which would not pay for the police constable's work on the case, not to mention the expense of preparing the case by an inspector. Raising the penalties will help to combat petty crime and the normal vandalism that occurs in communities. I use the word "normal" to dissociate it from the violence to which the hon. Member for Hammersmith referred.
  Mr. Soley: In dealing with the types of offences which the hon. Gentleman is describing, non-financial penalties — for example, cleaning up the graffiti, community service orders and so on—are infinitely more preferable, especially for those on low incomes.
  Rev. Martin Smyth: That implies that they have low incomes. It is amazing how much money many of the young vandals in the Province have, and the same is probably true in parts of Britain. As for imposing community service orders, we must bear in mind that a horse can be led to water, but it cannot be made to drink. By our action tonight we are strengthing the hands of those in the community who are trying to combat the lower standards that have arisen because of the continuing violence.
  The Housing Executive in Belfast is pouring £4 million into a modernisation programme. I am thinking of an estate in which the bulk of the people are of one class, so this is not a sectarian issue. The hon. Member for Hammersmith described people as deprived. On that estate, extreme vandalism is already going on. The old laws did not give power to deal with it, and I therefore welcome the enhanced, if belated, powers that we are enacting tonight.
  3.50 am
  Mr. William Ross: I welcome the order, as I believe that this upgrading in the level of fines is long overdue. I shall listen with great interest to the Minister's reply to the point made by my right hon. Friend the Member for Down, South (Mr. Powell) as to whether an increase in real income is taken into account in deciding by how much the various fines should be increased.
  I have examined the order with some interest, because there is an amazing variation in the fines contained therein. In schedule 4, under the Judgments Enforcement (Northern Ireland) Order 1981, in relation to one offence, the fine increases from £100 to £1,000, a multiplier of 10, and, in relation to another offence, the present maximum of £400 is increased to £1,000, an increase of two and a half times. The great difference between the fine for one offence and the fine for another offence is shown in other schedules in the order. They are not all in the same time scale. In schedule 3, under the Constabulary (Ireland) Act 1836, the maximum fine goes up from £10 to £1,000, a multiplier of 100, while for the offence of plying for hire without a licence, the fine goes up from £2 to £50, a multiplier of 25. If a multiplier of 25 is needed to make a law-breaker think about his activities before he breaks the law, the list is indeed long overdue.
  The question is whether the courts are prepared to impose the fines. Under the Census Act (Northern Ireland) 1969, there are various maxima of £10. When a multiplier of 20 is applied, the amount of the fine is increased to £200. If one recalls the amount of openly admitted lawbreaking that was revealed at the last census, one wonders why a fine for such people is included in the schedule at all. In any number of incidents the law was blatantly broken, and people got publicity from breaking the law, yet no effort was made to bring them to book. I believe that this happened not only in 1981, but in some instances in 1971.
  That kind of behaviour by those responsible for enforcing the law does nothing to bring the law into good repute. Whatever the amount of the fine, whether it be £10 or £200, it should have been applied, and the law-breakers should have been taken to court. It should not have been allowed to run on until it went out of time. What happened was an excuse to avoid taking action against law-breakers. It is appalling that that was allowed to happen.
  In future, when there is public flouting of the law, I hope that the Government will ensure that the matter is brought to court, and that those responsible for breaking the law are dealt with.
  Mr. J. Enoch Powell: Would my hon. Friend not agree, especially on the lines of the argument of our hon. Friend the Member for Belfast, South (Rev. Martin Smyth), that, where the penalty could be as substantial a fine as £200, it is much more likely that enforcement action would be taken, and there is less risk of those deciding upon enforcement action saying, "If we go to all this trouble and take all the risk, there will be only a £10 fine"? To that extent, we may be gaining something by the order.
  Mr. Ross: I appreciate the point which has been made by my right hon. Friend, but I wonder sometimes whether that naturally follows. I hope that it does, but I have in mind an incident that took place in the village in which I live, which suggests that my right hon. Friend's argument

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  does not always apply. The council bought a piece of property and some of the locals decided that the timber growing upon it would make excellent firewood. Quite a few of the trees were cut down and great efforts were made to catch those who were responsible, and one of them was picked up. A considerable amount of damage had been done and much of the timber had been stolen. Of course, trees are beautiful things and they added much to the property. The person concerned was taken to court and given a conditional discharge. It seems that the rigours of the law were not fully applied.
  In the past year or so I have had correspondence with the Parliamentary Under-Secretary of State for Northern Ireland with responsibility for the environment in Northern Ireland, the hon. Member for Bath (Mr. Patten). The correspondence has concerned the trading that has been taking place in the Department of the Environment car park at Portrush. The fine for that offence will be increased from £5 to £200. When people have been taken to court for this offence—it is a fairly serious matter—they have been fined 50p. I hope that the next person to be convicted of the offence will be fined £20, which will still be only one tenth of the maximum fine.
  There is no point in raising the level of fines that can be imposed if the courts do not make use of the power that is in their hands. A person can be fined £200 for walking three greyhounds and someone else can be fined £200 for making money by setting up a trading centre in a car park on a Sunday. It does not seem reasonable to my constituents that those who have flaunted the law and made money as a result should be given only a 50p fine. I hope that the courts will give some weight to the decision of the House tonight and will apply the penalties that are now available to them.
  Mr. Scott: In bringing this short but useful debate to a close, I re-emphasise that the order is of limited scope. Its main aim is, in due course, to bring the range of fines and penalties into line with Great Britain. When that process has been completed, the penalties will broadly achieve parity between the two parts of the United Kingdom.
  There have been criticisms, some implied and some explicit, of decisions made by the magistracy or the judiciary when they come to implement the powers that are available to them. It is not for me or the House to decide what penalties should be imposed in particular circumstances in individual cases. We put the penalties into the hands of the judiciary and those are the weapons that they can use to combat crime. It is up to the judiciary to come to their own decisions. That is not a matter for the Executive.
  I must reiterate for the benefit of the hon. Member for Hammersmith (Mr. Soley) that this is a limited parity-achieving exercise. Day fines may be useful and may be an interesting idea, but they are not measures that come within the order, which is designed to bring our system of fines into line—some would say belatedly—with that in Great Britain. The hon. Gentleman spoke about fines being imposed on those with limited means, especially on those in receipt of supplementary benefit. The Court of Appeal in England has made it clear that the means of the defendant should be one of the factors to be taken into account when deciding what fine should be imposed. It has
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  laid down a number of factors that have to be taken into account. The second factor in order of priority is the means of the offender.
  It is remarkable that the right hon. Member for Down, South (Mr. Powell) should describe a measure that is designed to achieve parity between Northern Ireland and Great Britain as a legislative scandal. He complained about the delay in bringing about the achievement, but even if we cannot have rejoicing in heaven it might not come amiss to have rejoicing in Down, South.
  Mr. J. Enoch Powell: Belated rejoicing.
  Mr. Scott: Indeed. I shall explain why the delay occurred. In Great Britain the task of standardising and rationalising the pattern of fines was begun with the Criminal Law Act 1977. That increased fines for some offences at the lower end of the criminal scale in the pre-1949 legislation and introduced the £1,000 prescribed sum for offences tried summarily which could have been tried on indictment.
  Consideration was given at that time to introducing similar provisions for Northern Ireland. Indeed, a great deal of preparatory work to introduce comparable measures in the Province was undertaken. Then it became clear that the Home Office was engaged in a further exercise of updating the work that had been undertaken in 1977, so it was decided to delay the work on the Northern Ireland updating until the work had been completed in Great Britain. That work was completed by the Criminal Justice Act 1982. What we are now incorporating in this single order are the provisions of both the 1977 and the 1982 Acts. It was felt that that was the speediest way to achieve the parity which I think we all seek.
  In the autumn it will remain only to introduce the first specific inflation-proofing measure, which will bring not just the structure of fines and penalties into line with Great Britain, which this order achieves, but the actual level of those fines. From then on I envisage inflation-proofing being simultaneous in Northern Ireland, England and Wales and Scotland. Orders under the negative procedure will be introduced simultaneously in all three jurisdictions.
  The right hon. Gentleman returned to the theme about whether there should be a separate corpus of law. He knows my views on this. I still believe that the right path for Northern Ireland is to return as speedily as possible to a form of devolved government. In particular, in regard to transferred functions it is important that a separate corpus of law is maintained.
  The order gives a structure to fines and penalties and brings them into parity with the structure in Great Britain. I certainly accept that the explanatory document might have been a little more forthcoming. To the extent that that is necessary when we introduce upratings in future, I shall see that the remarks of the right hon. Gentleman are taken into account.
  The right hon. Gentleman made the point that in many ways periodic fines are desirable. The fact is that the courts have almost stopped imposing periodic fines. They clearly regard them as anachronistic. Although we are not abolishing them by the order, it was not felt that there was merit in uprating them, simply because they are used so little by the courts.
  The right hon. Gentleman then referred to brothel-keeping. The Criminal Law Revision Committee, in consultation with the Policy Advisory Committee on

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  Sexual Offences, has been conducting a wide-ranging review of a number of sexual offences and the penalties that ought to be imposed for them. I am afraid that I cannot give the right hon. Gentleman an idea of how that review is proceeding. Obviously it is a matter essentially for my right hon. and learned Friend the Home Secretary, but I shall certainly write to the right hon. Gentleman when I have an idea of when the Criminal Law Revision Committee and the Policy Advisory Committee on Sexual Offences will be coming to a conclusion. It is, of course, the law in Great Britain which is under review, but I feel sure that if substantial changes are proposed we would wish to take broadly similar action in respect of the law in Northern Ireland.
  The right hon. Gentleman asked about the inflation-proofing procedure. Broadly, we would use the retail price index as a measure of the inflation that has taken place in the economy. We shall be taking the first inflation-proofing step in the autumn when we introduce a further order to bring penalties into line with those which have operated in England and Wales since 1 May. The order will apply to all the factors set out in article 17. A standard uprating factor will apply across the board.
  The hon. Member for Belfast, South (Rev. Martin Smyth) welcomed the order, for which I am grateful. He tended to criticise the judiciary, which is not a matter for me. I have no doubt that magistrates will read his remarks. At least in this and subsequent orders we give them the power to impose realistic fines which are in tune with today's money values.
  The hon. Member for Londonderry, East (Mr. Ross) welcomed the order and covered much the same ground as the hon. Member for Belfast, South. I stress that the order is not primarily an inflation-proofing order. It is the result of the rationalisation and reordering of the fines and penalties system. It looks afresh at fines and penalties, some of which were established in the 19th century, some before the first world war and some between the wars.
  Looking with a fresh mind, one is bound to achieve different factors. That task has been done in relation to the 1977 Act and to the 1982 Act. We are simply bringing the five standard levels of fine which operate in Great Britain into use in Northern Ireland. I am sure that the order will be of immense use to the courts.
  Mr. William Ross: Is the Minister saying that not only the inflation factor will be taken into account when deciding fines?
  Mr. Scott: The authorities here conducted a thorough review of the whole pattern of fines and sought to rationalise them. We are to have five standard levels and there is bound to be a difference in the factors applied to them. Changes in society have occurred which have also been taken into account. I commend the order to the House. It represents sensible rationalisation. In the autumn the House will consider the first inflation-proofing step to bring us finally into line with Great Britain legislation. From there on we hope to legislate simultaneously.
  Question put and agreed to.
  Resolved,
  That the draft Fines and Penalties (Northern Ireland) Order 1984, which was laid before this House on 15th March, be approved.

  Milk Production
  Motion made, and Question proposed, That this House do now adjourn.—[Mr. Garel-Jones.]
  4.7 am
  Mr. David Penhaligon: It is seven minutes past four in the morning, but I welcome the opportunity to talk about the implementation of the EEC milk quota agreement and some of the difficulties that have been drawn to my attention in the weeks that have passed since the deal was made.
  This is the first opportunity that the House has had to discuss the deal since the agreement was made, although we had a debate the Thursday before that fateful day when some of us had the opportunity to express outrage.
  I shall concentrate on the details of implementation as opposed to the scheme's virtue. I can, for all that, tell the Minister that there is genuine anger among the dairy farmers in my part of the country and elsewhere about the deal. Local farmers find it incomprehensible that the United Kingdom Minister should agree to such a large reduction in our milk production, given that France, with its enormous surplus, was required to reduce production by less than half of the figure to which we agreed. We look enviously at the skill which the southern Ireland Minister must have demonstrated at the meetings. Not only did he manage to avoid any reduction in quota, but he obtained an addition to the historic figure. Farmers in my area cannot help but compare the reality of what has now been imposed upon them with the rhetoric of not so many months ago. I recall, as they will, the visits of the previous Secretary of State to my part of the country, when, in answer to questions about the future of milk in our country, he replied firmly that his advice to the farmers was to produce, produce, produce. His observations will be remembered, and my hon. Friend the Member for Ceredigion and Pembroke, North (Mr. Howells) has evidence that as recently as March this year the Ministry was still encouraging farmers to produce extra milk.
  However, there are other more pressing issues. Such is the magnitude of the tragedy that I suspect that the House will discuss it again at intervals throughout the coming months and years. My argument can be summed up in the delightful question "How?" That is the question that farmers in my area are asking. I recall that on one occasion the Minister said that the details of the agreement would be made public in mid-May. Today is 16 May, and we believe that it is time that the farmers of Britain were told precisely where they stand, so that they can make judgments about their businesses and make the necessary adjustments.
  Despite the discouraging answers given to parliamentary questions, my hon. Friends still want the quotas to be skewed to the advantage of the small producer. We believe that it would be possible for herds of fewer than 50 cows to be totally exempted from the quotas when those herds represent more than 75 per cent. of the added value of the farm in question. We see no reason why an exemption could not be given in that area. Our own observations and our conversations with our constituents make it clear that it is the small farmer who will be most troubled by this deal. In particular, the small tenant dairy farmer will suffer. Many believe that they will be bankrupted. A few believe that they are bankrupt already. Their only real hope is that the Minister will make it clear now that the

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  Government are willing to give, out of our own resources, some special help or dispensation, in view of the difficulties that have been created.
  I want answers to some specific points. I am concerned about the appeals procedure for hardship cases. The relevant questions are, "Who? How? When, and on what basis?" Who will be given that rotten task? How will the arbitrators be selected? Will there be that all-important independent element among them? How will the procedure work? Will there be only written evidence, or will people have a chance to make oral observations? When will people be able to expect final decisions? The agreement has, after all, been in existence for seven weeks, and it is clear that many weeks will pass before final and absolute decisions are obtained. One question is even more important than the others. Under what criteria will the review be carried out? My constituents would also like a firm answer to the following question. In the final analysis, will the Secretary of State be responsible for those decisions?
  Will it be possible for hon. Members to argue individual hard cases with the Minister via correspondence if there is not always an opportunity for us to do so in debate?
  Like my hon. Friends, I have spent some time studying the various EEC documents that have been produced. I have noted that one of the criteria is concerned with private investment plans. All the evidence that I have been able to collect suggests that the 2·6 per cent. that has been put aside for cases of hardship will not be sufficient. I have farmers with 70 or 80 cows and no quota and others who are producing three times their quota. There are obvious cases of hardship when development plans have been agreed, on the basis of financial encouragement. Such people will expect special allowances to be made. I have the near amusing case of Cornwall county council having obtained a farm for educational purposes — it must therefore have a dairy element—but its quota is zero litres.
  If the 2·6 per cent. is insufficient, from where will the further quota be obtained? Many of my farmers are only too well aware that the details that they have received are marked provisional. They wonder what it means. Does it mean that if the hardship appeal procedure requires more, the figure will be further reduced?
  The producer-retailers are still not clear where they stand. That is probably an understatement. Farmers have noted the German Government's response. Out of their own resources they are putting aside about £200 million to buy out some of their milk producers so that the spare quota can be reallocated. Many people believe that something similar is our only hope. People are asking why, if that is good enough for the Germans, a similar scheme cannot be introduced here. The Minister should at least announce that the Government will introduce a similar compensation scheme. It would help to stabilise matters. The price of cows is down £200 and many cows are going to slaughter while in calf.
  Other people are involved. What about those who work in milk factories? The one thing that the Minister has announced with which I concur is that it would be foolish to reduce the amount of liquid milk sales because the whole burden of cuts in milk production would be carried by the manufacturing sector. Not much less than 20 per cent. less milk will go to our factories. What will the Minister do—close every fifth factory? Does he intend
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  to reduce the output of every factory by one fifth? Whichever way we look at it, we are talking about some 9,000 jobs. I have milk factories at Hayle, Davidstone, Lostwithiel, Torrington, north Tawton and Lifton. I am well aware that my hon. Friends here—the hon. and learned Member for Montgomery (Mr. Carlile) and the hon. Members for Ceredigion and Pembroke, North, for Orkney and Shetland (Mr. 'Wallace) and for Yeovil (Mr. Ashdown) — face similar circumstances in their constituencies. Many factories are in areas where the hope of finding alternative work is a fantasy. They are often the major work providers in their respective communities.
  Mr. Paddy Ashdown: Perhaps I can add a little flesh to the argument for the benefit of the Minister. Last night I held a meeting of 450 farmers in my constituency. They voted by about 445 to five in favour of the Minister of Agriculture, Fisheries and Food resigning. At the meeting, the chairman of the Milk Marketing Board predicted the closure of no fewer than 30 of the board's major manufacturing plants, directly as a result of the quota system.
  Mr. Penhaligon: I respect the view advanced by the president of my hon. Friend's local farmers. It appears that the Minister is more popular in Somerset than in Cornwall because I cannot imagine even five people voting against such a motion in my area.
  The main thrust of the debate is a simple question. Are the Government willing to give some of their own resources? If not, why not? Hundreds of family businesses want to know the answer to that question. In many cases, a lifetime's work revolves around the Minister's decision. If the Minister should let down the farmers he will bear the burden on his shoulders for a long time.
  This is a serious matter. I have outlined several questions. The one that I want an answer to most of all is: Will the Government help with their resources? If the answer is no, we can only hope that the details of the decision will be of real significance. Without some relief, there will be a tragedy in the areas that are heavily reliant on the dairy farmer.
  4.21 am
  The Minister of State, Ministry of Agriculture, Fisheries and Food (Mr. John MacGregor): I welcome this opportunity to discuss the implications of the introduction of the milk quota and supplementary levy system. The subject is naturally the focus of intense interest and debate throughout the farming community—
  Mr. Ashdown: Will the Minister give way?
  Mr. MacGregor: I have hardly said anything, but I shall give way.
  Mr. Ashdown: I am most grateful to the Minister. I am sorry to interrupt him so early, but he said that he welcomed the debate. Can we take it from that that he would welcome a fuller debate at which more members of the Conservative party were present—[HON. MEMBERS: "There are none present now."] There is the Government Whip. In such a debate, we could discuss the matter in full detail rather than at 4.20 am, with such a thinly attended House.
  Mr. MacGregor: The time of the debate is the reason why it is so thinly attended, but Adjournment debates are

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  in any case generally thinly attended. I hope that the hon. Gentleman will not intervene again because I want to reply to the questions asked by the hon. Member for Truro (Mr. Penhaligon). I had hardly finished my first sentence when I was interrupted.
  I was saying that I welcome this opportunity, and the subject is naturally the focus of intense interest and debate throughout the fanning community. I was about to say that we shall come back to the subject — at a more reasonable hour, I hope.
  I spent a great deal of my time both before the final decisions on 31 March and since then meeting the farming community. I have spent the past two days meeting dairy farmers in Herefordshire and Shropshire. Clearly, some dairy farmers are facing tough decisions. I wholly understand and sympathise. The decisions that had to be taken in Brussels were tough. That was agonisingly difficult. Because of that, time and again throughout the long negotiations, as we faced up to the problems, I felt acutely that if only the Council of Ministers in earlier years had faced up to the obvious and increasingly huge problems that were piling up in the dairy sector, of the surpluses and the cost of disposing of them, it would have been possible to have a gentler transition to the new arrangements, which many dairy farmers would have wished.
  That is what the Government would have liked, but it was not possible because the money was no longer there. Had we not taken the decisions in March, the real danger was that there would have been no pay cheques for any farmers from about September onwards. What would the dairy farmers and others have said to us then if we had once again fudged the decisions in March? That was the difficult problem that we had to face.
  I should like to deal with the main questions. Why were those decisions necessary? Why quotas? What about the French and the Italians? What happens now? The first question is: Why were the decisions necessary? I am afraid that tough decisions this year were simply unavoidable. They have been spelt out to dairy farmers, and I find that they understand why they had to be taken, although, naturally, they are very worried. These are the key facts, and it is important to put them on the record. First, the cost to the European taxpayer simply of dealing with and disposing of our dairy supluses is now huge, and rapidly rising. Last year, it was about £3,000 million. We cannot get rid of those surpluses at home at cost of production or abroad at world market prices, except through vast subsidies from the taxpayer, and even now, with the decisions that we have taken, we are left with rising stocks in intervention stores that nobody is taking.
  Second, even with the new quota arrangements, there will continue to be substantial surpluses each year—certainly this year—somehow or other still needing to be disposed of. Without urgent action, deliveries to dairies in 1984 are expected to be 106 million tonnes, while consumption looks like being only 86 million tonnes. The aim of the supplementary levy is to cut back deliveries over the next 12 months to just over 100 million tonnes.
  Thirdly, the new arrangements save the taxpayer £1,000 million, but, even so, there will still be an enormous subsidy to the dairy sector this coming year of at least, over £2,000 million, including the heavy
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  financing costs of keeping the large intervention stocks. So, there is still enormous Government support for dairy farmers.
  Fourthly, the United Kingdom dairy industry has been so successful in increasing its production in recent years that we now play a big part in contributing to the problems of surpluses. The old argument that we are far from being self-sufficient no longer holds true.
  It is important to spell that out, because outdated statistics are being bandied about in the farming press and elsewhere. The hon. Member for Truro knows that self-sufficiency in dairy products is calculated by looking at butterfat and solids-not-fat.
  The estimate for last year was that in butterfat, taking New Zealand imports into account—which we must, as under our special arrangements they come only to this country—we we were 103 per cent. self-sufficient. Even without New Zealand, we are likely to be nearly self-sufficient this year. For solids-not-fat we were 131 per cent. self sufficient.
  Even more important, we now contribute handsomely to the stocks in intervention stores—in other words, the products which we could not sell on the market. These are the real surpluses which are causing a good part of the cost to Community funds. The latest figures show that we have 144 days supply of butter in intervention stores in this country, and a staggering 692 days supply of skimmed milk powder—well above the Community average. The latter has been increasing in recent weeks by almost an additional day's supply going into stores for every day that passes.
  We had to face the fact that we make heavy use of intervention stores because the industry cannot find markets for all our milk products. The figures tell their own story. The position had become extremely difficult throughout the Community, as had been known for many months. It would have been much worse if we had delayed facing up to those facts for another year, because the decisions that we would have had to take, would have been much more severe.
  The hon. Gentleman referred to the virtues, or otherwise, of quotas. I knew that I would have to grapple with many of the difficult issues that he raised, which reinforced my view that it is much better to avoid a quota system if that is possible. After the Commission's July 1983 proposals were announced, the Government set out to solve this difficult dairy problem by price alone. It became clear early on — we made no secret of this during debates before Christmas—that we were almost on our own and that the majority of member states were turning to a quota solution. That is why we concentrated on making the quotas as fair as possible to Britain.
  That brings me to the hon. Gentleman's points about France and Southern Ireland. Many of the issues that were extremely important to France in the Commission's original proposals are not in the final solutions. They include the exemption for small producers, which would not have affected many of our small producers, but was especially important to France; the intensive levy, which would have hit us hard but not France; and the exclusion of direct sales, of which France has a higher proportion than we have. Those issues were changed during the negotiations in ways which were helpful to us and detrimental to France.
  The one difference was the use of 1981 as the base year. Again, as the hon. Gentleman knows, it is not possible to

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  get a proposal on to the table in the Community unless the Commission proposes it or the Council of Ministers unanimously puts forward an alternative. The Commission resolutely refused to move from its proposal of 1981 as the base year, arguing that that was when the problem of surpluses was very clear and warnings were being given. It was also clear that the Council of Ministers would not agree unanimously to the use of 1983 as the base year. The base year chosen was thus 1981. The reason why France had a moderately smaller reduction than ours in its quota compared with 1983 was that it had expanded its production a good deal less than we had since 1981. It is worth pointing out, however, that both the Germans and the Dutch face larger reductions than we do.
  I am grateful, too, for the opportunity to spell out the position with regard to Southern Ireland. We consistently opposed the Irish Government's original request to be exempt from the super-levy altogether and that was not included in the final proposals. Nevertheless, a majority of member states felt that because dairy production accounted for a far larger proportion of GNP in Southern Ireland than in any other member state, some special treatment would be fair. In the final analysis, only one member state apart from the United Kingdom was prepared to vote against a special addition for Southern Ireland and we should not have won the vote, because we did not command enough support to defeat the qualified majority.
  Had we insisted on a vote on that issue, there would immediately have been a vote on the variable beef premium scheme and we should have lost that vote. We should thus have had the doubtful satisfaction of being able to say that no one could blame us for the special arrangements for Southern Ireland because we had opposed them throughout and voted against them but that we had lost the variable beef premium scheme. That is the reality of the matter.
  A number of unresolved issues still need to be clarified in Brussels. Progress is being made on some of them, but on others—most importantly on direct sales, on which I fully understand the hon. Gentleman's point—matters are not moving sufficiently quickly. We have been extremely critical of the tardiness of the Community machine in reaching these decisions and we are continuing to press for a very early resolution of the remaining points. I appreciate fully the problems caused by the uncertainties and we dislike the situation as much as the producers dislike it.
  Having come fresh as a Minister to the process of Council of Ministers decisions on agriculture, I have been struck by the fact that because, inevitably, it is a bargaining and negotiating process, decisions are always reached rather late in the Community year and a number of the details have to be settled afterwards—contrary to our procedure here, where we argue endlessly about Bills before finally putting them on the statute book.
  I do not regard the present situation as ideal and I agree with the hon. Gentleman that it is very difficult for dairy farmers who still do not know precisely where they stand on a number of issues, but we have been doing our very best to resolve those issues as quickly as possible. It is worth stressing at this point the importance and necessity of framing our regulations in line with Community regulations agreed in Brussels, because if we do not do so
  340
  we run the risk of disallowance of Community subsidies. Incidentally, that is also an important sanction for other states to abide by the rules.
  The hon. Gentleman referred to announcements made by the Germans about the details of their schemes. In fact, it is still not clear whether some of those details will fit in with Community regulations. I believe that the German Government have had to go back to the Commission to try to sort out whether some of their announcements are within Community regulations. That is one of the difficulties that we face.
  Mr. Penhaligon: Despite those matters of detail, the German Government have made it clear that they will give hard cash to their dairy farmers to help to alleviate the problem. Will our Government do the same, and if not, why not?
  Mr. MacGregor: Perhaps the hon. Gentleman will allow me to come to that. I am trying to build up the explanation of the current difficulties as quickly as I can.
  In the meantime, we have acted promptly where we can and are urgently carrying out our contingency planning and consulting the industry where we cannot yet firmly decide. Producers who sell milk to the milk marketing boards have been told their provisional initial allocations. Indeed, we were the first member state to give guidance to producers, precisely because we understood the hon. Gentlman's point that it was important for producers to have some guidance, even if it had to be provisional.
  The hon. Gentleman put emphasis on the provisional point, and what we have in mind there mainly was that there will be a considerable number of producers who will qualify for the special reserve, and who will therefore find that the quota reduction from 1983 will be less than 9 per cent. A number of other details have still to be settled, which is why we had to make it clear that that was provisional. We did it—I hope that the hon. Gentleman will think that this was right—because we had to give as much guidance as quickly as possible. We are now engaged in intense and extremely thorough discussions with the industry organisations on the framing of the system to operate in the United Kingdom. It is critically important that we get this right, because it is likely to last for three to five years, depending on the review that will take place after three years as to whether there should be any changes.
  In particular, we are designing the fairest system that we can for allocating additional quotas from the 2·5 per cent. quota that we have set aside to the categories of producer that can be treated as special cases under the regulations — those who were affected by exceptional events in 1983 and those who are implementing development plans. The hon. Gentleman said that he felt that the 2·5 per cent. reserve would not be sufficient for all cases, and I am not trying to mislead anyone into thinking that the special reserve will be such that everyone will get all that they want out of it. However, there was a difficult decision, because the non-expanders who argued that they had read the warning signs all the way through did not see why they should be making the sacrifices for the expanders, and therefore the decision required balance.
  We are also considering in consultation with the various interests the possibilities provided for in the regulation of giving additional quota or financial aid to certain

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  categories of producer, and to see what assistance might be most appropriate for the smaller producer. We are also discussing urgently with the interested bodies the arrangements for the management of the quota after the system has started to operate, including the procedure for re-allocation of quota from producers who no longer require it. That may possibly be helpful, depending on what we finally decide, for the small producer.
  All these arrangements are having to be put in place very rapidly, and our consultations with the industry are being conducted on a very much tighter timetable than we would normally wish, but we shall nevertheless be taking full account of the views of the industry organisations, which have not, in many cases, made up their minds. We shall make the announcements as soon as possible, and on some of these issues, I hope very soon.
  I very much appreciate the very helpful and constructive attitude being taken by the leaders of the
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  industry in these difficult circumstances. It is extremely important to avoid any rash or extreme talk, which can only make it more difficult to produce a rational system meeting the needs of the dairy industry.
  The CAP reforms overall provide a more realistic, justifiable and sensible basis for the long-term future of the CAP, and, in the long term, that must be in the interests of farmers. I have explained why quotas have been introduced, and I can assure our dairy farmers that we understand their problems and intend to operate the system as helpfully as we can within the regulations. That is why we are proceeding with as much speed as possible and in full consultation with the industry to deal with the detailed and often difficult decisions on a number of the matters that the hon. Gentleman raised. I hope that we shall be able to make the announcement soon.
  Question put and agreed to
  Adjourned accordingly at twenty-three minutes to Five o'clock am.

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Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Bishop of Southwark.
Viscount Falkland—Sat first in Parliament after the death of this father.

Pit Closures and Job Creation
Lord Jacques: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what action they are taking to establish alternative employment in those mining communities where it is proposed to close down mines.
The Parliamentary Under-Secretary of State, Department of Energy (The Earl of Avon): My Lords, I wish to make it clear that so far as current proposed closures are concerned there will be no compulsory redundancies. Any miner wishing to continue working as a miner will be able to do so. Therefore, typically, in a community where it is proposed to close a mine a number of miners will take advantage of the generous early retirement scheme and others will transfer to another pit.
However, some of the mining areas concerned are ones where there are already general employment problems. For those areas there is available the wide range of special employment and training measures operated by the Manpower Services Commission, and, according to the area concerned, regional or national schemes to encourage new or extended industrial investment.
Lord Jacques: My Lords, is the Minister aware that underlying the objection to the closure of pits is the fear that local communities which are well knit together will be left without the means of livelihood? The steel board did a great deal to promote alternative employment when it closed steel works. What has the coal board done?
The Earl of Avon: My Lords, as I tried to explain in my original reply, the situation is not as the noble Lord describes. The miners can either have redundancy terms or jobs in alternative pits. I explained the matter to the noble Lord, Lord Diamond, the other day when I pointed out the difference between the steel scheme and that of the National Coal Board. First, I made the point that so far the National Coal Board has been able to avoid compulsory redundancies. Secondly, I said that any coal industry equivalent of BSC would have to operate many more locations and, therefore, would probably be less effective.
Lord Rochester: My Lords, would not the promise of some special measures to provide alternative

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employment in these mining communities be a means by which the Government might help to break the logjam without intervening in the current dispute itself?
The Earl of Avon: My Lords, yesterday in the other place my right honourable friend pointed out that any manpower reductions would be obtained by miners' voluntary decisions; and pit closures and their timings is, of course, a matter for the coal board.
Lord Leatherland: My Lords, can the Minister tell us how many tonnes of Polish coal have been imported into this country so far this month?
The Earl of Avon: No, my Lords, I do not have figures for that.
Lord Nugent of Guildford: My Lords, can my noble friend tell us what is the perspective of this problem? What has been the average number of pit closures over the past 10 years?
The Earl of Avon: My Lords, as my noble friend is aware, at the moment the average is no greater than it has previously been. In fact, during the 1960s it was vastly higher. Some 300 pits were closed during the terms of office of the Socialist Party.
Lord Stoddart of Swindon: My Lords, does not the noble Earl understand that this whole issue is about communities and about jobs which will be lost forever? Is the noble Earl aware that it is no good the Government imagining that the miners will be satisfied with redundancy payments, however high, because the loss of jobs will destroy their communities, which is what the dispute is all about? When will the Government cease behaving like some corporate Pontius Pilate and stop washing their hands of the whole affair?
The Earl of Avon: My Lords, the Government are not washing their hands of the whole affair. The Government have invested in the coal industry to a degree of which the noble Lord is well aware. In addition, as was stated in the other place yesterday, the Government intend to continue to invest in the coal industry to the tune of some £3 billion over the next three years. We believe in the mining industry; we want to ensure that it is profitable and that the miners themselves have a future, which we believe they have.
The Earl of Onslow: My Lords, is it not true that if we make sure that mining jobs are kept open in uneconomic pits, then wages will be kept down in the other mining areas? Furthermore, is it not just as sensible to say, as the noble Lord opposite has said, that we will keep in jobs the flint-makers, for musket barrels, and the fletchers, for arrows, because otherwise we shall destroy local communities? We have to create real wealth and not subsidise old and dying industries.
The Earl of Avon: My Lords, I take issue with my noble friend on his last sentence. This is not a dying industry. This is an industry into which the

1273
Government are putting a lot of money and which they believe can be profitable. The stoppage of the pit closures planned by the National Coal Board will not help to make this profitable.
Lord Somers: My Lords, is not one of the difficulties that miners have not only their jobs but their homes and their families on the spot? Are any measures being taken to provide for them as well?
The Earl of Avon: My Lords, as I said in my initial reply, where mining areas already have general employment problems there are a wide range of benefits such as the special employment and training measures operated by the Manpower Services Commission.
Lord Dean of Beswick: My Lords, is the noble Minister not aware that in areas such as Greater Manchester and Wigan and the Leigh area, where pits have previously closed, unemployment has increased further under this Government and they have almost become no-hope areas? The question is about alternative employment. What are the Government going to do about this?
The Earl of Avon: My Lords, besides those things I mentioned in my original reply, the European Coal and Steel Community provides cheap loan finance for investment projects which promote the interests of the coal and steel industries and for "reconversion" projects providing new employment for redundant coal and steel workers. Over the last five years over £182 million has been made available for investment finance under this scheme.
Lord Orr-Ewing: My Lords, would my noble friend consider doing an investigation to see what happened to the miners when 44 mines were closed every year during the last Labour Government? Have they been redeployed in new industries? If there is any doubt, and if we could help as a Government, would my noble friend set up an arrangement whereby retraining is possible so that every possible facility could be offered and every goodwill shown to redeploy people who want retraining in the area where they live?
The Earl of Avon: My Lords, indeed I have not got the statistics which my noble friend suggests, or asks for. I shall see whether they could be forthcoming. I take note of his points.
Lord Underhill: My Lords, would the Minister agree that we do not want to make a party political issue of this, as the last question seemed to imply? In that period there was full employment, which is rather different from what we have today. Does the noble Earl appreciate—while I know that he is a kindly individual—that his replies seem somewhat insensitive to the points being raised, that it is whole communities that are being destroyed? It is not the loss of just the mines, but of all the other businesses in the area. The Government cannot leave this to profit and loss and the market factor.
The Earl of Avon: My Lords, I appreciate what the noble Lord is saying. What I am equally trying to say

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in this quite sensitive time is that there are opportunities for the miners in pit closures to have alternative jobs. Outside that there are also redundancy terms available to them. Noble Lords are shaking their heads. If we only could get the message across, there is a position for any miner who wants to work in a mine so to do.
Lord Diamond: My Lords, the noble Earl was good enough to refer to the Question of mine which he answered a little earlier. May I ask him whether he recollects that I found that Answer totally unsatisfactory and insensitive? Can he recollect that I drew his attention to the fact that we were not talking about compulsory retirement involving money; we were talking about communites, villages, wives, and livelihoods? May I ask him once more what possible argument is there against the coal board's showing goodwill and good sense in trying to set up an organisation parallel to that which the steel board set up and which proved so successful, to demonstrate the Government's real, sincere interest in looking after displaced miners?
The Earl of Avon: My Lords, as I said to the noble Lord on that occasion—and I have the Hansard in front of me—there are three reasons in particular why it is not similar to British Steel. I also said to him—I think on that occasion, although I have not quickly read it to make sure that I did—that this has been discussed, but at the moment because of the differences between the two sets of circumstances it is not thought to be appropriate.
Lord Blyton: My Lords, in my lifetime I have seen uneconomic pits become economic after they have got through geological difficulties. Can the Minister tell me, with Durham and Northumberland with 20 per cent. unemployed, where our miners will get jobs in the Tyneside conurbations?
The Earl of Avon: My Lords, if I say that the disparity between the price of coal coming from an economic pit and an uneconomic one is £30 as against over £70, perhaps the need for the closures will be evident. I did not quite follow the rest of the noble Lord's question.
Lord Blyton: My Lords, can the Minister tell me where miners in Northumberland and Durham will get a job when pits close, with 20 per cent. unemployment in the Tyneside conurbations?
The Earl of Avon: My Lords, I am grateful to the noble Lord for repeating that because it enables me to say once again that all the miners who want to go on working have been found a job in other mines.
Lord Whaddon: My Lords, bearing in mind the concern expressed in so many parts of this House on helping the communities when mines close down, does the noble Earl recall the great success of COSIRA in helping difficult rural areas, and the suggestion that has been made several times of extending that to difficult urban areas under the so-called COSURBA? Will he again consider the possibility of doing this?
The Earl of Avon: My Lords, I think I have mentioned the various types of assistance which are available, such as special development area status, development area status and intermediate area status. All these things are indeed being considered.
Lord Whaddon: My Lords, does the Minister realise that these do not help the promotional aspects of the COSIRA-type organisation, which is most necessary to employ the funds that are available?
The Earl of Avon: My Lords, I note what the noble Lord has said, and I shall certainly consider it.

Nurses' Pay: Review Body Reports
2.51 p.m.
Lord Molloy: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether the Pay Review Body for Nurses and Midwives and Professions Allied to Medicine has delivered its report to the Prime Minister and whether a statement on that report will be published.
The Lord President of the Council (Viscount Whitelaw): My right honourable friend the Prime Minister has received the reports and is considering them. An announcement will be made in due course on these and the other review body reports, but this is not likely before the Whitsun Recess.
Lord Molloy: My Lords, is the noble Viscount aware that that reply will cause grave disappointment to all those employed in the National Health Service, particularly Britain's nurses? They are so poorly paid and are hoping for something to restore their morale, which has dropped so low under this Government. Is he further aware that an 18 year-old trainee police constable earns £6,700 a year while an equivalent trainee nurse earns £3,600 a year? Right throughout the nursing profession there is great hope that when the review body reports the value of the British nurse will be realised. On the other hand, there is grave apprehension that in view of the fact that the Prime Minister is not forthcoming what will be announced will be to their detriment and not to their encouragement.
Viscount Whitelaw: My Lords, I can only say that I do not think the noble Lord has any reason for disappointment or disillusionment. He has to wait the result of the report and when the Government announce it we shall see how we get on.
Lord Ennals: My Lords, why is there this delay? Surely it is true that the Prime Minister set up this new review body to take the question of nurses' pay out of cross-party, or any other type of, controversy. It was a review body set up to determine. If the report has been received, can the noble Viscount explain why, first, it has not been published and, secondly, the answer has not yet been given by the Prime Minister?
Viscount Whitelaw: Yes, my Lords; for the very simple reason that this is not the only review body that has produced a report for my right honourable friend the Prime Minister. Surely she and the Government are entitled to look at all these reports together and consider their interaction on each other.
Lord Molloy: My Lords, is the noble Viscount aware that the numerous general secretaries of the various organisations involved, who are part and parcel of our British democratic structure, are beginning to lose their patience? They have never had to wait so long. With particular reference to our nurses, is he further aware that the effects of the cuts—the reduction in wards, the reduction in beds—are causing great stress among nurses? There is a feeling in the profession that we are not taking enough cognisance of nurses care as we are, quite properly, of patient care. Is he aware that in so far as these cuts are increasing discipline, they are causing stress on nurses, and is it not disgraceful that they are willing to endure this because they will in no way take industrial action? They are of the opinion that the British Prime Minister is taking advantage of them.
Viscount Whitelaw: My Lords, the first answer to the noble Lord is that the Prime Minister is not taking advantage of them—quite the reverse. Some of the reasons—many of which I do not necessarily endorse—that the noble Lord puts forward were major factors in the decision to offer a review body status to nurses and the professions allied to medicine. That was done last year. The review body report is being considered and it is reasonable for me to ask the noble Lord to have the patience to see what attitude the Government will take to it when it is announced.
Lord Molloy: My Lords, on behalf of the profession, may I ask the noble Viscount very seriously which Whitsun he had in mind when he said that the report will not be published before Whitsun?
Viscount Whitelaw: This Whitsun, my Lords.
Lord Glenamara: My Lords, when the Government make their announcement on this award, will they bear in mind a comparable body of workers—the teachers—and will they try to hold the balance between the two? The teachers have no review body and the Government have refused them arbitration. Will the Government try to hold a fair balance between the nurses and the teachers?
Viscount Whitelaw: My Lords. I am very grateful to the noble Lord, not least because he has actually endorsed something that I said. I am always grateful when that happens. I said that the Government needed time to consider the ways in which the recommendations of these review bodies and other bodies would interact. I am grateful to the noble Lord for the powerful and emphatic support that he has given to my point of view.

