Sitting of 19 October 1984

Preamble
The House met at eleven of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Lincoln.

Rail Electrification: London to Edinburgh
Lord Gainford: 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 how much is being invested in the electrification of British Rail's London to Edinburgh east coast main line.
Lord Brabazon of Tara: My Lords, the British Railways Board proposes to invest £306 million (at 1983. fourth quarter, prices) in electrifying the east coast main line and in new locomotives and rolling stock for the electrified services. The alternative of renewal of the diesel stock would have cost £162 million. My right honourable friend the Secretary of State for Transport gave his consent to this expenditure on 27th July.
Lord Gainford: My Lords, I not only thank my noble friend for that Answer, but congratulate him on his promotion. I am very flattered that his first utterance from the Front Bench should be in answer to my Question. On the information that he has just given us, can he say how long the electrification scheme will take? Is there any guarantee from British Rail that disruptions in existing services will be kept to a minimum while the construction is taking place?
Lord Brabazon of Tara: My Lords, perhaps I may thank my noble friend for his very kind words. A full electrified service to Newcastle and Edinburgh is planned by British Rail from May 1991. Services to Leeds are planned to start in 1989, and shorter distance services to Huntingdon and Peterborough in 1987. British Rail is determined to minimise the effects on its customers of electrification construction work, and proposes to do 95 per cent. of the work under cover of routine track possessions for engineering and maintenance, which would have been necessary in any event. It is planning on the basis that at worst, and for the longest trips, journey times should be extended by no more than eight minutes during the construction phase.
Lord Bottomley: My Lords, may I offer my congratulations to the noble Lord? Is he aware that Teesside is one of the most important industrial areas in the country? With this new investment and the improvements, will it be possible to ensure that occasionally the mainline service goes through Middlesbrough on the way to Edinburgh?
Lord Brabazon of Tara: My Lords, I thank the noble Lord for his kind words. The proposal at the moment is that the electrification should extend to Leeds, but it is for British Rail to judge whether investment in such electrification would be justified. It does not propose further electrification, except to Leeds, at the moment.
Lord Underhill: My Lords, may I also congratulate the noble Lord, and welcome him? May I also say how much we welcome the approval given to the scheme? Does he accept that this is the type of infrastructure scheme which is so valuable in providing jobs? Has the department made any estimate of the number of jobs that the scheme will provide over a period of years, not only in the railway work itself, but also in the supply of materials and equipment? Are there any other projects still awaiting Government approval from the 10-year plan submitted by British Rail in 1982 at the Secretary of State's request?
Lord Brabazon of Tara: My Lords, I thank the noble Lord for his kind words. The construction of the electrification scheme should, I hope, produce between 2,000 and 3,000 new jobs. On the question of future electrification plans, the Government are ready to approve any worthwhile investment offering a sound prospect for improving the financial performance of the railway. However, it is for British Rail to decide on its own investment priorities and to judge whether to bring forward proposals. The only other electrification scheme being looked at at the moment is a small one to run electrified freight services through north London, linking the already electrified west coast main line with the haven ports and terminals in north-east London and Essex.
Lord Carmichael of Kelvingrove: My Lords, may I also add my congratulations to the noble Lord on his having reached the Front Bench? Is he aware that British Rail's planning has been extremely good? When it switched to electrification on the west coast line there was very little disruption. That makes me wonder whether he can tell me about progress on planning of the Glasgow to Ayr electrification. He may not have the answer immediately, but I hope that he will make inquiries and perhaps let the House know what progress has been made in the planning stage of that electrification.
Lord Brabazon of Tara: My Lords, I thank the noble Lord for his question. I do not have the answer at the moment, but perhaps I may write to him.
Lord Strabolgi: My Lords, while adding my congratulations to the noble Lord, may I ask him how plans are getting on for a high speed train in this country? Is he aware that for a few years now France has had one which runs between Paris and Lyons? Is it not time that we started to have one here?
Lord Brabazon of Tara: My Lords, I think that that question rather falls outside the scope of the Question on the Order Paper. If the noble Lord would like to put down a Question, no doubt we can provide an Answer.
Lord Ferrier: My Lords, when my noble friend writes to the noble Lord will he send me a copy of the letter, or perhaps have the information published in the Official Report?
Lord Brabazon of Tara: Yes, my Lords.
Lord Annan: My Lords, can the noble Lord say whether in the consideration of this investment British Rail has made any deal on improving productivity? Such productivity deals in the past have not been notable for their success.
Lord Brabazon of Tara: My Lords, the Government's decision was based on a detailed and rigorous appraisal, which showed the scheme to be justified on its financial merits. It should achieve a real return of 7 per cent. I cannot say as to any precise productivity deals.
Lord Mountevans: My Lords, can the noble Lord confirm that the cost of the investment will be met from funds generated internally by British Rail? If that is so, will he reassure the House that it will not be at the expense of investment elsewhere in the country?
Lord Brabazon of Tara: My Lords, the costs will, indeed, be met from British Rail's own funds, but cost savings and revenue benefits will more than outweigh the capital costs. There is therefore no case for separate or special funding by the Government, and British Rail has not asked for it. On the question of future investment, British Rail has invested almost £2 billion at today's prices since 1979, plus another £100 million a year on continuous welded rail. British Rail intends to invest in excess of that amount in the next five years.