Housing Repairs and Improvements
2.55 p.m.
Baroness Fisher of Rednal: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether there has been any progress on the problem of growing disrepair revealed by the English House Condition Survey.
Lord Skelmersdale: My Lords, unprecedented efforts have been made in the field of housing improvement and repair during the last three years. Repairs grants have been made much more widely available and have been given in large numbers. Expenditure on improvement and repairs grants has been running at record levels.
Baroness Fisher of Rednal: My Lords, can we expect any further resources from either urban programmes or housing improvement programmes to extend the technique of enveloping, which involves the complete restoration of private properties in urban areas? It is a technique pioneered in Birmingham which has done such a great deal to overcome the urban decay in central areas of large cities.
Lord Skelmersdale: My Lords, like my noble friend the Leader of the House, 1 find it nice to have a fan on the Opposition Benches. I, too, am an extremely keen supporter of the envelope schemes to which the noble Baroness has referred. On the other part of her question, in 1984–85 grants will again be financed from within individual authorities' housing improvement programme allocations and authorities' housing investment needs have been taken into account in determining those allocations.
Lord Graham of Edmonton: My Lords, the Question refers to "growing disrepair". Can the Minister tell the House what steps are taken by the Government to ascertain and to monitor the effect on a council's ability to maintain its properties, arising from the cut-backs in rate support grant and also the allocations to councils in the housing investment programmes?
Lord Skelmersdale: Yes, my Lords, of course we monitor the condition of the housing stock of local authorities. We take account of those sums of money that they themselves feel they will require in setting the grant-related expenditure and the HIP programmes to which I have referred.
Baroness Fisher of Rednal: My Lords, will the noble Lord really accept that there have been serious cutbacks in the housing programmes and that it is not the simple answers that he is giving us this afternoon that are being felt in those areas that are suffering the greatest deprivation, where people are still living in very bad slum properties? Will the Government really once again consider the investment policy, so that people living in these bad conditions can in future have opportunities for perhaps a much more contented life?
Lord Skelmersdale: My Lords, my answer to the noble Lord, Lord Graham of Edmonton, was not intended to be a facile answer in any sense of the word. I am sorry that the noble Baroness should have taken it that way. But it is always for the local authority, within the resources, both self-generated and allocated to them through the support structures that I referred to earlier, to make the decisions for people in their areas. If it becomes apparent to the Government and to my honourable friend the Minister for Housing and Construction that those resources are not sufficient, then we shall do something about it.
Lord Underhill: My Lords, is the Minister aware that the National Federation of Building Trade Employers has expressed great concern about this matter? He says that it is up to the local authorities to make the decision; but it is a difficult decision to make, with cuts in financial allocations.
Lord Skelmersdale: My Lords, any business, whether it is the business of running a vast local authority or whether it is the business of running a private limited company, has to operate within its financial structure and strictures. Within those each business has to set its priorities for itself. If, as in this case, a local authority decides that it should spend money on, for example, sheltered housing rather than on removing homeless people from the hotels—an issue which is so much criticised in this House—that really is a matter for them.

System-built Houses: Budget Proposals
2.59 p.m.
Lord Dean of Beswick: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what is the expected financial effect of the Budget proposals on people who have purchased system-built houses from local authorities, and on local authorities who have these types of houses remaining in their stock.
Lord Skelmersdale: My Lords, the Chancellor's Budget speech included the proposal that from 1st June structural alterations to buildings will be liable to value added tax at the standard rate of 15 per cent. Private owners of system-built houses will be affected by the change if they have neither completed, nor paid for, their structural alterations by 1st June. Local authorities with such houses in their stock are able to reclaim VAT on any expenditure they may incur on those houses, and so will not be affected.
Lord Dean of Beswick: My Lords, I am grateful to the noble Lord the Minister for that Answer. Is the noble Lord the Minister not aware however that I have information from Leeds City Council which shows that in the case of people who have purchased Airey houses from Leeds City Council—and of course this follows on a national basis—the imposition of VAT on the structural measures needed to bring those houses to standard will increase the cost of remedial treatment by £2,000 per house? May I ask whether, on that basis,

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the noble Lord will go back to the senior Government Minister involved in this to ask him to reconsider this matter because of the adverse effect that this will have on the people who have bought these council houses and on the people who live in them?
Lord Skelmersdale: My Lords, the houses which are now in the private sector—some 1,800—to which the noble Lord has referred, are eligible for grant under the Airey scheme. I am able to tell the House that the Government are prepared to consider whether the eligible expense limits under the Airey scheme on which these grants are based should be adjusted in the light of any detailed representations which demonstrate a need for increases to cover the cost of repair to Airey houses.
Lord Taylor of Blackburn: My Lords, would the Minister give the same concession to charities that he is giving to local government?
Lord Skelmersdale: My Lords, what we are doing is considering further action on representations made to us. This is not a matter for local government or for charities. From wherever the representations come, they will be considered.
Lord Graham of Edmonton: My Lords, does not my noble friend's Question reinforce the need for the Government always to have in mind absolute equity between the private sector and the public sector in housing matters? I believe that the noble Lord indicated something there. Can he assure the House that when housing improvement programmes are made there is a built-in allowance to take into account matters like this which come up without prior warning during the current year?
Lord Skelmersdale: My Lords, the noble Lord has taken the opportunity to go rather further than my previous answers indicated. What I have said is that the Government will give careful consideration to fully thought out representations which come to them. I am afraid that I cannot stand at this Dispatch Box this afternoon and guarantee the outcome of that consideration.
Lord Ennals: My Lords, further to the point made by the noble Lord the Minister on the question of the payment of 15 per cent. VAT by charities for services that they give to social service departments and other organisations, is he not aware that ever since this 15 per cent. was introduced, the charities and a very large number of Members of both Houses of Parliament from all parties have been pressing successive Chancel-lors, and that they have been thinking about this constantly but nothing has been done? Can the noble Lord give the House any assurance at all that these charities will not just continue to suffer as a result of the decision taken by the Chancellor of the Exchequer?
Lord Skelmersdale: My Lords, as I understood it, the pressure from the charities which has been taken up both in your Lordships' House and in another place has been on the zero rating of charities, so far as value

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added tax is concerned, for all purposes. What we are now considering is the added imposition of 15 per cent. VAT on improvements and structural alterations—as oposed to the repair and maintenance which has always attracted VAT. As I have said, if the charities put up a reasoned case, we will consider it.
Lord Dean of Beswick: My Lords, may I press the noble Lord the Minister a little further? Is he aware of the figures given during the debate in another place by the honourable Member for Manchester Central on the Second Reading of the Housing Defects Bill, which showed the appalling sum of money which Manchester would have to find to correct structural defects in its housing stock? I think that it is in excess of £ 10 million. Is the Minister saying that that money, on his statement today, will not be liable to VAT? If that is what he is saying, it will be well accepted; if not, it will be deplored.
Lord Skelmersdale: My Lords, if the structural alterations to which the noble Lord referred are on the local authority's own stock, they will be able to get this refunded through the normal VAT mechanism.
Viscount Whitelaw: My Lords, I feel that it would be in accordance with all your Lordships' wishes if I were to express to one of my distinguished predecessors, the noble Lord, Lord Peart, our very great welcome on his return to the House after the very unhappy experience he has had.

Dinner
Lord Denham: My Lords, it may be for the convenience of the House if I announce that dinner will be available at the usual time of 7.30 this evening.

Road Traffic Regulation Bill [H.L.]
3.5 p.m.
The Lord Chancellor (Lord Hailsham of Saint Marylebone): My Lords, I beg to move that the House do now resolve itself into Committee (on recommitment) on this Bill.
Moved, That the House do now resolve itself into Committee (on recommitment).—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee (on recommitment) accordingly.
[The EARL OF LISTOWEL in the Chair.]
The Deputy Chairman of Committees (The Earl of Listowel): Amendment No. 1, Clause 142. The Lord Chancellor.
The Lord Chancellor: There are two amendments in my name—
Lord Elwyn-Jones: Will the noble and learned Lord give way for a moment? We must deal with the earlier clauses before we can deal with this amendment.
The Lord Chancellor: I thought that the amendment had been called. I am sorry.
The Deputy Chairman of Committees: My apologies.
Clauses 1 to 141 agreed to.
Clause 142 [General interpretation of Act]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 1:
Page 127, leave out lines 30 to 33 and insert (" "road" means any length of highway or of any other road to which the public has access, and includes bridges over which a road passes;").
The noble and learned Lord said: I am very grateful to my noble and learned predecessor for keeping us on the straight and narrow path. As I was beginning to say at an inappropriate moment, this amendment is really a drafting amendment. The last limb of the present definition of the word "road" gives effect to Recommendation No. 17 in the report of the Scottish Law Commission on this Bill. When the Bill was considered by the Joint Committee on 4th April, it was suggested that the last limb, so expressed, could perhaps be more clearly expressed. The chairman asked the draftsman to see whether an improvement could be made. This amendment is the result. The existing form of words might be said to be too verbose, given that the idea behind those words is a very simple one; namely, that the word "road" is meant to mean any length of road and not just the whole of a road. I hope that your Lordships will agree that the proposed amendment is more straightforward. I should like to thank the Joint Committee for having helped in bringing about this improvement to the Bill. I beg to move.
Lord Elwyn-Jones: May I congratulate the noble and learned Lord on now finding the road clear?
On Question, amendment agreed to.
The Deputy Chairman of Committees: Amendment No. 2—the Lord Chancellor.
The Lord Chancellor: I am told that this is a simple amendment to correct—
Lord Elwyn-Jones: More clauses!
Clause 142, as amended, agreed to.
Clauses 143 and 144 agreed to.
Clause 145 [Commencement and temporary provisions]:
The Lord Chancellor moved Amendment No. 2The Lord Chancellor moved Amendment No. 2:
Page 129, line 6, leave out ("exercisable") and insert ("made").
The Lord Chancellor: I am afraid that we have been hurrying too fast. This amendment is simply made to correct a clerical error. The word "made" should have been used in subsection (2) instead of the word "exercisable". I beg to move.
On Question, amendment agreed to.
Clause 145, as amended, agreed to.
Remaining clauses agreed to.
Schedules agreed to.
House resumed: Bill reported with the amendments.

Agriculture (Amendment) Bill
Lord Renton: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged
Moved, That the order of commitment be discharged.—(Lord Renton.)
On Question, Motion agreed to.

Trade Union Bill
3.12 p.m.
The Minister of State, Privy Council Office, and Minister for the Arts (The Earl of Gowrie): My Lords, I beg to move that this Bill be now read a second time. It is a very welcome duty for me to rise this afternoon to move the Second Reading of the Bill. As the House will know, I have had the great privilege of being associated with every stage of the Government's programme of industrial relations reform since we came to office in 1979. I certainly regard this programme of reform as among the most significant of the Government's achievements and likely to be among the most enduring. I should certainly not myself like to campaign on a platform of repeals of this particular set of reforms.
In 1980, as Minister of State at the Department of Employment, I put before the House the Employment Bill 1980, which was our first reforming measure. In 1982, despite having moved from the relatively calm waters of the Department of Employment to the more turbulent Northern Irish currents, I was able to play a part in helping my noble friend Lord Ferrers, who we much miss on this side of the House, to pilot through the Employment Bill 1982. In March last year I was allowed to respond to a debate initiated by my noble friend Lord Boyd-Carpenter on the Green Paper on trade union democracy. We are most grateful for the insights of the noble Lord in regard to this legislation. That Green Paper was of course the forerunner of the Bill before us today.
I think it is right to remind the House of this earlier legislation because the Bill now before your Lordships represents the logical next step in the programme of reform which we have been following since 1979.
In 1980 we were concerned with the most pressing needs for reform in industrial relations law: to provide that basic degree of protection for those working in closed shops, which the legislation of the previous Goverment had stripped away; to make secondary picketing unlawful; and to provide a remedy to those whose businesses were put at risk by other forms of indiscriminate and unjustifiable secondary action.
In 1982, following the extensive consultations on our Green Paper on trade union immunities, we thought that the time was right to tackle some of the more deep-rooted problems in our system of industrial relations. So we introduced into the law the concept that all closed shops—not just those being introduced for the first time—should be put to the elementary test of a secret ballot. We tackled the related "union labour

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only" practices, which were not only an attack on individual freedom, but also a major barrier to competition and therefore to economic success and to jobs. And, perhaps most importantly of all, we ended the anomaly which had existed virtually uninterrupted since 1906 under which trade unions had almost unlimited immunity against civil proceedings when they and their agents acted unlawfully.
This is not the occasion for a searching inquiry into the effects of this previous legislation. But I think one thing is absolutely clear. Those who in 1980 and 1982 told us that none of this could ever work, that it was simply not possible to legislate on industrial relations without creating confrontation, have long since packed their bags and gone. The remedies that the law has provided have manifestly worked in a succession of cases, of which the Stockport Messenger was the most recent and notable. The expansion of the closed shop has been halted, and its frontiers are gradually being rolled back. In short, we have seen a real change for the better through the creation of a more balanced framework of industrial relations law.
Against that background, I believe that this Trade Union Bill complements what has gone previously. The 1980 and 1982 Acts were concerned with the impact of trade unions on others; on employers, on non-union members, on society at large. This Bill, by contrast, is concerned with the impact trade unions have on the lives of their own members.
When we debated the Green Paper just over a year ago, I pointed out that the absence of legislative safeguards in respect of unions' internal affairs is quite remarkable when compared with the position of other bodies; for example, companies. It is now well over 100 years since the first Companies Act was passed in 1862. Since then the company as a legal entity has been closely controlled and its purpose and behaviour defined and regulated in a succession of statutes. Your Lordships may have noticed that, only last week, the cover—the jaunty cover—of the Economist was devoted to the concept of policing the City.
These legislative safeguards have always been seen as a quid pro quo for the concept, for the privilege, if you like, of limited liability. Before Parliament intervened trading with limited liability was illegal at common law and it was considered a fraud on potential creditors. By contrast, what has been the position of trade unions? Like companies, they have an undoubted great privilege conferred on them by statute—the privilege of immunity against civil proceedings when they are acting in contemplation or furtherance of a trade dispute. Again, before Parliament intervened, most trade union action was illegal—a criminal conspiracy in restraint of trade. But. as with companies and the concept of limited liability, it came to be accepted that if trade unions were to survive and play their valuable role in society, they must have some protection against actions at common law. And yet there is a great difference. While Parliament has imposed on companies a huge volume of statutory regulations in return for the privilege of limited liability, there has been virtually no attempt to regulate the running of trade unions in return for their great privilege of immunity against actions in tort.

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We are told often enough that this is all right and proper, that trade unions are essentially private, voluntary bodies which should be allowed to run their own affairs free from outside interference. But how does that square with common reality? For thousands upon thousands of trade union members working in closed shops there is nothing whatsoever that is voluntary' about their membership. More important still is the plain truth that the activities of trade unions and the decisions which their leaders take on behalf of their members can reach in to every home in the land.
In practice, trade unions enjoy vast monopoly-power—power which enables them to decide literally, in the case of industries such as printing, who will work and who will not: power to force up the price of labour, and hence of goods and jobs, without any regard to what the market will bear; power to compel individuals to become members against their will; and power to affect the supply of basic services.
If that power had always been used with restraint, if trade unions were truly democratic institutions, fully responsive to the needs and wishes of their members, the absence of legal safeguards would be easier to understand and possibly to defend. But that is far from the case. The trade union movement has consistently failed to take the chances offered to democratise itself. And now that the issue of trade union democracy has been forced into the open by this Bill, trade union leaders have sought to defend some of their more archaic practices in ways which are reminiscent of the opposition to the Parliamentary Reform Bills of the last century. The first Duke of Wellington (my noble friend, I could say) would feel at home in their ranks and comforted by the sound of their arguments. I have little doubt that today we shall once again hear from noble Lords opposite the seductive philosophy of benign neglect. On this issue, if on no other, the Labour Party is, as I have often said, the party of legislative abstention, market forces and deeply-entrenched conservative attitudes.
Trade union leaders have tried to defend the fact that many of them are elected by votes cast, often by a show of hands, at branch meetings held away from the workplace, despite all the evidence that branch meetings on average are attended by only a tiny proportion of their members. They have sought to defend the block vote in elections despite all the evidence that its effect is to distort voting intentions and to hide the fact that again only a tiny proportion of their members actually cast a vote.
They have continued to defend the refusal of many unions to ballot their members in any way before calling them out on strike—and, as your Lordships will be aware, that is a strong issue at the present time. Also, some unions have continued to use the coercive power of the closed shop to force their members to strike, as we saw at the time of the notorious health service day of action in 1982 and in the British Rail disputes of the same year.
It cannot even be said that the unsatisfactory nature of these practices has only just been identified. On the contrary, it has been apparent for thirty years and more. As far back as 1952, for example, Joseph Goldstein, in his classic study of the Transport and General Workers Union, The Government of British

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Trade Unions, identified the weakness of basing union democracy on the branch meeting. He concluded that, in the TGWU:
"Branch meetings attract only a small minority of members, who, in meaningless elections, assume apparent control at this basic level and undermine the representative character of constitutional bodies at all higher levels of organisation. The branch has become the forum not of the rank and file but of an active nucleus dominated by a hard core centre.".
The author concluded that the branch had become—again I quote him—
"an oligarchy in democracy's trappings."
That was no less than 32 years ago. But more recently the 1980 Workplace Industrial Relations Survey—the latest in the notable series of surveys initiated by the noble Lord, Lord McCarthy—has shown that very little has changed. The survey found that in manual unions the average number of members attending branch meetings was 30 out of an average branch membership of 438—an attendance level of 6·8 per cent. It also showed that where the branch covered employees of more than one employer, attendance was even lower—about 3 per cent.; and that for several large branches with about 4,000 members, the average attendance was 10, which is a quarter of one per cent.
If your Lordships would like a more specific example, you need look no further than the voting figures for the 1983 executive elections in one of the largest unions, ASTMS. In those elections, according to the union's own figures, some 400 ASTMS branches (very nearly half of the total) did not register a single vote; only 2 per cent. of members voted in the election of the President and Deputy President; and only about 1·7 per cent. of the union's members voted in the election for the 16 divisional seats on the executive.
I would suggest that, in the face of figures such as these and of the continuing refusal of the trade unions to put their own house in order (as they have frequently been exhorted to do, and exhorted not only by people on this side of the House, so to say) despite the availability of public funds for postal ballot under the 1980 Act, the case for this legislation is now proven and self-evident.
Let me now turn quickly to the provisions of the Bill. Part I concerns elections, Part II concerns strike ballots and Part III concerns the political activities of trade unions. Part I requires all the voting members of a trade union's governing body—its principal executive committee—to be elected at least once every five years in a secret ballot of the union's members. The ballot must be conducted so as to give every member a fair and convenient opportunity to vote and to do so without interference or constraint. Voting must be secret and by the marking of a ballot paper, and the votes must be fairly and accurately counted. This means the end of the block vote and voting by show of hands. Ballots must be held either at the workplace or by post and not at branch meetings. Indirect elections, under which members can vote only for delegates to some intermediate body and then have no control over how those delegates cast their votes for the executive, are also ruled out.
Within these basic principles, however, the Bill provides unions with very considerable flexibility. Flexibility is most important here, because we are

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dealing with very plural situations out there in the real world of the economy. To give just one example, unions will remain entirely free to apportion seats on their executives as between different occupations, areas or sections within the union on whatever basis their constitutions provide. Part II of the Bill concerns strike ballots. In effect, it gives trade unions a choice. They may ballot their members before calling them out on strike and keep the immunity that the law now provides, or they may call a strike without a ballot and so forfeit their immunity. That is a simple proposition and, I believe, an entirely fair one. A trade union's immunity from civil proceedings in an industrial dispute is a privilege, as I have said, unique in English law. I do not doubt that it is a necessary privilege if trade unions are to function effectively, but that is not to say that it should be an unconditional privilege or that it should be free of any corresponding obligations. The minimum obligation is surely to ensure that trade unions have consulted their members before calling on them to risk their own livelihood and that of their families and colleagues by going on strike. There can never be any justification for a trade union compelling its members to strike against their will, under the threat of withdrawing their union cards and so effectively throwing them out of work.
The provisions in Part II cover any industrial action in breach of contract, and not just a strike, provided that it is authorised or endorsed by a trade union, as was set out in the 1982 Act. That means that it will cover all official industrial action and any action which trade unions or their paid officials are seen to be supporting.
Part III of the Bill deals with the rights of trade union members in trade unions which engage in political activities. Let me say immediately that there is nothing in the Bill to prevent a union from continuing to engage in political activity, if that is the wish of the majority of its members. That was the principle established by the Trade Union Act of 1913, and nothing in this Bill detracts from it in any way. Indeed, Part III builds on the basic principles of the 1913 Act. If the majority of the members of the union wish it, it will be entirely lawful for a union to establish and maintain a political fund and raise a political levy of whatever size it chooses.
All that the Bill does in this respect is to give today's union members the same rights as were given by the 1913 Act to their grandfathers—the right to decide in a secret ballot whether or not they want their union to engage in party political activities. It cannot be right that a decision to establish a political fund taken as long as 70 years ago should continue to bind a union's members for all time, even if not a single present-day member was alive when the original ballot was held. And yet that is the indefensible position now. It simply cannot be right.
There is nothing in this Bill which has not already been put into practice in the real world again by one union or another. It extends the existing rights of union members and it builds on remedies which are already available to them. There is nothing novel about secret ballots for union elections, for calling strikes or for unions with political funds. This Bill does no more than to extend the practice of the best to the rest of the trade union movement.

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The Bill lays down minimum basic democratic requirements. It does not set out to impose a uniform framework or procedure on all trade unions. It is no legal straitjacket. There is nothing in this Bill which it is unreasonable or impracticable for a trade union to be expected to do. There is nothing here which will prevent a trade union from doing the job of representing its members and defending their interests. On the contrary, I believe it will ensure that unions are truly representative and that they defend their members' real interests.
When noble Lords on the other side of the House rise to oppose this Bill, I hope that they will explain exactly what it is in the Bill that they object to—not in sweeping generalities, but quite specifically. Do they object, for instance, to union members being able to vote for their leaders in a secret ballot? Do they object to union members being asked whether they want to strike before being ordered to do so? Do they object to union members being given the same opportunity which their grandfathers had to vote in a secret ballot on whether their unions should engage in political activities?
Do they object to members being given a fair and convenient opportunity to vote and to those votes being fairly and accurately counted? Or do they object to union members being able to vote without interference or constraint? Most specifically of all, do they really support and defend a system of internal democracy in trade unions, such as that in ASTMS, in which less than 2 per cent. of the union's members vote for that union's governing body? I hope that these questions will specifically be answered by those noble Lords who speak against the Bill this afternoon. I fear that they will not be.
The case for the Bill is surely self-evident. It meets a need that has been voiced time and time again by members of trade unions, and time and again it has been ignored by their leaders. The vast majority of union members want the rights which this Bill will give them. They voted for this Bill overwhelmingly in the last election. They have supported its provisions in opinion poll after opinion poll. We must not let them down, and that is why I beg to move that this Bill be read a second time.
Moved, That the Bill be now read a second time.—(The Earl of Gowrie.)
3.33 p.m.
Lord McCarthy: My Lords, I like to begin, as the House well knows, by saying what I can say in favour of the Government, and it will not take very long. I should like to congratulate them on the title of the Bill. At last we have finished with Employment Bills. We had the first trade union Bill which was called an Employment Bill, and the second trade union Bill which was called an Employment Bill—and all the time the level of unemployment rose—and now we have the third trade union Bill and at least, thank the Lord! it is called a Trade Union Bill. It is half right in that, because of course it is not just a trade union Bill. Like the first two trade union Bills, it is an anti-trade union Bill.

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This brings me to a number of preliminary points of a general kind that I want to make, and I must make them quickly because the noble Earl has incited me to go into details. He wants to know in terms what we find wrong with this Bill. So I cannot spend too much time on the preliminary points, because I should like to go into very great detail in terms about what we find in detail wrong with this Bill. But it is necessary to make a number of preliminary points.
The first point is that there is a link, as the noble Earl said, between this Bill and the 1980 and 1982 legislation. This is a further assault on trade union rights. The central point to grasp is that the Government, even without this Bill, have already gone far beyond the most that was proposed by—if I may mention the name—the Heath Government. Their legislation, without this Bill, already restricts trade union rights far more than the 1971 Act intended to restrict trade union rights. They have also already gone far beyond what was done at any time since 1906.
They have made it actionable to enforce UMAs and fair lists; they have made secondary picketing actionable; they have made secondary action of all kinds actionable. Most important of all, they have narrowed the definition of a "trade dispute", so that it covers simply a dispute with one's own employer about one's employment conditions; and, of course, they have made trade unions liable for the acts of their agents outside these narrowly defined areas. All these things have been done before this Bill comes before the House. That is the first point.
The second point is that we can no longer say that employers will not use the existing legislation. I do not know what the noble Earl thinks is proved by the rash of 20 or 30 cases that have been brought under the existing legislation. I do not know what he thinks it has done for industrial relations; what it has done for jobs. I do not know what he thinks it has done for the employers who, as often as not, have abandoned the action halfway through. But it has undoubtedly very considerably added to uncertainty, and I should say that it has significantly added to the deterioration in industrial relations of the past four years. But we cannot say that the legislation will not be used. We cannot say what the consequences will be when it is used. It is ticking away like a time bomb. That is the context in which the Government propose some more.
That brings me to my third point, because the present Bill is only part of a process which continues. A further Bill is promised next year, and if we are to believe what we are told it will deal with the right of strike in emergency services. That will be only the fourth anti-trade union Bill. There will be another and another, if we are to believe what the Prime Minister said as she was reported in The Times of 12th December 1983. She said that a trade union Bill will be required in alternative years "until we get it right." So long as there is a trade union left standing, we shall continue to legislate until we get it right.
That brings me to a question which I should like to ask the noble Earl. What is it that must be got right? Is it the reform of the trade union movement—and what will it look like when it is reformed—or is it the destruction of the trade union movement? The Government have said in relation to this Bill that they

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wish to hand the unions back to their members. In what state? In what condition will they hand back the unions to their members when they have finished with them? It seems to me that it is a little like the state in which the Goths handed the mutilated daughters and dead sons of Titus Andronicus back to him, in a position in which they could do no more harm to anyone because they were not in one piece. Is that the thing which must be got right? Must the trade unions be destroyed or, if not, how will we know when the Government have had enough of this and when they can look at the trade union movement and say, "That will do"? It seems to me a reasonable point to ask.
That brings me to my last preliminary point, which is the difference between us and them. There is another question which I should like to ask the noble Earl. We still believe that trade unions have a useful function to perform. Do the Government believe that? We still believe that the employment contract remains a dependent relationship, whatever the level of employment or unemployment, and that workers therefore need the right to combine effectively to match employer power. That has been believed by Conservative Governments since 1876. Do the present Government still believe it? And, if so, are the trade unions to be left with any legal rights at all?
Quite apart from the economic argument for trade unionism, we still believe that there is a democratic, pluralistic argument. We believe that the trade union movement is one of the most important centres of non-state power—which is not in the hands of the establishment. For that reason we believe that it is a cornerstone of a democratic society, and for that reason we believe that tyrants at all times have sought to destroy it. Is that what the Government believe? If so, will they say so? And will they tell us when they will leave the trade union movement alone?
Therefore, I turn to the three parts of the Bill. I heard and noted down the noble Earl's definitions of the three functions of the Bill. I have three slightly different ones. First, it seems to me that the purpose of Part I of the Bill is to impose upon all unions rigid, impractical election models which will lay them open to endless litigation. That is the purpose, if people mean what they write, of Part I of the Bill. It is contrary, we argue, to the ILO Convention which the Government have signed.
The purpose of Part II of the Bill is to impose restrictions on the right to use official strike action by a similarly rigid model, including what I find the most noxious and detestable part of the Bill: what I call the intimidation provision, Clause 8(4), which I would argue is unique in strike legislation anywhere—the infamous intimidation provision of subsection (4).
The third aim of the Bill, in Part III, is to curtail the right of unions to express views of all kinds in areas of social and political controversy and most notably to do this in the case of unions which do not have political levies—unions like NALGO which in the past we thought, were allowed to express opposition to Government policy if that Government policy, they thought, affected their employment opportunities. But as we read it—and we shall be glad to be told we are wrong—their political rights will be denied to them as

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a result of Part III of the Bill. As I say, all these points are advanced in the name of democracy.
Now let me say something about the general arguments which have been advanced for all three Parts of the Bill and the comparisons which can be made between what the Bill proposes for trade unions and what exists for other organisations, in particular for limited companies. What strikes one about the arguments which have been used, and they have been used from the Dispatch Box on the other side of the House this afternoon, is their excessive generality. Phrases like "malpractice" are bandied about in relation to Part I of the Bill. Phrases like "an erosion of public confidence" are published in the Green Paper. "Forgery, ballot rigging and other corrupt practices", we are told, abound. Speaking in another place on 8th November, reported at col. 160 of the Official Report, the Secretary of State for Employment referred to the present "scandalous position in some of the largest unions".
Whenever statements of this kind are made one can be certain that no examples will be given, unless of course—and I shall come to this—one goes back to Goldstein. I thought the day was gone when anybody would go back to Goldstein. I have not given a student Goldstein for 30 years. Goldstein was destroyed by Roberts, Clegg, Undy, Martin, Edelstein, Daniel. Goldstein was finished 30 years ago. Goldstein examined one branch. He took no notice of workshop organisations. In fact, it was one of the first systematic studies of industrial relations, but it should not seriously be trotted out today. If the noble Earl wants to quote books, may I ask him to allow me to give him a slightly more up-to-date book list?
So what we have had are generalisations. There have also been generalisations about Part II. There have been still more general references to "union militants" and to "drumhead mass meetings", but no examples have been given. It is even worse in relation to Part III of the Bill which deals with the levy. As to Part III of the Bill, concrete examples are included in the annual report of the certification officer. If there were any examples of any individual trade unionists who had been imposed upon, discriminated against, let alone dismissed or not allowed entry into a job, they would be contained in the annual report of the certification officer, because in this single respect we have had since 1913 effective legislation to deal with all kinds of discrimination relating to the political levy. What do we find? We find that in 1982 the certification officer had 23 cases and that in 1983 he had 22 cases. That is the degree of escalation which took place. In that year the certification officer did not even have a formal hearing. That is the kind of evidence which is being put forward. As for union elections, since Goldstein was trotted out, I should have thought that the ETU case would also have been trotted out. The ETU case was the last major scandal in union government. It took place in the mid-1950s. If therefore Goldstein can be quoted I should have thought that the ETU case could also be quoted. No concrete evidence has been put forward since that time.
I come to the comparison with other bodies. This is the point which the noble Earl made in his own speech. I should like the House to consider first the election system which is being imposed upon trade

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unions: universal, periodic, direct elections by ballot, with no form of indirect election being allowed. Secondly, think of what is being done about the use of sanctions. A ballot has to be held. Even if the ballot is held under the provisions of the Act, the immunity lasts for only four weeks. As I have already said, there is this particular clause in the Bill which we find offensive. Then let us consider the spending of money on political purposes and what has to be done now under the 1913 legislation in order to spend money on political purposes.
Now let us consider the position in other institutions—for instance, limited companies. Let us consider the statutory, regulated professions. Let us consider institutions like Lloyd's, or the Stock Exchange, or the Oxford and Cambridge colleges, or employers' associations. Let us examine even Parliament itself. All of these organisations have a special position in law. They all have various kinds of what the noble Earl calls, when they belong to trade unions—but only when they belong to trade unions— "immunities". Yet they are all to be allowed to continue to enjoy mixed systems of decision-taking. They are all to be allowed to appoint people ex officio, if necessary, who will have votes but who will not be directly elected by all the members or shareholders of the organisation.
Look at Parliament itself. The Prime Minister, most notably, selects her own Cabinet—and no one doubts that if she does not like them, she dismisses them, They are indirectly elected. But what is good enough for Parliament is not good enough for the Transport and General Workers' Union. All those institutions subscribe to what one might call the delegate rather than the referendum theory of democracy. Almost exactly the same arguments which are used by parliamentarians against the referendum and against the plebiscite can be used against the ballot. Parliamentarians are very fond of saying that they know they represent their constituents and that they can be permitted to elect people to committees, sub-committees, Cabinets and government. They say that if they want to vote on important matters, they will put their hands up or march through lobbies and everyone will be able to see what they do. They say that they do not need secret ballots, referenda or plebiscites because they believe in indirect systems of democracy.
Only trade unionists are not allowed to have such a mixed system. Yet if one looks at all the institutions that I have listed—if one looks at Oxford colleges, at employers' associations, at corporate bodies or companies—I submit that the trade union movement has far more direct elections of far more posts, far more regularly, and makes much more use of this despised plebiscitory system that those other powerful organisations that I have mentioned.
Let us turn to politics. If one includes professional bodies, it is true that the BMA engages in politics and that the National Farmers' Union engages in politics. We do not expect them to have a levy—of course not, because they are not trade unions. Let us look at limited companies. I must say that I have always had a soft spot for the present Secretary of State for Industry. He is a man to push his luck. Asked before

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a House of Commons employment committee recently:
"Would you say why there should be any legal regulation on trade union political expenditure?",
he actually replied:
"It puts it on a footing alongside companies who are also required to report and regulate their political expenditure".
I believe that something similar was said by the noble Earl.
A man from Mars would think that companies were required to have a ballot to pay a levy. A man from Mars would think that companies were required to give their shareholders the right to contract out. A man from Mars would think that there was a clear definition of what is to count for a political purpose, and that if companies did not have a separate fund committed to their purpose they could not spend a farthing on politics. If trade unions were to be put on a footing alongside companies, what would that mean? It would mean, for example, that Mr. Moss Evans could give as much money as he wanted to the Labour Party from his general fund as long as he could get it through conference, because that is the position in corporate bodies.
So I come to my general criticism concerning the practical consequences of the three Parts of the Bill. Part I of the Bill will require the total rewriting of all union rule books in order to conform with its provisions. There is no union today that carries out the provisions of Part I of the Bill. It will mean. I would argue, that no union could have geographically-based branches, because if one has geographically-based branches, one cannot have equal access to vote.
It will mean in every union an uncertain and unpredictable change in the existing power balance. That is what happens when one moves away from one system of election to another. It will almost certainly mean an increase in factionalism in every union. There is an irreversible connection between the number, regularity and type of elections and the degree to which unions divide factionally. So those unions which so far been free of factionalism—such as the GMBTU—will become factionalised.
There will also be the endless chance of legal challenge on minor infractions which have no effect on the result. In this respect, Part I and Part II of the Bill are worse than parliamentary legislation. As I understand it, in parliamentary elections, if there is some minor infraction of parliamentary law in the course of an election, provided it can be shown that it has no significant effect on the result, then no case will be sustained. That is not so in this Bill. There is nothing in this Bill—in Part I or in Part II—which states that even minor technical infractions cannot lead to the upsetting of an election. That is the consequence of Part I of the Bill, and that is my particular argument against it.
But Part II of the Bill creates very similar risks of legal action by employers and third parties, and threats of interlocutory injunctions. There will almost certainly be an encouragement to take unofficial strike action because officials cannot become involved unless they can first ensure that they will be able to hold a ballot. There will also be endless problems for trade unions in getting an up-to-date register. Because of the

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spread of the check-off, the creation of an up-to-date register for strike purposes will depend almost entirely on the good will of the employer.
If the employer does not co-operate (and why should he?) in providing the union with an effective, up-to-date register then the ballot will be unlawful. There will also be difficulties with negotiating beyond the four-week limit. Even if there is a ballot achieved within the limits of the law, then, unless there is a strike, the immunity which the ballot provides runs out after four weeks and there has to be another. Finally, there is the discrimination provision in Clause 8(4). this says that one must place upon the ballot paper the question, "Are you prepared to take part in a strike involving a breach of contract?". That is what it says.
It is as though when one enters a hospital for an operation, one would have to sign a piece of paper that asks '"You realise, of course, that you may die on the operating table—don't you?" Or as though, when you flew British Airways, you had to sign a form which asks, "You do realise,—don't you?—that these planes can fall out of the sky?" This is the kind of intimidation provision which the Government have put into the ballot. There never was a ballot such as this.
Part III of the Bill, as I have said, could mean the loss of some union funds, in the event of the ballot not being successful. I myself do not believe that that is very significant. More significant is the wider definition of what is to count for political purposes (and we shall be saying more about that in Committee) and the fact that, as a result, unions which do not have levies or political funds will not be able to engage in a wide range of political and social activities.
The final point I should like to make relates to the comments made by the noble Earl at the end of his speech about public opinion. The noble Earl said that public opinion was in favour of the Bill. Indeed, he said that the Government actually won the election on it—or that it had been part of their election manifesto. It is not my job to go through all the statements made in the Conservative Party election manifestos, and to ask how far the Government have achieved them or not. I would rather turn to what the noble Earl said about public opinion polls.
It is perfectly true that there have been public opinion polls supporting this Bill, or apparently supporting this Bill. There was a public opinion poll published most recently in the Sunday Telegraph. It was produced by the Gallup organisation, when 993 electors were asked last August questions which purported to be about this Bill. In another place, the Government have made a great deal of this Gallup poll. It suggested that 88 per cent. of the sample approved of electing leaders by ballot and that 83 per cent. agreed that no strikes should be called without a postal ballot. Some 52 per cent. approved of the Government's plans to reform trade union law. The only trouble was that the first two questions were not really straight questions on the Bill. The Government are not asking you to approve the election of leaders by ballot; they are asking you to approve of banning indirect elections whether they are by ballot or not. That is quite a misleading question to ask the public.

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On the second question, 83 per cent. agreed that no strikes should be called without a postal ballot. The Government are going far beyond that. They are prescribing the form of the ballot and including what I call the intimidation provision. Nobody asked questions about that. As for the 51 per cent. who favoured a secret ballot on whether the unions should pay a political levy to the Labour Party, of course you have to have a ballot to pay a political levy to the Labour Party. That is not what the Bill proposes. It proposes that there should be a ballot every 10 years on the basis of a much wider definition of what is to count as "political".
These are not balanced questions. They are not the right questions to ask. They do not prove what public opinion thinks one way or another. In any circumstances it is rather strange for this Government to quote public opinion polls at this particular juncture of their fortunes. I seem to remember that there was a public opinion poll with a majority against the use and establishment of cruise missiles in this country. There was a public opinion poll recently which said that we should get out of the Common Market. There was a recent public opinion poll which by a substantial majority said that the Government should stop their attempts to abolish the GLC. I do not hear of the Government deciding to change their policies for reasons of that kind. Therefore, it is not very persuasive for this Government to quote the public opinion polls.
In conclusion, I should say that we take the attitude we do, not because we believe on this side of the House that there is nothing wrong with trade unions or that nothing needs to be done to change them. Indeed, if your reading extends beyond Goldstein you will find in a recent book by Undy on trade unions that a very great deal of change is taking place within trade unions—some good and some bad. What we believe about British trade unions, and what we seek to express from our side of the House, and where we differ from the other side of the House, is that we think that British trade unions are, above all, British. They have the same mixture of myopia and morality which distinguishes all British institutions. They are no more obstinate than the Civil Service. They are no more incompetent than big business. They are no more ruthless than the BMA. They are no more devious than the National Farmers' Union. They are no more narrow and sectarian than the Oxford and Cambridge colleges. I sometimes think that there is great similarity there. I sometimes bore my friends with the similarities between trade unions and Oxford colleges. I could go on for hours about the similarities between the Transport and General Workers' Union and Balliol, but I shall not. Trade Unions are just as sectarian as colleges, but no more so. They are just as inefficient as Parliament. Union leaders are no more corrupt than political leaders, and at least as sober as journalists. Therefore, they do not deserve to be harried and pursued in the name of a half-baked Hayek view of this economy, just because the Prime Minister must get it right.
4.3 p.m.
Lord Rochester: My Lords, from these Benches I should like to thank the noble Earl, Lord Gowrie, for

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the characteristically clear way in which he has placed this Bill before us. As the noble Lord, Lord McCarthy, has just reminded us, it has been said that the Bill's underlying aim is to give trade unions back to their members. As an objective, that certainly has our support. However, as I will endeavour to explain in outlining our general reaction to the Bill's three main parts, we think that there are provisions in it which may go too far. There are others which do not go far enough and others, again, which, although acceptable in principle, may in practice and in our fears prove to be counter-productive.
I turn first to Part I dealing with secret ballots for trade union elections. We are in agreement with the proposition set out in Clauses 1 and 2 that at intervals of not more than five years every trade union member should have the right to vote by secret ballot in the election of the union's governing body. We have doubts on two points. The first revolves round the question of the alternative approach set out in paragraph 54 of the Green Paper, Democracy in Trade Unions, which your Lordships debated in March last year. This was that union members should be allowed to decide democratically whether they preferred arrangements other than those now incorporated in the Bill for the election of their governing body. Specifically, it was suggested that established systems of indirect voting might be held better to reflect members' needs and the diversity of interests of the membership. Thus, if a majority in a secret ballot periodically confirm their support for the existing arrangements, other statutory requirements would not apply. If that were the outcome of such exercises, would it not have the advantage that nobody could then claim that arrangements were being imposed on union members from outside against their wishes? If, on the other hand, the members indicated in the ballot that they preferred the arrangements set out in the Bill, would not that strengthen the Government's hands immensely because implementation of their proposals would then have been shown to be willingly accepted by those immediately concerned? At this stage I simply ask these questions.
The second matter arising from Part I that I should like to explore further is quite different from the first. Having regard to the various means by which it has been claimed that working place ballots are open to abuse, are the Government satisfied that, in its present form, Clause 2 goes far enough? To put the question more bluntly, has the time come, despite the attendant practical difficulties—I, for one, do not underestimate those difficulties—to insist on the establishment of the statutory machinery needed to make more extensive use of postal ballots for union elections?
I turn next to Part II and in particular to Clause 7. This is the clause which removes from trade unions immunity from legal action if they do not hold a ballot before authorising or endorsing industrial action which has the effect of interfering with the performance of the contract of employment. Immunity is also to be removed under the Bill if the ballot is held more than four weeks before the industrial action begins. Let me first make it plain that my noble friends and I endorse wholeheartedly the principle underlying this Part of the Bill. However, we are seriously concerned

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lest the effect of Clause 7 proves in practice to encourage even more unofficial action than there already is in the form of walk-outs, working to rule, going slow, and so on.
I recall from my own experience how in many cases such actions start spontaneously as a result of some relatively small incident. The personnel manager—I was once one—phones the local union official and asks him to help sort things out. My fear is that in future the union official will be reluctant to respond to such calls lest that should be interpreted as endorsement of the unofficial action and result in the union being sued. Similarly, I fear that the effect of the provision removing immunity if a ballot is held more than four weeks before industrial action begins may be that ballots are held prematurely and that attitudes will then be struck which will increase the likelihood of the action taking place.
There may be other practical problems, including the danger that, if in every case there is a requirement that ballots are held before strikes begin, there will be a corresponding insistence by trade unions that ballots must take place also before strikes are called off. I could go on, but it would be more appropriate clearly to do so in Committee. It is pertinent, however, to observe that the means now chosen to remove immunity did not feature in the Government's Green Paper, so that there has not been the same degree of consultation concerning the merits of this particular proposal as applies to other provisions in the legislation.
I come now to Part III of the Bill concerning political funds and objects. For our part, until such time as there is a fundamental change in the way in which political parties in this country are financed, we see no reason why trade unions should not operate a political fund if by secret ballot at periodic intervals they elect to have one. What is in our view insupportable is that it should then be assumed that all contributions to the fund should be used for the benefit of a particular political party when it is evident—for example, from the outcome of last year's general election—that there are many union members who wish to support not that party but other political parties, or perhaps none at all.
Indeed, it was with that consideration, among others, in mind that my noble friends and I voted for an amendment in the 1972 Employment Bill which would have had the effect of substituting "contracting in" for "contracting out". Had that amendment been incorporated in the Act, it would at least have become easier for effect to be given to the views of union members not wishing to support the Labour Party.
In our view there needs to be a much more even-handed approach as between contributions made by individuals to trade unions and those made by companies to a political party. In saying that, I am aware of the differences between the two cases—for example, in the scale of funding and in the degree of regulation of companies that already exists, as the noble Earl, Lord Gowrie, has today reminded us.
It has, nevertheless, been encouraging to note that in another place at the Report stage of the Bill on 2nd April, the Conservative Member who sought to introduce a new clause having the effect of substituting

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"contracting in" for "contracting out" was principled enough to acknowledge—I quote from column 724 —that if they (that is the Opposition):
"would vote for contracting in, I would positively campaign to change the law with regard to political donations by companies".
We on these Benches consider that there is an urgent need to find ways of financing political parties in this country which are different from and fairer than those that now exist. There is not time to speculate now on what form such changes might take. In any case, it seems that this Bill could not be amended to incorporate them, for it has to do with trade unions alone. This is nevertheless a matter on which your Lordships will see that we feel very strongly.
That brings me to the last point I want to make. Unlike the 1982 Employment Bill, the title of this one is so tightly drawn that we shall not be able to remedy, even to the small extent that was possible in the 1982 Bill, what in this one, too, is in our view its greatest defect. That is the absence of any provision at all positively to improve human relations or to bridge the gap between "us" and "them" in British industry. The noble Lord, Lord McCarthy, has already referred to that concept. Had this Bill afforded us the opportunity to develop our own step-by-step approach to increasing employee involvement by making it a statutory requirement that in both the public and the private sectors every organisation employing more than a certain number of people should establish consultative bodies of some kind, we should certainly have taken that opportunity. I should emphasise that we are not believers in so-called single channel representation. On the contrary, in our view legislation should provide for membership of such consultative bodies to be open to all employees and not be confined to trade union members alone.
I do not apologise for dwelling on this theme, for in our view it is highly relevant to the philosophy which should underlie all legislation affecting industrial relations, Indeed, I was heartened to learn last week that the British Institute of Management had recently conducted a survey of its 74,000 members on the subject of employee participation and consultation. This revealed that, although only 8 per cent. of the respondent managers felt that the Vredeling Directive should be supported, United Kingdom managers would be prepared to accept a broad requirement for participation procedures. Only 21 per cent. of the respondents felt that there should be no further legislation in the United Kingdom, and managers believed that a combination of minimum legislation and voluntarism would help to develop the process of giving more information to employees and of consulting them more often. In the Bill before us there is no evidence of any such vision, and that we greatly regret.
4.17 p.m.
Baroness Cox: My Lords, along with countless others, I welcome legislation which is intended to help trade unions to become more democratic. I particularly welcome initiatives designed to ensure that trade union leaders are representative of their members and more responsive to their wishes. To the extent to which this Bill is designed to achieve these goals, it has my unequivocal support.
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The key to bringing about more democracy in trade unions lies in the mechanism for the election of union executives. In the debate in another place, the Government professed a commitment to giving trade unionists the right:
"to vote without interference or constraint, to have a voting paper supplied to them, to have a fair and convenient opportunity to vote at no cost, in secret, and to have these votes fairly counted".
That commitment is surely entirely commendable, but, unfortunately, in its present form the Bill has deeply disappointed very many moderate trade unionists because of the Government's decision to allow work-place ballots, instead of making secret postal ballots mandatory.
As Frank Chapple argued forcefully in Contact in March of this year:
"There is no satisfactory substitute for representative democracy in our trade unions. That representative aim means that no obstacle should be placed in the way of maximum membership participation in elections. That in turn demands secret postal ballots—the fiddleproof and secret voting method which this union has used to our members' great advantage ever since conspiratorial communist ballot-riggers were exposed in the famous 1961 High Court case. We can be proud of our scrupulous record in elections for office since that time and certain that the results continue to produce a union leadership that broadly conforms to our members' views and wishes. It is therefore all the more remarkable that the Government, which loudly boasts that it will give unions back to their members, has cold-shouldered postal balloting."
But it is not only Frank Chapple's union which, having suffered the most notorious ballot rigging in this country's trade union history, supports secret postal ballots. A recent MORI opinion poll showed massive support for secret postal ballots among trade union members—74 per cent. overall, with 71 per cent. among blue collar workers and 80 per cent. among white collar workers. What was especially striking was the overwhelming support among members of some of the largest unions: 75 per cent. in the Transport and General Workers' Union; 81 per cent. in the National Union of Mineworkers and 87 per cent. in the General and Municipal Workers' Union.
Opposition to the concept of secret postal ballots was correspondingly minimal, ranging from 18 per cent. in the TGWU to 12 per cent. in the NUM and a mere 6 per cent. in the GMWU. While acknowledging, of course the limitations of any opinion poll, the consistency of these findings and the size of the majorities cannot be interpreted in any way other than as overriding support for secret postal ballots among those most closely affected. Therefore, in my contribution to this debate, I wish very briefly to present some of the arguments in support of secret postal ballots and to show that they are desirable in principle and feasible in terms of cost and practicalities. In so doing, I will also refer very briefly to some of the dangers and problems associated with workplace ballots.
First, there are logistical problems associated with workplace ballots. For example, the returning officers or scrutineers are likely to be elected from the ranks of branch officers who may well be political activists who were themselves elected by perhaps as few as 2 per cent. of the branch membership. It is they who would be responsible for handing out the ballot papers, for counting them, and for completing and forwarding the returns to head office. They would thus be in a key

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position to take advantage of any loopholes in the system. Such loopholes may take various forms, ranging from the so-called "putting to good use" of ballot papers, which for one reason or another may not have been completed, to manipulating the meetings at which voting takes place. I give two examples of ways in which such abuses can occur—and I note that there was earlier a request for examples.
First, in a large complex of buildings or in split site organisations, it is very easy for those handing out forms to miss out some voters—and people rarely complain if they do not receive voting papers. It may therefore be relatively simple for a dishonest official to keep back some forms, especially if the distribution is done at an awkward time. There is an additional danger that some trade union members may not receive notice of meetings at which voting is to take place. Such things have been known.
Secondly, there is the fact that as many as 50 to 60 per cent. of people throw their ballot papers away. If this happens at the place of work, it is legitimate to ask what happens to these papers. Members of the electricians' union have pointed out, on the basis of their own experience, that the Government's present proposals provide no protection against ballot papers being "put to good use" if they are collected after being discarded.
The Aims of Industry publication, Trade Union Bill is Ballot Riggers' Charter, claims:
"In last year's ballot in NALGO, where the papers are issued in bulk to branch secretaries for distribution at the place of work, one member boasts of having cast 129 votes; his main strategem was going round the waste paper baskets and filling in discarded ballot papers."
In addition to such logistical problems, there are also problems arising from the psychological pressures which may be brought to bear on people who have to vote at their place of work. It is easy for politically motivated officials to arrange things so that contentious issues may be discussed at a meeting on the day of the ballot and for voters then to have to complete their ballot papers in the immediate presence of those same officials. For example, in the Civil and Public Services Association elections in 1983, branch officers held meetings in different rooms, harangued members and then held the ballot in that emotionally charged and politically pressured atmosphere.
It is problems such as these which make it so important to provide for secret postal ballots in which members can vote in the privacy of their own homes, free from pressure. However, as the Government have so far decided in favour of workplace ballots, it is important to consider their reasons for so doing. These seem to fall into four categories. First, there is the turnout of voters. Secondly, there is the possibility of rigging postal ballots. Thirdly, there is the cost and the related fact that insistence on postal ballots would force change on unions which already have adequate balloting systems. Fourthly and finally, there is the public's alleged satisfaction with the idea of workplace ballots. However, consideration of each of these still shows evidence and argument in favour of secret postal ballots.
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If I may, I will speak very briefly first on the question of turnout. It is true that some of the highest figures for turnout have been found where voting is organised at the workplace. In the Scargill election of 1981, turnout was claimed to be 80 per cent. of the NUM's membership, but that was hardly typical and took place in the glare of full media coverage. The second highest level of voting in recent elections was found in the CPSA's first election for full-time officers, with a turnout of almost 40 per cent. But that level dropped in 1982 to 30 per cent. for executive elections.
However, unions which already use postal ballots tend to have levels of participation similar to the CPSA's 1981 level. The electricians achieved a 32 per cent. turnout in their election for general secretary. Also, according to the certification officer's report for 1983, 15 unions applied for refunds of expenditure after holding secret ballots. In the 20 ballots involved, the average percentage polled was the impressive figure of 47 per cent. When the Engineering section of the AUEW changed from branch ballots to postal ballots, turnout rose by over 100 per cent. according to Undy and Martin's recent book, but other sources suggest it was as high as a fivefold increase.
So postal ballots do not fare badly in comparison with other forms of balloting. Turnout should not be used as a decisive argument against them. This fact, combined with the advantages they bring in terms of freedom from pressure and the reduction in the loopholes for malpractice, must surely mean that they deserve very serious consideration unless other contra-indications are overriding.
What might those contra-indications be? Some of the main arguments relate to cost. However, the experience of the electricians' union has shown that, far from being a drain on resources, the establishment of the modern, computerised, central register of members required for postal ballots not only eliminates malpractice. It has also streamlined procedures, cut down on administrative costs, saved millions of pounds in subscription arrears and provided a better service to members. Yet another advantage is that the percentage of members not included on the register is kept to only 2 to 4 per cent., thus enabling at least 96 per cent. of members to have the opportunity to vote by receiving a ballot paper at home.
Other experienced trade unionists have argued that the cost of setting up computerised membership records would be recouped over and over again by more efficient collection of membership dues. For example, at a minimum contribution rate of 50 pence per week, every 1 per cent. in arrears costs an organisation of 100,000 members £25,000 per year. It has been estimated that the reduction of arrears in the electricians' union from 1976 to 1983 resulted in savings of millions of pounds.
Another argument used is that if the Government were to insist on postal ballots, some trade unions which already have democratic systems would be required to change them, with no obvious advantage. But. as Undy and Martin point out in a recent book,
"Legislation which enforced either postal or workplace ballots would, however, still require extensive changes in union rules".

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That point has already been made in the debate. Therefore, it is recognised that changes are going to be required, of most unions anyway, in order to comply with the proposals of the Bill as they now stand. It thus seems anomalous not to take advantage of inevitable change by implementing systems that would be as democratic and as safe from malpractice as possible.
The third type of counter-argument consists of allegations that postal ballots are themselves vulnerable to rigging. In the debate in another place the point was made that in the notorious case of ballot rigging in the electricians' union it was a postal ballot that was fiddled. However, that is a misrepresentation. It was only partly a postal ballot. Ballot papers were not issued to individual members by an independent body, but were issued in bulk to branch secretaries, thus giving a loophole for rigging. Nowadays the EETPU, among others, uses the Electoral Reform Society for the administration and counting of its ballots.
The final example of arguments used against postal ballots refers to the claim that the public generally has confidence in workplace ballots and that there is no widespread feeling in favour of postal ballots. However, there is plenty of evidence to suggest that this is not the case. I have already referred to the opinion poll that found overwhelming support from trade unionists for secret postal ballots. There have also been strong representations in the press from moderate trade unionists expressing dismay that the Government are losing this opportunity to enforce secret postal ballots. For example, Mr. Cottingham, the national treasurer of the Association of Social Democratic Trade Unionists, wrote in The Times on 26th March this year:
"Is it therefore another example of this Government losing its grip that it has allowed the most significant reform of all—the mandatory secret postal ballot—to be dropped from its proposals? As Frank Chappie, of the electricians' union, has stated, the alternative workplace ballots 'are too easily open to intimidation of the voters, to improper use of discarded ballot papers, to phoney returns and a variety of other illicit behaviour'. The Government has already promised the cash to cover the cost of this reform and other moderate leaders, such as Terry Duffy, should have their hands strengthened by firm legislation to give all union members the right to vote in the privacy of their own homes".
Moderates from eight different unions writing in The Times in December 1981 made an impassioned plea for secret postal ballots for the election of union executives. They claimed:
"This is a measure which is impeccably democratic and one which the majority of the people of our country would wholeheartedly support and certainly not regard as a policy of confrontation with the unions".
In conclusion, when all the arguments are considered, it is my belief, shared by many other people across the political spectrum, that this Trade Union Bill, with all its good intentions, will be selling the country short if it does not make the use of secret postal ballots mandatory for the election of the governing bodies of trade unions. The arguments for secret postal ballots are irrefutable at the level of principle. Those concerned with practicalities can, as I have tried to indicate, be met. Such a measure would bring relief to moderate trade unionists up and down the country, who are at present dismayed and disappointed, and it would receive widespread public support as being essentially democratic and virtually

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irreversible. It would indeed be a brave, or a totalitarian, Government who would try to take away this right once it had been granted.
It is therefore my sincere hope that your Lordships may consider these arguments sympathetically and that any subsequent proposals for an amendment on these lines might receive the strongest possible support from all parts of the House. Such an amendment could make a vital contribution not only to the economic wellbeing of this country but, more fundamentally, to the protection of democracy and the preservation of the freedom of the individual.
4.35 p.m.
Lord Scanlon: My Lords, the audacity and panache with which noble Lords are today enunciating principles to be applied to others that they would themselves regard as anathema is truly breathtaking. Leaving aside for the time being ILO Convention 87, personally I have no objection whatever not only to the principle of ballots, but also to the principle of postal ballots. As one who has spent 34 years as a full-time officer, never going more than 12 months without either fighting for my survival or seeking to go up the trade union ladder, I can pay respect to those principles. But, before we praise them too highly, let us look at some of the underlying facts.
Prior to the postal ballot, in my own union, I was elected president of that body by the highest vote that has ever been cast in the branches—and that was 12 per cent. of the electorate. Twelve per cent.! We changed to postal ballots. I know that the noble Baroness, Lady Cox, said that our figures had doubled. Well, twice nothing is still nothing. We increased our potential voting to 30 per cent. by postal ballots. It meant that we not only had to send out 1·5 million envelopes to every member, but also had to enclose a prepaid envelope for return. All that the members had to do was to put a cross on the ballot paper and return it. Seventy per cent. decided that they would not do that. And before your Lordships rush in and condemn them, may I ask, how many shareholders turn up at the annual meeting of any company? One per cent.? Two per cent.? I can perhaps tell your Lordships that when they turn up, it is when something is going wrong. Exactly the same happens in trade unions.
Why do we stop at the governing body when talking about ballots? I do not know. One of the most important aspects of trade union activity involves the local official. Is it because the governing body may feel constrained to dismiss that person if legal action is taken under Part II of this Bill—is that the philosophy behind leaving out the election of local officials by postal ballot? 1 do not know whether it is or not. The principle of being responsible to, and being able to be dismissed by, the members is one that will receive my personal applause, but not if it is brought about by some legalistic manoeuvring. It will receive my applause if and when, or as and when, the members of any individual union decide that that is what they want. I would hope that if anything was done, it would be to encourage unions to go in those directions.
Goodness me, the battle of amalgamation has been around us! We would have had more amalgamations and less variety of unions within each industry but for the principle that has divided the trade union

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movement: should officials be appointed or elected? I tell your Lordships now that if you think that you are going to get passive trade union officials as a result of postal ballots, you are making the greatest mistake of your lives. Come a crisis at the time of elections and it takes a very brave man indeed to take the correct rather than the popular action. This is one of the dangers which is inherent in the legislation which is presently before us.
It has been said that today is not the time to go into detail, and certainly I agree with that. I will say only this of Part II. The principle in Part II is no different—the question of a ballot. But many—and I include myself—resent very strongly the implication that somehow trade unionists en masse are moral cowards, unable or unwilling to hold up their hands as to how they want a particular vote to go. In many instances it is not possible to hold a ballot if one wants a quick decision of the members about what to do. How would one go on if a shop steward has been blatantly victimised by an unscrupulous employer? Does one go through all these legal niceties? There is no provision in procedure, because procedure never mentions victimisation; it dare not. All these things are going to get us into considerable legalistic difficulties, which is always the way when legislation is involved in trade union matters.
I say no more regarding Part III. I call a spade a spade. In my view it is blatant political gerryman-dering, a legalistic excuse for financially bankrupting the Labour Party. We may as well see it in that setting, and I am sure more will be said on this during the Committee stage. Yet the sum total of all that has been said, the sum total of all the objections that can be voiced in your Lordships' House, is relatively in-significant compared with the well-known recognition of this Government's paranoic detestation of the trade unions. This is what lies at the back of it. If the 1980 Act does not result in an innocuous trade union movement, the 1982 Act will; if that one does not, the present one will; and if this one does not, there will be further Acts. Surely the time has come when we have to ask ourselves,"When is it going to stop"?
It is not an exaggeration to remind ourselves that the classical way the enemies of democracy seek to destroy democracy is first of all to destroy the trade union movement. It happened in Spain; it happened in Germany; it happened in Chile; it happened in Greece; it happened in many of the Latin American countries, and if we are not very careful it is going to happen here. We on this side of the House are determined that that shall not be.
4.43 p.m.
Lord Ferrier: My Lords, I find it very interesting to follow the noble Lord, Lord Scanlon. I find his speeches always well worth listening to and entirely audible. I should like to take up his point in suggesting that this Government suffer from paranoic detestation of trade unions. I dare to differ from him; this is not the case. Speaking as a life-long Conservative, I want to say that we must have trade unions. As has been mentioned already, the object of this Bill is to get it right. I go so far as to suggest that if the Labour Party is in difficulty today the blame lies very largely with the

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trade unions because the man in the street and the woman in the street are fed up with the trade unions, not because they are trade unions but because of the way they have been run. Are we not suffering from it today? I am not talking about the trade union system, the trade union principle, which is absolutely essential to a democratic economic framework; but, with due respect, about the way the trade unions have found themselves being manipulated by stipendiary administrations. When I say "stipendiary" I am talking about the enormous wages now earned by the leaders. I imagine they are out of all proportion to what the noble Lord, Lord Scanlon, earned when first he took an official position in a trade union.
This Bill is designed to implement the Conservative Party's promise—and it was a promise—to give trade unions back to the members. That is what it is all about. For that reason it has my ungrudging support and I hope it will be followed by further steps, as promised, on and on to ensure that the promise is kept to the full. This is not union bashing; this is an attempt to get it right.
One could spend a lot of time speculating on what alternatives lie open to us, but this is not the occasion for such speculation other than to say that the major problem that faces industry in this country today may well be that the craft unions are outmoded. It may be that we ought to be planning for industry-wide unions, and I find it extremely interesting to see the terms which Japanese entrepreneurs propose as essential before they will start factories in this country. If this Bill is an attack on anyone it is an attack on some of the present generation of trade union officials. The struggle for freedom has turned full circle and the freedom which the trade union movement rightly slaved for and suffered for in the years gone by is now a freedom for which the. man in the street has got to turn to in order to free himself from a dictatorship.
My mind goes back to the debate that we had on 1st December proposed by the noble Lord, Lord Harris of Greenwich. I was surprised to be given a glimpse of the proceedings of a trade union direction. I will not say that the curtain of which the noble Lord, Lord Dean of Beswick, lifted a corner disclosed the workings of a thieves' kitchen, but I will say that it disclosed a planning system for blackmail. If we are not suffering from blackmail today, why are there blank pages in the press? There is something wrong which has got to be put right and this Bill is the way to do it.
I should like to put before my noble friend Lord Gowrie one matter which is not a Committee matter and on which we could speak for ages. First, his speech so covered the ground that it saves me from saying much of what I wanted to say. He set out in every possible detail events which have led to today's situation, culminating in this Bill coming before your Lordships' House. I want to impress one point upon my noble friend. In the face of pressures exercised in particular by the television channels, the success of the Conservative's drive is remarkable, but it is proof of the old saying that you cannot fool people all the time. Why do news reports almost inevitably open with plugs by Bill this or Bill that? When will the opinion of the man in the street come first? Can we hear what the

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Government have in mind and what the people have in mind before we hear what Bill says?
I wonder whether any of your Lordships listened to the seven o'clock news this morning, which began with a tremendous plug for one of the largest unions, and it gave no indication of the other points to be made in the particular case. So the radio is almost as bad, with its packed panels and dubious polls. I say "dubious" polls because I remember watching a pollster in a crowded main-line station, and when I asked whether she wanted my view she said, "No, I know what you would say". So my contribution to her poll was not acceptable. There is too much of that going on over these surveys as to who are asked to give their opinions and how they are treated.
I hope that we shall give the Bill a fair wind and cry for more. I say "Good luck!" to the Department of Employment, but I beg the Government not to underrate the power of the radio and television media. Their influence is tremendously powerful and insidious. We must encourage the Government to take whatever means are available to them to rap the television medium over the knuckles.
Further, let us join with all those who wish to support the police in the struggle that they are having today to enable men to work when they want to do so. It might be wise if the Government regularly were to issue a note of the enormous cost of the policing which is taking place, which falls upon the state and the people. It is vast, and will be complicated to calculate. I know of a police officer and his police wife who are having to work an enormous amount of overtime due to the paucity of the men on the beat. So very large sums are being earned by them, and these sums must be taken into the calculation when we work out the costs of this awful wrangle.
I say, "Well done, the Government". As my noble friend Lord Gowrie said, the case for the Bill is self-evident. I repeat what I said earlier; I hope that the Government will go on and on until they have it right. It is our duty to trade union members, many of whom voted this Government into power, to ensure that the Government do get it right.
4.55 p.m.
Lord Beswick: My Lords, I suppose that we would all agree with the noble Lord who has just sat down that we would like to get it right. I am not absolutely certain that the direction in which he was pointing is the right one. I am not absolutely certain that industrial relations in this country are settled by mounted policemen and the kind of scenes which we see on the television at present. I am sure that there is a better way than that. It is a question of getting good human relations, and we must look at this Bill in that context.
In his peroration the noble Earl exhorted us to avoid generalities. I fear that he did not always scrupulously follow his own advice. But he was fair enough to invite us to give the details on which we disagree with this Bill, and I shall hope to respond to that. As briefly as possible, I want to relate Part I of this Bill to an organisation which is affected, the British Airline Pilots Association, which is commonly referred to as BALPA. The problems that they see arising from this
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piece of proposed legislation, if not amended, are shared by certain other organisations, but I take BALPA as a test case and I should be most grateful if this evening or, if necessary, later the Minister would answer some questions which greatly concern them.
One way or another I have known BALPA for about 40 years, first as a lowly member and later as a vice-president and then president. In earlier days I think it might be said that, highly professional as those members were as pilots flying aircraft, they were somewhat amateur in trade union organisation. Some individuals might well have been temperamental, but altogether they were a pragmatic lot, and by training and instinct they wanted something that worked. If one spends a great deal of one's life flying an aeroplane, one tends to have a preference for things that work. BALPA's present organisation, which is set out in the agreed rule book, has been developed to suit their needs and the present shape of the airline industry, and it seems to function effectively. The rule book of BALPA is well known to the Minister's department.
Therefore, my first question to the Minister is: what improvement to BALPA's effectiveness or sense of individual and collective responsibility will follow if the provisions of this Bill as it stands are applied to them? I put that question to the noble Earl as a direct and specific question which he was inviting. In particu-lar, in what way will the Bill's proposed procedures for election to the national executive committee be superior to that tailored by BALPA's members to suit BALPA's needs?
I make no criticism of any other body when I say that with BALPA there is no alleged complication of Left-wing/Right-wing struggles; there is no semblance of any Militant Tendency. It has been a matter of getting a proper balance between sectional interests and between the local experience and head office expertise. The results now appear to justify the retention of the present rules. Therefore, I ask the Minister to consider the possibility of some amendment which would enable individuals to decide, by secret postal ballot, which electoral system they want.
There is no question here of evading democratic responsibility. BALPA, I am told, will be quite ready to accept a requirement that such a secret ballot be held by post at stated intervals. The Minister makes a point about flexibility in the Bill, and the noble Baroness, Lady Cox, appeared to think that in Clause 2(3) the Bill was flexible enough to meet the kind of individual requirements of the kind of organisation of which I am speaking. But my advice is that that flexibility would not enable the special needs of an organisation like BALPA properly to be met. If the Minister can tell me, or prove to me, that I am wrong, then there will be many people who will be satisfied; that is to say, if he can show that the present wording provides, or can provide, adequate flexibility to enable the sort of controlled indirect elections that are now provided for in the rule book of an organisation like BALPA.
I should like to indicate the features that have emerged after much discussion, after a good deal of inquiry and subsequent monitoring, and which it

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would seem to me sensible to retain. The sectional committees are elected by individual direct ballot by section members. Presumably, this will be permitted by Clause 2(3). But that elected committee, from its number, then elects a chairman who then represents it on the central executive. Is there any sensible reason why the Government should take legislative action to stop a procedure of that kind? If there is a logical, intelligent answer to that question, I really should be grateful if the noble Earl will let me know.
That process certainly ensures proper representation of local opinion on the central executive. Other elements of the National Executive Committee are elected by the annual delegate conference, which itself is elected by ballot. Some of those who are elected by the annual delegate conference are elected by virtue of their holding a specific office. I take as an example here—the noble Earl asked for details and I give him this example—the chairman of the technical committee. Over the years I have developed the most profound respect, not to say a little awe, for the occupants of this post. They have made an invaluable contribution not simply to BALPA but to aviation generally.
Elected indirectly as he now is, the personal qualities of a possible chairman of the technical committee are intimately known to the individuals who have the responsibility of electing him. I am not convinced that the individual qualifications of which I speak would necessarily be so clearly recognised if the election was wide open to every individual member of the organisation. A similar argument could be advanced for other officers, and I shall not go into all the details but there are the chairmen of the industrial, finance and pensions committees. They are elected to the NEC by a similar indirect but basically democratic process.
I would go all the way with the Government if they were devising laws to prevent irresponsible minorities from imposing policy upon an organisation, but in fact in the case of which I speak—and I speak of this only because I happen to have personal knowledge of it—the Government appear to be frustrating the considered procedures agreed by highly responsible people. I hope to get some assurances that the claimed flexibility will actually be provided in amendments, or that the Government will look favourably upon an amendment designed to meet the sort of case of which I speak.
The Minister had an especially sparkling passage about granting individuals the democratic right to decide by secret ballot whether or not they wish to take industrial action. I am now suggesting that there be the democratic right to decide by secret postal ballot how they should elect their principal executive committee, and I look forward to hearing from the noble Earl if he will consider an amendment which will make that possible.
5.6 p.m.
Lord Renton: My Lords, the, if I may say so, moderate, constructive and limited contribution of the noble Lord, Lord Beswick, has been in refreshing contrast with other speeches we have heard from noble Lords on the other side of the House, which appear to
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me really to have been inspired by blind loyalty. I emphasise the word "blind" because noble Lords opposite have failed to face up to the dissatisfaction of their own members. Perhaps I may reply to a point quite fairly made by the noble Lord, Lord Scanlon, when he likened the Members of your Lordships' House to the members of trade unions. I think we can say that your Lordships' House works well and to the satisfaction of its Members, and so many trade unions work badly and to the dissatisfaction of their members.
I had the unusual experience of debating on Tyne Tees Television about two years ago against Mr. Arthur Scargill, along with several other Members from both sides of your Lordships' House, on the question of whether your Lordships' House should be abolished. I am glad to say that Mr. Scargill was outvoted by roughly two to one of those who were able to express their opinions.
First, I congratulate my noble friend Lord Gowrie not only on his forthright presentation of this Bill, but also, I hope without being impertinent, on the evolution of his awareness over the last four years of what needs to be done to meet the wishes of members of trade unions. I welcome the Bill, but before I refer to its contents I should like briefly, as others have done, to outline the historical background into which it fits.
I think that the Labour movement, instead of opposing the Bill, should thank the Government for saving the trade unions from themselves. The Government are performing a service to the Labour movement as such in putting forward this Bill. Of course, the trade unions have played an important part in improving the working conditions, the status, and the influence of their members. In the United States they stuck to doing just that, and did not get mixed up in party politics. As a result, let us face it on both sides, the members of trade unions in the United States have done better than in this country.
However, our trade unions decided—and had the right in our free democracy—to form and support a political party. It was acknowledged by Parliament in 1913 that the Labour Party should be largely financed by a political levy based on the principle of contracting out, and the Bill does not disturb that. So far, so good, so far as the Labour movement is concerned. But, as it developed, in my opinion two major mistakes were made which have caused the increasing difficulties, internal dissensions and falling support which the trade unions and the Labour Party have undoubtedly experienced in recent years. I shall come back to that in a moment.
The first major mistake was committing the party and the unions to socialism. When I spoke of blind loyalty earlier, it was blind loyalty to socialism which inspired the speeches which we have heard from the other side, other than that of the noble Lord. Lord Beswick. The second major mistake—and it resulted from the first one—was the practice of calling strikes with political motives, often disguised as attempts to improve wages but which hit the strikers harder than anyone. That practice has been exploited by militants. May I just remind your Lordships of Red Robbo, who cost the nationalised British Leyland £100 million

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through the strikes that he caused? That practice has caused the decline in the London and Liverpool Docks. It has damaged the nation's economy under both Conservative and Labour Governments and, above all, it has angered millions of members of trade unions.
Paradoxically, that practice of calling political strikes has sometimes hit Labour Governments just as hard as Conservative ones. I felt very sorry for Mr. Callaghan and his Government. There are some noble Lords present who were members of it. The Left wing of the Labour movement was brutal to Mr. Callaghan and his Government. The winter of discontent was a major factor in causing the defeat of that Government in 1979.
The Conservative Party, knowing that most people —I talk not only of members of trade unions but generally—were fed up with political and wildcat strikes, promised in 1979, and again further promised in 1983, to change the law so as to make trade unions more responsible, more democratic and obliged to act more in accordance with their members' wishes.
At the last election the Labour Party received only 29 per cent. of the votes polled: a bitter blow to them. But it is a fact which supports the estimate—and it can only be an estimate for there has never been a referen-dum, though there have been public opinion polls, but there have been careful estimates and various of them—that only about 35 per cent. of members of trade unions voted Labour in the last General Election. That tallies with the total of 29 per cent. of those who voted. The reason for that was that most of the trade union members either dislike socialism or dislike politically motivated strikes, or both, and they will not stand for a party which supports those things.
With that background in mind, I turn to the Bill, because those are the facts which are the justification for it. Those are the facts which I say should be causing the party opposite to support the Bill.
As to Part I, it must be right to give the great body of trade union members the right to choose their leaders by secret ballot. This will enable them to ensure that they get the leaders they want instead of politically-minded activists who manipulate the present rules, the present systems, to achieve union power. Similarly, if members suspect that a strike is not genuinely inspired by their own interests—and they may, as I said, lose heavily by striking—they should have the right to make the decision whether or not to strike. The only sure way to ensure that is to have a secret ballot as intended in Part II of the Bill, although we must ensure that it really is secret. There will have to be consideration of this in Committee because I do not think that the Bill is clear enough or firm enough on this as it is. I am sure that all your Lordships were very impressed by the powerful arguments put forward by my noble friend Lady Cox. In that context, perhaps the noble Lord, Lord Beswick, will remember that, as far as BALPA is concerned, ballots at the work place are not feasible because there are so many different work places and many of his members are in the air all over the world. I should have thought that, if one is to have a proper ballot for BALPA, it needs to be a postal ballot with enough time given for the returns to be sent in.
Lord Beswick: My Lords, I was not saying anything to the contrary.
Lord Renton: My Lords, I am most grateful to the noble Lord for clarifying that. I obviously misheard the part of his speech in which he seemed to be saying that he did not think that a total ballot of all the members was necessary for all elections. But I apologise. I am glad he has clarified that.
Lord Beswick: My Lords, I was referring to a ballot for members of the sectional committees, who then, from among their own numbers, make a further election to the central executive.
Lord Renton: My Lords, that is a very satisfactory thought for us to bear in mind. I am grateful once more to the noble Lord.
So I come to Part III. The provisions require each trade union to decide by secret ballot at least every 10 years whether it wishes to go on spending money on political objects. That provision would enable the members, if they wish, to avoid the mistakes made by their leaders in the past in committing them to socialism. It would also enable them to prevent their members from engaging in anti-social militant action in support of an extreme form of socialism, generally speaking. But, speaking for myself, I would not urge members of trade unions to subscribe through their unions to the Conservative Party, to which I belong, or to any other party. They can and do—many do—subscribe individually to our party, but it would surely be far better for the trade unions to be above party politics. Then they might truly become what the late Sir Winston Churchill said after the war they had in his opinion become—though they have fallen back a little since then. He referred to them as one of the great estates of the realm. That is what we want to see them become once more.
Lord Wedderburn of Charlton: My Lords, would the noble Lord extend his encouragement to public companies, perhaps all companies, which might also be thought of as estates of the realm in the same context, not to contribute to political parties and encourage shareholders to make their own way?
Lord Renton: My Lords, quite frankly that is a very big question. There is nothing in the Bill about it. Whatever the answer to that question, that would not invalidate what is in the Bill.That is my answer to the noble Lord.
I have only one major regret about the Bill: that is, it should, in my opinion, have included a redraft in simple, understandable English of Section 17 of the 1980 Act on secondary action. That section has been severely criticised by the Judicial Committee of your Lordships' House, and by the Court of Appeal under both the present Master of the Rolls and his predecessor. I think it is regrettable that one Act of Parliament and one Bill should have passed without any attempt to put that right. Apart from that omission, in my opinion the Government have done well to introduce this Bill but it will be capable of improvement by your Lordships at later stages.
5.19 p.m.
Lord Taylor of Mansfield: My Lords, I listened to the noble Earl with great interest. I thought he unfolded the Bill very well indeed. He waxed most eloquent when he described the need for a greater democratisation of the trade unions. That set my mental mechanism in retrospect. I remember voting by ballot for industrial action, as secretly as it could be under the conditions which were available in the pit yard in 1912. Listening to the noble Earl this afternoon made me wonder whether, since that time, I have been living in a dream world about democracy in the trade union movement.
There is no doubt at all that the Bill before us today is about trade unions in Britain. But, not only that; it is part of a process. This is not the first Bill of its kind since the Tories won the election in 1979. We can state that this Bill is part of a process and that up to now it is the third instalment. But the end of the line in this process has not yet been reached. I wonder whether I may quote an authority for that statement.
"Such a process may have to continue indefinitely, more or less producing a new trade union Bill in alternate years, until we have got it right."
Who said that, my Lords? No less an authority than the Prime Minister herself. So, the indications, on the basis of that statement, are that we are not yet at the end of the line; that this process, like a magazine story, is to be continued.
My noble friend Lord McCarthy, writing the other day, referred to the economic theories of Professor Hayek. I quote from what he said:
"If a more competitive labour market is to be created, it will need to be supplemented by a sustained and major attack on their legal sources of trade union power. Unless this is fully understood, the degree of the Government's commitment to a succession of trade unions cannot be fully appreciated".
In my view the purpose and intention of this Bill (as was the case with the previous Bills of 1980 and 1982) is to weaken, to make impotent, to destroy the influence and power in our society of the trade union movement.
Pursuing the proposals of the Bill, the theme running through it is one of ballots—ballots for this in Part I, ballots for that in Part II, ballots for something else in Part III. The whole of the Bill—and I am not complaining about this—is about ballots for this and that. I have no disagreement with the operation of ballots. When I was in industry—in the industry in which I worked—I was brought up on the principle of ballots. In the coal industry, it was the rule, not the exception, to have ballots on a variety of matters, which I shall mention in a moment or so. All my industrial life I have been used to ballots, and I support them wholeheartedly.
The noble Lord threw out his challenge to us, the Members of the Opposition, when he asked: "What do they object to in the Bill?" So far as I am concerned—and I think that I am speaking for my noble friends—I say that we have no objection to raise to the operation of ballots. The main reasons for this are first, that those who pay the piper should call the tune; and, secondly that, the membership of the trade unions should be consulted and they should be in a position to decide what is the best and safest way so far as the operation of their industry is concerned.
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All my lifetime in industry I have belonged to a union which, in every aspect of its functions and administration, especially in the appointment of its officials, both nationally and locally, was in the vanguard of ballot procedure to determine what the rank and file members wanted. Of the National Union of Mineworkers, previously the Miners' Federation of Great Britain, it can be said that they have as good a record as any in providing, in their rules and constitution, the opportunity for their members to decide and also the opportunity to elect the people who would have the responsibility for carrying out the decisions that had been arrived at. Both locally and at the workplace, from the appointment of area officials right up to national levels, in every case where there were more nominations than places to be filled, the procedure was election by ballot. Our forebears over the years were exceedingly good democrats. They showed wonderful foresight in drawing up the rules and the constitutions so far as democratic processes were concerned. I submit to your Lordships that to them we owe a great debt of gratitude.
This new-found enthusiasm—as expressed by the noble Earl—among the Government, their Ministers and supporters, is quite recent. It is not part of past history; it is part of very recent history. The Prime Minister is the first Leader of the Conservative Party to express such enthusiasm. It may be that she is the second to do so; I am not quite sure about that. But even if she is the second, it does not go back very far, because it was not until about 20 years ago that the Leader of the Conservative Party was elected by ballot by the parliamentary members.
To me this shouting from the housetops by members of the Government, the press and the rest of the media is so strange. In retrospect, may I repeat that I am reminded that as far back as 1912 I recorded my first vote on a ballot paper for industrial action to establish a minimum wage for miners. On two other occasions the same procedure by ballot was followed by the miners' union—in 1921 and 1926. Throughout its long history, since the formation of the rules and the constitution, miners have been able to claim democracy in their union. Many times I have participated in ballots for branch officials, county and national officials, and for many years this procedure has applied throughout all of the British coalfields.
I should just like to make a few observations, particularly about Part I of the Bill. In my own mind there is a little confusion here and so far as I am concerned there is a great need for some clarity, which I hope the noble Earl who is to reply to the debate might supply. If so, I should be very grateful and obliged. I know that different unions have varying procedures, and more than likely the confusion and complication which I have experienced in regard to Clause 1 arises because of this. I am not saying, nor implying, which procedure of which union is correct. What I do know is this: over the years unions have sought to bring democracy into their respective organisations and have sought greater participation by the whole of the membership. I believe that that has been an outstanding quality, an outstanding attribute, of all the unions in Britain.
The Government have said that the purpose of this legislation is to give to union members greater