Durban: Refuge in British Consulate
11.12 a.m.
Lord Hatch of Lusby: 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 policy they are following towards those opponents of apartheid who took refuge in the British Consulate in Durban.
The Parliamentary Under-Secretary of State for the Armed Forces (Lord Trefgarne): My Lords, we made clear that we would not require the three South African citizens in the consulate to leave against their will. However, our mission in Durban is one of the smallest in the Diplomatic Service and the problems created by the sit-in are immense and increasing. The increasing disruption of the consulate's work is becoming intolerable. We have therefore strongly urged the three to leave voluntarily.
We have stressed to the three that the use of the consulate's premises to make political statements is unacceptable. We sought an assurance that there will be no repetition of the clandestine ITN interview of 7th October. Such an assurance has not been forthcoming. Yesterday's statement by the three is a further instance of their abuse of our premises. We
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take a grave view of it. We are urgently considering its implications. We must emphasise now that Her Majesty's Government cannot countenance any demands from the three; nor can we accept any conditions for their departure.
Lord Hatch of Lusby: My Lords, is the noble Lord aware that that statement will bring very grave disquiet, not only to people in this country but to opponents of apartheid throughout the world? In relation to the British Government's policy towards these three very brave opponents of apartheid, may I ask the noble Lord two specific questions? Can he assure the House that no coercion has been or will be used to remove the three opponents of apartheid from our consulate in Durban? Can he give an assurance that the British Government will use all their influence with the Government of South Africa to ensure that the conditions laid down in the statement yesterday, which are surely acceptable to any civilised society, are met by the South African Government?
Lord Trefgarne: My Lords, I am afraid that compliance with whatever demands have been made on the South African Government is for that Government and not for the British Government. As I said in my main Answer, we very much deplore the fact that the statement was issued from the consulate premises (or in effect from the consulate premises) in Durban, which is not a proper use of those premises. We hope that such use will stop forthwith.
Lord Cledwyn of Penrhos: My Lords, is the noble Lord aware that, while we appreciate the difficulties caused to our consulate in Durban, the principles involved far outweigh any of the difficulties caused? Is he aware that we welcomed his initial statement that Her Majesty's Government are not proposing to evict the three from the consulate? Nevertheless, is he further aware they are making it extremely difficult for the three to stay there? Would he not agree further that the detention without trial which awaits these three if they are caused to leave the consulate is odious in the extreme to every Member of this Parliament? Would he agree that it is something about which protests should be made directly to the South African Government and through the United Nations if necessary? Finally, I notice that in the newspapers this morning the South African ambassador visited the Foreign and Commonwealth Office yesterday. Can the noble Lord indicate to the House what was said to him?
Lord Trefgarne: My Lords, of course we deplore apartheid and all the machinery that goes with it, including the detention without any form of trial which was at the heart of the noble Lord's question. We have on many occasions made clear our opposition to that matter. The noble Lord may be aware that the European Community Foreign Ministers made a further declaration in that vein only a few weeks ago, when they met in Dublin. I am afraid that the resolution of this very considerable problem—and it is becoming a very considerable problem for our consulate in Durban—is the voluntary departure of these people. We hope that that can be achieved.
Lord Paget of Northampton: My Lords, is the noble Lord's statement intended to encourage or discourage those in Russia, beyond the Iron Curtain, who attempted to follow the heroic example of these three and take over our consulates there, or even possibly those who heroically dislike President Reagan in America and propose to take over our consulates there? Does the noble Lord encourage them or discourage them?
Lord Trefgarne: My Lords, I am afraid the resolution of the problems to which the noble Lord refers, in many cases deep-seated, is not to be found by seeking to take over diplomatic missions of other countries.
Lord Jenkins of Putney: My Lords, can the noble Lord say whether a request for political asylum in this country has been made; and if such a request were made, can the noble Lord give a reassurance that it would receive an affirmative answer?
Lord Trefgarne: My Lords, I understand that no such request has been made. If it were to be made it would of course be considered on it merits.
Lord Hatch of Lusby: My Lords, it is one thing to pass resolutions and make speeches; it is quite another—
Noble Lords: Question!
Lord Hatch of Lusby: My Lords, would the noble Lord agree that it is a totally different matter to deal with those who are personally involved in the opposition to apartheid? Would he agree that in the statements that he has made this morning there is a danger of revealing a very wide gap between words and actions? Do the British Government consider these three opponents of apartheid to be political refugees asking for asylum, or do they consider them to be intruders into the consulate? Will the noble Lord further tell the House whether the British Government are prepared to put what he has said about the reference to the United Nations into action, and not to wash their hands of it but to use their influence with the South African Cabinet to see that these three are given the opportunity to appear before the United Nations Anti-Apartheid Committee?
Lord Trefgarne: My Lords, we have made our views known to the South African Government very clearly indeed, but what we are not prepared to do is intervene in the legal processes of that country.
Lord Harmar-Nicholls: My Lords, is my noble friend aware that, despite the questioning to which he has been subjected, most reasonable and unbiased people looking at this problem accept the line being taken by the Government, as outlined by my noble friend in answer to questions, as being both reasonable and sensible?
Lord Trefgarne: My Lords, I am greatly obliged to my noble friend.

The Miners' Strike
11.20 a.m.
Lord Rochester: 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 urgent steps they are prepared to take to deal with the deteriorating situation in the current coal dispute.
The Parliamentary Under-Secretary of State, Department of the Environment (The Earl of Avon): My Lords, without the support which the Government have extended on an unprecedented scale, the coal industry would be bankrupt and there would be no future in it for its employees. This support has taken many forms. I shall mention but three: first, massive financial assistance; second, investment way beyond that envisaged in the Plan for Coal; and third, a programme to encourage industrial firms to convert to coal-firing.
No one wishes more than this Government to see an early and constructive settlement to this dispute. The Government remain prepared to continue to commit taxpayers' money to this industry on the scale necessary to secure its future, provided that the determination to operate efficiently and competitively is shared by all who work in it and who speak for those employees. At present the market prospects for coal and the physical condition of the pits are deteriorating day by day. Against that background, the initiative for halting the loss of markets and the decay of pits must rest with those whose action has precipitated the present crisis. The power to reverse this process of decay lies in the hands of those who are on strike or are contemplating the call to strike.
Lord Rochester: My Lords, is it not deplorable that if it had not been possible at short notice to table this Question, there would, throughout the week, have been no statement at all by the Government in your Lordships' House on what is perhaps the most crucial political and industrial issue of the time? Do the Government stand ready to introduce if necessary urgent legislation designed to give members of the National Union of Mineworkers, of NACODS, and of the British Association of Colliery Management the opportunity, under suitable independent supervision and in full knowledge of the offer available to them from the Coal Board, to vote in a secret national postal ballot on whether they wish the formula for settling the dispute produced by ACAS last Friday to be accepted?
The Earl of Avon: My Lords, I am most interested in the noble Lord's constructive suggestion. I am confident that the majority of noble Lords present would join me in deploring the fact that the NUM leadership has sought by violent means to sustain this strike without having called a national ballot. I have no doubt that if such a ballot was held the majority would vote to accept this offer. However, I fear that in a ballot brought about by legislation, the vote would not focus on the future of the coal industry. The leaders of the NUM would inevitably seek to present such legislation as anti-miner and anti-trade union.

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This would turn the ballot into a more general vote by the miners for or against the Government.
Lord Stoddart of Swindon: My Lords, may I first congratulate the noble Earl? I think that this is the first opportunity that we have had to do so on his transfer to other duties. I wish him every success in the Department of the Environment. However, we note that he is here this morning. If he is to straddle the bucking broncos of environment and energy, he is a titan indeed.
May I ask the noble Earl whether, in his reply to the noble Lord, Lord Rochester, he had taken into account—because we are talking about compulsory ballots—that we did, indeed, have legislation in this country in the 1971 Industrial Relations Act, Section 141? That legislation was implemented on one occasion only. It was found wanting. It was never used again, and the Act was finally abandoned.
Secondly, will the noble Earl agree that the NACODS strike faces this country with economic, industrial and, indeed, social problems such as we have never seen before? The matter is therefore extremely urgent and demands the Government's urgent attention. Finally, may I take this opportunity of welcoming the Secretary of State's initiatives which he took yesterday? Those are to be welcomed. But can I ask the noble Earl whether he will now prevail upon his right honourable friend to build upon those initiatives urgently today and over the weekend, to get the parties together and to achieve the settlement which I know, and my party knows, is available if there is good will on all sides?
The Earl of Avon: My Lords, I am grateful to the noble Lord for his remarks about my transfer to the Department of the Environment. I must confess that I take it as a mixed blessing. So far as his question about ballots is concerned, I do not particularly want to be drawn into the legislative argument. I know, however, that the whole House agrees that it is a great pity that a national ballot was not held in this case. Of the NACODS strike due next week, I would prefer not to do anything that would in any way infringe upon that at the moment but to say that I very much hope that it will not come off. I say that for the same reason that was supported by the noble Lord in his final argument. What has been offered by ACAS, an independent review body, really does answer all their queries. I am grateful to the Labour Party for using its influence with the NUM and NACODS to make sure that they consider carefully that it is in the interests of the coal industry and the nation that they accept this reasonable compromise produced by ACAS.
The Earl of Lauderdale: My Lords, will my noble friend clarify one issue? Is it the case that the ACAS formula was accepted by the Coal Board the other day? Is it further the case that the Coal Board did agree that this application of third party reference could and would be applied to the present list of proposed closures? Is it the case that the NUM rejected both?
The Earl of Avon: My Lords, yes, yes and yes.
Baroness Gaitskell: My Lords, is it not time that Mr. MacGregor had a rest and allowed the Coal Board to get on with its own problems and its own difficulties?
The Earl of Avon: My Lords, the National Coal Board, of which Mr. MacGregor is chairman, is doing a very good job in order to try to get a productive coal industry.
Lord Campbell of Alloway: My Lords, would my noble friend the Minister not agree that the reality of the situation in which we find ourselves transcends the current coal dispute? Laws are slighted, the judiciary is put to scorn and the police are brutalised—this in order to subvert a duly elected Government. Is that not the reality of this situation? If that is the reality, will my noble friend also agree that any steps that are taken to remove this siege from our economy must recognise as a priority that we, as a nation, should restore the health of the body politic?
The Earl of Avon: My Lords, I note what my noble friend says. I agree with a great deal of it. However, I do not think that I should be drawn into this particular question.
Lord Davies of Leek: My Lords, while thanking the noble Earl for his constructive reply, may I ask him whether he is nevertheless aware that this noble House, I hope, would not subscribe to the theory that the mining industry and the miners are the enemy within? We, on this side of the House, believe that the parameters of the problem are so great that understanding is needed and that the direction that is urgently required from this noble House is that we do not consider the miners the enemy within.
The Earl of Avon: No, my Lords. At respective Question Times, I have laid great stress on the fact that this Government look forward to the future of a good mining industry.
Lord Harris of Greenwich: My Lords, may I ask the noble Earl one question that was directly put to him by my noble friend Lord Rochester. Why have we not had a definitive Government statement this week on this crucially important issue? If it had not been for a last minute switch of Questions on the Order Paper, we would have had no opportunity to hear any Government spokesman on this matter. Will the noble Earl give an undertaking that we shall have a definitive statement on this matter next week on two aspects of the question: first, the general industrial situation in the coal mines and, secondly, the public order questions which arise night after night? It really is not good enough just to see the Secretary of State for Energy on television. We should have a Statement in this House.
The Earl of Avon: My Lords, as the noble Lord is well aware, that is really a matter for the usual channels, for which I am certainly not responsible.
Lord Cledwyn of Penrhos: My Lords, I am grateful to the noble Earl for what he said about the efforts of certain members of the Labour Party in this matter.

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Would he not agree, however, that the time has come for his right honourable friend and the Government generally to take a positive initiative in this matter in order to achieve a settlement? Would he not agree that the area of disagreement between the parties is now relatively small and that a settlement is within reach? Would he say to the House that he will advise his right honourable friend, or will ask his right honourable friend, to call the parties together? It would be the first time that the Government themselves have taken a positive step. In view of the effect of this dispute on the economy of the country, is it not really in the public interest that the Government themselves now take a positive and constructive initiative, which has been absent thus far?
The Earl of Avon: My Lords, I believe myself that the Government have ensured that adequate funds are available for massive investments, but we do not want to intervene to write a blank cheque for the taxpayer for the production of coal which is no longer of benefit to the industry and which is holding back the board's ability to develop the future of the industry. As the noble Lord is aware, this present action is very fluid, and I do not think I should comment any further.
Lord Cledwyn of Penrhos: My Lords, I should like to press the noble Earl because he is sliding past the main point I put to him. Would he not agree that, in view of the fact that the disagreement between the parties is now a relatively small one and that there is a willingness on the part of the National Union of Mineworkers to achieve a settlement, the Government should take this step now to bring the parties together?
The Earl of Avon: My Lords, I think the answer must be that the difference has always been very small. It remains very small, and in spite of the ACAS proposals for an independent review body the other side still has not moved one inch.
Lord Tordoff: My Lords, is it not true that there was an initiative yesterday morning from Mr. Willis of the TUC in going on the radio? Should not that have been followed up, and should not attention have been paid to suggestions which have been made in various places, including articles in The Times, that what is needed is for the Government to call the parties together to discuss the Plan for Coal, to discuss the updating of the Plan for Coal on the principles that were laid down all those years ago when my noble friend was involved—an updating of the Plan for Coal which will give confidence for the future on the basis of current economic trends?
The Earl of Avon: My Lords, the Government have contributed fully towards achieving the objectives of the Plan for Coal and particularly in providing the investments I have been talking about, but the productivity improvements forecast have not been achieved; nor has the closure of low capacity proceeded at the rate indicated in the Plan for Coal. The NUM has now introduced a concept entirely new and alien to the Plan for Coal, that no colliery should close as long as it has coal in it. The plan itself recognised that some collieries would inevitably need to close as their useful economic reserves of coal were
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depleted. Some of the initiatives which the noble Lord, Lord Tordoff, has mentioned took place only yesterday. I hope very much that they are being followed up, but I am not in a position to say.
Lord Mayhew: My Lords, would the noble Earl explain a little more clearly the Government's objections to the proposal for a secret ballot put forward by my noble friend? It is well known that the principle of one man, one vote is anathema to the Labour Party, but could the noble Earl explain why such a ballot should be regarded as a vote for or against the Government and why, then, the Government lose?
The Earl of Avon: My Lords, it is, of course, a matter of opinion whether it does or not. If the noble Lord will study my supplementary answer he will see that the reasons I put forward are valid.
Lord Ferrier: My Lords, would the noble Earl agree that the fact that the House has broken all the rules by turning Question Time into a debate is indicative of our deep sympathy with the problem and our anxiety that it should be settled without delay, and that we really must wait until certain people at the other end of the corridor tackle it direct?
Noble Lords: No!
The Earl of Avon: My Lords, I am always prepared to listen to your Lordships' House first.
Lord Tordoff: My Lords, surely we would not wish that to go unrebutted. Parliament has been sitting for a week in the shape of your Lordships' House, and it is quite wrong that we should be expected to wait until another place graces its own Chamber.
The Earl of Avon: My Lords, I am always delighted in this week in the silly season when we can say so much more which gets media attention to such a high degree.
The Earl of Lauderdale: My Lords, would my noble friend not agree that a Private Notice Question could have been put down any day this week to elicit the statement which noble Lords opposite are complaining has not been made?
The Earl of Avon: My Lords, I think we are getting a little bit wide of the Question. I have no knowledge of that.
Lord Elwyn-Jones: My Lords, has not the House the good fortune of having Ministers of the Crown, of the Government, sitting here, answerable for the Government, who can answer for the Government?
The Earl of Avon: My Lords, I am grateful to the noble and learned Lord.
Lord Rochester: My Lords, will not the noble Earl at least acknowledge that attempts were made earlier in this week, through the usual channels, to obtain a statement from the Government on this matter, and that that attempt was unsuccessful?
The Earl of Avon: My Lords, as I have said before. I am not responsible for the usual channels.
The Lord Bishop of Norwich: My Lords, is the Minister aware that the leaders of the Churches have invited the nation to pray on Sunday in thanksgiving for the fact that Her Majesty's freely and democratically-elected Government were spared from the terrible disaster last Friday, and also for those who were hurt there? Almost certainly the atmosphere of prayer, following our own words,
"of the uniting and knitting together of the hearts of all Her people",
to quote our daily Prayers, will be much in the thoughts and minds of churchpeople throughout the nation. The Minister may take comfort from the fact that there will be a volume of prayer for the nation in all its needs. This is a major area of anxiety and I believe there will be even-handed prayer for a proper and just solution.
The Earl of Avon: My Lords, I am grateful to the right reverend Prelate for those remarks.