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democracy—or, to use the words of the present Secretary of State on the Third Reading of this Bill in another place:
"The Bill, the third step in our step-by-step approach, contains provisions which will improve the position of trade unions. Above all"—
I thought that this was queer language coming from the source that it did—
"it will give the unions back to their members".—[Official Report, Commons, 25/4/84; col. 83.]
I ask, in the light of language of that kind, when was it taken from them?
It is no fault of the unions that branch meetings are so poorly attended. That is the fault of the individuals themselves. I think language of the kind that I have just quoted from the Secretary of State is an affront to the many people who have sought to involve the membership in greater democratisation of the trade union movement in Great Britain, and are still doing it. Such words come from a person representing a party whose philosophy and actions throughout history have not been pro-trade union, and history bears witness to the fact that they, the Tories, in the beginning of the trade union movement not only did not want it but sought to prevent it by deporting the pioneers—namely, the Tolpuddle martyrs—to Botany Bay. In the light of history, my conclusion is that the Tories have at no time been over-burdened with affection for the trade union movement.
Clause 1 refers to the election of the principal executive of a union. How shall it be elected? By ballot—that is fair enough. By what method and for what period? I seek enlightenment from the Government on this aspect. The union with which I am best acquainted, the National Union of Mineworkers, has at present two full-time officials plus national executive representing the whole of the British coalfield. This executive at the moment is drawn from the area associations. They are elected for the area, and in addition the two full-time officials, the president and secretary, by virtue of their office, become members of this national executive body, ex officio. But in the event of a tie in voting—this is the important point—the president, under the rules, is privileged to give a casting vote. Despite the president being a full-time official and one of the executive committee's ex officio members, I wish to ask the Minister whether he would make forfeit the position of a full-time official having been elected by a ballot vote and, by the rules, an ex officio member of the executive committee, with the right not of a vote but, only in the event of a tie, a casting vote. To me this is a very interesting point and perhaps the noble Earl the Minister can and will enlighten your Lordships on this point.
My time has gone, my Lords, I shall say nothing more at this stage. There may be Committee points about Parts II and III of the Bill. The only thing that I shall say about Part III before I sit down is this. To those of you who do not know it, may I tell you, and to those of you who do know it, may I remind you, that the Labour Party is the child of the trade unions and it is only right and proper that it should be helped and sustained by a political levy from the trade union movement.
5.38 p.m.
Lord Allen of Fallowfield: May I, as a preamble to my short statement on this Second Reading debate, say that unfortunately I shall not be able to stay to the conclusion of the debate because for family reasons I have to return to Manchester this evening. I hope that the House will forgive me for not being able to stay. I, like my noble friend Lord Taylor of Mansfield, listened with great interest to the noble Earl, Lord Gowrie and his presentation and defence of the Government's Bill. I am sorry that the noble Earl is not in his place at the moment because I wanted to make what I regard, and he may regard too, as a pertinent comment about his presentation. He described the Bill, among other things, as the Government's "most significant achievement". I wonder whether, on reflection, he and others who believe that might prefer to leave the judgment to the historians. For my part, I am prepared to. I do not see it in the light in which it was described by the noble Earl, and I am sure that there are many thousands of people in the United Kingdom today who take a similar view.
I, too, listened with great interest to what the noble Earl had to say and I also noted, by the clock, that he took approximately fourteen minutes to do an attempted demolition job on the trade union movement and roughly six or seven minutes telling us what the Trade Union Bill is all about. The latter, of course, is most welcome but the demolition job that he attempted on the trade union movement was most unwelcome, and there is real reason for inciting fears—fears which have been expressed in this House by those who have preceded me—that the Government's intention may go well beyond that; in other words, to do what they can in the process of time to get rid of the trade union movement. I hope I am wrong, but one cannot help but come to conclusions of that kind after hearing the presentation of this Bill that we have heard today.
Perhaps in talking about the demise of the trade union movement arising from this Bill, or about one's thoughts arising from it, one is being a little too premature. Is that something we have to sit back and wait for? Maybe it is. My criticism of the Bill is a basic and general one. I have no intention now of going into the detail of the various clauses of the Bill. I, like others, believe that the appropriate place for that is in Committee; but I should like to say that in my considered opinion the Bill is of no help to the future of this country in achieving productive industrial relations. It will do little to curb the outbursts we have been seeing every day on our television screens during recent weeks and months which many of us would prefer not to see. This Bill will do nothing to stop that.
The grave danger we are in, as I see it, at the present time is that the dogmatic adherence by the Government to proposed legislation will prevent them from getting on with the jot)—and I see it as part of their job—of assisting in the reform and the extension of collective bargaining in the United Kingdom. The proposed laws embodied in this Bill, like earlier employment laws, do not help to achieve productive industrial relations based on consent and co-operation, as opposed to confrontation. In all my

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industrial relations experience, I have never believed that there is any panacea for these kinds of problems—and, if there is, it is not in the form of the Bill before us today.
I have said before in this House, as have many others who have spoken in debates of this kind, that whatever happens the unions should not be forced into a position—that is the risk run by some of the proposals in this Bill unless it is seriously amended—where they acquire the irresponsibility that comes from what may be described by the pundits as mass disobedience. I have always argued, and I see no good grounds for changing my views at the present time, that the best antidote which is needed now and in the near future is good management and sensible, responsible trade union leadership at national, regional and plant level. That will not come by compulsion. It will not come by legislation of the kind that is enshrined in this Trade Union Bill; nor will it show results overnight. They have to be worked for.
Whatever thoughts we may have about the current industrial relations scene, and particularly that part of it which is at present feeding the mass media and receiving much public attention, there can be no denying that the problems facing the United Kingdom are competitiveness, control of inflation, the use of capital and the need for a response to new technology. Lack of growth, unemployment and social inequality, to mention but a few problems, can only be dealt with by a genuine partnership between Government, employers and trade unions. Some of us who have spent many years in the trade union movement in accredited positions have striven very hard to try to secure that; but I regret to say that legislation of this kind fans the urges of the militants, as opposed to those who want to be responsible. So those who hold views contrary to those I have just expressed, whether they be on the trade union side or on the employers' side, and who pursue policies in direct conflict are, wittingly or unwittingly, selling themselves and the country short.
Industrial relations, like pay, is but one of a whole complex of economic, industrial and social factors which are central to our economic future. The policies being pursued by Government now and during recent years are, in my opinion, doomed to fail the nation. The reason must be clear to all who seek the truth. Sadly, there is no rapport between those who believe their policy is right, as evidenced in this Bill, and those who are expected to conform with its operation. Sooner rather than later the accent will have to return to one of co-operation and fulfilment rather than the present confrontation and frustration, if the problems of the 1980s are to be tackled. Good industrial relations, the acceptance of agreed policies by Government, by management and by trade unions are in my view, critical to Britain's competitiveness. It is a matter of deep regret that I do not see this Bill as making a contribution to this objective. It is also regrettable to me, as it is to many others who are interested in this subject, that we do not have an industrial policy—and by policy I refer to the extent and manner of Government intervention in industry and commerce.
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However, what we do have is what many would describe as the worst of all worlds; a Government proclaiming a policy of non-intervention in words while intervening extensively in deed. Having said that, I recognise, as I am sure we all do, that success will ultimately lie with companies or the like and not with government. Given this, I acknowledge that the contribution the Government should make is made within a tight framework appropriate to industrial imperatives, and not the law.
Finally, I see in this Bill, as do others who have spoken prior to me, a further attack on the trade union movement from this Government. The Bill itself amounts—and let us not bandy words—to gross interference in trade union affairs. The Government and their spokesman today believe that this Bill will improve democracy. I do not. How can this be justly claimed when the Government, at the same time, propose in the Bill to squeeze union rules and constitutions into the shape that the Government prefer, regardless of the wishes of members or of the varying traditions and practices of unions?
The Government claim to be giving unions back to their members is utterly false and a sick joke. There can be no justification for imposing on trade union members a single set and final pattern of electoral practices in preference to other forms of trade union democracy which have been tried and tested and which can be, and often are, changed by the membership as a whole.
It is not difficult to see the validity of the unions' case when they claim that all trade unionists should be given the right to vote on whether they wish to keep their existing constitution or to adopt the Government's model. That, I understand, the Government will not accept. I think it appropriate to ask why. Are they worried that, if they give members that choice, they will rally behind their unions and reject the Government's Bill? Those are considerations which are uppermost in the mind when one reads the respective clauses in this Bill and I hope it will be seriously amended at Committee.
5.52 p.m.
Earl De La Warr: My Lords, I intend to confine myself to speaking to Part I of this Bill. The reason for that is that I have always believed that if we could achieve secret elections by all members of the trades unions for their executives we should be achieving the most fundamental requirement that is needed in order to improve the working of the trades union movement and its relations with employers and with the Government.
I believe that this sort of legislation—for legislation it has to be—is far more important than any laws governing behaviour, such as we have had in the past two years. That does not mean that I have not gone along all the way with the last two Acts—the Act of 1980 and the Act of 1982. But I will never depart from my basic premise, which is that the vast majority of trades unionists in this country are moderate men who want only to get on with their job and do not want to play politics.
To that, I will add that I will not depart, either, from a premise that at this moment, to a degree is extremely

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dangerous to this country, the trades unions are being manipulated by Left-wing militants who in many cases are doing things which they know to be against the interests of our economy and very often of their own people. I make that assumption as something that is self-evident and I shall not seek to prove it further. So when it is said that what this Bill seeks to do is to return the unions to their members, I understand very well what is meant and I sympathise with the person who put it in those particularly apt words.
Before I go on, it has been said twice in this Chamber that recently a statement was made to the effect that it was necessary to have trades union legislation every two years until we got it right. I must confess that this had passed me by, but I have been told by two people who I trust that this was said by our Prime Minister. Never mind who it was said by. I find myself in the unfortunate position of having to say that if that was said I regard it as dogmatic, obsessive and desperately dangerous, and as a good Tory I dissociate myself utterly from it. I should like to hear other Tories saying the same thing.
I want to deal for a moment with a little of the recent history of legislation and I start with the 1980 Act, because your Lordships will remember that Sections 1 and 2 dealt with the certification officer. They laid upon him duties to help financially with the establishment of secret balloting and at the same time gave him a duty to make sure that these ballots were conducted correctly. Section 3 dealt with codes of practice and I certainly had the impression that fairly shortly after that Act we were going to have a code of practice on the subject of balloting. In a debate in April 1981 on the Green Paper on trades union immunities I recall taking the Government to task because they had been dilatory about the question of balloting, had produced no code of practice and I begged them to get on with it. I think my noble friend Lord Gowrie will remember that because he was sitting there at the time. It did not happen then, and it did not happen in the 1982 Act.
I therefore recall to your Lordships something else, which was an amendment that I proposed on that occasion. I cannot remember the date but I remember the time. It was in fact at 2.40 in the morning. The history of that amendment is that it was instigated by the Conservative trades unionists. It was to have been put in another place by my honourable friend the Member for Mid-Sussex, Mr. Renton, but they ran out of time there and I moved the amendment in this House. It was to the effect that the unions should be given two-and-a-half years in order to reorganise their rule-books in such a way that each union's rules made it obligatory that every five years there should be a secret ballot for the national executive.
That was not accepted by the Government, nor was it accepted by the noble Lord, Lord McCarthy. I am sorry that the noble Lord is not here because he was extremely insulting to me at the time—I do not hold it against him, because he is a great friend of mine—and I had it in mind to say something to get back at him. Nevertheless, the Government promised the most recent Green Paper which we had not very long ago and it is as a result of that that this long awaited and important Bill comes to us. I very warmly welcome its intentions. However, I have to say—and I say it with
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personal regret to my noble friend Lord Gowrie, because he will remember that I worked closely with him over the first Bill and I am sad that he is the person I have to fall out with—that I object to Clause 2: the "requirements to be satisfied" in relation to elections. I object in particular to subsections (5), (6) and (7) of Clause 2. For example, subsection (7)(a) says:
"The ballot shall be conducted so as to secure that—(a) so far as is reasonably practicable, those voting do so in secret".
I know that the 1980 Act used the same wording; but is it good enough, on a subject so important as this, for us to say "secret in so far as is reasonably practicable"? I find myself unable to accept that wording.
I take as much exception to Clause 3 which deals with the remedy for failure to comply with the balloting requirements. It is left to a member of the trade union to go to the High Court to complain that the very vague requirements set out in Part II have not been complied with. How does the High Court set about obtaining evidence of the circumstances in which these workplace ballots may have been conducted, possibly with malice aforethought? And how on earth do they make what are called in the Bill enforcement orders? I presume this means that they must describe the procedures which should have been followed. Is that the duty of the High Court? I think not.
There are three principles which must be satisfied, and they are not satisfied yet. First, every trade union member must receive ballot papers at home, and the papers must be in a form approved by the certification officer. This means, secondly, that each union will need to keep an updated, central register of the names and addresses of members. This has been referred to as the logistical difficulty. But we know that it can be done. It was done by Mr. Chappie and it was done by the noble Lord, Lord Scanlon. I suggest that it is one of the three cardinal principles. Finally, when filled in, the ballot papers must be posted for processing by an independent body. That is why I welcome so warmly the magnificent case which was so eloquently and brilliantly made by my noble friend Lady Cox.
Some of your Lordships may have read last week a second leader in The Times about postal ballots. That great organ also took the Government to task over this matter. May I read the last three sentences to your Lordships:
"Since nearly half of the TUC Membership still elects its trade union leadership at branch meetings, a change to postal ballots could have a decisive influence on the character and responsibility of trade union leaders. Not surprisingly, the left-wing element in the TUC is against postal ballots, using the curious argument that postal balloting denies the masses their democratic rights. Moderate trade unionists, on the other hand, must be dismayed at the lack of support they have received from the Government on this point. There is still time to amend the Bill".
Yes, indeed, there is still time to amend the Bill, and I must say to the Government that they can confidently expect that they will be pressed very hard from many sides of the House and by many people on a matter of such fundamental importance. I beg my noble friend to take on board not only what I have said but what has been said in a much better way by other people and see whether or not he can go at least some part of the way towards helping us on this matter about which we, and such a large proportion of the public, feel so deeply.
6.7 p.m.
Lord Houghton of Sowerby: My Lords, in the debate which is to follow I notice that almost as many noble Lords wish to discuss the protection and conservation of our heritage as those who wish to take part in this debate. That is how it should be. Frankly, the future of our heritage is probably more important than the future of the trade union movement.
The noble Earl, Lord Gowrie, made an observation with which I must deal. He said that on this issue Labour's position is one of abstention. Unfortunately, when trade unions are under discussion, not only do the unions go into the dock; the Labour Party and Labour governments also go into the dock. This is inevitable because of the close relationship between the three. It is not the word "abstention" which should be used against the Labour Government. The word should be "frustration"—long, painful and sometimes bitter frustration. After all, it was a Labour Government which appointed the Donovan Commission. Although six years would appear to be long enough to formulate proposals for reform and change in the structure, constitution and practices of the trade union movement, at that time it proved to be almost impossible.
Your Lordships will remember that the Conservative Party made a manifesto commitment to legislate on trade union law and reform. In 1970 they came to office—as a result of discontent, probably, with the trade unions and the Labour Government—with a commitment to legislate. The result was the Industrial Relations Act 1971. The timing was sadly wrong from a Conservative point of view. Mr. Heath badly needed that second term, from the point of view not only of trade union legislation but of his economic policy, too. But the whole of the trade union movement, and its attitude, was soured by the 1971 Act. On that account, Mr. Heath was never able to overcome its resentment and lack of co-operation.
In 1974, when Mr. Heath badly needed an extension to his period of office and the co-operation of the trade union movement, he did not get it. When he fell, his legislation collapsed with him. The Labour Government came to power with a trade union movement that was so discontented and resentful at the experience they had under the Conservative Government that it took several years for the Labour Government to establish any kind of basis for co-operation and concentration on a change in trade union law. It was a most disappointing experience, but I believe that it was gravely prejudiced by the action in 1971 of the Conservative Government, who had their Bill wrong and their timing wrong.
I believe that the Government have their timing wrong now. In my opinion, this is a very sad time to be discussing the niceties of trade union constitution and elections, when the turmoil outside is very threatening indeed. What is needed now is atttention to the underlying causes of present discontents and militant action. When the noble Earl, Lord De La Warr, referred to the manipulation of the trade unions by Left-wing militants, the question can be asked: how can they manage to do this? If moderate leadership finds no response from the Government—or, in the
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case of private enterprise, from employers—then militant action and militant leaders will replace them.
I remember a comment made by the late Arthur Deakin at a Trades Union Congress, when he said that moderate leadership is in conflict with the rank and file everywhere. When moderate leadership is in conflict with the Government and employers, then the militants are ready to take over with their more dramatic and drastic remedy for the situation. It gives the members an opportunity to express their emotional discontent.
This is a lesson that has to be learned. At the moment, the Government should be concentrating on why it is that the public sector is in such disarray, turmoil and deep discontent. Why is it that after all this time governments have failed to achieve a satisfactory basis on which to settle the pay of their own employees and those associated with them in state enterprises? What right do the Government have to talk to employers about industrial relations, achieving harmony and establishing a peaceful basis for the settlement of disputes, when the Government's own house is in such a dreadful mess? This is the aspect that should be engaging our attention and not a Bill of marginal importance such as that which is now before us.
Two other points can be made. The first is that greater democratic control comes much better as part of the constitutional evolution of any institution or as a result of the upsurge for change that sometimes erupts in all institutions where substantial change is desired. That is much better than having democracy imposed upon those bodies by an authority whose motive is itself in question. We know why the Conservative Government want changes in the methods of election, free strike ballots and all the rest. They want to achieve different results from the union. They want to get different reactions from the union. They believe that this is the way of doing so. They may prove to be bitterly mistaken. Certainly the motivation behind enforced democracy has to be examined when it is being enforced by political parties.
Political parties, whether in Government or outside, should be very cautious in making proposals for imposing democracy on other institutions. After all, we are not very good at reforming our own. We are really not entitled to talk to the rest of the country about modernisation, and how to adapt our institutions to the pressures of the time and to the demands of the public for this and that. We are very slow to change, and that point has been made already in this debate.
The atmosphere in which this Bill is brought before the House is very unfavourable to dispassionate judgment. I am surprised that we have not had more emotional outbursts from this side of the House, although it is proving to be quite an outspoken debate. I believe that the Committee stage will offer an opportunity for some frank exchanges over how we feel about reforms which, so far as I am aware, have not been demanded by unions. If the unions want what the Bill provides then there would be little difficulty in attaining it—if the unions' members are strong enough in their demands.

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This brings me to my second point. We should be loath to impose changes on unions whose members are really capable of bringing those changes about on their own, if only there is the determination to do so. If there was the determination behind moderate councils and moderate policies and moderate steps, then moderation would rule the day. In many cases the moderate point of view is present but unfortunately it becomes the apathetic point of view. It becomes the non-participation point of view. That leaves the field open to those of greater determination and greater conviction about the way in which they want to go. All these are very important aspects of this Bill.
In my remaining minute or two, I want to refer to Part III of the Bill, which concerns the political levy. The House will remember—because, after all, there are enough noble Lords old enough to recall 1926—that after the general strike in 1926, Mr. Winston Churchill, who was then the power in the land although he was not Prime Minister, brought about the Trade Disputes and Trade Unions Act 1927. That legislation did what the Government have threatened to do again this time. But they have stayed their hand on reaching agreement with the trade unions on an alternative method of approach for the time being; that is to say, the replacement of contracting out of the political levy by contracting in. That provision made grievous inroads into the finances of the Labour Party after 1927. It lasted until the Act was repealed in 1946, when that change was introduced by the Labour Government in 1945.
If that provision was in this Bill, it would be the most wounding aspect of the third part of the Bill. The Government are staying their hand—but the threat is there. They have told the unions that they must publicise the right to contract out. They say if that is not effective they will introduce legislative obligations to make this change. It may be part of what the Government want to see, and that they want to get it right.
I regretfully say that when the Prime Minister says we will go on doing this until we get it right, what she really means is, "I will go on doing it until I get it right". That is what the noble Earl, Lord De La Warr, was really hinting at only a few moments ago. But I can say by personal reference what he felt it impolitic to say. That, as I see it, is how this particular matter rests.
One of these days, the whole question of political finances will have to be gone into. This is not a question of whether trade unionists should contract in or contract out of a political levy, or of whether trade unionists should contribute to political parties. This is a matter of how we are going to finance our politics. This applies to all politics. At the same time the question arises on how the Conservative Party finances its political activities. The Trade Union Bill, being a trade union Bill, fastens this problem upon the unions. But how we pay for our politics is a national political matter which goes to the very root of our democratic parliamentary system.
The committee of which I was chairman, along with my noble friends Lord McCarthy and Lord Wedderburn, produced what I would call the presumed wisdom on this subject. What we felt, and
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what I feel most strongly, is that both parties are far too heavily dependent on finances from sectional interests. They are both in thrall to sectional interests. That is bad for politics and for democracy. Although our committee recommended the injection of a modest amount of state aid in order to lessen the dependence of the major political parties on their traditional supporters, I would go much further today. The financing of political parties by corporate contributions or subscriptions should be phased out altogether. I see no reason why company boards and union executives should be playing their hands in the name of and with the power of other people in the political arena—because they are playing their hands with that support, although not always, in power politics on the size of their memberships and their contributions to the political funds of both sides.
The Government say that they want to put the unions back into the hands of the members, but they do not at the same time say, "We are going to put the companies back in the hands of the shareholders". They say nothing about that. The Government are not qualified to go for the union side of financing the Labour Party without at the same time owning up to their own weaknesses and coming forward with proposals for corresponding action for shareholders and others with an equity interest in companies which are making political contributions.
I have spoken for a quarter of an hour, which is long enough and probably too long. With the leave of the House, I will sit down.
The Earl of Gowrie: My Lords, I am most grateful. Before the noble Lord sits down may I say that he is making such a powerful and eloquent speech that I feel constrained to remind the House that under the Bill the situation remains exactly as it has been since 1913.
6.22 p.m.
Lord Campbell of Alloway: My Lords, it is always a pleasure to follow the noble Lord, Lord Houghton of Sowerby, even if on this particular occasion I cannot, unfortunately, agree with any theme of his detailed analysis; in particular the last which is concerned with the state funding of political parties.
To return to the main thrust of the debate, the noble Lords, Lord McCarthy and Lord Scanlon, with their vast experience of union affairs—and I say this with the greatest respect—debate in blinkers unless they recognise that it is the rank and file membership which demands this Bill to avoid the destruction of the trade unions.
Lord Dean of Beswick: Where, my Lords?
Lord Campbell of Alloway: My Lords, to stand the situation on its head, this sort of ritualistic Humpty-Dumpty attack on Her Majesty's Government suggesting that the Bill is an assault on trade union rights in order to destroy the trade unions, and that unions should be left alone to do as they please, makes no sense at all. Indeed, it savours of unreality and of political gerrymandering—the term used by the noble Lord, Lord Scanlon, and laid at the door of Her Majesty's Government.

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The Bill stands to be judged not only in relation to Donovan and In Place of Strife but also in the light, or, rather, the darkness of the changed situation today. It is a situation—and let us face it—where militant officials mock the ballot box, put to scorn their members who wish to use it, incite civil disobedience in breach of the civil and criminal law and set member against member on a fratricidal course of violent intimidation. It is a situation which the noble Lord, Lord Houghton of Sowerby, truly described as the turmoil outside. In these circumstances—for these are the circumstances—is it surprising that there should have been no response to the invitation afforded in January 1983 by paragraphs 127(a) and (b) of the Green Paper to discuss the subject of Parts I and II of the Bill?
Lord Beswick: My Lords, may I ask the noble Lord on what evidence he says that there was no response to the invitation to discuss these issues?
Lord Campbell of Alloway: My Lords, that is my understanding of the matter. If the noble Lord can refute me and give me details I would indeed reply.
Lord Beswick: I have a letter dated 4th May 1984 in which the organisation of which I spoke offered to discuss them with the Secretary of State.
Lord Campbell of Alloway: My Lords, my information—and I may be wrong but, if so, I shall withdraw—is that on paragraphs \27(a) and (b) there was no dialogue. On paragraph (c) of Part III there was. If I am wrong, I shall stand corrected by the noble Lord, Lord Wedderburn, or by my noble friend Lord Gowrie when they reply. But that is my true understanding of the matter.
Lord Beswick: I am sorry, my Lords, I gave the wrong date. It was 9th December 1983, when Mr. John Lyons, on behalf of several unions, offered to see the Secretary of State.
Lord Campbell of Alloway: My Lords, my understanding is that there has been no dialogue. I am afraid that this is taking time and I was trying to make an eight-minute speech. If the noble Lord, Lord Beswick, would be good enough to point to any occasion when there was a dialogue or any occasion when there was a meeting, and who was present, when Parts I and II were discussed, I shall be delighted to withdraw because I believe in consultation. I restate my belief—that is all it is—that on the information I have there has been no consultation on paragraph 127(a) and (b). I shall withdraw if I am wrong.
The Earl of Gowrie: My Lords, I hesitate to intervene, and I take the point that my noble friend made about time, but I might be able to clarify the issue. The point is that the TUC refused to discuss the Green Paper on trade union democracy with my right honourable friend the then Secretary of State for Employment, Mr. Tebbit. That, I believe, is the substantive point that my noble friend is making and he is perfectly right.
Lord Campbell of Alloway: My Lords, I am very much obliged to my noble friend because we can all make mistakes and I should have apologised immediately to your Lordships' House if I had been in error.
To draw back the threads of my speech I said, if your Lordships remember, that one has to look at this Bill and judge it in the light of Donovan and in the light of In Place of Strife in order to retain a fair perspective. As to Donovan, the Part I proposals would have been wholly acceptable. That can be found in paragraphs 627 to 647 of the Donovan Report. The Part II proposals, which impose no obligation whatever on the unions to abide by the result of a ballot, were not before the Royal Commission, or so it would appear from paragraphs 426 to 430 of the Donovan Report. Indeed, as the noble Lord, Lord Rochester, was good enough to remind us. they are really in essence, in the form proposed in Part II, post-Green Paper. Of course they did not appear in that form in the Green Paper.
As to In Place of Strife, what does it say relative to Part I of the Bill? This is the Labour Party document. It was concluded:
"the Government considers that the present legal requirements relating to the rules of trade unions are inadequate, and should be extended in the interests both of the unions and of their members".
It further says:
"it is essential that unions should be able, and be seen to be able, to conduct their business according to clear and comprehensive rules, and to deal fairly with any dispute between the union or its officers and the individual member".
Those statements are from paragraphs 107 and 108 of In Place of Strife, 20 years ago. This was in the interests of compatability:
"with generally accepted standards of tolerance and fair play".
That was the Labour Party's policy 20 years ago, and I quote it in relation to Part I of the Bill.
I come now to Part II of the Bill and In Place of Strife—the Labour Party's policy 20 years ago. At all events, it was regarded that major official strikes should be the subject of a strike ballot and that the Secretary of State should have discretionary powers to order the holding of a ballot on the question of strike action. That was proposed in paragraph 98 of In Place of Strife—the Labour Party's proposed policy.
The index to Volume III of those Crossman diaries affords the key to much of the relevant discussion in the Labour Party at the time as an aid to the understanding of this approach. But, with the greatest respect, what is not understood is the attitude of the Labour Party on this subject today. It is idle to maintain, in the light of those quotations, that this Bill engenders confrontation. Indeed, against that background and perspective it is wrong to stigmatise its measures as interventionist, for surely it must be common ground that some regulation of the internal management of trade union affairs has been requisite for some 20 years. In his opening speech my noble friend the Minister mentioned a period of 30 years. Is it not apparent that little or nothing has been done by Governments of either party—this is not a party political point—by legislation, and little or nothing has been done by the unions by self-regulation to introduce the requisite reform? Is it not also equally apparent that the unions are either unwilling or unable

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to put their own house in order, and hence the need for legislation?
It may be asked, legislation for what? It is legislation for this purpose: quite simply, to seek to ensure that the voice of the rank and file shall be heard, that the will of the rank and file shall be heeded and, as the noble Lord, Lord Taylor of Mansfield, put it, that he who pays the piper shall call the tune. In all this the Bill affords the minimum which the rank and file trade union member could have been led to expect from our electoral promises; and it also, as I have sought to demonstrate, broadly conforms with Donovan and with In Place of Strife.
Why do I say the minimum? It is because Part I of the Bill in no way seeks, on any objective analysis, to impose model rules (they were considered in Donovan) but merely superimposes and provides for enforcement machinery in the courts—a superimposition on about 150 different sets of varying rules—on an aspect which impinges upon freedom of association, which is a fundamental democratic concept. Is there not a compelling case for this reform as a minimum, if only to end the iniquity of the block vote?
I should like to deal in passing with the objection of my noble friend Lord De La Warr. With the greatest respect to him, it simply is not understood. The courts would have no problem, apart from the ordinary problems which exist in every case, of finding the facts and making an adjudication, and the decision of enforcement is really quite ordinary and totally straightforward.
Why is Part II of the Bill a minumum? It is because it in no way—
The Earl of Onslow: My Lords, may I just ask for a little clarity from my noble friend on his point about the courts? In The Times leader of 10th May is mentioned the case of the CPSA and Mr. Butcher and Mr. Elliot, who go to court to complain about the malpractices of certain officials, and they had to be stopped because they ran out of both money and time.
Lord Campbell of Alloway: My Lords, I am of course grateful to my noble friend. Money is a problem for any litigant, unless he has legal aid. I am afraid there is nothing that the courts can do about that. As to the facts of the case to which he refers, if he had given me notice of the question, I should have been able to look at them and perhaps give him a slightly more satisfactory reply. But in view of his most helpful and courteous intervention, I should like to say that, as a rule, the courts do not have difficulty in assessing and adjudicating upon matters of fact, and certainly not the High Court.
I come back to Part II of the Bill, if I may. This relates to the point that I was seeking to make to your Lordships—that this Bill affords the minimum. It affords the minimum in Part I in the way that I have sought to demonstrate. I now seek, if I may, to demonstrate that it affords the minimum in Part II. Why?—because it in no way binds the union to adopt the result of the ballot. The union is enjoined to hold
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a ballot only in accordance with statutory requirements before industrial action is authorised or endorsed, in which event industrial action may be taken without loss of immunity. This is a minimum measure of safeguard which affords a very wide measure of self-regulation to the unions, and the objection which was taken to Clause 8(4) is simply not understood.
As to Part III of the Bill, of course I understand the points made by the noble Lord, Lord Rochester, which to some degree marry to the points made by the noble Lord, Lord Houghton of Sowerby. But, as I understand it—and I speak always subject to correction by any of your Lordships—there was a positive response by the unions to paragraph 127(c) of the Green Paper. The form of Part III represents the measure of accommodation struck between the unions and the department in the result. If that is right, it is a very good thing. It opens the door to a fair, reasonable and practicable solution to the problem of stale contracting-out resolutions—and this by self-regulation. This is, again, the barest minimum of measures of safeguard, which in the absence of self-regulation will take effect on 31st March 1986—which is, after all, your Lordships may think, a fair period within which to get matters straight.
I come to the end. Before I conclude, I must deal with the question of mandatory postal ballots. Although it had been dealt with otherwise, this affects all three parts of the Bill. This attracted the views in favour of mandatory postal ballots, expressed by the noble Lord, Lord Rochester, my noble friend Lady Cox, perhaps to some degree my noble friend Lord Renton and certainly my noble friend Lord De La Warr. With the greatest respect, I beg leave to take a different view. I agree that to some degree it is an open question but I favour workplace ballots. Of course, I only speak from what little knowledge and experience I have—and it is little.
What are the reasons? First of all there is a meretricious attraction in this concept of a postal ballot. It is meretricious because it is evident from the decision of Mr. Justice Walton in the case of Brown v. AUEW in 1976, which concerned an election for the post of a union divisional organiser by postal ballot and indeed from the infamous ETU case, that the holding of a postal ballot affords no safeguard against malpractice. I referred to the Brown decision. I am relieved to see that the noble Lord, Lord Scanlon, is in his place. The noble Lord, Lord Scanlon, will have occasion to remember that he was directly concerned in the case, and indeed mentioned in the judgment.
That is the case, far more than the ETU case which is different on the facts, on which I rely to seek to persuade your Lordships, on later examination that there really is no safeguard against malpractice in the system of a postal ballot, as distinct from a workplace ballot. If the object is to avoid malpractice—and that must be the object—this object is surely best achieved by consultation. It is best achieved by self-regulation by the unions who support the democratic process and wish to ensure that ballots are fairly conducted. In my submission, that is far preferable. The problem of the discarded forms can easily be dealt with by a system of control which can be devised quite simply. It would be

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contrary to the general principle of this Bill to over-legislate. This could produce an unacceptable rigidity and engender resentment without affording any safeguard.
Furthermore, on terms of practicability on turn-out, if the voice of the rank and file is to be heard, according to my information as to current general practice, more than twice as many members vote in the workplace ballots than in the postal ballots. At this stage the case against the workplace ballots in favour of postal ballots is therefore not sufficiently clear to warrant acceptance of the views of Frank Chappie, some of the opinion polls, Aims of Industry, and some views expressed in their favour in your Lordships' House today.
Earl De La Warr: My Lords, would my noble friend give way for one minute? Would he be good enough to include the Conservative trade unionists in his list of people, please?
Lord Campbell of Alloway: My Lords, I apologise for speaking so long but I have had to seek to deal with questions that have been put. Yes, I will include anyone in the list whom any noble Lord wishes me to include.
I agree that if trade unions are to contribute as a powerful essential institution to our way of life, a vital machinery of collective bargaining, one hopes perhaps as the agency for the conclusion of no-strike agreements having a legally binding effect with built-in arbitration procedures, then the members must have a fair say in their choice of voting members on the principal executive committee and in the taking of industrial action.
This Bill, in all its aspects, reflects the minimum measures of safeguard and reform which the electorate and the rank and file were led to expect by this administration when it was returned to office. The nature of the current internecine struggle between the membership of the NUM affords but one example of the need to introduce these proposed reforms into the internal management of trade union affairs. I hope your Lordships will accept my apology: I have never spoken so long in your Lordships' House and it is a most sincere apology.
Lord McCarthy: My Lords, before the noble Lord sits down, I wonder if he would agree with me. He says the members demand a change. He says they demand Part I of the Bill. Would he therefore accept an amendment which was designed to find out whether the members would prefer their existing arrangements, so that Part I of the Bill only came into operation if members voted against their existing arrangements? Would he support an amendment of that sort?
Lord Campbell of Alloway: My Lords, it was first of all put, "Would I accept?" I cannot accept. I am not in a position to accept anything. But if this were put forward I would have to consider the position. I am certainly not prepared at this stage to pre-empt my attitude to that.
6.47 p.m.
Lord Bottomley: My Lords, the noble Earl the Minister in opening the debate said that, of the legislation passed by Conservative Governments since 1979, this piece would be most endurable. In his heart he cannot believe that. I should be very disappointed if a future Labour Government did not repeal this vindictive legislation. The trade union movement was in the forefront of the struggle for freedom. It was freedom from want, freedom of the people, freedom of the press. Now their own freedom is being challenged by the Government. For the first time in trade union history, a Government are attempting to regulate the internal affairs of trade unions.
Trade unions know how best to run their own affairs. They do it in accordance with the rules democratically determined by their members. The membership will resent being told what to do by their employers and the state. The present Bill assumes that the trade union leaders force their members to go on strike. I know from personal experience, as a trade union officer in the past, that this is not so. Indeed, those members directly involved by an injustice or something that they want put right are eager to take strike action. Trade union leaders very often have to create a situation where they control it. Also many employers and experts in industrial relations recognise the part played by trade union leaders in making things easier and not aggravating them in the way suggested by those who are arguing in support of this Bill.
Indeed, the assumption that trade union leaders force their members to go on strike is totally false. Trade union leaders are conscious that if they have a strike it dissipates the financial resources, money which could be used in other areas much more beneficial to the membership of the trade union.
This Bill will require unions to hold ballots before there can be a strike. However, if members of a trade union take unofficial action, they will not be liable to the penalties that would be imposed if the strike was official. This is a ridiculous situation. If a ballot is required to authorise a strike, then, equally, there should be a ballot to say when the members go back to work. It should not be the state which determines the form of democracy and constitution. Each union is able to decide the system which is best for its members by its own methods. This is also true of countries. Democratic procedures and constitutions vary in different lands. The United States, European countries, and others, have different systems to ours of electing a Parliament. Are we, therefore, to say that their systems are less democratic than our own?
I am not alone in criticising the Bill. The informed press has had its say about the matter. The Financial Times said that it was,
"needless interference in trade union affairs".
The Guardian said that the legislation was "one-sided and unfair". The Observer called the Government's Green Paper:
"a shallow, poorly researched document".
What the Bill does is to alter the balance of industrial power. It is equivalent to a government introducing legislation which required a board of