Police and Criminal Evidence Bill
11.37 a.m.
Lord Skelmersdale: My Lords, on behalf of my noble friend Lord Elton, I beg to move that the further proceedings after Third Reading of the Bill be now resumed.
Moved, That the further proceedings after Third Reading of the Bill be now resumed.—(Lord Skelmersdale.)
On Question, Motion agreed to.
Clause 77 [Confessions]:
Lord Hutchinson of Lullington Lord Hutchinson of Lullington moved Amendment No. 124:
Page 70, line 11, leave out paragraph (b) and insert—
("(b) in circumstances existing at the time (including anything said or done) which were likely to render unreliable any confession which might be made by him,")
The noble Lord said: My Lords, this amendment is similar to one that was moved on Report. At that time the noble and learned Lord the Lord Chancellor expressed himself as puzzled, believing it to be no more than an alternative draft of subsection 2 (b). However, I think he then appreciated the purpose of the amendment, which in a moment I will spell out, and suggested that I might withdraw it on the basis that his own amendment, Amendment No. 139, might later be accepted by the House, No. 139 being an alternative to the Scarman amendment which dealt with the directions of the judge at a trial to disallow certain evidence. In fact, that amendment was never reached or put, was never moved; and so I move this amendment again.
The words in Clause 77(2)(b) do not have an encouraging pedigree. They come, as the noble and learned Lord told us before, from the unloved and much criticised Eleventh Report of the Criminal Law Revision Committee of 1972. At the moment, admissibility of a confession depends on positive proof
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that it is voluntary and that it is free. Now, in this Bill, the test is one of reliability. As far as I can understand Clause 77(2) the prosecution now must prove, first, no oppression; secondly—this is where the amendment comes in—that the confession has not been obtained in consequence of anything said or done which would be likely to render any confession made in the circumstances, in consequence of what was said or done, unreliable.
I submit that the wording of the section is confusing with "in consequence" appearing twice within four lines. Subsection (2)(b) says:
"in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof".
In my view those words will give rise to argument. It looks as though—and I hope that I have it right—the process will have to be that, first, the judge decides whether anything was said or done which was likely to render a confession made as a consequence unreliable. If so, secondly he must ask himself whether the prosecution has proved that this confession—the one that he is considering—was not made in consequence of what was in fact said or done. Therefore, he makes a subjective judgment as to whether the bad behaviour, the threats or the inducement or the promise, which were held out to the person making the confession, in fact caused it to be made.
It is therefore open to the judge to say that he is quite satisfied that the police broke the rules or threatened the wife or offered bail in return for an admission. However, he can then go on to say, "But I do not think that this confession was made as a consequence of that bad behaviour". He can say, "This defendant is an experienced criminal" or "This defendant is a man of high education and I think that he was quite able to resist the blandishments which were held out to him".
The amendment cuts out "in consequence" and says very simply that if there were circumstances which were likely to render the making of a confession unreliable, if there were threats or inducements, or, for example, promises, then that is an end of the matter; the confession is inadmissible. So in those circumstances we cut out the subjective opinions of different judges trying to decide whether the particular confession would have been made in any event whatever the blandishments, and we have a perfectly straightforward basis and criterion for a judge to decide whether or not a confession should be allowed in.
I suggest that as drafted there is an overwhelming temptation for some judges to have regard to the truth of the confession and to the seriousness of the offence and when looking upon the situation to take the view that the particular accused in the particular case was being induced to confess, but they will conveniently overlook those circumstances and come to a conclusion that clearly there is a truthful confession and as it is a desperately serious offence they will therefore hold that the blandishments cannot in fact have induced the confession.
In my submission to leave the matter in the complicated way in which it appears in the Bill at present, and to leave it so that judges will vary as regards their attitude to the behaviour of the police—some being strict, some being less strict, some

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considering that all confessions should be out if there is bad behaviour, and others thinking, "Well, this can be left to a certain degree, it does not matter too much if the person concerned is someone of bad character", leaves the whole area once again in a state of doubt. However, the words in this amendment are in my submission perfectly straightforward and simple. All that the judge will have to do is to decide in the circumstances whether something has been said or done which is likely to render a confession unreliable. He may say, "I have listened to the circumstances. I think that there have been inducements, threats and had behaviour and in those circumstances I hold that this confession should not be allowed in". I beg to move.
Lord Edmund-Davies: My Lords, I seek information. Would the noble Lord be content if there were simply deleted from the present clause the last three words of paragraph (b); namely, "in consequence thereof"? If the noble Lord would not be so content I should be obliged if he would inform us why.
Lord Denning: My Lords, when this matter was first raised on Report I thought that the two clauses were just the same—it was merely a matter of semantics. But now, having heard the explanation of the noble Lord, Lord Hutchinson, I understand that the words "in consequence thereof" in Clause 77(2)(b) add something, and on the whole I think that they are right. It is only when something has been done which renders the confession unreliable that it is to he excluded. It seems to me that it is much better to keep the Bill as it is and not to adhere to the amendment.
The Lord Chancellor (Lord Hailsham of Saint Marylebone): My Lords, I quite agree with the noble and learned Lord, Lord Denning. When we were discussing the matter on, I think, Report, I thought that this particular form of words proposed again by the noble Lord, Lord Hutchinson, was simply an attempt to redraft Clause 77(2)(b) as it now stands in the text of the Government Bill. I now recognise, as does the noble and learned Lord, Lord Denning, that we were both wrong. But in so far as it is a change from the Government Bill, I submit to your Lordships that it is wholly undesirable.
I do not want to spend a very great deal of time on this matter, but the fact is that the Bill as it stands is an attempt to codify two principles of law which, in one form or another, have been part of the criminal law of England for centuries—that is to say, in the ordinary course of events questions of fact are for the jury, and questions of law are for the judge. But when we are dealing with confessions there is one important exception: there is a class of confession—a class containing two sub-classes—where the judge becomes a judge of fact. He has to decide in what is called the voir dire—or the trial within a trial, which is a more convenient phrase—whether the prosecution have proved beyond reasonable doubt that the confession was not obtained by, in effect, either unlawful pressures or unlawful inducements.
As I venture to point out in the judicial sittings that we have from time to time, the reason for that is that in the class of cases where a confession may have been
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obtained by torture or inhuman treatment, or where it may have been prompted by inducements or threats, the court is under an obligation to invigilate either the police or a private prosecutor, or, for instance, a schoolmaster who was in authority at the time the alleged confession was made; and the reason is to preserve the decencies of life. But it is an extremely exceptional case, because it is not desirable to take away from juries the right to decide the facts. Nor is it desirable to give judges the right to decide the facts. It is normally the functon of the jury—and ought to be so—to find the facts and to say in relation to evidence which is logically probative, first, whether they believe it at all, and, secondly, how far they regard it as reliable, relevant or carrying weight. That is part of the duty of a tribunal of fact.
Clause 77 of the Bill seeks to codify and slightly remodel what has always been the law of England in this field of evidence. As the noble Lord, Lord Hutchinson of Lullington, said, the draft of paragraph (b), to which we are discussing an amendment, was originally very much in the same form in the report of the Criminal Law Revision Committee chaired by the noble and learned Lord, Lord Edmund-Davies. I thought that the reference which the noble Lord, Lord Hutchinson of Lullington, made to my noble and learned friend's report was exceedingly ungracious and most unfortunate. It is quite true that the introduction to that report excited a good deal of controversy. But to suggest that the draftsmanship of a totally different part of the report made by a most distinguished committee is to be cast aside with a sneer is, I think, a most unfortunate remark to have made; and I think that the House ought to express its gratitude to the noble and learned Lord, Lord Edmund-Davies, for the work which he did on that occasion. Whatever view one may take about the original introduction, one should put it out of one's mind in discussing an amendment of this kind.
The real truth is that the noble Lord, Lord Hutchinson, has cut adrift from the tradition of the law of England. I think that that was quite clearly appreciated by both my noble and learned friends on the Cross-Benches. The grandparent at any rate of paragraph (b) is a very well known case called Ibrahim v. Rex which was decided in 1914. That case laid down from the start that before the prosecution is allowed to go before the jury with an alleged confession—before it can be imposed upon the prosecution to prove beyond reasonable doubt that the confession was not obtained in the two different ways which the legal tradition demands—there must be an element of causality between the inducement or the oppression and the alleged confession. That is essential to the whole tradition of the law. It was not the noble and learned Lord, Lord Edmund-Davies, who invented that; it is that the noble Lord, Lord Hutchinson, has taken it upon himself to abolish what is an essential and traditional part of the law of England.
Now that we know what the noble Lord is up to, we can say that in so far as it was not a somewhat unfortunate attempt to redraft paragraph (b), it is in fact wholly objectionable. The need for causality in the inducement or threat which was emphasised by Lord Sumner in the case of Ibrahim v. Rex is the essence of the doctrine. Let us look at what would happen if we

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accepted the amendment of the noble Lord, Lord Hutchinson, which removes the causality. I believe that the prosecution would be in an impossible position. Precisely because no causal link is required between what was done when the confession was obtained and the confession that might be made in consequence, the onus would then be on the prosecution to prove that there were no circumstances at all surrounding the alleged confession which might have been likely to render the confession unreliable. In other words, the whole question is then taken away from the jury.
The ingenuity of the defence counsel—and those who have had the pleasure of listening to the noble Lord, Lord Hutchinson, will understand why he is such a very successful defence counsel at the Old Bailey and other places—if this amendment became law can easily be imagined. For instance, let us say that the accused said that he was not feeling well at the time; that he was suffering from a cold or influenza. If we pass the amendment the element of causality between the behaviour of the prosecution and the alleged confession is totally removed. The judge would then have to decide as a matter of fact that the circumstances—namely, the state of health of the defendant and whether he was suffering from a cold or flu—were such that they could in no way beyond reasonable doubt have affected the fact that he was making a confession.
Let us suppose that the defendant said that there was a good deal of noise in the room where he made the confession; that a dog was barking or perhaps a compressor drill outside distracted him and he did not know what he was saying. The matter obviously becomes ludicrous. If we remove this very specialised rule which compels the prosecution to satisfy the judge on the voir dire that beyond reasonable doubt there were no circumstances, whether caused by the prosecution or not, which rendered the confession unreliable, the judge is then put into the position of the jury to decide the reliability, the weight and the credibility of the whole of the evidence, and only if he is satisfied beyond reasonable doubt does the case again come before the jury when the whole matter has to be gone into again.
I hope that I have said enough to show that an innumerable list of circumstances might be deployed to claim that the confession was unreliable and there would result not only interminable arguments in court as to whether all the possible circumstances did or did not pertain, and if they did, whether they were such as to be likely to render the confession unreliable, but also the exclusion of a truthful and wholly reliable confession because of some circumstances which had nothing whatever to do with the way in which the interview was conducted. I stand with Lord Sumner and, if I may say so with due respect, I stand with my noble and learned friend Lord Edmund-Davies and with the noble and learned Lord, Lord Denning, on this point. The amendment is not acceptable.
The Question is—does the noble Lord wish to reply?
Lord Hutchinson of Lullington: My Lords, the noble and learned Lord expresses astonishment that I would wish to reply in any shape or form to the onslaught
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which has come from the Woolsack. I wish to make just two comments. I regret—and I say so without, I hope, malice—the language of sneering and the language of taking it upon oneself to put forward an amendment. Although I have not been in your Lordships' House for very long and have not had a great deal of experience here, I would hope that if one puts forward an amendment with honesty and integrity, it will not be described in any way as in some way sneering at a most distinguished noble and learned Lord. There is no one for whom I have greater respect in this House than the noble and learned Lord, Lord Edmund-Davies. I know that he knows that.
This amendment is put forward for the reasons I have already given. The fact that the noble and learned Lord depends and relies, in the old case of Ibrahim, on the old judgment of Lord Sumner, on the old principles of the criminal law, does not move me in any shape or form. This Bill is a Bill of 1984. One has tried, and one still hopes that the criminal process in this country will not continue to be subjected to an old and out-of-date attitude towards what goes on in the criminal courts in this country.
It is one of the saddest things that over and over again in the process of the procedure of this Bill through this House all attempts to try to modernise and bring up to date the criminal process so that it is in accord with the times, so that people will get a fair trial in 1984 and forward, have in fact been blocked repeatedly. It appears quite obvious that it would be pointless to take this matter to a Division. One only hopes that one day this kind of reform will in fact come about. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
12.2 p.m.
Lord Elwyn-Jones Lord Elwyn-Jones moved amendment No. 125:
Page 70, line 18, at end insert—
(" ( ) If, in any proceedings, the prosecution proposes to give in evidence a confession made by a child or young person, the court shall not allow the confession to be given in evidence unless the prosecution proves to the court beyond reasonable doubt either—

(a) that the confession was made in the presence of an adult relative or another adult person responsible for the custody or care of the child or young person; or

(b) that the child or young person did not wish such relative or person responsible for his custody or care to be present, and that the confession was made in the presence of some other adult person who was not a police officer")

The noble and learned Lord said: My Lords, this amendment is one of some importance. As your Lordships will see, it provides:
(" ( ) If, in any proceedings, the prosecution proposes to give in evidence a confession made by a child or young person, the court shall not allow the confession to be given in evidence unless the prosecution proves to the court beyond reasonable doubt either—

(a) that the confession was made in the presence of an adult relative or another adult person responsible for the custody or care of the child or young person; or

(b) that the child or young person did not wish such relative or person responsible for his custody or care to be present, and that the confession was made in the presence of some other adult person who was not a police officer")".