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directors to ballot a company's shareholders every time it wished to make a major change in its business. The board of a company is best able to judge what is in the best interests of the company. If it is wrong, the shareholders will soon let it know. The same is true of a trade union. An executive is elected to do what is required to meet the best interests of its members. If it does not do that, the members soon let it know. Indeed, there are more changes in trade union executives than on boards of directors. Trade union leaders, like company directors, are desirous of giving the best possible service to their supporters. A working man without capital has nothing to sell but his labour. When a capitalist has a product to sell, he dictates the price and is certainly not blackmailed or compelled by legislation to accept less than what he considers it worth.
That part of the Bill dealing with the political levy has been mentioned by many. Naturally, I want to comment upon it myself. No member of a trade union is compelled to pay the political levy if he chooses not to do so. Over the past 50 years, there has been no resolution before any trade union seeking to end the political levy. My own union, the National Union of Public Employees, is at present in conference at Bournemouth. I was down there myself. It is carrying out a revision of rules. The proposed alterations amount to 44 pages. There are 850 delegates representing 1,500 branches. In addition, there are 500 official observers. However, to my knowledge—and there is still a day or two to go—on these proposed changes in rules, not one question has been raised about the political levy.
The entire legal and economic environment which shapes the lives of trade unionists at work and at home is determined by political decisions. The purpose of the political levy is not solely for making contributions to the Labour Party. Contributions are made to a great variety of causes and campaigns, such as those concerned with peace, and civil liberties. There are also many occasions when trade unions may feel it necessary to take some political action, such as protesting against hospital closures or decisions by local authorities. The trade unions will be restricted while business organisations will be free to promote all kinds of actions to protect their own interests or to attack national and municipal enterprise. The last thing that a Conservative Government are qualified to do is to tell trade unions how to manage their affairs.
The Labour Party came into being through the trade unions setting up the Labour Representation Committee. They were compelled to do that because, by trade union strength and organisation, they won concessions from the employers. But the governments of those days were mainly composed of employers' representatives, and the gains of the trade unions were whittled away by legislation. The Government are doing their best to weaken the use by trade unions of that kind of political power in order to protect themselves against big business and vested interests.
I was interested in what my noble friend Lord Houghton had to say. Instead of political levies being left to vested interests, whether big business or trade unions, there should be some kind of state contribution. After all, the principle has existed for a
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long time. When there is a general election, the election address is delivered free. In the best interests of our parliamentary democracy, it would be better if political levies were done away with and the state enabled to make contributions direct to the major political parties.
This piece of legislation is a blatant attempt to silence trade union opposition to government policies and to limit unions' political activities. It will override established trade union practices and impose complicated procedures which will effectively prevent the unions from taking industrial action. It is in my judgment a mean and petty Bill. I hope that the Bill will at least be amended in Committee, but preferably I should like to see it destroyed altogether.
6.58 p.m.
The Earl of Onslow: My Lords, it seems to me that the noble Lord. Lord Bottomley, has totally failed to understand the purpose of the Bill. In this regard, it appears that he is in a numerous company. The whole Opposition seem to have fallen into the same error. After all, companies are wrapped up in a legislative framework. So, why not the trade unions? I must congratulate the noble Lord, Lord McCarthy, on his spirited attempt to become a military Duke. My noble friend, Lord Gowrie, in his speech, showed the great necessity for this Bill. However, the noble Lord, Lord McCarthy, would defend the status quo as did the Duke of Wellington the unreformed constitution of 1832.
The noble Lord, Lord McCarthy, fulfilled our wildest dreams. He defended the muddled old English institutions. The great Duke of Wellington could not have done better himself. My two noble friends Lady Cox and Lord De La Warr have pointed out that the Bill is intended to remedy the lack of provision for postal ballots. My noble friend Lord Campbell of Alloway produced the novel idea that postal ballots are meretricious. I cannot sec anything pertaining to harlotry about postal ballots, but that is what he said, and obviously his imagination is a very keenly developed one.
If Her Majesty's Government are determined to keep Clause 2 as it stands, I cannot add anything to what was put forward by my noble friends Lady Cox and Lord De La Warr about the necessity for postal ballots. Would it not then be possible to put in as an alternative to Clause 2 a reserve clause ensuring a postal ballot, but only as a reminder that if Clause 2 does not work in the way we hope it will, then the postal ballots would come in? This would have two effects. It would limit the temptation to fiddle, which my noble friend Lady Cox has shown to be possible, and also it would reinforce Clause 3, which my noble friend Lord De La Warr showed to be very weak because it provides little check on the abuse of Clause 2. Surely there should be proper provision for debarring corrupt or dishonest officials. After all, lawyers, doctors, local councillors, and even opticians can be banned for misbehaviour.
The noble Lord, Lord Ferrier, made the very valid point that the Government are not anti-trades union, but are anti the abuse of trades union power and pro a strong, democratic and forward-looking trades union

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movement. The recent agreement about one-union factories in Sunderland for the Japanese is a great sign that some people are saying that the secret of wealth and an increasing standard of living lies in producing things and in producing them as well and as efficiently as possible. Once that happens, we can all argue about who gets paid what. There is a big pot to argue over. For heaven's sake let us create the pot first before we argue about what we are going to get paid out of it!
The noble Lord, Lord Renton, also made his point with clarity. Admittedly, with my proposal of reserve post-electoral power to be brought into play only when Clause 2 as it stands has been shown to be defective, and with the possible elections fiddle mentioned by my noble friend Lord De La Warr, there is a great difficulty of showing, or challenging, union voting practice. This is shown by a recent argument in the CPSA, involving a Mr. Elliot and a Mr. Butcher. It has been put well in a leading article in The Times. They write better English than I can speak, so I shall let them speak for me:
"In the case of the CPSA, interminable legal arguments about discovery so postponed matters that the following year's election came along before Mr. Elliot and Mr. Butcher had a chance to make their case. They thus abandoned the proceedings, facing a bill for 60 per cent, of the total costs, with the CPSA's share being 40 per cent. There could be no more effective deterrent to any trade unionist challenging elections which he feels to have been abused than the prospect of having to meet a bill for thousands of pounds".
We know that lawyers run the most effective trades union and have to be very well paid, so we could not possibly deprive them of that privilege.
I cannot refrain from saying that I love the comment of the Welsh miners' leader that the day of the ballot is over because it means that the masses are denied their democratic rights. The noble Lord, Lord McCarthy, may have wanted to emulate the Iron Duke, but that Welsh miner's yearning for a trial at Westminster Hall and a January trip to Whitehall and the axeman, possibly followed by a nice statute in Trafalgar Square, shows that Emlyn Williams' view on divine rights are even more archaic than those of Charles I.
7.5 p.m.
Lord Oram: My Lords, 40 years ago, during the course of the Second World War, Sir William Beveridge wrote a book which he called Pillars of Security. In it he envisaged a post-war Britain in which five giants would have been overcome—the giants of want, disease, ignorance, squalor and idleness. Among the weapons which he envisaged would be needed to overcome those giants he included the state, to take direct responsibility for the control of vital industries, and trade unions as an essential element in the British democracy.
Today, day by day, Beveridge's pillars of security are being undermined and the giants are coming back. In some respects the Government disclaim responsibility for what is happening. For instance, they claim that unemployment—the giant idleness—is due to the world recession. They claim that cuts in social services are inevitable if we are to balance the nation's books. But elsewhere I do not think the Government try to disclaim responsibility, because in state industries
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demolition is proceeding apace, and certainly in relation to trade unions we have in this Bill a further deliberate blast at the foundation of trade union strength. It is on the trade unions that the working people of this country have relied, and still rely, for a major part of their security against Beveridge's giants.
Turning to the Bill, I want to say that there are three aspects of it which I find objectionable, and I believe that they will prove to be unworkable. The first is the attempt in Part I to impose a stereotyped form of democracy on trade unions. The second—this has not been mentioned much in the debate—is the way in which, at several points, the affairs of trade unions are increasingly to be subject to the jurisdiction of the courts. The third is the attempt in Part III to circumscribe political activity by trade unions, so as to keep their industrial and their political functions in virtually watertight compartments.
That is the order in which these three elements appear in the Bill, but I should like to take them in reverse order and thus deal first with the political question. The Bill proposes a much tighter procedure for the establishment of a political fund, and in Clause 15 it proposes a major amendment of the 1913 Act. The noble Earl. Lord Gowrie. said that the position remains as in 1913. If that is so, why is Clause 15—a major amendment of it—necessary? As I have said, the purpose of Clause 15 is to separate even more sharply than at the moment the industrial functions of a trade union and the funds that it uses for industrial purposes from its political function and its political funds. I do not believe that in practice it is possible to separate those two functions in that way.
For instance, how is it possible for a union such as N ALGO, or any of the Civil Service unions which do not have a political fund, to keep separate compartments—on the one hand a compartment of industrial activity, and on the other hand, a compart-ment of political activity? If they are anxious to take political action to defend their members' jobs, perhaps as a result of some Government decision, and if on the other hand they want to convene meetings or issue literature to persuade their members to exercise their votes against the Government who are taking that action, how can they possibly separate the industrial and the political functions in that way? I suggest that there is a vast grey area which is impossible of precise definition either by Parliament or by the courts, where industrial and political action impinge upon one another. It is because of that that I believe that Part III of the Bill can only make matters much more difficult and more contentious. On that point. I would call in aid the views of Winston Churchill. He has already been quoted twice in this debate. I shall quote from an earlier and more liberal Churchill, who said:
"I should have no hesitation in saying that it is quite impossible to prevent trade unions from entering the political field. The sphere of industrial and political activity is often indistinguishable, always overlaps, and representation in Parliament is absolutely necessary to trade unions, even if they confine themselves to the most purely industrial forms of action".
As I have indicated, my second main objection to this Bill is that, together with its predecessor Acts—those of 1980 and 1982—it increases to a great degree the likelihood of action in the courts. In recent years we have seen the unfortunate consequences of

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action in the courts so far as industrial relations are concerned, and I believe that the increased litigation which will arise out of this Bill will lead to an embitterment of industrial relations and a prolongation of disputes.
The whole of Clause 3, the whole of Clause 7, and the whole of Clause 13 are open invitations for employers or for aggrieved members to take unions to court. And, as trade unions and trade unionists tend to be like that strange animal which, when attacked, defends itself, I envisage that those clauses will exacerbate industrial relations time after time in cases which could far better be resolved by negotiation and compromise, by conciliation rather than by confrontation in the courts. Once again, I would call in aid the wisdom of Winston Churchill on this matter as well, because he said:
"It is not good for trade unions that they should be brought in contact with the courts, and it is not good for the courts".
I come to my third point. Perhaps I may explain why I believe that the Bill is wrong in seeking to impose on the vast complex and variegated trade union movement a uniform constitutional requirement for the election of the executive committees of trade unions. We have had speeches from a number of leading trade unionists from this side of the House today. Those with experience of the trade union movement know that the essence of trade union democracy is that it is a growth from below and cannot be imposed from above by the state or by legislation.
It is true that trade union democracy is untidy; it is illogical; it is very often very awkward; and it is human. It is a human institution. But it is a complex amalgam of, in some cases, direct elections and, in others, indirect elections. My noble friend Lord Beswick gave a very apt illustration. It is an amalgam of formal procedures with informal procedures, of large units for which, on the one hand, one form of constitution and organisation is appropriate, and very small units which, on the other hand, need to be organised in a very different way. In my view, it is quite impossible to impose by legislation any system of democratic control which will not create more problems than it solves.
Let us take the speeches that we have heard from this side of the House. The noble Earl, Lord Onslow, said that most of the speakers here failed to understand the purpose of the Bill. I would suggest that the experience of trade union democracy, which has been behind the speeches of my noble friends, and the understanding that my noble friends have of the real purposes of this Bill has been illustrated as being far more pertinent than the speeches that we have heard from the Government Benches. Let me take the list. We have had my noble friend Lord Scanlon from the engineers; we have had my noble friend Lord Taylor of Mansfield from the miners; we have had my noble friends Lord Houghton and Lord Bottomley speaking for two sections of the Civil Service; we have had the noble Lord, Lord Allen of Fallowfield, from the distributive workers; and we had that important contribution from my noble friend Lord Beswick about the airline pilots. Just that simple list of five or six unions, well represented by spokesmen on this side of the House, represents a vast complex of different
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constitutions and of different ways of managing democratic procedures.
If we think only of that list, and leave aside the many other trade unions that there are, I envisage that a mountain of difficulty is before us if we try to apply the methods proposed in this Bill. Given that complexity, in my view it is impossible to legislate for simplicity without running foul of a multitude of traditions, customs and well-tried procedures which are embodied in centuries of trade union history. It is for that reason that I believe that Part I will also fail.
I should now like to turn to my personal experience in democracy in commercial affairs, not because I have had any experience of organising trade union elections, but because I have experience in the broadly comparable sphere of democracy in the co-operative movement. Enshrined in the co-operative principles is that of one man, one vote, and that is accepted by co-operators throughout the world. Wherever it is possible, that principle is implemented by co-operators. But, like the trade union movement, our co-operative movement has grown enormously from its small beginnings, when simple democracy was possible, into a vast complex of businesses in insurance, banking, wholesaling, farming, and many other spheres. I know from practical experience that it would be utterly impossible to impose on that complex set of working-class organisations a uniform system of democratic elections.
Of course, what happens is that co-operators devise their own methods of election—their own systems of democracy. They register their rules with the registrar, who takes a pragmatic view as to whether they represent the methods of a proper co-operative society. That I suggest is the only practical way of applying democracy in the trade union movement which, likewise, is a multi-million membership of a voluntary organisation. In my view, any attempt to make them conform to stereotype patterns—as this Bill is attempting to do—is bound to fail.
If one steps back from this Bill and looks at society as a whole, one is bound to ask the Government: "If it is democratic control that you want, why single out the trade unions?" The point has been made by a number of my noble friends. Trade union democracy is indeed imperfect, but there are plenty of other examples around of imperfections in the commercial sphere. Building societies have quite rightly been described as self-perpetuating oligarchies. Why not introduce some form of greater democracy there by legislation if it were possible?
Our company law gives scarcely any power to the small investor in practice, whatever the general theory may be. The stock exchange is no shining example of accountability. As my noble friend Lord McCarthy did, we could go through the whole gamut of social and commercial institutions which are imperfect in their democracy.
Therefore, I repeat my question: why pick on the trade unions? We, of course, know the answer. The Government are wedded to the doctrine of the freedom of the market place. They see trade union power and trade union practices as obstructing the free play of market forces. Therefore, in this series of attacks, in 1980 and 1982, now in 1984 and with

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perhaps more to come, the Government are seeking to strip the unions of their basic powers. That is the purpose of this Bill, and my noble friends have not been mistaken in pointing to that as being the purpose of the Bill. The Government will no doubt succeed in putting this Bill on the statute book. But I believe that as to their hope of suppressing trade union power, it is for certain that in the long run they will fail in that objective.
7.22 p.m.
Lord Aylestone: My Lords, at this time in the evening, with an important debate with 16 speakers to follow, I intend to be brief. First, may I say that I agreed with the point that the noble Lord, Lord Houghton of Sowerby made—that it is unfortunate that at this stage, in the middle of a major industrial dispute, we should be discussing this Bill. But the Government are not to blame. It was part of their programme, and it is perhaps a matter of chance that it has come on at this time. There is perhaps never a right time, because there is always something going on in industry which makes it difficult to discuss a Bill of this sort.
During the debate it has been made absolutely clear, without a shadow of doubt at all, that the House is completely divided, as it was on the two Employment Bills of 1980 and 1982. I recall them both, as Members of the House must do, having taken part in both of them. I must say at this stage to the Government that those two earlier Bills have done very little indeed to improve industrial relations in this country. Nevertheless, the Government's objective was to introduce more democracy, or electoral democracy, into the trade union movement, and in that respect of course we support them.
Her Majesty's Opposition stand exactly where they have always stood, squarely behind the trade union movement, rightly or wrongly. The Opposition may understand that attitude, and I think I understand it, but I am quite sure that the country does not. The noble Lord, Lord Taylor of Mansfield, made the position clear when he said that the Labour Party is a child of the trade union movement, as indeed it is. I understand it; I do not think that the country does.
There has been much talk in this Chamber recently about programmes and manifestoes from the Government Bench, and promises from the Opposition Front Bench of what is likely to be included in their programme when the next general election takes place. I should like to make our position clear to the house at this stage by, if I may, reading a short quotation from the programme of the Alliance during the last general election, which said:
"Employee democracy in industry can only be extended if trade unions are made genuinely representative of their members since they are bound to have an important role in participation".
That is where we stand. That is what we believe. We support the Bill in the main but, as my noble friend Lord Rochester pointed out, we have a number of reservations which will be made clear during the Committee stage.
We are certainly of the opinion that there would be little public fear or worry about the power of the trade
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union movement, or the strength of the trade unions, if the so often self-appointed leadership truly reflected the views of the majority of the membership. The question that is generally asked in public is, do they? If anyone has any doubt about that, let them attend public meetings these days in connection with any of the local or national by-elections when the questions come up.
The Alliance believe that people who wish to do so have the right to join a trade union. But equally we believe—and this was made clear in the two debates in 1980 and 1982—that those who do not wish to join a trade union have the right not to do so, and have the right to be protected. We believe too that, so far as is practicable—and it is not clear in every case, and it is not made as simple as A. B. C in every case—the individual trade unionist should have the right to choose his executive officers and to choose them by ballot; and, we think, by secret postal ballot.
It has been argued in the debate this afternoon that a postal ballot would never work; that ballot papers would be sent out to many hundreds of thousands of trade unionists who would not return them. May I remind the House that if we get a 74 or 75 per cent, result in a general election we are doing pretty well, and therefore one could hardly anticipate getting much more. If we got 50 to 56 per cent, of people replying and sending in their ballot papers, I would regard it as an absolute success. In Part I, we would support secret postal ballots, which we think are preferable to handing out a batch of ballot papers at the place of work. We are not suggesting that they would be misused, but they could be, and might be.
We are concerned about trade union effects in the public services. We are of the opinion that so far as is possible—and I repeat, so far as is possible, because it may not be possible on every occasion—we should use arbitration; statutory arbitration, where it is possible. In this respect. I should like to pay tribute to ACAS for the work that they are doing and endeavouring to do in all cases of industrial dispute.
As I said at the beginning. I am not going to take up very much time, but I must refer to Part III of the Bill because—and I have seen different figures—a fair figure would be that something like 95 per cent, of all trade unionists pay the political levy. Do they consciously all pay the political levy, or do they just say "Yes" when they join the trade union movement of their choice? In my view, there is no way of dealing with this problem other than by the trade unionist contracting in to pay a political levy, rather than the present position where he pays it unless he contracts out.
In this respect, I must refer to what has been described as the long and detailed consultation between Government and the trade union movement about Part III of the Bill. What did it come up with? It came up with a proposal that after something like 70 years there is no change, except that every 10 years they will decide whether or not the political fund should be reformed. That is the only change. It makes one rather suspicious. What was the deal? What was the whole consultation about? Did the question of contracting-in not arise? Did the Government sell out on that point simply to get agreement on something

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else? We are particularly anxious to hear what happened in that respect.
The present trade union system is anything but completely democratic. I have spoken in this House on the occasions when we have debated the two earlier Bills and have paid tribute to the National Union of Mineworkers for its system of balloting, which at that time required a 55 per cent, result in favour of a strike or whatever action was being contemplated. That has now been reduced to a simple majority—I should think constitutionally reduced to that figure. But why, in heaven's name, (I do not want to talk about the industrial trouble at the moment) did the union not then hold a ballot, having achieved the necessary machinery to do so? These things make one wonder. There are things within the trade union movement that worry a great many people. They worry people such as myself.
I was a member of a trade union for well over 40 years, until I reached the point when I had to retire. There is no pleasure for me, or for many of the rest of us, to see brother trade unionists righting each other over some point or another. It has happened before, and we do not particularly like it. Whether this Bill will go some way in terms of democratic action which will make less trouble between the unions is a moot point. I do not know; it may. or it may not. We shall support this Bill and, when the time comes, we shall try with others to make improvements at the Committe stage. We shall do so with the object of making the trade unions a respected and an understood part of the work of this country and its people. At the present, I am afraid, they are not.
7.32 p.m.
Lord Wedderburn of Charlton: My Lords, the noble Earl when he introduced this Bill adverted to the fact that he has been here before with similar measures. Indeed that is true, but 1 was disappointed that today did not bring about a recurrence of the usual opening. In 1979, introducing the orders of that year, he said on 25th July:
"In the words of the old song: 'Something's got to give'; and in our case it is the ability of our economy to sustain, without the raging inflation which has the same job-destroying effects in the end, the levels of employment to which we have become accustomed".—[Official Report, 25/7/1979; col. 1942.]
He came in with a song in his heart. The same was true in 1980. In 1980, introducing the Employment Bill, he said that it was an ambitious measure and he continued:
"As Professor Higgins said of Eliza Doolittle in 'My Fair Lady', 'By Jove, she's got it!'"—[Official Report, 20/5/1980; col. 736.]
I have waited for tonight's song, but it did not come. I thought that perhaps, as he surveyed the efforts of the Government on industrial relations legislation of the last five years, the noble Earl would be forced to come in with yet another anti-trade union measure and—as we all know with more to come until they have got it right—with a classic rendering of the Rolling Stones' "I Can't Get No Satisfaction". The Government's position appears to be that they are always coming back for more.
Indeed there was no clear theme behind the Government tonight, I fancied, about why this measure is necessary. On this side of the House, I
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venture to suggest that there were two things. First, there was a clear restatement, as my noble friend Lord Oram stated clearly, that the vast majority of working men and women in this country rely for the standard of their livelihood and for their freedom upon the collective strength and reality that supplements their individual weakness. That truth is the same today as it was in better days of the economy.
Secondly, the contributions of my noble friends, which again my noble friend Lord Oram listed—those of Lord Scanlon, Lord Taylor of Mansfield, Lord Houghton of Sowerby, Lord Bottomley, Lord Allen of Fallowfield, Lord Beswick—demonstrated the variety which was representative of the British trade union movement, as it would be of any democratic movement; the variety of practice and the approach to democracy that members were entitled to decide the way in which their organsation was to be governed. When contrasting that with the Bill, we find that its first characteristic in Part I is a dogmatic assertion that only one form of direct election to the National Executive through the constrictive procedures of Clause 2 is what the Government will allow to be democracy for trade unions.
It has been put to the Government before and I want to put it to the noble Earl again tonight that this is not in accordance with our obligations under the International Labour Organisation conventions. The noble Earl will know that I refer to Convention 87 of the Conventions on Freedom of Association, the Right to Organise, to which this country adhered many years ago. It was one of the first to adhere to it. Article 3 gives to workers and employers' organisations,
"the right to draw up their constitutions and rules, to elect their representatives in full freedom"—
and—
"public authorities shall refrain from any interference".
When this has been put to the Government in debates in another place on this Bill the Government have replied in this way—and I quote the Minister of State on 8th November at col. 233. He said:
"in its general survey on the application of conventions and the freedom of association, the committee of experts of the ILO said that when legislation contained rules intended to promote democratic principles in trade union organisations, or to ensure that the electoral procedure is conducted in a normal manner and with due respect for the rights of members, such provisions do not involve a violation of the principles of the freedom of association".— [Official Report, Commons, 8/11/1983; col. 233.]
He justified the measure on that basis, as well he might, because that is an almost direct quotation from paragraph 168 of the Fifth Report of the Committee of Experts of the ILO in 1983. But why do the Government stop reading at paragraphs 168 to 169? If they go on to paragraph 172—this is the authoritative statement from the ILO that I wish to put to the noble Earl—they will find it stated:
"The Committee considers that legislation which regulates in detail the internal election procedures of trade unions is incompatible with the rights of trade unions recognised by Convention No.87.".
What is this legislation but detailed legislation on the internal election procedures of trade unions? Do the Government abide by Convention No. 87 or will they denounce that ILO convention as they denounced conventions Nos. 94 and 26 to get rid of fair wages resolutions and protection for the low paid:

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international labour standards to which this country was proud to adhere for many years, a tradition sullied by the denunciation of conventions which are literally recognised by countries from Swaziland to Sarawak? What will the Government do about Convention No. 87? Do they accept that detailed internal legislation on elections, as the committee authoritatively states, is a breach of the convention or not?
That is not merely a legalistic point upon an international convention. It is a point which sums up, at the level of international labour standards, the experience which my noble friends have been giving to your Lordships' House tonight. The ILO is nothing more than the collective and distilled wisdom of employers, governments and labour movements throughout the world. It is putting to governments the care that they must take not to infringe the fundamental civil liberties which we are quick enough to prate about in Gdansk but which apply just as much in Grimsby as they do the other side of the Iron Curtain.
The Earl of Gowrie: My Lords, can the noble Lord think of a single job or a single piece of wealth that the ILO has ever created?
Lord Wedderburn of Charlton: Yes, my Lords, I canindeed. It is by giving standards throughout the world to governments that would otherwise accept the exploitation of workers. If the noble Earl, on behalf of Her Majesty's Government, is denouncing the International Labour Organisation, if he is now saying that, let him say it. Let him say that the Government wish to denounce the ILO as never having contributed to the wealth of workers throughout the world. Is that what he is saying?
The Earl of Gowrie: My Lords, I am not denouncing any organisation. All that I am saying is that the noble Lord, with his customary skill, is drawing an international red herring over a sensible and local provision.
Lord Wedderburn of Charlton: My Lords, I will accept the noble Earl's compliment as to skill. But he must look at the text and he must decide whether or not the Government are going to accept that judgment on the convention throughout the rest of the debates on this Bill.
Secondly, there is another curiosity about the way in which these matters are discussed. There is a special technique which is applied to trade unions. It is done in the Green Paper of 1983, in paragraph 12, which begins:
"Public confidence is inevitably eroded when allegations are made of forgery, ballot rigging and other corrupt practices".
That is what has happened tonight. The noble Baroness, Lady Cox. the noble Lord, Lord Ferrier, the noble Lord, Lord Renton, and the noble Lord, Lord Campbell of Alloway, all, in their own way, have attacked and treble-criticised the trade union movement, or parts of it, for gerrymandering, for—
Lord Campbell of Alloway: My Lords, will the noble Lord give way?
Lord Wedderburn of Charlton: My Lords, if I may finish the sentence, the noble Lord, Lord Campbell of Alloway, spoke of gerrymandering. The noble Lord, Lord Ferrier, spoke of malpractices and the noble Baroness, Lady Cox, also spoke about malpractices. She nearly gave an illustration. But we can read Hansard and see how many illustrations were given. My point is that for the number of occasions that the charge is made, the number of illustrations is minimal.
Lord Campbell of Alloway: My Lords, I am grateful to the noble Lord. I did use the expression "political gerrymandering". It was only because the noble Lord, Lord Scanlon—and he will confirm it—suggested that Her Majesty's Government were guilty of such practice in producing this Bill. I was suggesting, with great respect to the noble Lord, that he had stood the problem on its head. With respect to the noble Lord, Lord Wedderburn, it is not really right to suggest that I am accusing the trade unions of gerrymandering. Quite the reverse. He knows that 1 support the trade unions as a responsible institution and always have done.
Lord Wedderburn of Charlton: My Lords, the fault is entirely mine. I understood the noble Lord wrongly and I am glad that he accepts that there is not any case of gerrymandering proven in that area. For the rest, we can read Hansard. My point is that there are no examples given. There is the case of someone who boasts of having filled up 129 ballot papers. Really, if one had to go into court on evidence of this sort, one would simply be laughed out of court. And noble Lords know it. There really cannot be any case for control of trade union rules for elections based upon malpractice. The Freedom Association has tried very hard.
Contrast the sort of pictures that one finds elsewhere in the history of trade union movements. If you look at the United States in the 1950s, you find an unhappy state of affairs of massive corruption and malpractice and it was proven and the Landrum Griffin Act ensued. I may mention to the noble Earl, while he is about it, that the Landrum Griffin Act is a control of labour union electoral practice in the United States which is one of the reasons why that govenment would be unable to ratify Convention No. 87.
Another reason is given—although it has been played rather softly tonight; but we shall hear it in Committee—and that is that trade unions need this control like some kind of bridle because they enjoy immunities. This is ground that we have gone over before but this time the Minister of State on the 8th November surpassed himself, at col. 235 by saying:
"The link between immunities and democracy must be absolute".
It is useful to ask what these immunities are. First of all. it is curious that new controls should be introduced on the ground that there are immunites at a time when the Government have reduced these so-called immunities to a level which one would have thought was as near to the ground as you can get.
Secondly, the only two immunities of which we are speaking are, first the defence of trade unions against the doctrine of restraint of trade which would otherwise make them unlawful associations, which has been there since 1871, and, secondly, the protection of

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an act of a person—any person, the noble Earl might notice, because he spoke of trade union immunities in trade disputes; and it is an immunity for any person—who is acting in a way which would cause a breach of a contract in a trade dispute which, if the protection were not there, would make all withdrawals of labour on a concerted basis unlawful.
So we are speaking about the two things which in other countries are called the right to associate—the law would otherwise make trade unions unlawful—and the right to withdraw labour, which would otherwise be common law liability for inducing a breach of contract. No Frenchman or Italian on either side of the political divide would regard it as anything other than humorous that someone should suggest that trade unions, because they have this great privilege of associating together and organising withdrawals of labour, should therefore subject their rules about elections to the whim of Her Majesty's Government. That is an absurd proposition. It is only the rather crazy history of British labour law which introduces the word "immunity" which allows for the argument to be made.
There is a perhaps even more important parallel on which the Government try to rely and on which they cannot. That, the noble Earl put forward by saying (I think more than once; but I noted it once) that companies were subjected, under the Companies Acts, to safeguards of a parallel kind. With great respect, that is not true. As far as the election of the board of directors is concerned. Table A to the 1948 Companies Act can be displaced. Companies have a wide discretion as to the manner in which the board would be elected. Only one section is a parallel; and that is Section 184 of the 1948 Act which allows the ordinary resolution of the general meeting of shareholders to dismiss a director. There is that one parallel. So far as the electoral process is concerned, there is nothing.
Of course, if we looked at malpractice, if the Government really wanted to legislate on malpractice, there is a whole history of inspectors' reports to which they could turn. And if we are looking for immunities, the biggest immunity enjoyed by anybody in this country today is that of limited liability. Those of us who pay our debts to the full are contrasted with those, and those organisations, who avoid millions, and hundreds of millions, of pounds-worth of debt by limited liability. That is not the same parallel control of companies. If the noble Earl would like to have a Bill presented, through him, for a parallel, I would be happy to do so.
Nor is it true—to take one point that the noble Earl, Lord De La Warr, made—that there is any evidence that particular forms of control in organisations like trade unions necessarily produce any particular result. I myself would not want to rely upon such an argument because I do not think one ought to legislate to get a result. But it appears that it is not even true that that is the case, as the recent book of Roger Undy and Roderick Martin showed. It would be better, I think, for the Government to rely on the research on ballots of 1984 than, as my noble friend Lord McCarthy suggested, the rather antiquated research of 1952 by Dr. Goldstein.
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Nor is it true; as the noble Lord, Lord Campbell of Alloway, suggested, that the Donovan Report supports Part I of the Bill. Without reading them all, I may say to him that if we look at paragraphs 640 to 641 of the Donovan Report we find—and I shall quote just a sentence; for I do not think I am carrying him with me—that it says:
"No rules, however elaborate, would be proof against organised fraudulent and determined rigging of an election such as occurred in the case of the electrical trade union in 1959 but a great deal could be done by filling gaps in existing rules to reduce the possibility of election irregularities.".
I pause to say that it just is not true to say that trade unions have done nothing in the last few years. In the last 10 years at least 10 major trade unions have revised their constitutions in very radical ways. That is quite apart from the mere incidence of amalgamation.
The Donovan Report went on to say something which must be said and which I do not think has been said in the debate so far. It pointed out:
"Dependent as trade unions are on voluntary labour to a large extent, it cannot be expected that their elections will be conducted impeccably in every detail".
It is a fact of life that voluntary organisations such as trade unions, which rely in many cases upon the voluntary work of lay officials, cannot be expected to get the precise detail of a parliamentary election. Indeed, about two years ago, Sir John Boyd said that the AUEW should be congratulated on having a clear register of more than 800,000 of its one million members. He made the case in a passage that is well known to those who have studied the subject—it must be available to the Government—in quite a clear way. The Government must know that, for a trade union with a million members, Clause 2 is a series of trip wires. Of course they know. It is a jungle of man traps to any large union and certainly to even a small union with mobility of labour in its industry and a shifting membership.
Part II of the Bill imposes a ballot. I shall confine myself to saying only two or three things about it. First, it marks the giant step that we have taken away from Donovan. Even in 1971 the package that was put forward by the Conservative Government at the time at least ostensibly relied—and its authors really believed that it relied—on the Donovan philosophy. This Bill does not rely on the Donovan philosophy, as can be shown by a simple illustration. In the Donovan era, if one weighted the law any way, one usually weighted it against unofficial action and for official action. Although I have been at odds with some friends as to exactly how that should or should not be done, nevertheless, if one were going to weight it in any way, that surely has something to commend. But this Bill weights the law in favour of unofficial action. It is the unofficial action which retains the trade disputes immunity whether or not there is a ballot. And the trade union—and, my Lords, let us note, the trade union and its officials, because they lose the immunity, too—loses the immunity if there is no ballot, if there is no ballot within the precise procedures of Clause 7 as it now is, and if more than four weeks have passed when action is called after such a ballot. It is a ballot, as my noble friend Lord McCarthy has said, with the loaded question which has to be, "Will you take part in the action in breach of your contracts of employment?"

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It is a curiosity of our employment law that in industrial action there is a breach of the employment contract. In most modern systems the employment contract is suspended. But the Government are building upon the curiosity that in Britain the employment contract is technically broken in strike or other industrial action and they demand that workers be asked by their union. "Will you come out in breach of your contracts of employment?" Of course that is an intimidatory question and the Government know it. It is a loaded question. When the workers of Germany voted by 80 per cent, in favour of yesterday's strikes for a 35-hour week, true, they did something that has been put up to us very often as a model. They did so in an orderly way in a ballot, but they did not have to vote on a loaded question set by the Government. That is a measure of the way in which the Government are moving to an autocratic labour relations law.
Nor indeed is it clear what the Government mean by including in Part II of the Bill industrial action which either breaks a contract of employment or interferes with it. I confine myself to saying this. It is not yet clear what it is that a worker is not entitled to do in the Government's eyes if it is not a breach of his contract of employment. In Committee we shall press for the removal of this doctrine of interference from Part II of the Bill because it is quite plainly a covert way of extending liabilities beyond those that necessarily currently exist.
In Part III of the Bill my noble friends have illustrated the ways in which the autocratic and non-democratic approach of the Government is sustained. Those of my noble friends who commented, as many did, on the natural way in which trade unions have a political role to play, will find that the ILO again is in agreement with them. Perhaps the noble Earl the Minister, when he is looking at the Fifth Report of the Committee of Experts, would like to look at paragraph 195 as well, where he will rind spelt out at length the reason why trade union movements in the modern world cannot avoid being involved in.
"matters of general interest—i.e. "political" in the broadest sense of the word".
In this country, again, the Government are building upon a curiosity. What is curious about our structure? What is curious is that in 1910 in the Osborne case the Judicial Committee of this House, in one of the most biased decisions ever taken by it. decided that, because the definition of a trade union in the 19th century statutes did not mention political activity, trade unions could not lawfully adopt that role. It is little known, although most of my noble friends will probably know it. that it was the trade union movement that invented the political fund. It was the trade union movement between 1910 and 1912 which invented separate funds, which the judges then struck down again and again as not being sufficient. Therefore it was that that was ratified in the 1913 compromise whereby trade unions, and trade unions alone, are permitted political rights only if they have a separate fund, only if members can contract out, and only if that fund is established by a ballot.
Now when the noble Earl the Minister says that nothing in this Bill changes anything after 1913, of course I understand that he did not mean that it made
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no changes, or else it would not have been introduced. The noble Earl was arguing that the structure is the same. But. my Lords, with great respect, the structure is not entirely the same and even if it were, since we are questioning fundamental things and asking fundamental questions, why should it be that the trade union alone has to satisfy these conditions before it is allowed political activity of any kind? What about partnerships and what about co-operatives? I do not make the point against co-operatives or for them. What about companies?—that is the usual one. What about building societies and all sorts of organisations which will have their own ways of being limited but not this sort of special statutory structure? Let us clear one thing out of the way. It is not true that companies suffer from the same kind of limitation. All that companies suffer is under Section 19 of the 1967 Act, whereby they must disclose political payments which have already been made with charitable donations over £200 in total. Even the Police Federation seems to be in a position superior to the ordinary trade union.
Any changes to put further limitations on trade unions are a denial of democratic rights. One cannot base the argument on figures if they are not right. With great respect to the noble Lord. Lord Aylestone, the figure for payments to the trade union levy is not 95 per cent, of all trade union members, but is 81 per cent, of the 63 unions with a political fund. As some of my noble friends have said, there are many trade unions which do not have a political fund and for them the alteration in the definition of political objects is perhaps even more important than for those unions which have a political fund in their make-up.
In 1980 the Post Office Engineering Union contributed to a campaign called "a Campaign against the Cuts". It made its donation from the general fund. It was challenged by a member, and the challenges in the past few years, as everyone knows, have increased because the Freedom Association and other organisations have been looking for cases to take, and have said to the certification officer that they are brought by members of the Freedom Association. But in this case the certification officer applied the law as it is and as it was stated to be in the great guiding case of Funster in 1925—a case with which the noble Lord will be perfectly familiar, on this basis. I now quote the chief registrar in Forster's case, who said:
"Political as it is used in this section"—
the definition section of political objects—
"is not the adjectival form of polity, but the adjectival form of party politics."
The Government have changed that definition and extended it. First, they have knocked out the exception for the so-called statutory objects: that is to say, the exception that used to be there for expenditure on mainly industrial purposes. Secondly, they have made a number of other changes, and on Second Reading it is important to mention an important one; that any expenditure:
"that seeks to persuade any person to vote or. as the case may be, not to vote for a political party or candidate".
is within the area of political expenditure now. It was not necessarily so before. That was because as the Colman case showed and as the POEU case showed you could make donations or spend money on general

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social issues. So if I may treat the matter dramatically, in fact the Government have now changed "political" from the adjectival form of party politics into the adjectival form of policy, because anything that can be seen as seeking to persuade a person to vote or not to vote for any party would be within the clause.
It has therefore rendered as a prohibited area the entire area of social controversy for unions that do not have a political fund. This is not just a small change from the 1913 scheme. For those unions which do not have a political fund it is a monstrous prohibition upon their civil and political rights. What right have the Government to tell a Civil Service union that it cannot make a donation out of its general fund to a general campaign in regard to environmental or similar issues that may be reflected in the party political programme of one party or another? The Government are acting without any evidence of any kind of abuse. They have not even made a case for abuse. They have taken the opportunity under cover of updating the definition—because that is what the Secretary of State said—to introduce this fundamental change.
If there is so little ground for the Bill, why on earth is it brought forward? The noble Lord, Lord Renton, said that it was to save the trade unions from themselves. He said: "Look at the United States". The noble Lord is no longer in his place but I am sure he will not mind if I say in reply to him that, looking at the United States, you find that trade unionism is somewhere about 20 per cent, of the density of the labour-force, and dropping. The whole point of the United States industrial relations is the new practice of de-unionising enterprises; and that is what we will get next in this country. In this country, considering the recession in jobs, the trade union movement has maintained a remarkable degree of density of membership in the workforce.
The reasons for this measure, for the next measure, and for the last two measures, as my noble friend Lord McCarthy suggested, are to be found in that area of writing which the Prime Minister referred to on 10th March 1981 at col. 756 of Hansard (if anybody is interested in reading it) where she said people should look at these writings; she had great admiration for them and in fact they were absolutely supreme. Those writings say that the chief causes of inefficiency, poverty and unemployment are the privileges and force used by trade unions, which are rapidly destroying the economic order, provoking a critical test of democracy and unless unions are deprived of their coercive power an economic recovery for Great Britain is impossible. Instead of just giving phrases, as I have been doing, I will quote a full sentence—
"So there can be no salvation for Britain until these special privileges granted to trade unions three-quarters of a century ago are revoked.".
All those questions, of course, are from Professor Hayek, to whom my noble friend Lord Taylor of Mansfield adverted. They are the basis of Government policy. I do not know why anyone should be coy about it. The Government's economic advisers believe that one of the major causes of unemployment is trade union organisation. They think that trade unions are an obstacle in the market-place. They believe that is so and the longer trade unions are there with effect, the
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longer they will go on until, as the noble Lord, Lord Ferrier, said they would do, they get it right. On this philosophy, they must reduce trade unions to a point where they have no influence of any appreciable kind; and as these legislative measures rain upon the labour movement like the cutlasses of the cavalry in St. Peter's Field 165 years ago, the Government will go on not creating one job through them, not solving one industrial crisis through them, contributing nothing to the national prosperity through them, and in a word, my Lords, that is why, as my noble friend Lord Allen said, the nation will return soon to consultation and co-operation; and that is why these measures must be repealed.
8.5 p.m.
The Earl of Gowrie: My Lords, I am not going to be tempted too far by the noble Lord, Lord Wedderburn, to try and define what the signature tune or special song of this particular piece of legislation should be. Various Members of your Lordships' House might propose some various tunes, such as, for instance, Sir Harry Lauder's "Keep Right on to the End of the Road". Or, since the Rolling Stones were mentioned, we might have the more co-operative song of the Beatles, "I Wanna Hold your Hand" where democratic and electoral procedures are concerned. For myself—I think the House will forgive me if I relapse into the role of Minister for the Arts and financier of grand opera just for a moment—I would prefer the great duet between Florestan and Leonora in "Fidelio", just after the prisoners are liberated.
Throughout this debate, noble Lords opposite—in fact I will redefine that and say "noble Lords on the Labour Benches"—have consistently failed to understand that the impetus, the dynamic and the mandate for this legislation come from trade union members themselves. The noble Lord, Lord Scanlon, talked about the Government's paranoic hatred of trade unions, and he said:
"First destroy the trade unions and then you destroy democracy".
But while I find that a thoroughly offensive idea in connection with this Government, and assuming for the sake of argument that the noble Lord, Lord Scanlon, will not take assurances from me, whom does he find supporting this legislation from the Government in this House, let alone in the greater world outside it? He finds the admirable speech of the noble Lord, Lord Aylestone, a former Labour Chief Whip, who delivered that speech sitting beside the noble Lord, Lord Diamond, a former Labour Chief Secretary of the Treasury. Does he think that Mrs. Williams, Mr. Rodgers, and Dr. Owen are all in thrall to Professor Hayek?
It really is not good enough to try and discover the roots of this legislation in some, to my mind, sensible and interesting current philosophical deliberations in the field of political science. I am delighted to argue political science with the noble Lord here, or in the bar, any time he wishes; but I think he knows perfectly well that that political science is not at the core of these legislative proposals.
I do not think I could put it better—and I am sorry to find myself in what is to be a genuine, but unnatural, alliance, so to say, for a brief period of time—than as

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it was put by the noble Lord, Lord Aylestone, who said, talking about some union traditions and habits: "These things do worry a great many people." My Lords, they not only worry a great many people in the Conservative Party, but they worry a great many people in the Labour Party—who have accordingly left it, and who deserted it in droves at the general election; and they also worry a great many people in the trade union movement itself.
The noble Lord, Lord Taylor, cited the phrase—and others have also done so—
"Give the unions back to their members".
The noble Lord, Lord Taylor, asked: When were they taken from them? But as a Nottinghamshire miner, perhaps the noble Lord could ask that question of his later colleagues. Again, my noble friend Lord Renton put it very pithily, when he said that noble Lords opposite have failed to face up to the dissatisfaction of their own members. He answered the objections of the noble Lords, Lord Bottomley, Lord Oram, and Lord Allen of Fallowfield, who simply lapsed into a somewhat Pavlovian or automatic response of thinking that this is some kind of Tory attack on the unions. The real opposition that the Government are facing in respect of this legislation comes from behind me, not from in front of me. That is well illustrated by the immensely powerful and able speech of my noble friend Lady Cox, to which I shall return in just a few moments.
Before I leave the noble Lord, Lord Wedderburn, so to say, I must say that I should not have been teased by him about the ILO. I should be too old a hand now to rise to my feet on those occasions. But while I admire it, I find an almost colossal irrelevance in the noble Lord's citing of these international issues to legislation as modest as this. If the noble Lord wants a technical answer, he knows what my honourable friend the Minister of State has said in another place.
But I can add a little flesh to it, as he challenged me to do, because my understanding is that so far as Article 3 of the Convention 87 is concerned, it is clear that the basic aim is to protect trade unions against interference by Governments with the right of trade unions inter alia to elect their representatives in full freedom. The types of interference which have been criticised by the ILO supervisory bodies as being in contradiction of this right have been, for example, that the legislation contains unduly detailed rules relating to trade union elections, and even provides for intervention by the authorities in the supervision of the electoral process; that the legislation provides for the approval or ratification of the results of trade union elections by the Minister of Labour, or that at least part of the executive committee shall be nominated by the public authorities; or, again, that the legislation provides for the obligatory presence of labour inspectors or other public officials during voting, or for their participation in the counting of votes.
In fact, cases in which the legislation of other countries provides for secret ballots for trade union elections are frequent, and in some countries—for instance, Australia and Japan—it is the constitution or rules of the union that must provide for secrecy in the election of trade union leaders. In most cases where
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secret ballots are necessary the sole purpose of this requirement is to ensure the application of democratic principles and, in particular, respect the right of every member to make his choice in full freedom. To this extent, such provisions have not given rise to criticism by the supervisory bodies. The quotation referred to by the noble Lord, Lord Wedderburn, might apply if the Bill laid down detailed rules and requirements on every aspect of trade union elections. But it does no such thing. It merely lays down basic fundamental democratic principles, and the noble Lord knows that perfectly well.
The noble Lord, Lord McCarthy, gave a charactistic bravura performance and he, like the noble Lord, Lord Wedderburn, has nothing to learn about debating techniques. It was, however, the wretched, and no doubt lamented, Mr. Goldstein, rather than myself, who caught the full fury of his academic scorn—a tornado of High Table abuse. But there was no mention in the noble Lord's splendid speech of the evidence of last year's elections within the ASTMS, in which fewer than 2 per cent, of the union's members voted. There was not a word about the appalling level of participation in branch meetings disclosed in the workplace industrial relations survey.
The House will remember that in my opening speech I invited noble Lords opposite to answer a number of specific questions. I asked them whether they objected to union members being able to vote for their leaders in a secret ballot. I asked them whether they objected to union members being asked whether they want to strike before being ordered to do so. I asked them whether they objected to union members being able to vote without interference or constraint. I think there is no more telling demonstration of the paucity of the official Opposition's case on this Bill than that not a single answer to any of those questions has been forthcoming—
Lord McCarthy: My Lords, may I intervene?
The Earl of Gowrie: My Lords, may I finish the point? It is astonishing, too, that the posing of such questions, and our attempts to answer them, should be looked upon in this House as an attack on the trade union movement.
Lord McCarthy: My Lords, I should like to make it quite clear in answer to all those questions—which I think the noble Earl will find I did answer, but I shall answer again—that we are not against any of those things in union rule books. We are against the Government attempting to impose their way of doing it through the law.
The Earl of Gowrie: My Lords, this point has been made earlier in the House, and by more experienced people than I. It was my noble friend Lord Campbell of Alloway who reminded the noble Lord, Lord Houghton of Sowerby—who, I remember, in 1980 was himself very aware of this point—that every chance had been given to trade unions to reform themselves. It is simply the reluctance of trade unions to do this, the reluctance of trade unions even to come into consultations on this issue with my right honourable friend the then Secretary of State, Mr.

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Tebbit; and it should not surprise anybody if we go on without them. But I do not myself accept that we are going on without them. I think that we are simply going on without the co-operation of the present generation of trade union leaders.
One of the key issues which has been raised by a number of noble Lords, including the noble Lords, Lord Rochester and Lord Aylestone from the Liberal and Alliance Benches, and by my noble friends Lord De La Warr and Lord Onslow, is postal balloting. I mentioned a little earlier the immensely powerful and well-argued case put by my noble friend Lady Cox, and I shall certainly draw that speech and every aspect of it to the attention of my right honourable friend the Secretary of State. No doubt my noble friend will be returning to some of the themes at a later stage.
There is no doubt that from many standpoints the ideal way of conducting an election ballot is by post. I do not believe that that removes all opportunities for malpractice, but there is little doubt that it is harder to rig a postal ballot than to rig a workplace ballot. But the House must be a little cautious—and I am grateful for the support given to me here by my noble friend Lord Campbell of Alloway—in too hastily drawing conclusions from this fact.
The Government's view of the existing electoral procedures in most of our major unions is well-known. The methods of election in use, such as voting at branch meetings and the block vote, are guaranteed to reduce participation to a minimum and to distort the results. One need not be a daily reader of the works of Professor Hayek to take that view. But we do not suggest that trade unions in general go about operating these arrangements corruptly or fraudulently.
We are attempting, as I said in my opening speech, to bring about conditions where best practice can prevail; and I make that point particularly to the noble Lord, Lord Beswick. But I do not think there is any evidence to back up any general statement about corruption or fraudulence, and I should never make such a statement. I would ask the House not to assume that trade unions are incapable of conducting ballots in the proper way.
There are also two other relevant considerations, the first of which is turnout. I think few noble Lords on either side of the House would dispute the fact that the best guarantee of representative trade union leaders is that as many members as possible should take part in their election. But we must recognise that turnouts of the order of 40 to 50 per cent, and more are recorded in those unions which employ individual workplace ballots. By contrast, the turnout in the engineering union elections in 1982 was 23.7 per cent. Again, I tried to stress in my opening speech that we are dealing with the economics and the practices of the real world in this step-by-step process of legislation. We want to bring people with us each step of the way. That, rather than some indeterminate posture of threat, is what we are trying to achieve.
I believe that our first objective should be to raise the level of participation in union elections. The major change which the Bill will make is to force unions to abandon both the block vote and voting by show of hands at branch meetings, which are inevitably attended only by activists. It will be a great achieve-
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ment if the Bill boosts substantially the number of union members actually voting in elections. It was in the light of these and other considerations that we concluded that it was right for the Bill to allow for both workplace ballots and postal ballots. Your Lordships should note that I do not include branch ballots. These are quite clearly ruled out.
Lord Beswick: My Lords, in seeking this objective of a democratically elected national committee, is the noble Earl going to answer my question, in which I asked him how the proposals in the Bill which are to be imposed upon unions will improve the system now carried out by the British Airline Pilots' Association?
The Earl of Gowrie: My Lords, my understanding is that we have been in discussion, by correspondence, with the British Airline Pilots' Association. When I know the results of that discussion, I shall bring them to the attention of the noble Lord. However, as I said in my opening speech, the fact of the matter is that we are talking not about general malpractice but about bringing the rest up to the standard of the best. If the noble Lord, Lord Beswick, feels—and no doubt he has good reasons for doing so—that BALPA enjoys the best standards, they have nothing whatsoever to fear. I acknowledge, however, that this is not a simple issue. We shall give very careful consideration to the arguments which have been put forward today by those noble Lords who favour compulsory postal ballots, but our current view remains that a requirement which from the outset imposed postal ballots for all elections in all unions would be so impracticable as to negate the inherent desirability of the move.
The House gave me a good hearing at the beginning of the debate. While I am aware that one or two points of detail have been put to me by the noble Lord, Lord Rochester, and others, perhaps I may take them up in correspondence and now make just one final point. In his speech the noble Lord, Lord McCarthy, took the Government to task for the 1980 and 1982 Acts, for making actionable, as he put it, closed shop agreements, secondary picketing, secondary action and what he, I thought a little quaintly, referred to as "the fair list"; in other words, the means by which the print unions sought to force non-union firms out of business. That is the famous "fair list".
I can only repeat that I very much welcomed what I believe the noble Lord, Lord Oram, said; or it may have been the noble Lord, Lord Botttomley, who took the view that the next Labour Government would repeal this legislation. At that election I enormously look forward to reading the manifesto of the party immediately opposite me. I wonder whether it will contain a pledge to bring back the flying picket, a pledge to restore the closed shop to the position in law which it enjoyed before 1980, and which led directly to this country being found in breach of the European Convention on Human Rights. I wonder whether it will contain a pledge to repeal this Bill in order to give the block vote back to the British people, who are thirsting for it, a pledge to banish the ballot box from the realm, and a pledge to restore that most cherished of our freedoms, which is, of course, the right to vote by show of hands in the car park meeting, with militants packed at the front and the hands counted by

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stewards on the platform. That would be a nonsensical political programme. While it would give me no special displeasure, I must warn the party opposite that if they do campaign on that platform, they will have an even worse result than they did in 1983.
The plain truth is that the reforms in this Bill are, if anything, shamingly overdue. They are supported by not just the great mass of our people, but also the mass of trade unionists. For that reason they will endure, despite the wrath of the Labour Party. In that spirit, I would ask the House to give the Bill a Second Reading.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Trade Marks (Amendment) Bill
8.25 p.m.
Lord Campbell of Alloway: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(Lord Campbell of Alloway.)
On Question, Motion agreed to. The National Heritage: Works of Art
8.26 p.m.
Lord Fanshawe of Richmond Lord Fanshawe of Richmond rose to ask Her Majesty's Government what steps they are taking to protect and preserve this country's heritage, works of art and cultural objects, having regard to the immense buying power of the Getty Museum.
The noble Lord said: My Lords, I beg to ask the Question standing in my name on the Order Paper. First, I must apologise to the House and to my noble friend for keeping him here at such a late hour. He has had a very heavy day and has had to cope with two major speeches on an important piece of legislation. I trust that he will forgive me for inflicting this further burden upon him this evening.
I have no major interest to declare, unfortunately, as I was not lucky enough to inherit a stately home or a work of art of national importance, although I am a trustee of the National Army Museum. However, I raise this question because we are now confronted with an entirely new factor which, like it or not, is having a disruptive effect on the international art market and, by extension, a similar effect on the values of individual works of art. What is this factor? It is the massive and unprecedented sums which have recently become available to the Getty Trust in California. Is it generally realised that under United States Federal law, Getty is obliged to spend at a rate of over £1·25 million a week out of a larger income of over £1·65 million a week, the unspent balance of which goes to increase the capital sum?
In addition, the pound sterling, which stood recently in the region of 2·40 dollars to the pound, last week
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dropped below 1·38 dollars to the pound. I need hardly stress in these surroundings that this alone puts us in difficulties in attempting to retain in this country our inheritance of works of art and cultural objects which still remain in private possession. Whatever the Getty Trust does or says it is going to do, this problem must be faced now, and it must be faced fair and square and without equivocation.
My comments this evening are intended to imply no criticism whatsoever of the Getty Trust. They are, in my view, doing a fine job. All of those interested in the arts can only praise Paul Getty's generosity and the skill of the trustees and staff in the way they are carrying out the role he devised for them. Of course, as we all know, there are other institutions and private individuals in America and elsewhere which have funds enabling them to compete successfully for our works of art against any sums which we in this country can at present command.
For example, the Kimbell foundation at Fort Worth, Texas, has more formidable resources than any of our great museums. Nevertheless, its financial muscle is in a wholly different league from that of Getty. In addition, the fact should not be overlooked that American citizens have long enjoyed income tax incentives to support their public museums, with the result that many American institutions have become the envy of the civilised world in the latter half of this century.
But what is the position in the United Kingdom? Let no one doubt that private owners still constitute the major source of supply. For the past quarter of a century, our export controls have been fair and liberal, and I am delighted to see that among those who will be speaking tonight is my noble friend Lord Eccles, who was such a distinguished Minister for the Arts and who helped to oversee those controls several years ago.
Until now, those controls have served us well, with only a handful of major losses—such as the Radnor Velazquez, which left the country a few years ago. It is now time for us to wake up and anticipate the future rather than shut the proverbial stable door after horse upon horse has bolted. I need not remind the House that the current horse nearly out of the stable is the Siennese Crucifixion, already bought by Getty, which the Manchester City Art Gallery is fighting to retain. In this connection, I welcome the National Art-Collection Fund offer of £½ million to help Manchester. I also welcome the fact that the noble Lord, the Marquess of Normanby, who is chairman of that fund, will be speaking tonight.
I personally am not in favour of restrictive actions or the extension of the current system of export licences. This is because, in my view, too much protectionism distorts the world art market and because there is a positive answer available to us anyway. There is no mystery as to what should be done. A number of knowledgeable, far-sighted bodies and individuals have repeatedly not only sounded warnings but have offered highly constructive solutions related in one way or another to fiscal reform. Some of these suggestions have been implemented, but none in any depth—and the overall situation is that no fiscal measures have been taken or seriously considered by successive governments.
I wish, then, to concentrate on the fiscal area this evening—particularly in view of the Conservative Party election manifesto of one year ago which said that we would:
"examine ways of using the tax system to encourage further growth in private support for the arts and the heritage".
The first aspect of the tax system which requires such examination is that relating to income tax. There is a necessity in present circumstances for substantial contributions from private sources to assist in financing specific additions to our museums and galleries in public ownership. But such contributions on an adequate scale will not be forthcoming unless and until sufficient tax incentives are made available to them. These could take the form of allowing, at the discretion of the Treasury, deductions from income tax up to a certain percentage of total income of monies expended for the purpose of adding objects carrying the approval of my noble friend the Minister for the Arts to the collections of our public museums and galleries.
This will have a similar effect to certain provisions in the United States tax laws, to which museums in that country owe so much and which I mentioned earlier. In this regard, it is ironic that those provisions can be made use of by United States taxpayers to benefit the museums of this country provided that certain formalities have been observed by the recipient institutions. But, of course, no such inducements are available to taxpayers in the United Kingdom.
Secondly, I turn to capital transfer tax, which regularly precipitates the sale—often overseas—of so many of our art treasures. There exists, of course, the statutory possibility of settling such liabilities in kind by the surrender to the state of works of art and museum objects. However the total amount of tax debts discharged in this manner during the whole financial year just ended was less than £1 million. It is obvious enough that the system cannot be working in such a way as to have an appreciable effect on the problems confronting us.
I may remind the House again that the Getty Trust has to spend at a rate exceeding £1 million a week—and that many sales at auction of course exceed that figure at a single session. Why, then, is this possibility proving less attractive than it ought to be? In order to answer that question, the terms for the payment in kind of capital transfer tax debts have to be examined. The position is that although any object accepted for this purpose is by statute exempted from tax, the treasury withholds, in accordance with an administrative decision made more than 25 years ago, three-quarters of the benefit of this statutory tax exemption when arriving at the amount of tax debt that can be written off in its books. This high proportion was criticised as excessive only recently by a Select Committee in another place, which, in effect, urged a reduction to one-quarter.
Many distinguished bodies and informed persons have taken the view that, in any event, the benefit of the statutory tax exemption ought in future to be divided more equitably. It should be done in such a way that, although the state would still come into possession of a heritage object at a reduced figure, the other party to the bargain—that is, the owner—would
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receive increased encouragement to enter into it. An equal inducement or douceur to both parties to the transaction—the 50/50 division very reasonably favoured by the Museums and Galleries Commission—obviously has a great deal to recommend it.
Such a reform would not only benefit our public institutions but would also enable fuller use of the far-sighted provisions for some of our treasures to remain in situ, in their historic heritage. Many of us feel that very strongly. This action by owners could be encouraged by cutting back the time taken to reach decisions. As my noble friend will know, his department, the Department of the Environment and the Treasury are all involved; any delay often causes excess interest payable to the Revenue, and this is bitterly resented. Another aspect is the ceiling for total acceptances laid down by the Treasury, and I believe that this should be removed. It is worth bearing in mind that in France, where payment of succession taxes in kind is possible, no percentage of the agreed value of the object surrendered to the state is withheld for the purpose of discharging the tax.
The third area I wish to cover this evening is an indefensible Value Added Tax anomaly. Both my previous suggestions were for incentives to be provided to induce the private sector to become involved in a positive way. But VAT, which can arise in certain circumstances on sums payable by public museums for acquisitions for their collections, has a negative effect—thus causing an irritating disincentive to private generosity playing its part in contributing to those very acquisitions. Municipal museums can claim relief but national institutions and universities cannot do so. And as is well known, VAT on sales to all foreign purchasers is zero rated for reasons intrinsic to the tax. But since this incentive for overseas sales is to the detriment of our public institutions, sales to the latter ought at least to be put on an equal footing by being zero-rated also. This could be done for the sole and sensible reason that the financing of additions to our public galleries and museums ought by definition not to entail any payment whatsoever to Customs and Excise by these institutions or by any private support which they may attract.
In conclusion, I am putting to my noble friend the Minister that, first, he should recognise—and I am certain that as a very distinguished, hard working and successful Minister for the Arts he does recognise this—that there exists a very real problem of potentially massive dimensions which it would be unwise to brush under the carpet any longer. Secondly, that the Government should consider taking the initiative themselves, by acting to deal with that problem in advance, before they are constrained to do so by the predictable march of events.
In other words, I am asking that the Government should put into effect as a matter of urgency the undertaking given a year ago in the election manifesto. I have drawn attention to three divisions of our taxation system in which constructive action could ensue. I recognise that my first suggestion, relating to income tax, will require time to work out and will have to be postponed until next year's Finance Bill. But, given the necessary goodwill, the other two could in theory be put into effect without delay. The reform in

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CTT accounting is merely an administrative rather than a statutory matter, and the zero rating of VAT on sales of works of art to our public museums and galleries could be added to the Finance Bill at present before Parliament. Such action—and I am sure my noble friend would agree if his colleagues in the Treasury would agree with him—would unquestionably meet with a welcome from all quarters.
The Treasury may consider that these proposals would increase public expenditure. I cannot accept that. We have a radical and far-sighted Chancellor of the Exchequer who, by implementing my suggestions, would be instituting a major and important reform of our tax system and would provide investment for the future, which all of us wish to see. I am glad that my noble friend Lord McAlpine of West Green, who is a distinguished collector in his own right, is to make his maiden speech tonight, as is the noble Earl, Lord Munster. The number of your Lordships who are intending to speak this evening shows the great interest that this subject has aroused. I hope that my noble friend the Minister for the Arts will be successful in persuading his Treasury colleagues to accept the gravity of the situation and to put in train the fiscal reforms which are so urgently needed.
8.41 p.m.
Lord Beaumont of Whitley: My Lords, the number of your Lordships who have put down their names to speak—an almost unprecedented number for an Unstarred Question—is token enough of the debt that we owe to the noble Lord, Lord Fanshawe. We are particularly lucky tonight in having two maiden speakers, both of whom have great practical experience in this field. Your Lordships' House has a reputation for producing experts on any given subject. I remember that I made my maiden speech on an Unstarred Question on primary schools in Hong Kong on the basis that, as the only member of your Lordships' House who had actually been governor of a primary school in Hong Kong, I was keeping up the record of your Lordships' House for expertise.
In this particular field of the national heritage your Lordships have a very great wealth of experience, but outstanding is the fact that the noble Earl, Lord Munster, has the practical experience involved in this field and the noble Lord, Lord McAlpine, has a series of collections of art for which all of us who have been interested in and treasure modern art in particular, and who have had the opportunity of seeing them, have been grateful over the years. We are grateful, too, for his munificence in his gifts to museums.
I must not be caught by any of my colleagues in saying that this Government are actually preserving the country's heritage. Indeed, I would not because in a number of ways they are not. However, in the sense that the noble Lord, Lord Fanshawe, uses the term, I confess that I think that the Government are probably doing as much as they can, or should. We have—and the noble Lord, Lord Fanshawe, paid tribute to this—the satisfactory and meticulous machinery for identifying those objects which really are a part of our national heritage and which we should make every effort to keep in this country. The original griddle on
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which King Alfred burnt the cakes and the original copy of the British Consititution are objects which we rightly wish to preserve. We should make every effort to keep them in the same way as we respect the wishes of the Scots to hold the Stone of Scone and the Greeks to have the Elgin Marbles. Perhaps more importantly, it would seem fitting that where there are native artists, in whatever field, we should try to keep together at least a representative selection of their work. It is proper, for instance, that the best selection of Turner's works should be held in this country, even if we are not prepared to abide by the wishes of the artist as to how they are to be preserved and shown.
The doctrine of free trade, like all doctrines, is one which needs to be kept within certain bounds. I believe that it is right, for example, that we should not barter our native heritage for a mess of pottage. Let us by all means treasure that which we have produced ourselves and which is part of our proper heritage. On the other hand, when we start complaining that our heritage is being dispersed by the sale of pictures brought out of another country by our rich ancestors, I believe that we are going too far. To say that a Leonardo or a Cimabue are part of this country's heritage in anything except the most dispersed sense of the phrase is taking the argument too far. Our only proper interest as a nation is. surely, a respect for art itself and a real care that the works in question should go where they can be looked after.
I say a real care because too often, as in the case of the Elgin Marbles, such an argument is deployed by those who would fight to retain them even if they knew for a certainty that they would be looked after at least as well as they are here. If we really care for art, and are to be honest and not hypocritical, it seems to me that we should be eternally grateful to the Getty Museum. Indeed, the noble Lord, Lord Fanshawe, has already paid tribute to it. Those of us who care for art—and that is surely the great majority here—could hardly imagine anything more blessed than a foundation with a very great deal of money which is dedicated to the preservation of art. Think of it—an institution with pots of money dedicated to the preservation and display of the best of art! Pictures which have been tucked away in your Lordships' stately homes would at last be displayed for all to see. Objects of virtue which have been stored for generations in vaults because there has not been the money to display them, restore them or even in some cases preserve them would be at last released, cared for, restored, cherished and available both to scholars and to the public at large. What more could any true art lover want?
It is true that the Getty Museum is not just up the road. But the problem of distance is not one which has been wholly ovecome in human life altogether. A stately home in Cumbria is not just down the road from Los Angeles either, or from us here. Wherever pictures are kept there will be the problem of distance for the majority of people. But again, it is a good thing that works of art are in an institution which can afford to catalogue and reproduce them adequately and to disseminate the results.
It is a slight pity that such an institution should be established in a country which is one of the major participants in the cold war. Let us pray that the kind of skirmishing which has just dealt such a blow to the

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Olympic Games—or, rather, which dealt such a blow four years ago when it started at the Moscow Olympic Games—does not invade the art world. But perhaps even then it is preferable that such collections should be subject to that kind of action than that they should be in the Lebanon or Nicaragua. For all our fears, we are probably right to trust the powerful nations who, for all their posturings, in the last resort display that sense of self-preservation which we are told distinguishes even the lower animals, and export their wars to other countries.
In no way do I denigrate the art galleries and museums of this country. They do a wonderful job of work. However, if there is any money to spare—and that sentence contains enough material for several debates that we have had in the past and the several more that we shall no doubt have in the future—let it be given to them so that they can do their work properly with the works that they have at present. There is far too much tucked away that comes out only for special exhibitions. The Friends of the Guggenheim are at present in this country viewing our treasures. I am delighted that we have treasures to view; but I grudge neither the Guggenheim nor the Getty such treasures as they can afford. The only treasures that we should weep over are those that are closeted away or left to deteriorate, and there are still far too many of them in Britain for us to waste tears, time, money or a great many more words on works which will be both cared for and shared with the world at large.
8.50 p.m.
The Earl of Minister: My Lords, this is my first opportunity to speak in your Lordships' House and I ask for your indulgence. As a nation we cannot compete with the Getty Trust in the acquisition of works of art. We must accept that fact, and indeed congratulate the trust on the apparent restraint it has shown to date. Published comments from the director of the trust demonstrate that the trustees are fully aware that the eyes of the world are turned on them, and they are also aware of their responsibilities and are keen to discharge them honourably. The trust has in fact stated that it intends to encourage scholarships in connection with the arts from the creative, conservation and research aspects. Perhaps I should declare my interest in the subject in as much as I was employed for some years as the conservator of the stained glass at the Burrell collection in Glasgow.
An apparently excellent proposition was made some years ago to invite the Getty organisation to exhibit on a permanent basis in this country. This does not appear to have been taken up, and so I would urge the Government to revive the idea. I suggest that a satellite museum would increase enormously its prestige in Europe and would make a significant contribution to the life of our country, particularly if it were to be established in one of our more deprived areas, such as the West Midlands or the north-east, apart from increasing the respect for the trust among international arts circles and allaying the fears that have been expressed about its unparalleled spending powers. The benefits to the area of the establishment of such a museum would be manifold and would bring building work for some five years. On completion, it would
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attract visitors, both local and international, who are unable to travel to Malibu, thereby boosting the economy of the area.
The Burrell collection in Glasgow is an excellent example. Since last October, when Her Majesty the Queen opened it, it has had in excess of 354,000 visitors, and during the past few Sundays, when it was open for only three hours a day, over 9,500 people passed through each day.
The proposal would bring cultural facilities to a district that could not afford them, and it would cost not a penny on the rates. I am sure that it would give the people an interest and a feeling of pride to have a feature in their area, apart from the fact that it would give permanent employment to both maintenance and administration staff, as well as to those who conserve and care for the museum objects. I feel very strongly that the actual title to the works of art is of less importance than their availability to be seen, possibly for the first time by the people of this country. Finally, I should, as a new Member, add my thanks to the noble Lord, Lord Fanshawe, for raising this important subject.
8.53 p.m.
Viscount Eccles: My Lords, it is a privilege to be the first to congratulate the noble Earl on his maiden speech. We shall listen to him with great interest on future occasions. I think that we all know what expert knowledge he has on stained glass, and that and other subjects in the arts field greatly appeal to this House. I hope that he will make many contributions.
I should like to thank my noble friend Lord Fanshawe, who we are very glad to see with us in this House, for making a splendid case on behalf of tax reliefs for works of art which are offered to public institutions. I could support that case only if at the same time more money were made available for the living arts. I want to look for just a moment or two at the tension between heritage and contemporary art. Whatever we mean by heritage, it is something that does not stand still. Land use changes, buildings fall down, pictures are lost, and sculptures are broken. All the time we must hope that new works of quality will be added to the tradition. The heritage lobby is now so strong that we might get the balance wrong between the past and the present and not show enough confidence in our own artistic future.
My views have not changed on the export of works of art. I have always said that I would do everything possible to prevent leaving this country objects which were directly connected with our history, and especially works by British artists if the work in question would fill a gap in one of our collections. On the other hand, I would not withhold a licence if the object, however rare and beautiful, was of foreign origin and was in this country only because some discerning collector bought it when it was on sale. That category of art is international. Until the United States came into the market no country was more responsible for the movement of international art than we were. It would be bad mannered now to turn protectionist and refuse others the chance to do what we did on such a grand scale in the past.

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Another practical reason should make us hesitate to ask for tax relief as put forward by my noble friend, I think really only in respect of objects going into museums and galleries. The value in money of objects of the highest quality is bound to go on rising, and rising faster than the general price level. That is because the supply dwindles as more and more of them are locked up in museums and galleries and, for reasons well known to your Lordships, because the quantity of money chasing these works increases continually. In the United States you cannot get a peerage, but you can have your name in big letters on a museum. The Getty Museum is the last, very well managed example of that fact.
The boom in art will continue and so it will require more and more public funds to compete with American, Japanese and other foreign collectors. How far we should provide larger acquisition grants and further tax reliefs ought to be considered only in conjunction with what we are providing for the living arts.
I would ask your Lordships to reflect on two current examples of that dilemma. As has been mentioned, an export licence was refused for the Duccio. It is a rare and very fine picture, but it has nothing whatever to do with British history. The money required to keep it here happens to be exactly the same as one whole year's grant to the Crafts Council. The Crafts Council is mainly responsible for the strong revival in British crafts, but there is a great deal more to be done to broaden the market for the work designed and made by some 20,000 men and women who are trying to make a living out of crafts. Many more young people coming out of the art colleges, and a great many amateurs, would like to become professional or semi-professional craftsmen. Another £500,000 or £1 million a year to the Crafts Council would enable it to build on its success and greatly to extend employment in an area which today, as we all know, badly needs further employment. Now, which is more important, the Duccio or the living crafts?
My second example is Calke Abbey. Putting that dilapidated house in order, providing an endowment and reckoning the revenue loss to the Treasury by taxes forgone, a Minister in another place said that all that added up to between nine and ten million pounds. This figure is four times the sum which the Arts Council, with many tears and groans, is to squeeze out of its budget to give a little extra help to the regional arts associations. Then, which is more important— Calke Abbey, with its clutter of junk and hundreds and hundreds of stuffed birds, or the living arts in the regions?
That fine but eccentric poet, Ezra Pound, said that keeping up with the arts means keeping living artists. So it does. And while the money should be found to hold on to objects directly connected with our history and to maintain buildings of the highest quality, it is at least as important to encourage the spread of artistic activities to all parts of the United Kingdom.
In time past, religion was the catalyst which integrated art into the life of society. Money has taken the place of religion and the result, as the right reverend Prelate the Bishop of Liverpool, said in his
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latest book, is that not only the poor but the affluent and the influential are caught in the trap of a divided society. How do we get out of that trap? Surely, one obvious way is to multiply civilised experiences which we can all share from wherever we come. Without doubt, the love of our common heritage is one such experience and another is the spread of the living arts. But if we do not keep a good balance between the two, we shall discover that heritage rhymes with dotage.
9.3 p.m.
Lord McAlpine of West Green: My Lords, time and again we become embroiled in a great debate as to whether this painting or that suit of armour or another work of art should be allowed to pass into the hands of some wealthy foreign collector. There is a tendency to view such activities as being a particularly damaging form of foreign subversion. Surely this is wrong. We should not view our national heritage as some form of fossil. It is not a monument in danger of collapse because one or two pieces of the brickwork have been removed. If we view our heritage in that fashion, it simply encourages stagnation and a closed mind, which will not save our heritage but will stifle it.
The world of art is dynamic, and constantly growing. We are doubly blessed in this country by having both a long history of artistic achievement, and also an artistic base today which is perhaps more vigorous and productive than it has ever been. We are not in the painful position of watching the erosion of our artistic wealth, as some would have us believe. We are in the enviable position of watching our treasures added to every day.
We have the world's greatest living sculptor in Henry Moore; Francis Bacon is arguably its greatest living painter. We have immense national assets in the form of painters, musicians, potters, silversmiths, jewellers, sculptors, designers and craftsmen. Our theatre is the envy of the world, and our film industry is once more building an international reputation for excellence. We may not yet know which of today's practitioners will become tomorrow's legends, but we do know with total certainty that many of them will.
If we were in Japan, many of our artists would, even in their own lifetimes, be called living national treasures. But in this country we are more timid about rushing to such judgments, although we must remember it is a wonderful thing to live for posterity. It is, however, more difficult to live on it.
Without doubt, in generations to come, the names of many British artists will shine. So we should not be totally preoccupied with saving the fragments of past years, as valuable in artistic terms as some of these fragments are. Our concern should not only be with yesterday, but with today and tomorrow. We should support and expand the appreciation of the arts in Britain so that we can create a climate that attracts great artists to our land. In the long term, it is most important that we should ensure a vibrant cultural heritage to pass on to future generations.
But how will this happy situation come about? By jumping on the bandwagon of subsidies and Government support? Is this the way to combat wealth from overseas? I do not think so. Excessive Government subsidies are not necessary. Indeed they

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are wrong. Government and its bureaucracy are no more able to decide how much money is required to support the arts and where the money should go than anyone else. Indeed, I might well argue that government and its bureaucracy are probably least of all able to make such decisions.
Government has a role to play, and this Government have given very extensive financial support to the arts, even during a recession. But I do not want the Government and their agents to become the arbiter of our national taste or the paymaster of our artists. Indeed, if it had been left to governments to decide on the components of a nation's cultural heritage, many of the world's greatest artists would have lived in obscurity. Committees cannot create art, and at the end of the day, committees cannot really decide on art. That must be left to the taste of the individual, who has the freedom to be wrong.
Throughout the ages, it is not Government intervention which has ensured the survival of the arts, but the support of individuals. Gainsborough, Constable and Turner (whose great patron was John Ruskin) survived and occasionally prospered, because of the support of individuals during their lifetimes. And it was not governments but individuals who helped them.
In fact, the great sponsors of the art world today are still individuals. For instance in the United States there are the Gettys, the Armand Hammers, the Mellons. Some may dislike them for their wealth and their great ability to sponsor the arts, but nobody can deny the immense contribution they are making to future generations of their countrymen by collecting these treasures. Anyone who cares to criticise them should first acknowledge that many of these men are truly international supporters of the arts.
Governments can help, of course. These American art sponsors all take advantage of the tax concessions offered by the United States Government. I note the encouragement given to our Government by my noble friend Lord Fanshawe for a similar system in this country. But, even without these advantages, individual art sponsors can still play the major role in this country.
We should not forget that the overwhelming majority of exhibits at many of our major art galleries have been donated by individuals. The National Gallery was founded by an individual. Perhaps 75 per cent. of the collection at the Tate, and most of the Scottish National Gallery were provided by individuals, not by the state.
But is it right that wealthy foreigners should be allowed to come and buy art treasures in Britain and take them to museums halfway round the world? I have to smile when I remember where so many of these treasures originally came from. It is certainly not apparent to me that Velasquez, Titian or even the Elgin Marbles owe too much in origin to the Anglo-Saxon culture. We have benefited throughout the ages from what might be termed a system of cultural exchange and we should not get unduly hysterical because some of the exchanges occur in the other direction. The export of some of the fragments of our great collections should not cause us undue concern. We must remember that our cultural wealth is not a
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stagnant pool but a growing one from which others should be allowed to drink and from time to time without any great harm to the rest of us.
How can we ensure that this cultural exchange is conducted in moderation? No one wishes to see our museums, galleries, and stately homes denuded. It is simply by taking on the Americans, the Germans and the Japanese at their own game. They come shopping here because they can afford to, because they are citizens of wealthy societies. In the long term, the only way to ensure that we retain our existing national heritage and provide the base for a growing national heritage for generations to come is to encourage a wealth-creating society which will be able to sponsor not only our hospitals, our schools and our other social services, but also the arts.
There is no other way. The alternative would be to condemn ourselves to relative poverty and squalor—circumstances in which the possession of great art treasures is impossible, irrelevant or even offensive. I believe in the creation of wealth as deeply as I believe in the arts. The two are not only compatible; they are inseparable. Our ability to preserve our cultural wealth is based on our ability to produce financial wealth. Just as I believe that cultural wealth should be shared as widely as possible, I also believe that the opportunities to enjoy financial wealth should be shared as widely as possible.
I feel sure that we shall return to both subjects many times in the future and I look forward to being allowed to speak again on those occasions.
9.10 p.m.
Lord Charteris of Amisfield: My Lords, it is my privilege to be the first speaker to be able to congratulate the noble Lord, Lord McAlpine, on his vigorous, humorous, imaginative and sensitive maiden speech. I am sure that all noble Lords hope that we shall hear him on many other occasions. I should also like to join in congratulations to the noble Earl, Lord Munster, on his maiden speech. I am grateful to the noble Lord, Lord Fanshawe, for having initiated this discussion. I venture to speak in it as chairman of the National Heritage Memorial Fund. I and other trustees of the fund have the privilege, I may say the pleasure, of spending in defence of the heritage such sums of your Lordships' money and that of other taxpayers that are allocated to the fund from time to time by Her Majesty's Government.
As your Lordships will know, the fund was established in 1980 as a safety net for the national heritage. The trustees of the fund have the responsibility of giving financial assistance for the acquisition, maintenance and preservation of not only what I may describe as movable heritage—pictures, sculpture, documents and books which, if they come on the market, are, of course, liable to be bought by the Getty Foundation or, indeed, by any foreign buyer—but also our real estate heritage—houses, woodland, wetlands, wilderness—our industrial heritage, which, incidentally, we find includes some extremely beautiful trade union banners, and also film archives, submarines, aircraft, and even bats.
The Earl of Gowrie: And belfries.
Lord Charteris of Amisfield: In the four years of our existence we have been amazed to discover how rich and varied has been what we have understood to be the heritage. I am often asked if we have enough money to fulfil our responsibilities. Of course, the superficial answer has to be, no. One cannot have enough of a good thing. That being said, however, I am glad to go on record as saying that it is my opinion that hitherto, within the ambit of what is reasonable and practicable, Her Majesty's Government have given us an extremely square deal.
The proof of the pudding is, as usual, in the eating. I can say with conviction that until recently—by which I mean until the beginning of this year—the trustees of the fund have not been forced to decline grant aid for any project that was in their opinion of supreme importance to the heritage simply because of lack of funds. So far, I believe, our funding has been about as well-judged as such things can be.
More recently, however, we have come to realise that our available resources are becoming increasingly modest in relation to the demands likely to be made on them. Of course what is sometimes called the Getty factor—the entry into the market of very large sums available to the Getty Museum to purchase movable heritage—is partly responsible for this change in the situation.
Certainly it is a changed situation, but I do not think that in any way it is a new ball game. Britain's movable heritage—as has already been mentioned, a great deal of it was moved here from the continent by the great collectors when this country was the leading economic force in the world—has before now been open to purchase from across the Atlantic by well-endowed organisations. Therefore I do not believe that the Getty factor is as unprecedented as some might believe. Nonetheless, it is a real factor, and I am sure the Government ought to do everything possible and reasonable to make it easier for Britain's heritage to be preserved and retained in this country.
However, I do not believe that we ought to contemplate, at least for the time being, making the export of works of art illegal or, indeed, much more difficult than it is now. I say this for three reasons. First, I believe that the Getty Trust are a thoroughly responsible organisation, and quite apart from any more lofty considerations they, who know the score just as well as we do, are unlikely to intervene in the market in such a way as to inflate prices grossly. They will not wish to kill the goose that lays the golden eggs. Of course, they will be able to pay the top price and as a result will acquire quite a few golden eggs. But bearing in mind also that these eggs will be extemely well preserved and available to scholars and to the increasingly more mobile general public, this is something with which we must live.
My second reason is that because our attitude to the export of works of art is reasonably liberal, London is one of the great centres of the art market of the world, and I believe that to be generally beneficial. My third reason is that I do not believe that this country, which has lived by trade, has ever really benefited from protectionist policies. I do not believe that it would be to our advantage to be over-protectionist about our movable heritage.
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This, of course, does not mean that we can afford to be complacent, nor that there are not things which the Government ought to do to make it less necessary for private owners, in whose hands so much of our movable heritage remains, to put their possessions up for sale. They ought also, as far as is reasonable, to increase the resources available to the National Heritage Memorial Fund. I hope I may say a few words about those two matters.
The export of works of art presents us with a very difficult dilemma, because so much property that we have and cherish and regard as our national heritage is in the hands of private owners, whose right to dispose of their own property must be recognised. The owners of works of art may have perfectly respectable reasons for wishing to sell. Very often they have to do so to make both ends meet, to support their families, or to put the roofs back on their houses. Sometimes the sale of a single item from a house or a collection can go a long way towards safeguarding the future in this country of whatever remains in it.
We could go a long way towards safeguarding our national treasures by taking off private owners the pressures to sell. Other noble Lords have already dealt quite extensively with the various tax reforms that are required and therefore I hope not to be repetitive. But there is no doubt that the real security of the heritage lies in the tax system. This is our first line of defence. When there is no choice before an owner but to dispose of a work of art, we should make sure that offering it to the nation in lieu of tax or selling it to a public collection is more advantageous than selling it on the open market. Here I agree that the douceur, which has already been mentioned, should be increased, possibly to 50 per cent.
I accept that increased funds may have to be found to fund this system, but this would still be cheaper than having to buy on the open market on behalf of the nation. A tax credit scheme for heritage items, to be operated within the procedures for their acceptance in lieu of capital taxes, would be a major help, particularly as it would apply to those more expensive items which would strain the limits of grant-aid or which would lie beyond its cash resources.
I think there is evidence that some private owners have not yet appreciated the advantages that they would gain by selling to a public collection under the private treaty procedures. The Office of Arts and Libraries has done excellent work in publicising this system, and I hope that this will continue. For this system is vital to public collections and of considerable advantage to the private owner.
Then there is the third line of defence—the Reviewing Committee on the Export of Works of Arts. I have already expressed the view that the right to sell must be respected and that, in the long run, absolute protectionism will not be to our advantage. But one useful amendment of the existing export control procedure would be to suspend the issue of export licences for more expensive items for periods much longer than the three or six months applied at present. If, for instance, a period were to be more than one year, this would allow the resources of more than a single financial year to be used and allow more time to mount an effective public appeal.