The purpose of this amendment is to protect the rights and position of the child, and indeed to encourage the police to make sure that they question the child or young person in the presence of an adult.
One of the research studies of the Royal Commission on Criminal Procedure on confessions in crown court trials found that there was a strong association between the age of the defendant and the tendency to make a written or verbal confession. The younger the defendant, the more likely he was to confess. It is because of the risk of a false confession by a child or young person questioned alone by the police that we think it important to include this amendment in the Bill. I beg to move.
Lord Campbell of Alloway: My Lords, with the greatest respect to the noble and learned Lord, this amendment is open to objection because so many young persons today commit very serious crimes and if the confession, even if materially corroborated by extrinsic evidence, is going to be excluded, this leans too far in favour of the protection of the young and against what would be the proper balance for the administration of justice.
Lord Denning: My Lords, one has to consider that this question will be inquired into by the judge when he conducts the trial within a trial. He will of course take into account the circumstances—that is, in the Bill as it stands—but he will also take into account whether the confession was made by a young person with or without an adult present. He will look into all the circumstances to see whether the confession is reliable or unreliable.
It would be quite wrong in that inquiry to put upon the judge the duty to exclude it unless the prosecution proved this, that, or the other. The truth is that the judge ought to be allowed to consider all the circumstances, even the youth of the offender and so forth, to see whether or not the confession is reliable. If he does so, that ought to be sufficient, without giving him the specific rules which this amendment would do.
Lord Mishcon: My Lords, I wonder whether the House would be inclined, as it presumably may not have been on the last amendment, to look at the conditions of 1984, if I may use the words of the noble Lord, Lord Hutchinson of Lullington. On one issue there is no doubt whatsoever, and that is that the old relationship of young people and the police has been eroded. It may be that the faults are not all on one side, but the fact is there.
In various areas of this country, quite wrongly and to the detriment of our society, instead of regarding the police as friends, as I imagine your Lordships all did when you were young, a substantial part of the younger generation regards the police as being their enemy. By showing complete and absolute fairness in this Bill in regard to young people we have a chance to try to redress that.
If I may say so to the noble and learned Lord, Lord Denning, whether or not the confession was taken in a correct way or otherwise is a matter that any judge who was not present at the time would find quite difficult to decide especially with the average juvenile who is not particularly able to express his point of view with the eloquence and the practice with which a police officer can. This is an opportunity to show the young of this country that yes, if somebody tries in
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prosecuting you to bring in a confession, Parliament has decided that the court would have to see to it that some adult was present (if it was not going to be the parent or the guardian for one reason or another) when the confession was made and that that adult was not a police officer.
I think this is an important provision. We can make it for our young people. If we made this provision for our young people, it would be a matter of wisdom at this particular stage, and it would encourage our young people to know that justice in this country is justice, and that Parliament has safeguarded them in this way.
The Lord Chancellor: My Lords, again I am not trying to pre-empt anybody else, but I think I saw no one else rise. I always listen with admiration to the noble Lord, Lord Mishcon, who is always so courteous and persuasive. However, if he will allow me to say so—apart from challenging one thing—I think the argument which he has just presented to the House counts in exactly the opposite way to that in which he was inviting the House to take it. If it be true, which I certainly do not accept, that the young are more afraid of, or more adverse to, the police than I was when I was a boy, it is less likely and not more likely that they will be suggestible, and therefore less likely and not more likely that the situation which he was envisaging would arise.
I must say in parenthesis that I was terrified of the police when I was a boy and I think that a great number of young people were—and I am not sure that I still am not. I simply am not prepared to say that this friendly old "your policemen are wonderful" attitude existed in the young in 19-whatever-it-was. I quite agree that we have to discuss these amendments in the light of 1984, but in the light of the real principle underlying English criminal law, for which I still profess an unmitigated admiration.
I do not think that this is a good draft to implant in Clause 77. What we are in substance discussing is whether this is a good draft. Clause 77, as I sought to describe at the discussion of the earlier Amendment No. 124, is designed to embody and to bring up to date, with great respect to the noble Lord, Lord Hutchinson, the tradition of the English law that the prosecution should have to prove, beyond reasonable doubt, on a trial within a trial, on the voir dire, to the satisfaction of the judge, certain things before those things are capable of being put before a jury. But it is not there to try to take away from the jury their ultimate right to decide on the reliability, relevance, cogency or credibility of oral evidence presented before them. The reason for the rule which is embodied now in Clause 77 is to prevent the prosecution from going beyond the bounds of what is proper in handling detainees.
When we discussed these matters in Committee, the noble Baroness, Lady Ewart-Biggs, made the perfectly valid point that the mentally handicapped and the young arc not necessarily in the same category and are not necessarily protected in exactly the same way. That view is reflected in the Bill as it is now before the House. At the end of the day the danger that one is concerned with in dealing with confessions by the young lies in the field of their suggestibility rather than in the field of inducement or oppression, because