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In regard to ensuring that the National Heritage Memorial Fund is able to fulfil the role given to it by Parliament, I hope that noble Lords will forgive me if I indulge for a moment in fantasy. Let us remember the £50 million voted by Parliament in 1946 for the National Land Fund. Let us suppose that the money had been placed in the hands of a body of trustees, like the trustees of the National Heritage Memorial Fund, which is, of course, the successor of the National Land Fund. Let us also suppose that this money had been allowed to grow, as money is inclined to do if it is sensibly invested, and that it had not been largely clawed back by the Treasury. If that had happened—if that dream was a reality—it is probable that the National Heritage Memorial Fund would now have at its disposal, for the defence of the heritage, resources as formidable as those of the Getty Trust.
Of course, one man's dream can be another man's nightmare, and I fully understand that no well brought up Treasury official would feel comfortable if there was an independent body with that amount of public money to spend outside Treasury control. Nor do I think that any reasonable man could expect Ministers—even Ministers as sympathetic to the arts as the noble Earl the Minister for the Arts—to argue that resources of the scale of which I have spoken should be provided for the National Heritage Memorial Fund. We must, alas, be realistic.
However, I believe that Her Majesty's Government should allow the resources of the National Heritage Memorial Fund to increase in real terms as the years go by. The trustees of the fund can only do their job properly if they have—and if they are known to have—adequate resources. Let us remember that one of the reasons why the fund was set up by Parliament was to take out of the political arena difficult decisions about which bits of the heritage ought to be saved and which ought not. In my view, it is better if Ministers are distanced from such decisions. The fund was able to find the money from its existing resources for the National Trust to take over Belton, and so this never became an awkward issue. But when Calke Abbey came along our resources were inadequate and the matter was embarrassing and time-consuming for Ministers.
So I say, give the fund adequate resources and the trustees can then discriminate, and be seen to do so. We had to do this in the case of the Siennese Crucifixion and, if that was the wrong decision, we must take the blame for it. I think that that is the way it should be. After all, if the trustees of the fund make a hash of it, they can always be sacked.
9.24 p.m.
Lord Vaizey: My Lords, those of us who have seen the stained glass in the Burrell have ample reason, other than the maiden speech itself, to welcome the noble Earl, Lord Munster, among us, and those of us who for long have been friends of my noble friend Lord McAlpine of West Green also welcome him and his brilliant maiden speech.
As the Motion so persuasively moved by my noble friend Lord Fanshawe mentions the Getty Museum, I think that it is about time that we put on record some of the facts about the Getty Foundation, which is in
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danger of becoming a kind of spectre at the heritage feast, and is invoked whenever anything seems to go wrong. The Getty Foundation is not required to spend all its money simultaneously on the art markets in London. Indeed, only a small proportion of its total income is actually spent on acquiring works of art. It has embarked upon substantial programmes in conservation, which are important to us here, as has been mentioned already. It has embarked on a major programme for computerising arts history records which promises a major breakthrough in arts history scholarship, and it has a promising programme in the humanities and social sciences in relation to the history of art which also will be a big breakthrough.
In fact, I think it has bought only six or seven works of art in the United Kingdom since its foundation. Its remit of course is the whole art of Europe from the beginning of time down to 1900. Therefore, it would be surprising if the objects in this country loomed particularly large in the purchases that the Getty Museum happens to make. It is important to recognise that Los Angeles is not some primitive tribal area where the works are going to be destroyed. Los Angeles is a city nearly as big as London and grossly under-provided with the things that Londoners can take for granted. There are only three major museums on Los Angeles: the County Museum; the Norton Simon, and now the Getty; it has also the superb Huntington Library, which has been host to many British scholars of distinction.
It is not surprising that one of the richest and most important cities of the world should wish to show to its inhabitants and to its many visitors some of the cultural history of the West. I very much agree with other noble Lords who have spoken in the debate who have said that how on earth a work attributed to Duccio is supposed to be specifically part of the British heritage rather than part of the heritage of the whole Western world is difficult to imagine. Surely it must be the case that in a country like ours, which is so lavishly endowed with works of art and which has grave difficulties in preserving many of them, the interests of the country are served by a measure of free trade in the arts world. It was free trade that brought many of these objects to the United Kingdom. It is free trade which has established London as probably the major centre for the arts trade in the world. Therefore many objects are to be seen here which will only occasionally be seen elsewhere.
It surely is wholly in the interests of Western civilisation that we should preserve ourselves as an open society. This is not to argue that I think everything we possess should be dispersed immediately in other directions to Australia, New Zealand, or the United States, but we need to have a certain measure of realism when we realise that these extremely wealthy cities with highly-cultivated populations of art lovers are, relative to our great wealth of art treasures, deprived. Nothing in the world is going to stop the efforts of the citizens of those cities from acquiring works of art as and when they come on the market. I feel that narrow nationalism is always to be deprecated, and nowhere more than in the traditions of the Western arts, which are the great international tradition of our civilisation.

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The important point which we ought to impress upon Getty and other wealth creators like Getty is the point made by the noble Lord, Lord Beaumont, and by my noble friend Lord McAlpine of West Green, and that is the importance of sustaining and maintaining the living tradition of the arts: something in which we in the United Kingdom are blessed probably more than any other land in the West—in the variety of talents which are available to us.
The problem is not to keep one or other work attributed to Duccio here, possibly in Manchester—it is desirable that it should be, but I am not sure than £ 1 million is the right price to pay for it; the important point is to have theatres, opera houses and ballet companies up and down the length and breadth of the land and to have, as the noble Viscount, Lord Eccles, rightly said, the living tradition of craftsmanship which regenerates the whole of our national life. It is important to have great festivals like the Garden Festival now going on in Liverpool, which will do more for Liverpool, probably, than any other single thing for a number of years.
I begin to feel at times that this desire on the part of those who own beautiful objects from the past and who want to evade the tax man and invoke the national heritage is getting a little bit too strong. The visits which a number of us made to Calke Abbey caused me to have some second thoughts about the expenditure of nearly £10 million on something that my noble friend Lord Eccles has—moderately, in my opinion—described tonight. A little caution, perhaps, in tax giveaways to people threatened on the whole with rather moderate taxes, compared with what they used to be, would seem to me to be desirable.
9.32 p.m.
The Marquess of Normanby: My Lords, I should like first to associate myself with the expressions of gratitude to the noble Lord, Lord Fanshawe of Richmond, for having initiated this debate on a matter of such current importance.
I find that it is often difficult to avoid focusing too much attention on the Getty Museum itself and its many important purchases at the present time. The new threat to the effective protection of a few of our greatest works of art is the Getty-enhanced values which now obtain everywhere. These are paid by other museums and private collectors throughout the world as well as by the Getty trustees.
The problem is really one of market values which have escalated beyond all belief. The noble Lord, Lord Fanshawe of Richmond, was kind enough to mention the National Art-Collections Fund, of which I am chairman. This body has no grants from the Government and is entirely supported by legacies and gifts. The policy of Her Majesty's Government has, of late, been centred on the importance of enlisting the help of the general public as well as businesses to retain, when desirable, works of art which are to be sold. That is exactly what the NACF does or tries to do. But neither we nor the government-financed National Heritage Trust, which has such a wide field to cover, have sufficient funds to help match these Getty-enhanced values.
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The solution can only lie, in my opinion and as has been pointed out many times this evening, in the Government giving effective tax reliefs. I know that noble Lords will agree that it is factually true that the owners of nearly all the great private collections in this country are highly responsible and very patriotic people However, at times, as has been said, they need hard cash, and it is then that the present taxation incentives are totally insufficient to prevent the best works of art being put on the open market.
In America and elsewhere, taxation arrangements on gifts to museums are on a scale which is commensurate with present-day values. Our attitudes here are out of date. We even, as has been said by the noble Lord, charge VAT on the auction or dealer's commission when sales are made to a national or university museum or gallery. In the case of an overseas buyer, no VAT is payable: so the overseas buyer is thus actually favoured over the domestic purchaser even when the latter is buying for the national patrimony. It would appear, if I may say so, that the Treasury still holds the view expressed in a minute of 1856 advising the National Gallery—and I should like to quote the words:
"only to buy works from abroad because, as regards the finer works of art in this country, it may be assumed that although they may change hands they will never leave our shores."
In the following year, as your Lordships will remember, there was held in Manchester a great exhibition of treasures from English private collections. It is estimated that, during the next 50 years, over half the treasures exhibited at that exhibition had left the country. I am afraid that, now as then, we are living in a fool's paradise. Today, the new factor is Getty-enhanced values If we are to retain the very best privately-owned works of art, this can only be by a thorough reappraisal of two aspects of taxation—first, the reforming of the accounting relating to in-lieu acceptances and, secondly, additional encouragement by income tax concessions for benefactors in cash towards the acquisition of works of art for our public collections.
9.37 p.m.
Lord Cottesloe: My Lords, we must be very grateful to my noble friend Lord Fanshawe for raising a subject which is a matter of concern to all of us who are interested in the arts and in our heritage in this country. It has also had the peculiar benefit of enabling us to hear two quite admirable maiden speeches from the noble Earl, Lord Munster, and from my noble friend Lord McAlpine of West Green. Looking back over the years, there has been constant anxiety and constant pressure on successive governments that not enough has been done to foster the arts and to preserve our great heritage from the past. But, in fact, very much has been done, and it would be churlish not to acknowledge the advances made, especially in the difficult period of inflation since the war.
To take one or two examples, there is the Arts Council, founded during the war by my friend the late Lord De La Warr, at the instance of Lord Keynes, with a grant of no more than £250,000—thousands, not millions. Even a quarter of a century ago, when I was appointed chairman of the council in 1960, we

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received grant of no more than a million and a half. This year, it has a Government grant of £93·5 millions. The Tate Gallery purchase grant, which, when I became a trustee soon after the end of the war, was no more than £2,000—thousands, not millions—in this year is more than £2 million; while the National Gallery purchase grant is now £3⅓ million.
These are great advances by successive Governments, and there have been others, too. Much has been done by local government and by individual enterprise—the creation of the Chichester Theatre, the Barbican for the Royal Shakespeare Company, the creation of the Burrell Museum in Glasgow, the building by the LCC of the Royal Festival Hall and the creation of the whole South Bank Centre for the Arts, culminating in the National Theatre, an enterprise in which the Government and the GLC collaborated.
The fact is that, in the whole field of the theatre and the arts generally, this country, for so long so backward, now leads the world. And, of course, there was the recent setting up, as a result of the debacle of Mentmore, of the National Heritage Memorial Fund after the long frustration of Hugh Dalton's noble gesture when he was Chancellor in 1946 of setting aside £50 million from the sale of surplus war stores for the preservation of our national heritage as a memorial to the war dead, a gesture emasculated by the Treasury. I need not remind your Lordships of the shabby history of that affair about which the noble Lord, Lord Charteris of Amisfield, has spoken.
Much has been done but now the entry into this field of the Getty trustees, armed with the staggering sum of 2 billion dollars of which they are required by the American tax laws to spend 90 million dollars—that is more than £50 million—in three out of every four years, presents us with a new and dominant factor. They can if they wish easily outbid all the galleries and museums in this country put together; and not only that, they inevitably introduce with their immense resources a steeply inflationary effect on the international market for historic objects and fine works of art.
I am told—and I entirely believe—that the Getty trustees wish to be, so far as they are able, helpful and considerate in their use of the dominant power that their vast resources give them. If that is so, and I am sure that it is, and if their powers allow of it—as to that I am not fully informed—it might be that a suggestion put forward some years ago to my friend the late Mr. Joe Hirshhorn might be considered as a helpful precedent.
Mr. Hirshhorn was an American citizen of great wealth, who had of his own initiative formed what was undoubtedly the finest collection in the world of modern sculpture, some 1,500 pieces by sculptors from Rodin to the present time. He was anxious to put his collection into a trust that would prevent its dispersal after his death, and he offered it to New York
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if they would provide a setting for it in Central Park. The collection was valued I was told at that time, a quarter of a century ago, at some £25 million. The authorities in New York were not enlightened enough at that time to consider such a desecration of Central Park, and it was suggested to Mr. Hirshhorn—not by me—that he might be willing to establish his collection in London, where it would fill a conspicuous gap in our museums.
The suggestion so far commended itself to the Government here that they sent, at short notice, very surprisingly, a senior civil servant to see Mr. Hirshhorn in the United States and to discuss the matter, with the result that he came to London, was entertained by the Government at Lancaster House, and was offered a site in Regent's Park for a museum to house his collection if suitable arrangements could be made.
In the event the London project failed to mature, and the Hirshhorn Museum is now one of the great cultural glories of Washington. But it occurs to me as a possibility, even though it may be a remote one, that if the Getty trustees are not restricted in their operations to California or the United States, they might be persuaded to consider setting up a museum over here, perhaps in London, perhaps at Sutton Place where Mr. Paul Getty lived when he was in this country for 15 years, and if they were so disposed that would solve, or at least ameliorate, some of the problems that they present to the rest of the world.
Another aspect of these matters is VAT, the arrangements for which present a number of anomalies. The Government's recent announcement that VAT will not be charged on restoration and maintenance work on historic buildings is a great encouragement. There are other aspects that I hope may receive attention. One is the charge of VAT on the sale of their work by living artists, which is a strong disincentive of which I hope they may be relieved.
Another aspect of particular relevance to the preservation of the heritage lies in the fact that while an owner who is selling a treasure in this country has to pay VAT on the sale, if he sells it to an overseas buyer, it does not attract VAT. He therefore has an inducement to sell it for export and the foreign buyer has an advantage over the home one. That must be wrong.
A general imposition of VAT on sales for export is obviously not desirable nor indeed defensible. But perhaps the Government would consider, where a case can be made out, a reference to the Reviewing Committee of important objects to be sold at auction, for advice on their national importance, so that where they are of "heritage quality" (to use that current but rather deplorable phrase) they may be sold free of VAT, or something of that kind. The solution is not easy to see, but the problem is a real one, and I hope that my noble friend may be able to take these matters on board.
9.47 p.m.
Lord Annan: My Lords, I am not going to elaborate on the difficulties of our major national collections because that has already been done admirably by other noble Lords. I just want to thank the noble Lord, Lord Fanshawe, most warmly for initiating this debate and to congratulate both our maiden speakers on their excellent speeches.
I should like also to say that the trustees of the National Gallery have considered this matter as a result of the initiative of the noble Lord, Lord Fanshawe. I speak because the National Gallery, perhaps more than any other institution, is concerned by the issue which has been raised in this debate. Last summer I attended a dinner with the chairmen and directors of other national collections and, of course, with the noble Lord, Lord Charteris, who presides so admirably over the national heritage. It was a dinner which the Getty Foundation generously gave. There, they did their best to reassure us and to explain why they would not make "a pre-emptive strike" against our national treasures. Indeed, they made it very clear that buying works of art was only one of the programmes they had in mind and that in fact a very, very large proportion of their wealth is going on programmes, some of which obviously have a finite end, like the building of an enormous new museum in Malibu. Another, of course, is the excellent work they are doing in compiling a computerised catalogue raisoné of all paintings all over the world. These are just some of the things they are spending their money on, but it does not alter the fact that we are facing a genuine problem.
I do not doubt the sincerity of the trustees but times change, trustees change, and policies change; and it would be quite wrong to imagine that the Getty Foundation is the only American institution which is capable of outbidding British museums and galleries. Last February I had the mortification of seeing "The Resurrection" by Dirck Bouts in the Norton Simon Museum at Los Angeles. We particularly wanted it, as it was one of a pair of paintings and we own the other. But this great painting was not going to come to this country and we were outbid at auction.
May I start by saying what remedies I think are futile? It is sad to have to say it but, as the noble Lord, Lord Charteris, has already said, the Land Fund that Hugh Dalton set up just after the war would have seen off any American offensive if it had not been raped by successive governments. The trouble is that governments are always going to ravish such a lady, because the lady is so attractive and grows so rich. So any suggestion that we could resurrect the Land Fund, I rule out. In any case, the National Heritage Memorial Fund is supposed to have taken its place, though its resources are certainly not what Hugh Dalton had in mind.
Let me turn next to tax concessions. The United States gives far more generous tax concessions to its citizens. So, the argument goes: why not go on extending the principle which the Government have wisely applied to donations to charity? Surely the Government ought to ask some body such as the Reviewing Committee, reinforced with expert financial advisers, to consider ways and means of
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revising fiscal procedures to give potential donors more incentives to enrich the national collections. This was admirably dealt with by the noble Lord, Lord Fanshawe, and I shall not go over that ground again. I am bound to say that I think most of his recommendations would come up against very strong Treasury opposition.
The real difference between America and Europe is that America is the willing purchaser, and therefore finds it to its advantage to have tax concessions of this kind, whereas European countries are mostly unwilling vendors. So the systems of tax concessions on one and the other side of the Atlantic are bound to differ. I also feel bound to say that American experience shows that some of their procedures are widely abused. Institutions of art and learning suddenly appear in the guise of pirates ripping off the state, and a lot of phoney foundations which benefit nobody but the donor's family and entourage are seen to have been created.
The American system of tax relief has been responsible more than any other single factor for the escalation of the prices of works of art. I think, however—and I am with the noble Lord, Lord Fanshawe, here—that there is room for manoeuvre, but I suspect that the Chancellor and the Treasury will attempt to keep it as small as possible.
Then what about the douceur? Would the country benefit if this were doubled, as has been proposed tonight? It already stands at 25 per cent., with strong governmental indications, however, that when an item costs millions some figure considerably below 25 per cent. will be considered more appropriate; and here we have tonight a suggestion that it should rise to 50 per cent. I must say that to raise it more would not necessarily be dangerous, but it would simply mean that the purchase grant of museums and galleries would be depleted far sooner, because it is they who would have to pay the extra 50 per cent. douceur.
I shall not follow the argument about VAT, except to say that, of course, the trustees of the National Gallery are entirely behind what the noble Marquess said, and what the noble Lord, Lord Fanshawe, aired very properly in his opening speech. I should like to say, too, that it is thoroughly supported by that great-hearted collector Mr. Denis Mahon, who was a former trustee of the National Gallery and who particularly asked me to raise the matter.
May I now turn to another suggestion that has been made? Some people have suggested that the Government should designate a super-class of objets d'art which at present market prices might be expected to fetch £7 million to £10 million for each item. Why should not the Government—so the argument runs—set a figure of £7 million as a ceiling; below that the Waverley rules would operate, but above it they would not. Above that, it would have to be understood by any would-be purchaser that he would never get an export licence. I suspect that if that were the case we would find a steady number of sales taking place at the figure of £6·999 million. The remainder of the far higher purchase price would be paid by private agreement outside this country, after the transfer of

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property had taken place. I do not believe that the solution to our probems lies along those lines.
It is always said that in cases of emergency the Government can find the money; why not, therefore, have a contingency fund? The noble Earl has done wonders in screwing large sums of money out of the Treasury to replace the commitments which were hitherto borne by the metropolitan authorities. He has recently come up with a special grant to save Calke Abbey. He has found extra money for the Royal Opera House and the Royal Shakespeare Company. I would despise myself were I to grumble that the purchase grant to the National Gallery has, as a result, had to remain static.
No Minister can reinforce every sector every year. I just hope that the noble Earl will not mind if every so often I call to his attention the fact that old masters, more perhaps than any other single work of art, have long ago outstripped our grant. But there must be a limit even to the noble Earl's powers. If he continues to be so successful as he is, I suspect that he will be moved to a much more prestigious post and that his successor will be chosen so as to be much less successful. So if I pleaded for a special contingency fund I would expect the noble Earl to say that the Treasury would laugh him to scorn, for would not every spending department in the country put in a claim for its own contingency fund?
There will be those who will say that as we are members of the European Community we should do as our partners in Europe do and impose a ban on the export of any work of art above a certain value. The French are most strict, perhaps the strictest of all, but their procedures are flexible. A licence refused in 1960 will, in some mysterious way, be granted in 1985, because circumstances have changed. By that I mean that if, in 1985, France were to receive a benefit by the import of a work of art in return for permission to export, permission might be given. So there is a good deal of give-and-take in the French system.
Of course, Britain is by far the most generous and fair to private owners and the Waverley rules are designed to enable private owners to get a fair price. But it can be argued: is it not feasible to designate a very small number of exceptional masterpieces—shall we call them delectissima desiderata—whose owners would be told that they could never be exported? If their owners needed to sell them, they would be able to do so under private treaty. They would be able to agree a price with a national collection and obtain all the tax advantages and the douceur benefit. I do not suppose for one moment that the owners of these works of art, quite a number of whom are Members of your Lordships' House, would welcome any such change.
I would urge, however, despite the experience of the noble Duke, the Duke of Devonshire, whose recent negotiations with the British Museum broke down, that very rarely in my experience has it been the case that owners, advised by their own expert advisers and highly reputable art dealers, have questioned the valuation which in the end has been agreed with the particular museum or gallery, because without such agreement no private treaty sale can take place.
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I assume, however, that that course of action will not commend itself to the Government. If that is the case, it is up to the Minister to make use of the powers which he already possesses. It does not seem to me that there is any reason why the Minister should not declare publicly that the day has now come when he is prepared to advise the reviewing body to lengthen considerably the time before which an export licence can be granted. This would enable the National Gallery, for instance, to find time to accumulate funds from its purchase grant over a period of, say, seven years, to launch a public appeal, which takes time—you cannot do that in six months—and to find foundations and sponsors who will be prepared to save a particular painting for the nation. One should remember that private benefactors such as foundations may well be committed for one or two years ahead, or even longer. They would only be able to make a substantial contribution, say, four years or so after the first approach. When we are dealing with these very large sums, that is a factor that ought to be taken into account.
If anyone is going to say that such a long delay would be unfair to the owner or to the new purchaser of the treasure concerned, I wonder whether he would consider the political implications. The Waverley rules have been a remarkable example of consensus politics. They have been accepted by both sides of the House—but such agreement depends on both sides being satisfied that owners get a reasonably fair deal and that the nation gets a reasonably fair deal. If it were seriously to be argued that, say, a seven year delay on granting an export licence were unjust to owners, I suspect that before long there would be a reaction and owners would be pilloried for putting their own interests before the nation. I very much agree with what was said by the noble Marquess. They do not get criticised at the moment because they are extraordinarily and conspicuously patriotic in the way in which they think about their treasures and think about their ultimate disposal.
But it requires only two or three dilectissima desiderata paintings to leave this country and an outcry might arise for the country going over to the rules which operate everywhere else in Europe; namely, that no major work of art can ever be exported. That would be followed by smuggling and by the collapse of London as the centre of art dealing. What I am proposing is a modest change which only very rarely would come into effect.
I commend to the noble Earl three ways of meeting this new challenge. First, to declare that the length of time which he will in future grant to the national collections to match the would-be exporter will be considerably lengthened and might well extend to 10 years—perhaps even longer. Secondly, that he should consider establishing a list of dilectissima desiderata; treasures which are so precious, rare and exceptional that it would be scandalous if they left the country. It is for consideration, as I have said, whether they should receive an export licence.
Thirdly, I ask the Minister to reconsider in due course the purchase grants available to the National Gallery. I cannot speak for the five other national

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collections—including, of course, the British Library—but I think it is the National Gallery above all which has put most forcibly its case for an increase. I say that because I believe that the Getty Foundation and other American would-be purchasers guess that there will always be great obstacles put in their way if they attempt to lasso these absolutely super, major treasures. What they have their eyes on are the items just below the dilectissima desiderata list—such as the Bouts Resurrection.
Meanwhile, I thoroughly agree that the Minister should retain his present right to refuse to grant an export licence for 10 years if the purchaser refused to sell the to the national institution which had matched his offer. This right has already been exercised once, and I believe that the purchaser in question lent the object to the Victoria and Albert Museum—and therefore it did not leave the country.
This has been a very interesting debate and one which shows, extraordinarily, that the art lobby does not speak with one voice. There have been many voices here this evening. I suggest that the noble Earl may find that that makes it longer for him to reply to the debate—but it will certainly make it easier for him to pick and choose which advice he finds most to his taste.
10.4 p.m.
Lord Saint Oswald: My Lords, it must be extremely appropriate that tonight's debate will be answered by my noble and profound friend Lord Gowrie, for it allows us to examine the problems of the national heritage across his joint responsibility for the arts and the Treasury—added to which he has responsibility for employment. I wonder what other Minister would have been given the burden of both major debates in the course of one day.
As the noble Lord, Lord Annan, has just said, there has been no consensus in this debate. In an ideal world art should follow the market, but the ideal world has not yet been achieved. Losses of pre-eminent works of art from this country are reaching alarming levels. Export licence applications to the Department of Trade for pictures and objects valued at over £8,000 are now running in excess of 500 a day. The Reviewing Committee on the Export of Works of Art, chaired by my noble friend Lord Plymouth, has reported that cases brought before it for the year ended 30th June 1983 were more than double those for the previous 12 months, due in large part to the enhanced value of the dollar. We await its report for the present year with some anxiety.
It is, happily, Government policy—as in any enlightened country it should be—to stem these losses as best possible. It is also, however, continuous Government policy to operate a tax system which does much to force on to the open market those objects whose loss abroad we most deeply lament. I refer of course to capital transfer tax. I wonder whether my noble friend the Minister for the Arts can tell us in the wind-up how far he regards CTT as a principal culprit behind the break-up of historic collections and the loss
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of works of art abroad He will hopefully be able to tell us how long it will continue to have a part in this tax-reforming Government's scheme of things On 1982 figures, it yields about £500 million a year at what I fancy to be high collecting cost. It is widely seen as an ill-drafted survival of the rushed legislation in 1974 It seemingly raises even less in money terms than estate duty in its final years; but it wreaks, I would guess not much less damage than a simple and punitive wealth tax would on the artistic fabric of this country.
Exemption from CTT for pre-eminent works of art is, of course, a long-standing concession; but the noble Earl, Lord Plymouth, now tells us in his report that the practice of seeking such exemption is decreasing. Perhaps my noble friend Lord Gowrie can shed a little light on that. Might it be in part because the Treasury has not played a proper part in advertising the terms and conditions of exemption? For a Government which believes in free and undistorted markets, the heart of the matter is surely to attend to the tax stimuli which force art treasures of long standing in this country to be sold and therefore lost abroad. It is my hope that if the Government identify CTT as the forcing house for such sales—as, fuelled by the strong dollar, it appears to be—then prompt action will reform it.
I turn now from the domestic culprits in forcing sales to the main external threat to our heritage within the international art market. It is one that has been mentioned several times today in different terms—the J. Paul Getty Museum in Malibu, California. In common with certain other noble Lords, I cannot feel apologetic for singling out that museum because, armed with funds which it computes this month to be 90 million dollars per annum, it is moving on to the offensive against us Mr. John Walsh, the new director at Malibu, is quoted in the April issue of Art News—the largest circulating art magazine in the United States—as saying:
"It's amazing how stones about the Getty ripping off the art market get going in England None that I've ever heard had any relationship whatever to the truth. They are essentially fabrication by people in the trade to strengthen their hand".
The Getty organisations have become, though perhaps a little close to eventide, acutely sensitive to the suspicion in which their activities are held in some quarters. Today I received—as, no doubt, did other noble Lords—a substantial document from their London advisers. It is a defensive, closely-argued and self-confident tract, composed to allay and contradict all such suspicions. Like my noble friend Lord Fanshawe and others who have spoken, I agree that indeed the existence of a powerful body, dedicated to acquiring the art treasures of the world specifically for public display must inspire in itself admiration, acclaim and approval.
To support his line that far from ripping off the art market in England, the Getty Museum is no threat, Mr. Walsh and his colleague, Mr. Harold Williams, President of the J. Paul Getty Trust, publish figures that acquisition in Britain since 1981 amounts to a harmless 11 per cent. of all purchases. That figure is of course to signify volume and not value—the number

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of items bought or to be bought. Therefore it is not related directly to value.
Both Mr. Walsh and his statistic avoid the point. The Getty Museum, as Mr. Williams explained at what we have been told was a rather splendid dinner at Brooks's Club last October for our museum directors, is at this period devoting around half its funds to the 100 million dollar creation of a computerised centre for the history of art and the humanities in Santa Monica, California. That means fairly simply that the Getty's full weight in the art market has yet to be felt. After 1986, with the computerised centre complete and paid for. things will be far more menacing than now.
More alarming yet to those who believe that supply and demand in a free market will eventually find each other is the inevitability that Britain will prove the favourite hunting ground for that museum. Mr. Getty, like other American millionaires before him, such as Mr. Mellon. Mr. Pierpont Morgan, Mr. Huntington, Mr. Frick and Mr. Kress, has set out to find immortality through financing a world class art collection. In 100 years no schoolboy will remember Getty for oil; only for art.
Worldwide, museum-worthy works of art are no longer plentifully found in private hands. In the West there can be no dispute that Britain is by far the most important repository of these, endowed as we still are with country houses not yet emptied of acquisitions made in the 17th century and on the Grand Tour— acquisitions of which certain noble Lords seem rather ashamed. The Italians bolted their stable door far too late. The French, though now vigilantly operating a pre-emption scheme, have seen much sold from the chateaux and from the Paris hôtels. Germany and Switzerland, though retaining important private collections, are no longer a major force on the international art market. Like it or not, it seems to me inevitable that sooner or later Getty's 90 million dollars per annum and those major privately-owned art treasures left in Britain will home in on each other.
It is small relief that, as Mr. Walsh tells us, his museum employs no agents in this country and makes no probing telephone calls. It does not need to. The fame of its dollars is world-wide, and conceivably immortal. The fact is that we have works of art which this modern Maecenas dearly desires. In the end, unless we take steps to prevent it, the "Getty factor" mentioned by Lord Normanby, may easily swamp us.
May I say briefly to those of my own closely associated noble friends who do not believe that we have any right to interfere in a free market of willing sellers and a willing buyer that the Getty Museum does not operate in a free market at all? Armed with a purchase grant 12 times that of our own National Gallery, as we have been told, and many times that of the Louvre, the Rijksmuseum or other American galleries, it has created its own market—a market in which it can theoretically obtain anything it wants. It is a wholly one-sided market, and those of us at its mercy are entitled to take protective steps should the Getty Museum in the future abuse its tremendous power.
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Mr. Walsh tells us further that,
"some people still won't admit that it's quite plain that it's not in our interest to spend one dollar more than we need to spend for something".
Now if this is intended to suggest that Getty never overpays, and cannot therefore be guilty of raising market prices, an element of irony is introduced. Numerous recent transactions have seemed, if correctly reported, to be generously priced. Of course, at auction Getty can claim that it pays just 10 per cent. more than an underbidder. But to further claim, on the strength of this, that it is not inflating the auction market is a visible mockery. Its very entry at the top of the old master drawings market in 1982 to 1983 has lifted prices dramatically throughout the entire range. To underline this point, Getty is now seeking an export licence at a record price for the Rubens drawing of the "Man in Korean Costume" formerly owned by Lady Head, on an offer of £301,000.
The Getty directors have lately, as mentioned, been trying to establish trust in England, for instance by direct contact with, I understand, my noble friend the Minister for the Arts and the Museums and Galleries Commission.
"We've been trying to avoid trouble for ourselves".
writes Mr. Walsh.
"by attempting to find out when one or another of the national collections has a serious enough interest in something on the market to try to raise funds to keep it in England. In that case, we'll try to get out gracefully. But we've never said that we would stop trying to acquire works of art in England. What we've said is we would do it fairly and observe both the letter and the spirit of the export laws".
Mr. Harold Williams, the Getty Trust President, used the operative word "consultation" in his October speech at Brooks's Club, according to a transcript which has been placed in my hand. Mr. Williams was not over-precise about the details but the gist of this form of "consultation" was. as I understand it, that, if Getty became aware of a major conflict of interest with a British collection, it would back off. The interest of good relations was of the highest importance to them.
Now these kind words have been slightly shaded over because it appears that, even as Mr. Williams spoke, his museum was already negotiating, without consultation, to buy the Crucifixion loosely attributed to Duccio or perhaps to Ugolino or another early Sienese painter. His consultations, if any, did not reach Scotland—whose National Gallery was a natural resting place for that Crawford-owned picture—or Manchester, where the director, Mr. Timothy Clifford, has shown vital enterprise and enthusiasm in recent years in building up that collection. Mr. Clifford, after an enforced late start, is now trying to raise funds to buy the Duccio, and the Getty is showing no signs, to quote Mr. Walsh's scrupulous phrase, of "trying to get out gracefully". So much for the value of words as distinct from actions.
I would add that it is not persuasive for the Getty to say that it did not consult Mr. Clifford because it did not know of his interest last November. He showed no interest then for the very good reason that, like other British directors—and I think I shall find agreement with the noble Lord opposite—he was unaware that the Duccio was on the market.
I do not wish to. and shall not. swell the chorus calling on the Minister for the Arts to find exceptional