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Clause 77 in its present form is there to protect persons of all ages. It is there to protect the young as well as the old—if something is obtained as the result of inducement or as the result of oppression—it is there to protect a little boy of eight just as much as an old man of 77.
Judges on the voir dire are just as familiar with children and old gentlemen as anyone else in the community, probably more so because they have seen them under conditions of stress in so many trials and at so many consultations and conferences. They will take into account the suggestibility of the child for the purposes of Clause 77, just as much—and even more so, because they will be aware of suggestibility—as when dealing with an old gentleman or an old lady.
What is proposed in this amendment by the noble and learned Lord is that one should graft on to this a separate provision requiring to be proved beyond reasonable doubt before it is admitted as evidence a new criterion in addition to and not in place of Clause 77; the addition being:
"the confession was made in the presence of an adult relative or another adult person responsible for the custody or care of the child … or that the child … did not wish such relative or person responsible for his custody or care to be present, and that the confession was made in the presence of some other adult person who was not a police officer".
The question which we really have to consider is whether that is an advantage to the law. The Government and my right honourable friend the Home Secretary have come to the very same conclusion as I submit, that the child's suggestibility is indeed a factor against which there should be some protection. They have put into the code of practice the very phrase which has been adopted by the noble and learned Lord for the purposes of Amendment No. 125. I will not repeat it because I read it from his amendment. It can be found in the draft code of practice at page 22. That is written into the Bill, but it is written into the Bill at a different point and with different effects. It is written into the Bill in Clause 67 where it is clearly stated that the code of practice is something the breach of which can be given in evidence in conjunction with all the other facts of the case. I am looking at the moment at subsection (7) of Clause 67 where it can be given in evidence as a factor to be taken into account together with all other relevant factors in deciding the reliability of any other factor which is relevant to the trial before the jury, or the tribunal if it is not a jury. I think that is the way to do it.
The way is to say that of course one must take into account the circumstances in which the child has been interrogated. The absence of an adult or an independent witness is a factor which would be taken into account very seriously by the jury for the purposes of deciding the credibility of the evidence or confession, and it would also be taken into account very seriously by the judge in applying Clause 77 before the matter reached the jury. There is a double safeguard. But to put it in as a new spoke in the wheel of Clause 77 itself is a confusion of thought and would lead to the following conclusion which I do not think is one which the noble Lord, Lord Mishcon, would wish.
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As an example, an intelligent lad of 16 or thereabouts might, before he had a chance of being invited to ask his parents or the independent adult to be present, give an absolutely full and obviously reliable confession. The noble Lord, Lord Mishcon, and the noble and learned Lord, Lord Elwyn-Jones, are really asking the House to say that that will not do because the prosecution would not have proved beyond reasonable doubt that the other factors were present—the adult and so on. That I think is, frankly, nonsense.
I come back to the remark which I have had to make during the course of these debates more than once: that is, that the purpose of criminal justice is to convict the guilty and to acquit the innocent, with the proviso that we must not convict innocent people. The Bill as drafted—I hope I have persuaded the House—is the right way to go about it, to deal with the suggestibility of the young. I stick therefore to this view. Although I fully understand the motives underlying this amendment; namely, that the young are suggestible and need special protection, nonetheless I feel the way we have gone about it is more effective and more in conformity with the requirements of criminal justice than the way which is suggested.
Lord Elwyn-Jones: My Lords, I take note of the fact that the code of practice deals with this matter. I was a little dismayed, if the noble and learned Lord will allow me say so, by the way he has dismissed this as a non-existent problem—
The Lord Chancellor: My Lords, not at all.
Lord Elwyn-Jones: My Lords—or has tended to do so; because the code of practice dealing with this says:
"An arrested juvenile or someone who is mentally ill or mentally handicapped must not be interviewed in the absence of the appropriate adult unless Annex C applies".
The provisions of Annex C are to deal with the situation of urgency where an urgent interview is necessary. However, I have ventilated this matter. I am glad that I have been able to draw attention to the specific requirement of the code of practice and I can only hope that the police will follow the guidance that it gives. In the circumstances, I ask leave to withdraw the amendment.
Amendment, by leave withdrawn.
12.21 p.m.
Lord Elwyn-Jones Lord Elwyn-Jones had given notice of his intention to move Amendment No. 126:
Page 70, line 18, at end insert—
("( ) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that, at the time he made the confession, he was mentally ill or mentally handicapped, the court shall not allow the confession to be given in evidence unless the prosecution proves to the court beyond reasonable doubt either—

(a) that, at the time the confession was made, the person making it was neither mentally ill nor mentally handicapped: or

(b) that

(i) the confession was made in the presence of an adult person who was not a police officer, and

(ii) the confession is supported in some material particular by other evidence.").

The noble and learned Lord said: My Lords, since that amendment was put down, the Government have put down Amendment No. 128. It does not cover quite the same ground as No. 126 in the sense that Amendment No. 126 deals with the position of the mentally ill or handicapped person who comes before the court. Amendment No. 126 proposes:
"If, in any proceedings where the prosecution proposes to give in evidence a confession made by the accused person, it is represented to the court that, at the time he made the confession, he was mentally ill or mentally handicapped, the court shall not allow the confession to be given in evidence …".
Then there follow the provisions.
I see the force of what the noble and learned Lord, Lord Denning, said earlier about leaving some of these matters to the discretion of the judge in charge of the case and, in the circumstances, in view of the importance of Amendment No. 128 which stands in the name of the noble Lord, Lord Elton, dealing with confessions by mentally handicapped persons, I propose, on the whole in the interests particularly of saving time, not to move Amendment No. 126.
[Amendment No. 126 not moved.]
The Lord Chancellor: Amendment No. 126 is not moved. Amendment No. 127 by the Lord Elton. I think that perhaps my noble friend might like to deal with this as I do not seem to be briefed on the subject.
The Minister of State, Home Office (Lord Elton): My Lords, I think that my noble and learned friend will find that Amendment No. 127 goes with No. 128. It was grouped in the group Nos. 126, 127, 128 and 132 and that debate has not taken place as expected because the noble and learned Lord, Lord Elwyn-Jones, has not moved his Amendment No. 126. My Lords, I do not wish to trespass on what my noble and learned friend was going to say in his introduction to Amendment No. 128, although I am prepared to do so if he would prefer.
The Lord Chancellor The Lord Chancellor moved amendment No. 127:
Page 71, line 1, leave out from ("section") to (" "oppression" ") in line 4.
The noble and learned Lord said: My Lords, I think I am right in saying that Amendment No. 127 is probably a paving to No. 128 so that, if I may speak to them both together, I will do so as briefly as I may.
Amendment No. 128: After Clause 77, insert the following new clause—
"Confessions by mentally handicapped persons.
.—(1) Without prejudice to the general duty of the court at a trial on indictment to direct the jury on any matter on which it appears to the court appropriate to do so, where at such a trial—

(a) the case against the accused depends wholly or substantially on a confession by him: and