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monies to help purchase that picture. The message is reaching him continually. I do wish to urge on him the importance of establishing with the Getty, beyond all doubt, whether or not a promise to "consult" is now in existence. If so, we need to know beyond all ambiguity what are its terms and whether they extend to all purchases in Britain or simply those at auction. We shall certainly obtain some clues if the Getty proves to outbid the British Museum on the most desirable drawings from Chatsworth House in July.
It is the voracity of the museum's craving and the potential quantity removal and concentration onto one continent which excite the alarm of a nation such as ours. Moreover, despite a kind of holier-than-the-Pope posture in public towards our own national heritage, the Getty has no less alarmingly and subtly devalued the original promise to consult with our museums and galleries made last November.
First, Mr. Williams announced in January that the promise to consult referred only to auction purchases made by the Getty. Secondly, Mr. Walsh announced last month that the Getty will attempt to find out when a national collection—and I repeat "national collection"—is concerned to keep a work of art in Britain but not, one deduces, when a university or provincial museum seeks to do so—and they are probably likely to be most anxious of all to succeed in doing so.
Thirdly, in a document which the Getty Trust kindly sent me this morning, I see that the promised consultation is now described only as informal. The Getty Trust now adds that it is inevitable, no less, that the museum will end up competing for British works of art despite—and here I quote,
"our best efforts to take our colleagues' interest into account".
To my own innocent mind, that has the implication that so far from being a genuine promise to consult, it is a simulation of slithering through the long grass in the quest for its required prey. We do not yet know whether Getty will exceed the appetite in an earlier epoch of William Randolph Hearst, who stalked through the churches and palaces of Europe and who would have accepted with gusto the advice of W. C. Fields:
"Never give a sucker an even break".
That may seem harsh, but in the long run I fear an inevitable seduction by Getty's overwhelming funds of our own remaining major works of art. No self-denying ordinance or "consultation" will hold the swell. Action will have to be taken to protect our art market, though perhaps not for many years yet if the Getty behaves responsibly. What form that protection should take is open to dispute. Enhancing the reviewing committee's powers by increasing delays on export licences to over one year is a good solution, it seems to me. The committee wisely imposed only last week a longer than usual delay of six months on the Hogarth destined, I believe, for the Yale Center for British Art. That is the road along which we are probably destined to travel.
I shall, however, end on a heartening note. It is to express my delight at the element of consensus, though it is not complete, that binds us on both sides of the House and in the other place on the problems facing
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our heritage and on the proper solutions. That has been the case, rather miraculously, for the 40 years since Mr. Hugh Dalton's magnificent initiative in endowing the National Land Fund with £40 million in 1945, later raised to £50 million.
It is striking, and true, that we agree so deeply, all of us, on the importance of heritage matters. Not all of us agree on the way to set about it, but I believe that we all know that no generation will forgive us if we allow the mass of our greatest remaining treasures to leave our shores.
10.23 p.m.
The Earl of Perth: My Lords, when I saw the Unstarred Question of the noble Lord, Lord Fanshawe, I thought that it was a little hard on the Getty Museum.
Lord Strabolgi: Hear, hear!
The Earl of Perth: Various noble Lords who have spoken so far—the noble Lord, Lord Vaizey, the noble Lord, Lord Annan, and I have forgotten who else—to a degree defended it. The noble Lord, Lord Saint Oswald has attacked it very strongly. I think he is wrong 1 shall come back to that. I accept that there is a threat, but I think that the noble Lord was wrong to have said some of the things that he did. Perhaps there is a moral to that; namely, not to circulate what I would call propaganda—because that is what happened—to your Lordships just before a debate. So often it has precisely the wrong effect. I shall come back to certain activities of the Getty and how I think that we can do better by helping rather than trying to fight.
Getty, as other noble Lords have said, is the tip of the iceberg. The fact is that there are many museums in America—the noble Lord, Lord Fanshawe, mentioned Kimbell, and others are the Metropolitan and the National Gallery of Washington—and, above all, an enormous number of rich individuals who can, if they wish, easily find five million or 10 million dollars and not notice it. There we are.
However, let us recall that in the eighteenth and nineteenth centuries we were in exactly the same position in relation to Europe. What we have and what we talk about today as our heritage is undoubtedly arising in large degree from what we did to Europe in the eighteenth and nineteenth centuries. It would be a mistake if at this time our attitude was too much that of a dog in the manger in relation to certain works of art going to America If they pay, all right; we still have great things in our galleries and museums and will continue to have them because, as I hope to demonstrate, we have got considerable defences at the present time. We cannot be over-greedy about this.
Let me come back for a moment to the Getty Museum. It is quite true that they have this enormous sum to spend, but they have said they want to do a considerable amount of building. They want to build a new museum and a centre for education and for the arts and humanities. These are going to cost many hundreds of millions of dollars and will automatically make less the amount of money they have to spend on acquisition. A lot of this work they are doing is not just for themselves; it is for the benefit of the art world

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universally. Ask the Courtauld Institute how much help they have had from Getty. I hope that shortly the British Architectural Library, with which I am connected, will find that its great collection of drawings, its archives, its records of building, will be helped similarly by Getty, because this is an international need.
Above that, undoubtedly Getty are going to have problems on how to spend. Our job should be to try to encourage them in certain directions. For example, I have in mind that they should promote, sponsor international exhibitions either of things that they have acquired or things they will collect and sell elsewhere in the world. When I say that I have particularly in mind American works of art. By that I mean the paintings by Americans at the end of the last century, and also since the war. We do not know enough about them. Why? Because on the whole these American works of art are kept in their own country. If that happens the proper recognition of artists is not seen or known.
The noble Lord, Lord Cottesloe, referred to Hirshhorn. I was closely associated with that attempt to get the Hirshhorn Museum over here. It was a Labour Government who were in power in those days and I should like to pay tribute to all that they did to try to achieve the end, which was merely a small addition to history.
In those days I was Crown Estate Commissioner and we were in a position, with the approval of the Government, to offer a site in Regents Park. Mr. Hirshhorn said, "What sort of a museum will you put up?" We said, "What are your requirements?" Within five days Mr. Dennis Lennon produced a model which so attracted Mr. Hirshhorn that it very nearly turned the trick. It did not quite do so because Mrs. Lyndon Johnson, wife of the American President, put her arm round Mr. Hirshhorn and said: "Look, we want it". Who could resist her blandishments? But that is another story.
I hope I have done enough to show that what we should try to do is collaborate with the Getty Museum and help them spend their money to the advantage of the world, if I can so put it. I am sure that that is the right direction, though I recognise that there is a problem in regard to the funds that they have for acquisition.
What are our defences in that event? They are pretty formidable. As many of your Lordships have said, to begin with we have the Reviewing Committee on the Export of Works of Art. If in its judgment something is worth saving, then, judging by the Waverley criteria it is in a position so to say. I would plead with the noble Earl, Lord Gowrie, not to change the Waverley criteria. My experience—and I am sure that it is the experience of the noble Lord, Lord Cottesloe—is that they have stood the test of time and are very good.
It was the noble Lord, Lord Annan, who suggested that the length of time should be extended. I am totally opposed to that. Have noble Lords thought of what it means if we suggest that matters are put off for seven years? Let us assume for the moment that there is the fantastic figure of £10 million and for seven years the owner is without that money. At the present rate of
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interest that would cost him over £1 million a year. Is that fair?
I am quite clear in my own mind that we must treat fairly our own individuals who happen to own these great treasures, and we have to go by the market value. All the same, it is valuable that the reviewing committee can give us a period of time. There is at least one example when they gave us a year. That was the case of the famous Leonardo cartoon, which was saved for the nation as a result of the special efforts of the then Lord Crawford. However, I think that those should be very exceptional circumstances, because it involves great hardship.
What is our second line of defence? It is the monies that we have available from one source or another. First come the Government grants to the various national museums and other museums. As the noble Lord, Lord Annan, said, they run into many millions of pounds in relation to the National Gallery. Secondly, we have the heritage fund. The noble Lord, Lord Charteris. who is its splendid chairman, told us of its activities, and it has done great work. There is always a longstop in that if Parliament thinks that something is really important, it can make a special extra grant at a special time. Perhaps one of these days we may face the problem of the Bridgewater pictures of the National Gallery of Scotland. That might be the time to ask Parliament to consider offering some special help, though happily an arrangement has been reached that that will not arise during the lifetime of the present Duke. Long may he live—for two reasons: first, because the problem will not arise and, secondly, because he deserves to live a long time.
Then we have the private sources: the National Art Collection Fund, about which the noble Marquess, Lord Normanby, has spoken, the Pilgrim Trust, the friends of the museums, and in certain cases special appeals when you get individuals and institutions all anteing up to save some particular work of art.
Having said all that, we have a further defence; namely, the in lieu or private treaty arrangements. But I am a little unhappy on how they work. I believe that if the Treasury cannot make the douceur up to 50 per cent., it should at least be a little more flexible. It is quite true that it has to agree what a value might be, but in the art markets at present it may well be that the owner can see the sky is the limit in auction rooms, because today one does not know what prices works may fetch. Therefore I would say to the Treasury, "Be a little more flexible". It is within their power to do that. A good example is the Devonshire drawings. If the Treasury had been a little more flexible there the Devonshire drawings would not be coming up for auction, and they would have been in a position to spread them all over the country. Not just to the British Museum, where some could have gone, but all over the country for the benefit of all the country.
The Earl of Gowrie: My Lords, while the point is fresh in the mind of the House, I would remind the House that it was the National Heritage Memorial Fund and the Trustees of the British Museum who did not want to purchase the Devonshire drawings at that price. It was not a question of the Treasury being mean.
The Earl of Perth: My Lords. I take the point. I would say equally that the National Heritage Memorial Fund and others should be a little more flexible, given that we know that at this time it is a rising market.
The only other point I would raise about having in lieu or private treaty is that often these works of art which are saved should remain where they are. particularly if the house is open to the public. I know it has happened once or twice; it should happen more often. Lastly I am going to make a controversial suggestion; namely, that other museums should follow the example of the Maritime Museum in making entrance charges. I say that but there are three things which go with it. First, the Treasury must undertake that the proceeds from those entrance charges must be available to the museums, and they should not dock the grants.
Secondly, all museums must have at least one day in the week free so that those who cannot afford it, or do not want to afford it. have an opportunity to go in free. Thirdly, each museum, or its trustees, must choose for themselves. This is not something that the Government should bring in. It is something which each museum should be able to decide, knowing that as a result they will have more money to spend, and whether it is for running their museum or whether it is for acquisitions is for them to decide. This question of museum charges has been for too long bedevilled by sentiment rather than practicalities.
My noble friend Lord Eccles made a good point, and we all know what we owe to him on the encouragement of the arts. Let us not forget that what is today's current work of art is tomorrow's heritage. I disagree with him however when he says that we should try to save only works of this country. I think we have enough Gainsboroughs, Constables, Stubbs', and so forth, but we may not have enough of some of the great European works of art. Therefore, I do not think that that is a good criterion. Let us leave it as it is today, which is that the reviewing committee decides these matters.
I have talked too long. We cannot keep everything here, and nor should we try to do so. I believe that our control system is as good as can be obtained. There are possibilities which I have tried to outline for further defence, and 1 feel that VAT as it operates today is a nonsense.
10.39 p.m.
Baroness Airey of Abingdon: My Lords, there is a certain advantage in speaking towards the end of such an important and erudite debate, because so many things have been said which one would have liked to have said oneself. Therefore, I shall be extremely short. I should like first to thank the noble Lord, Lord Fanshawe, for giving us the opportunity of this debate, and to add my congratulations on the excellent maiden speeches that we have heard this evening.
I should like to take up one point from my noble friend Lord McAlpine of West Green. He spoke about modern works of art. May I just speak briefly about a small and modest experience of my own. For a number of years I have longed to have a portrait painted of my daughter and at last I found an artist,
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who I much admired and who I thought was the right person to paint her. He has done something which gave me such pleasure. It is a modest watercolour, but it gives me very special pleasure. I wrote to him telling him about this and I received something that moved me very much indeed because he wrote back saying what an exceptional thing it was to be commissioned privately by somebody who really appreciated so much what he had done. This is where I join forces with my noble friend. It is very important that we should, where possible, remember that the heritage is for tomorrow as well as for yesterday.
I should like to speak briefly about what your Lordships know I feel deeply about and that is the small manor houses. There was an exhibition at Sotheby's called "Treasured Possessions." It was over Christmas in December and January for one week this year and I went. I was bowled over because by each piece of furniture or picture stood the proud owners. The pictures resembled the owners who stood beside them. One might compare it to Cruft's, but I should not like to do so. Beside the piece of furniture, looking glass or picture was the owner and everything was in absolutely mint condition. I was amazed at the wonderful quality.
When I looked at the list of houses, although there were one or two great and well-known houses, there was a large number of, to me, unknown small manor houses. Much has been said this evening about helping those who may have great and wonderful possessions, but in quite small houses. I was pleased to hear the proposals that have been put forward and I hope that the noble Lord the Minister will do his best to help those who are not only guarding their treasures but looking after them so marvellously.
Thirdly, and again briefly, I return to the question that we have to the fore this evening about the Getty Foundation. I carefully read that document which most of us have received which described exactly the aims of the Getty Trust. I noticed that throughout this document it is sought to show that it is not only works of art that the trust is out to buy—which may be a great relief to all of us—but a constant emphasis on what they were to build: the constant emphasis on building housing for guest scholars. This particularly interested me because guest scholars immediatley turned my mind to thoughts of Leeds Castle.
I am sure that many of your Lordships know all about Leeds Castle, but I shall briefly recapitulate. Leeds Castle was bequeathed to the Leeds Foundation by Lady Bailey largely with American money. One of the aims of the foundation is to promote and encourage medical research and education and to disseminate the results of such research and education. It is a charitable organisation and under the laws of England free of taxes in this country. What could be more attractive as an outpost to the Getty Museum, with possibly a revolving exhibition of European and perhaps American art acquired by the Getty Trust and for the study of guest scholars to which it attaches such great importance working in situ in a situation which would be very congenial, I believe, if it were anything approaching the beauty of Leeds?
When we look in Country Life we see. alas! that there are a large number of country houses which are

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on the market. This made me feel that the story had perhaps turned full circle when we think of the Pilgrim Fathers setting out over 300 years ago for the New World. This is a story which was made doubly poignant for me after an evening when I was at the American Embassy. The then American Ambassador explained to me that the "Mayflower", in which they sailed, was only the length of the drawing room, which is not enormous, in the house which was built by Barbara Hutton and is now the American Embassy. Would this not carry out the further aim of the Getty Trust: to promote, as they wish and as they say in their document on their aims, the understanding of the nature of man and the development of civilisation?
10.46 p.m.
Lord Dormer: My Lords, I believe that all sections of the House and many people beyond will be grateful to the noble Lord, Lord Fanshawe, for initiating this debate. It is a matter which goes to the very heart of the cultural life of the nation. I should like to mention, too. how much I enjoyed—as, I believe, did everyone in the House—the two excellent maiden speeches that we have heard tonight. Both were extremely well informed and of great interest and both showed much promise for the future. The heritage of England is a national matter which ought to be preserved in its natural setting. It is not only the great country houses and the great collections or the national museums which contain them: very often, a lesser country house or a beautiful manor house of the 16th or 17th century will contain objects and items of great historical importance.
By some miracle, these houses have been preserved through the centuries by the families to whom they belong and who have accumulated superb collections of possessions which, taken together, mirror the history, customs, costumes, sport and life not only of the district but also of the nation. Some may be open to the public; others may not. They may lie undisturbed until capital transfer tax strikes and the contents are offered to the nation in lieu of tax or, sadly, the entire house and its contents are dispersed. Then the Government have to act.
There is no short cut to preserving historic objects of great national importance which are offered for sale. To keep them in this country, the Government must refuse an export licence and must provide the necessary funds for their retention here. It is common knowledge that the various organisations which can help to buy objects, not only of great artistic merit but also of national importance, are, if not short of funds, in need of funds. This very valuable debate has shown the way towards a possible solution to this great national problem. I earnestly hope that the Minister may have sympathetic ideas which may possibly pave the way towards constructive action in the future. The nation deserves it, and it will be the nation in future which will be grateful.
10.50 p.m.
Lord Strabolgi: My Lords, in company with other noble Lords, I should like to say how grateful I am to the noble Lord, Lord Fanshawe of Richmond, for
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tabling this Question. It has given rise, as has been said, to a most interesting debate, and indeed also to a particularly well informed debate, which is not surprising, if I may say so, considering the wealth of experience that there is in your Lordships' House. The debate has further been notable, as has been said, for the two excellent maiden speeches. I should like to add my congratulations, if I may, to the noble Earl, Lord Munster, and to the noble Lord, Lord McAlpine, for their contributions, and I hope that we shall hear from them on many other occasions.
I was particularly interested in the speech of the noble Lord, Lord McAlpine, and what he said about the artists of today. I think that this was very pertinent, and he reminded us that theirs is the heritage of tomorrow. Also, the noble Lord, Lord Dormer, who has just preceded me, reminded us too that our country houses are an important part of our heritage. I think it was Sir Sacheverell Sitwell who wrote somewhere that they were probably one of the greatest contributions that Britain has made to the arts. We welcome the fact that the noble Earl, Lord Gowrie, is to reply, especially as he has been taking part in the previous debate and has been here really since the beginning of the proceedings. I am sure that the House is looking forward to hearing the Government's views.
As has been said throughout this debate, a great many works of art have left this country during this century for other countries, notably the United States. This is not surprising and of course it is the result mainly of our tax system, as was made clear by the noble Lord, Lord Fanshawe, at the outset.
I must say that, except for objects that are closely bound up with our cultural history and tradition, which I would fight to the last ditch to preserve, I tend, like the noble Lord, Lord Vaizey, to be a free trader. Surely, my Lords, the life-enhancing qualities of a great work of art transcend its ownership, and indeed belong to the whole world. The Americans and the heirs of our European culture and tradition enriched with much culture of their own, and the works of art they acquire are surely just as well displayed and appreciated in the United States as they are over here.
The Question mentions the Getty Museum in particular; but, as has been said, there are other institutions in the States which have been endowed by generous private donation and which have built up magnificent collections in recent years, notably the Norton-Simon Foundation, which I had the good fortune to see last summer. Indeed, I have hardly ever been in a gallery in my life such as that one in which I would have liked to own without exception every single painting. Then there is the Mellon Foundation of British Art that has been built up and from which Mr. Mellon has been most generous in lending to exhibitions here.
It is therefore rather unfair to suggest, as one hears it so often suggested these days—not in this debate but I have read it often in the press—that a work of art leaving these shores is somehow drained away and lost to view. I regret with the noble Lord, Lord Annan, the loss of the Dirck Bouts from the National Gallery; but it is now one of the glories of the Norton-Simon, and surely, my Lords, they have as much right to a Flemish painting as we have.

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We in this country have also been great collectors in our time. The last two centuries saw great collections formed of European and Asian art, and there have been notable collectors as well during this century—I am thinking particularly of Samuel Courtauld and his magnificent collection of French impressionists. We tend to take the Courtauld Collection and other collections for granted as part of our heritage. Yet to many French people, as a French friend of mine reminded me the other day, these paintings are part of their heritage. They regret their loss; and their loss, of course, is our gain. In this case we happen to be one of the importing countries. I do not know if the noble Lord, Lord Fanshawe, was thinking only of the United States when he drafted his Question, but the generous Felton bequest has enabled Australia to acquire some first-class paintings of all periods, with the benefit of advice—and very good advice it was, too—from the late Lord Clark. That is surely to be welcomed.
I suggest, therefore, that we need to put the matter in perspective. This is particularly important, I submit, in the case of the Paul Getty Trust, concerning which there has been some ill-informed criticism, much of it coming from people—and I do not refer to speakers in this debate—who have never visited Malibu and have not the slightest idea what the museum is like or what they are trying to do. I welcome very much the remarks of the noble Lord, Lord Beaumont of Whitley.
I am glad that in one or two of the speeches in this debate something has been said to clear up some of these misconceptions about the Getty Trust and the museum. I must say. in spite of the robust attack by the noble Lord, Lord Saint Oswald (which he was perfectly entitled to make if he wished), that, after all, they are only doing what many of the great families in this country have done in previous centuries: importing works of art from other countries. But it is right to say that they are not obliged to spend their entire income on purchasing works of art: and the other operations that they are using this great fortune for have been well described in this debate.
It has also been suggested that they should start an out-station in this country. One of the difficulties of this, of course, is that they have not got enough works of art to fill it. Getty itself is not a very big collection. It is not as big as the Norton-Simon; nor indeed is it as good at present—they are trying to improve it—as Mr. Walsh would be the first to agree. But they have in the past, before he took over, been buying too fast, and not works of the greatest quality. They hope to impove this later on.
Getty do not employ agents to ask British owners of important works of art to sell. I know there have been cases where dealers have gone to an owner in this country and said: "Would you like to sell this? I think we can get Getty to be interested". And then they have gone to Getty and said: "So-and-so wishes to sell". Mr. Walsh told me himself that if they do this they never have anything further to do with the dealer: he is put on to their black list.
There have been several instances, too. when Getty have withheld bidding for a work of art where they believed it was better for this to be retained in the country of origin. The most important recent example
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was the Gospel Book of Henry the Lion, which was bought recently by the West German Government at auction in London for, as we know, over £8 million I believe that was the highest price ever paid at auction for a work of art Getty did not bid, although they were widely expected to do so, and indeed are on record as wanting to possess this outstanding 12th century manuscript—as who would not? But they did not bid, my Lords they kept out of it because they thought it was right that The Gospel Book should go back to West Germany, after an absence of fifty years, where it is regarded as a national treasure. I was told that; I also know it for a fact because I know who the under-bidder was because he told me so himself There are also four specific cases, which must remain confidential, in which Getty has recently stood down in favour of British galleries.
In spite of what has been said, too. Getty do not want to pay inflated prices and it is surely not in their long-term interest to do so, as the noble Lord, Lord Charteris of Amisfield, said. They bid at auction in the usual way. We tend to forget that at every auction there is usually an under-bidder, so there is someone else who wants to bid for the work of art as well.
However, if we want to keep some of these outstanding works of art here, then certainly I agree with all the speakers in this debate that a more favourable tax regime will be needed I hope that the Government will take on board some of the suggestions that have been made so that we can have some further tax concessions. But I agreed with the noble Viscount, Lord Eccles, when he said that we must not let this get out of hand. I also agreed with so much of what he said about striking a balance between the art of the past and the artists and craftsmen of today Let us. too, remember all the other claims on the public purse—the schools, the hospitals and everything else. So we must not let this get out of perspective.
The Conservative manifesto promised to examine ways of helping the arts and encouraging donations by giving more generous tax concessions. If this was a serious commitment, perhaps the noble Earl will tell us whether he is making any progress with his colleagues in the Treasury, because this is a system that has been working well in the United States and also, too, in Italy, which has recently adopted it This idea has been canvassed now, I believe, for at least 20 years, but nothing ever seems to be done by any government I believe that the noble Earl himself is rather interested in it I hope that he will really be able to take it a step further, because this could be one of the monuments to a distinguished tenure of the arts portfolio.
There is the proposal to increase the in-lieu percentage, known as the douceur, from 25 per cent. to a more attractive figure As has been said, this was recommended by the Select Committee of another place and that, I think, would do something to help Also, I must say that I do not think the acceptance-in-lieu provisions seem to be working very well The total value of works of art accepted in lieu of CTT for the period 1984–85 amounted to around £815, 000, which is surely a fairly modest sum when we remember that it covered as many as 30 paintings. They were all fairly

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small things—although of interest historically, I am sure—and no big outstanding works of art such as the noble Lord, Lord Annan, mentioned in his list. I think it used to be called the paramount list, though he called it something else.
A further concession, which I fully agree should be given, is the removal of all VAT from private treaty sales. It is quite outrageous that a national gallery or museum has to pay VAT on the auction or dealer's commission, which can often be considerable, when municipal galleries are exempt and when foreign buyers are also exempt, so there is every inducement for dealers to offer works of art overseas. This would be a small concession, but it is one which I hope the noble Earl will get his colleagues in the Treasury to accept. I agreed very much with what the noble Lord, Lord Cottesloe, said.
I realise that, in fairness to owners of important works of art, the true price has to be determined and this can surely only be the world market price. In spite of much help from the National Heritage Memorial Fund, the NACF and others, it is often difficult to match this price during the period when the export licence is withheld, which, in fairness to the buyer, can only be for a few months.
I do not agree with the noble Lord, Lord Charteris of Amisfield, and other noble Lords that this period should be very considerably extended. If you buy something from abroad, you are very keen to have it, so it is not fair to expect you to tie up a considerable sum of money for a very long period. Either you lose the interest or you are paying interest on a loan. I should have thought that the few months we allow are quite long enough, unless we want to go down the road of requisitioning all works of art and saying that they belong to the state and no private owners have any rights to them. If we want to go down that road, all well and good, but we in this country have always displayed a sense of fairness towards the owners of works of art. The Waverley criteria are probably about right and the period of the delay should be no longer than it already is. I know that the noble Earl put a rather longer period recently on the Hogarth; but I do not think it should be longer than that.
The only hope, therefore, at present is for a more flexible and helpful tax régime. It is important, for all the reasons which have been described today, for us to have a free trade in works of art. We have to establish a world price, in fairness to the owners. Yet we have to enable our own museums and galleries to compete fairly. The only way to do this is to bring in some form of tax concessions. These have been very successfully organised abroad and they have enabled foreign buyers to buy works of art. Therefore I believe that only a regime of this kind will enable us and help us to retain more of our works of art in this country.
11.7 p.m.
The Earl of Gowrie: My Lords, on this as on many other issues, I am delighted to welcome the noble Lord, Lord Strabolgi, to the ranks of the free traders. I hope that he will spread the gospel of this admirable economic doctrine among his friends on other issues as well. I can say to the noble Lord, because one figure which he gave me was a little gloomy, that the
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Godman Collection of Islamic Pottery was accepted in lieu by the British Museum in 1983 at a net value of £1·2 million and a gross value of about £4 million. Added to the other items he mentioned, that is quite a satisfactory picture. May I also say to the noble Lord and to the House generally, before we get too anxious, that the British Government remain very substantially richer than the Getty Foundation. That is a consolation, I imagine.
This is, I believe, the House of Lords at its best, most interesting and informed. I congratulate my noble friend Lord Fanshawe of Richmond on three things: first, on his speech and the way in which he introduced the Motion; secondly, on slipping in, under the guise of an Unstarred Question, what may be of one of the major and most important debates of our year—nice wristwork from the noble Lord there, during a crowded Session; thirdly, on attracting two wonderful "maidens" in the form of the noble Earl. Lord Munster, and my noble friend Lord McAlpine of West Green. Looking round your Lordships' House one can say that we need a professional conservator in the form of the noble Earl. I hope that he will soon give us some of his expertise—preferably, as he did tonight, for nothing. It seems an awfully long time since the scaffolding above the noble Earl's head was first erected. He will be well aware that there is much fine Victorian stained glass to claim his attention but, in the intervals between attending to our conservation issues I hope that the noble Earl will address us on many other issues.
My noble friend Lord McAlpine of West Green belongs to a small group of human beings who, where I am concerned, can do very little wrong. He is always a respository of immense sense and wisdom. I happen to know—and I will not embarass my noble friend by passing on this information—what an enormous amount he has done for the arts in this country. Long may he thrive to continue to do so, and long may he continue to regale your Lordships' House with common sense and wit of the kind that he gave us tonight.
My job is to set out as quickly as I can, given the lateness of the hour, the Government's general position. It is of course our policy to preserve and protect the British heritage both in public and private hands. To this end, a system has been devised over the years, which, although it is not perfect, and although one has to keep a close and watchful eye on it, does give a substantial measure of incentive to private owners to participate in this policy and also provides opportunities for our great public collections.
It does, therefore, remain a major plank of government policy to encourage private ownership, in the belief that this is both the most satisfying and the most economical way of preserving and indeed extending our national assets. The availability of conditional exemptions from captital transfer tax has greatly encouraged private owners to retain the ownership of outstanding works of art. I believe that the total exemption from tax which can be claimed for objects of museum quality remains an enormously important concession; one that I should like to see even more fully used. I am, therefore, currently considering whether further publicity to this end will

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be helpful. I hope that may be of some encouragement to my noble friend Lord Saint Oswald.
However, the House has recognised that there are circumstances where works of art come on to the market, and that we should not seek to prevent this. It is no place of government—and of this Government particularly—to interfere unnecessarily with the operation of market forces. I am grateful to my noble friend Lord Fanshawe that, in voicing his anxieties, he fully recognised that. What we can do—and do do—is offer incentives which make the possibility of sale to a public collection, for public benefit, considerably more attractive. These have been in operation for some years and my wish is to make them more fully understood.
Essentially, they are the arrangements for private treaty sales to public institutions and for the Government themselves to accept certain items in kind in lieu of tax, if they are of the requisite quality. In the four years that my office and the Department of the Environment have together administered the acceptance of in-lieu arrangements, more than £6.5 million has been spent on the acquisition of important heritage property for the nation. Over the same period a great many private treaty sales have taken place. My office issued a pamphlet on these arrangements less than two years ago, and we recently issued further guidance on the circumstances in which certain acceptance-in-lieu objects may be offered in situ—that is to say, in the original setting. Awareness of what I would call the "heritage system" has therefore been building up steadily, and this in turn has played an important part in securing many valuable assets for public enjoyment.
In addition, the National Heritage Memorial Fund stands as a vital long stop—or, perhaps, deep extra cover—able to give financial assistance over a very wide range of marvellous items. This House will know that the Government have pledged themselves to support the fund and only recently made a substantial addition to it, whereby the fund will have some £8 million of new money in 1984–85 for its heritage work.
This has been done in the knowledge that certain great houses needed help. It has enabled the fund, in addition to securing Belton, to safeguard the future of Calke Abbey. Whatever the arguments about the merits of particular additions—and there always will be arguments—a lot of people felt very strongly about Calke Abbey, and I certainly believe in the independence of the National Heritage Memorial Fund in making these decisions.
I am grateful for what was said by my noble friend Lady Airey about the work of the fund. She drew our attention to the more modest parts of our heritage that it helps—and they are no less important. I am grateful also to my noble friend Lord Charteris, who, although we do not give him enough money (and as he said, one cannot get too much of a good thing), was nevertheless kind enough to say that he had a square deal from the Government.
The idea of gifts to the arts, whether donations of works of art or financial support for the performing arts, being allowable against taxable income, on the lines of arrangements in the United States, clearly has attractions from the donor's viewpoint. But I remind
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the House and all of my clients—and there are many in the performing arts, too; not just on the heritage side—who urge the American system on us of one thing: most people here, when they recommend it, usually mean that it should be in addition to, rather than instead of, our present system of public funding. We must remember that very little of what we would call public money in that sense goes into this field in America. I therefore ask the House to consider the full implications of such suggestions.
It is scarcely conceivable—and the noble Lord, Lord Strabolgi, recognised this—that the Government could easily give such a concession for the arts alone when there abound so many other worthy causes, from children's hospitals to help with the elderly. I am very mindful in my work of what I call—with no disrespect, but a lot of admiration—the Jimmy Savile factor. A concession in one field would be bound to lead to enormously strong claims for equal treatment in others. There would be no equable way of holding the line. The potential cost to the Exchequer could then be enormous.
Secondly, in any event, how could we in practice ring-fence the arts? How could we define them without creating anomalies and endless accusations of unfairness? Donations of heritage quality works of art to public collections are, as I have said, already totally exempted from capital taxation. This in itself is a considerable incentive and a great benefit to museums. But to go substantially further and offset donations against income tax would constitute a major change in the system. I think that it would, too, exacerbate the tension between the heritage and the living arts; as my noble friend Lord Eccles so wisely urged us not to do.
I draw the attention of the House to the fact that through the covenanting system donations can be exempt from both income and corporation tax. The Government have already altered the tax rules in favour of donors by reducing the minimum period for covenants from seven years to four. That should help to encourage individuals and businesses to take advantage of the tax relief that can be claimed. The totality of the package is an attractive one.
It is also an exaggeration to say that the system of acceptances in lieu of capital transfer tax is inadequately used. As I said, since the summer of 1979 the Government have accepted important in-lieu offers from 31 estates in satisfaction of tax liabilities of £6·5 million. The suggestion that acceptances in kind of this type should not be accounted for by Vote payments to the Inland Revenue from the heritage departments, including my own, is a long-standing objection. But I must say that, as the Government have previously pointed out, property in lieu of tax does count as public spending. There can be no open-ended commitment, therefore, by the Government to accept objects in lieu of money.
I agree with the noble Lord who said that my right honourable friend the Chancellor was far-sighted and imaginative. But my right honourable friend cannot buck arithmetic or gravity. The present arrangements have certain advantages which must not be overlooked. They are easily understood and they bring the amount accepted in this way properly before Parliament. We could not, therefore, accept a change

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which would allow objects to be accepted irrespective of the tax forgone. In fact, the present acceptance-in-lieu ceiling is being doubled in 1984–85 to £4 million spread between my Ministry and the Department of the Environment—an indication of the importance we attach to this field. But to go further and make such acceptances non-accountable in Vote terms would be inconsistent with the principles of Government financing.
On the subject of VAT, which was raised by a number of noble Lords—notably the noble Marquess, Lord Normanby—it is, of course, intended to be a broad-based and generally applicable tax. From the point of view of the bodies funded by central Government, I agree that superficially it looks rather lunatic. But their grants—the grants of my client organisations, for instance—take into account the incidence of such taxes, and when VAT was first introduced the grants were increased to take account of it. I do not believe, therefore, that there is a substan-tial basis at present for changing the arrangements.
The situation with local authority museums is not analogous. Section 20 of the VAT Act 1983 allows local authorities to be refunded the tax they incur on their non-business activities. It is not borne by their ratepayers, and the concession, therefore, constitutes a rather different form of central Government support.
My noble friend Lord Fanshawe suggested that the douceur be increased. The Government have concluded that a change is undesirable here. It would only result in fewer objects being acquired at a higher price, and I think that no one put this point more trenchantly than the noble Lord, Lord Annan.
I now quickly turn to some of the anxieties that have been expressed in spite of the operation of this system. Generally I welcome the fact that the House has endorsed the value of the system. The reviewing committee has done a remarkable job in carrying out the precepts laid down by the Waverley Committee over 30 years ago. I should like to reassure the noble Earl, Lord Perth, that we are thoroughly committed to the Waverley principles. I should like to pay tribute to the work of the committee and in particular to the devoted work of its chairman, the noble Earl, Lord Plymouth, and the members and advisers who attend its meetings.
Some people have said that, in spite of the system, works of art "get away", but the system is not designed as a catch-all. It is aimed at preserving where possible the very best in a very wide range of categories, including, may I say to my noble friend Lady Airey, categories of smaller monetary value but perhaps no less heritage importance. We cannot keep everything that we deem of national importance, since our resources are finite and we have to face the purchasing power of many wealthy individuals and great overseas collections—not just Getty.
I must say that, as a visitor to California on many occasions, I absolutely endorse what the noble Lord, Lord Strabolgi, said. There simply is at present no
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comparison in quality between the Norton Simon collection and the Getty collection. The Getty collection as it is currently constituted in painting terms would barely rate a mention in a provincial town.
We do of course value our system of export control, which is based on a principle of no export stop unless there is an offer from a public collection to purchase. But. even so, existing powers enable me to prevent export, if required, and from time to time we have examined the other options, particularly a list of predetermined heritage items. This, I think, was suggested by the noble Lord, Lord Annan. The fact is that no one seems to me to have come up yet with a better system than the one we have. It is, I may say, envied all over the world. Certainly, I think, the French have not done so. They exercise draconian control at the expense of market freedom, though I am glad to say that from time to time they are forced against the grain of their system to exercise a little flexibility. I think we are being pragmatic and realistic—national heritage qualities of this country, if you like!
Let us recognise, too, as my noble friend Lord Vaizey, the noble Lord, Lord Strabolgi, and others did, that this country is a two-way market place for works of art and we wish it to remain so. Indeed, the official figures invariably show that more paintings in quantity and value are imported than exported, yet out of 4,500 applications for export licences in 1982–83, only a very few—that is to say, 16—were considered of such importance that a case was made for withholding a licence (excluding items which had been in the country for less than 50 years). In the end an export licence was suspended in 14 of these cases; in nine the object in question was bought back by a public institution, and in five the licence was in the end granted. It is sometimes suggested that we should go down the line, lower our criteria and oppose the export of second-tier items as well, but the damage to the art market—and again it is a two-way market—would seem to me to be hard to sustain and too high a price to pay. I therefore prefer to stick to the tried and tested Waverley criteria—and how well they have stood the test of time!
Nevertheless, it is said that the really big fish will get away. So far there is little evidence of this. It is true that two major pictures have gone to Getty—a Poussin "Holy Family" in 1981 and the Dosso Dossi in 1982. Against the Poussin, may I commend to the House the really marvellous news of the successful negotiation between the Duke of Sutherland's trustees and the National Galleries of Scotland? Again, the qualtiy of those pictures is absolutely unfathomable. Of course there was also the Dosso Dossi.
Currently there are two further pictures under export stop: the Duccio "Crucifixion"—if it is a Duccio, but in any case it is a wonderful picture—and a Rubens drawing. It remains to be seen what will happen to these last two, but we do not, as I have said, have a closed market. I really do not believe it can be said that the export of a limited number of pictures of

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this kind is seriously damaging to a country so rich in public and private collections.
In that connection, may I say how strongly I agree with what the noble Lord, Lord Beaumont of Whitley, and others said about the state of our museums? It is very easy to generate public outcry about the possible departure of a heritage item from our shores. It is rather hard to get a public outcry about the Victoria and Albert Museum's roof, for example, yet I am left with the bills of these institutions, founded by great and wealthy men in the past.
This said, of course we have to watch very carefully any items which are so important or so close to our own national heritage that export would be inappropriate. We do watch very closely and will continue to do so.
The last things I say will be in respect of the Getty institution itself. Much has been made, of course, of the immense purchasing power of Getty, though we have been very fairly reminded that there are other rich institutions abroad, and not only in America. As I have tried to indicate, there is at present no basis for supposing that this purchasing power is used unfairly or that the export control procedures for the export of works of art are inadequate. Moreover, Getty's interests are at present limited and specific and do not concern the whole world of the fine arts. They are, as many speakers have said, interested in other ways of helping the world's great art heritage—and we should be grateful to them for that—notably by setting up a major art institute which will document the world's inheritance, and a major conservation institute, to which I hope in time we may be able to make substantial input from this country.
I do so agree with the noble Earl, Lord Munster, my noble friend Lord Cottesloe and the noble Earl, Lord Perth, and others, that it really would be desirable for Getty to become a familiar and utile institution in this country. At the moment they are treated rather unfairly, as if they were second cousin to JR. We must remember that an institution of this kind can be an immense power for good in the art world. Obviously we want some of that benefit here, as well. We should not therefore, I think, cry wolf too quickly.
Perhaps I may say to the noble Lord, Lord Saint Oswald, who asked about consultations, that I do have regular informal contacts with Getty, who have shown readiness to seek advice in respect of pictures in which they are interested. There is no formal commitment for them to do so and nor do I think that such a thing would be suitable. Nevertheless, I have to say that so far—and I am a cautious and sceptical man by nature —they have behaved with exemplary responsibility and fairness. They are very sensibly aware that it is not in their interests to break up the market or bid up prices unreasonably.
But, more positively, one should not overlook the great number of major works of art which are still being acquired, particularly by private treaty sales by public institutions in this country. Since 1980 alone,
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we have seen our major public institutions acquiring great paintings by Altdorfer, Bassano, Claude, Poussin, Raphael; drawings by Michelangelo, Durer, Hogarth; a famous Tompion clock; works by Constable, Degas; Max Beckmann and Picasso; a rare ivory group from Hever; a Verzelini goblet and relics of the Spanish Armada, as well as the Islamic pottery collection which I mentioned at the beginning.
I am grateful to the noble Lord, Lord Annan, for drawing attention to the fact that we are still doing very well. I promise to try to cavort with his two delightful nymphs, Delectissima and Desiderata. Against that, it must be said that we cannot, of course, expect to retain every major work of art that comes on to this market. We can expect to be selective in retaining the very best, and this is the Government's policy; or rather, I should say, in view of the very proper arm's length principle, it is the policy of organisations such as the National Heritage Memorial Fund that receive Government money.
The Government's last Budget also pointed the way forward in other respects, notably the reduction in top rate of capital transfer tax and the abolition of the investment income surcharge. I so agree with the noble Lord, Lord McAlpine, that it is important that the wealth-creating capacities of individuals be encouraged here. Historically, these have, in the main, been used responsibly in this field. These and other reliefs should help those maintaining heritage houses to keep the great collections in private hands. Where, nonetheless, items come on to the market, the system that I have outlined, in our view at present, provides necessary and generally adequate safeguards. We cannot expect to keep everything. We want to ensure, so far as possible, that this country remains an open market for works coming in and out.
At the same time, we stand ready to look at whatever means are appropriate to secure those items that are truly essential to our heritage when the need arises. We shall also continue to keep under the closest review all the ways that the Government can preserve and enhance that great artistic heritage. I know that, where this issue is concerned, the eyes of this Parliament and of my noble friends Lord Fanshawe and Lord Saint Oswald, in particular, and of the whole country, are on me at the moment. I am immensely conscious of my responsibilities and will work very hard to discharge them.

The Metals Society Bill [H.L.]
Returned from the Commons agreed to.
House adjourned at twenty-eight minutes before midnight.

  FUNERALS: COST
  FUNERALS: COST
  DISTRICT AUDITORS: POWERS AND SANCTIONS
  DISTRICT AUDITORS: POWERS AND SANCTIONS
  PROTECTION OF CHILDREN: CONVICTIONS
  PROTECTION OF CHILDREN: CONVICTIONS
  SSSIs: RENOTIFICATION
  SSSIs: RENOTIFICATION
  NATIONAL HERITAGE MEMORIAL FUND: GRANTS
  NATIONAL HERITAGE MEMORIAL FUND: GRANTS