(b) the court is satisfied—

(i) that he is mentally handicapped; and

(ii) that the confession was not made in the presence of an independent person,

the court shall warn the jury that there is special need for caution before convicting the accused in reliance on the confession, and shall explain that the need arises because of the circumstances mentioned in paragraphs (a) and (b) above, but in doing so shall not be required to use any particular form of words.
(2) In any case where at the summary trial of a person for an offence it appears to the court that a warning under subsection (1) above would be required if the trial were on indictment, the court
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shall treat the case as one in which there is a special need for caution before convicting the accused on his confession.
(3) In this section—
"independent person" does not include a police officer or a person employed for, or engaged on police purposes;
"mentally handicapped", in relation to a person, means that he is in a state of arrested or incomplete development of mind which includes significant impairment of intelligence and social functioning; and
"police purposes" has the meaning assigned to it by section 64 of the Police Act 1964.").
This amendment arises out of the discussions we had in Committee in which I think the noble Baroness, Lady Ewart-Biggs, played some part as well as did the noble and learned Lord on the Front Bench opposite. We all agreed both that the young and that the mentally handicapped required some extra protection. I say "extra" because I now repeat what I said in relation to the earlier amendment: that, of course, the mentally handicapped are already protected by Clause 77 in its present form and the judge on the trial within the trial will exact from the prosecution proof beyond reasonable doubt if it is suggested by the defence that the confession ought to be excluded and will take into account, among other relevant factors, the fact that the suspect or the accused is mentally handicapped.
In addition to that, my right honourable and learned friend the Home Secretary, having read the discussions that we had, thought that there was an additional safeguard which ought to be introduced in addition to the code of practice (which is also there), in addition to Clause 77, (which is already there) and which is set out in Amendment No. 128. That is, that before convicting the accused and relying on the confession, there should be explained the need to exercise caution. The object of that is to safeguard the accused both in respect of his suggestibility, which may be greater than that of a normal person, and in respect of the possibility that he may not fully have understood or may have misunderstood what was being said to him in the course of the interview. So now we have three protections for the mentally handicapped. One is the protection given by Clause 77; one is given by Clause 67 and the code of practice read together; and one is given by this Amendment, No. 127, that the court should warn the jury that there is special need for caution before convicting the accused in reliance on the confession and shall explain that the need arises because of the circumstances mentioned in paragraph (b); that is to say either that the case depends wholly or substantially upon a confession and that he is mentally handicapped and the confession was not made in the presence of an independent person. I would have submitted that that was an adequate protection.
Of course, I ought to add, because of subsection (2) in the amendment, that on a great number of occasions these cases will not come before a judge and jury and the court which will try the case will be a court of magistrates who will have to perform the functions equally of a tribunal of law and of a judge of fact. I think that a court of summary jurisdiction can do this; although, of course, it is more difficult if you are the same person exercising a dual function to do the necessary intellectual gymnastics to apply the criteria which one has to apply. The House will see from the way in which subsection (2) of the clause is put that it is designed to deal with a court of summary

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jurisdiction; whereas subsection (1) is designed to deal with the indictable offence before a judge and jury. There are amendments to this amendment to which in due course I shall be speaking, but I will not speak to them at this stage; I will simply move the principal amendment and leave those who have proposed the subordinate amendments to move them in due course. The Question is that Amendment No. 127 be agreed to. Amendment No. 129.
Lord Elwyn-Jones Lord Elwyn-Jones moved, as an amendment to Amendment No. 128, Amendment No. 129:
Line 11, leave out ("and") and insert ("or
( ) that at the time he made the confession he was mentally disordered; or
( ) that at the time he made the confession he was under the age of 17; and").
The noble and learned Lord said: My Lords, may I express my gratitude (and I am sure that the noble Lord, Lord Renton, will join with me in this) that the Government, no doubt on their own thinking but certainly in the light of representations that have been made by the noble Lord and myself and my colleague the noble Baroness, Lady Ewart-Biggs, on the need for special provision, special protection, for the mentally ill or the mentally disordered. Speaking, as I do, as president of the Mental Health Foundation and knowing of the noble Lord's great interest in MIND—
Lord Renton: My Lords, it is MENCAP.
Lord Elwyn-Jones: Ah, MENCAP. My Lords, I thought there was something of immediate concern for which he was responsible. It would give gratification to our organisations that this has been done. It may not be appropriate for me at this stage to move the amendment, although in the interests of time it might be convenient for me to do so.
The Lord Chancellor: The noble and learned Lord is quite right. I have got the House into a procedural muddle but I think we can very easily get out of it. Amendment No. 127 was what I was theoretically speaking to a few moments ago: that is a paving one to Amendment No. 128. I think that can be safely passed without prejudice to the noble and learned Lord's Amendment No. 129. If therefore I may put the Question to No. 127 and formally move Amendment No. 128, as containing my substantive speech, I think we shall get back on to the strait and narrow path. The Question is, That Amendment No. 127 be agreed to? As many as are of that opinion—
Lord Foot: My Lords, I think the House may be under a slight misapprehension. I have looked at this and I do not think Amendment No. 127 is in fact a paving amendment to No. 128. If your Lordships will look at subsection (8) of Clause 77, you will see that the effect of Amendment No. 127 is to take out some words from that subsection and it transfers those words which are words defining the meaning; it transfers those words to Clause 81, which is the interpretation clause. Instead of putting the words in subsection (8) of Clause 77, it transfers them, I think quite properly, to Clause 81, thereby making that
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definition applicable to the whole of Part VIII, which is concerned with confessions, rather than limiting it simply as a qualification to the meaning of Clause 77.
The Lord Chancellor: I am very much obliged to the noble Lord, Lord Foot. It looks as though he is right, at any rate factually, in what he said. But I think from the procedural question I am on sound ground, unless he is going to oppose the transfer, if I put Amendment No. 127 to the House and then move Amendment No. 128 formally, because I have in effect already spoken to it. The Question is, That Amendment No. 127 be agreed to?
Lord Renton: My Lords, with great temerity and diffidence, may I say that I do not understand the need for Amendment No. 127 at all. It may be that there is something lacking in my professional competence which makes me feel that way. Amendment No. 127 proposes to leave out a definition of "confession". It may be that we can do without a definition of "confession".—
Lord Wigoder: My Lords, will the noble Lord forgive me? Has he looked at Amendment No. 132? Does that not solve the problem that he is raising?
Lord Renton: My Lords, I am very much obliged. I am wasting the time of the House and I shall say no more.
The Lord Chancellor: May I at last put the Question to the House? The Question is, That Amendment No. 127 be agreed to?
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved amendment No. 128:
[Printed above.]
Lord Renton: My Lords, I hope that I shall not be wasting the time of your Lordships. May I say that. as was anticipated by the noble and learned Lord, Lord Elwyn-Jones—
Lord Elwyn-Jones: My Lords, if the noble Lord will forgive me, as it falls to me, may I say that I have already spoken to Amendment No. 128 and may I move Amendment No. 128?
The Lord Chancellor: My Lords, Amendment No. 128 is an amendment of my noble friend and the next amendment to be called, if I am allowed to call it, is Amendment No. 129, which is the noble and learned Lord's amendment to Amendment No. 128. I understood that my noble friend Lord Renton wanted to speak to No. 128 before I put the noble and learned Lord's amendment: that is why I sat down so hurriedly.
Lord Elwyn-Jones: My Lords, I may have contributed to this muddle, but Amendment No. 129 is mine, and I have not yet spoken to it, because Amendment No. 128 has not been called—I think I had better sit down. That is the best contribution I can make.
The Lord Chancellor: If my noble friend wishes to speak to Amendment No. 128 before I call the amendments to No. 128, he is now in order and in time. If it would be just as good as it would be if we were discussing No. 129, then I suggest he should put the noble and learned Lord at ease by letting him move Amendment No. 129.
Lord Elwyn-Jones: My Lords, I began to move this amendment—briefly I hope. It proposes an amendment to Amendment No. 128, and first of all your Lordships will see that line 11 of the amendment provides that where at the trial the court is satisfied that the accused is mentally handicapped and
"that the confession was not made in the presence of an independent person",
instead of the conjunctive "and", in view of the importance of the matter I propose the insertion of the alternate "or", in view of the importance of each of those considerations separately.
Then my Amendment No. 129 further includes the proposal that there should be added—
"that at the time he made the confession he was mentally disordered;".
That is a term defined in Section 1 of the 1983 Mental Health Act, as including
"… mental illness, arrested or incomplete development of mind"—
that is to say, mental handicap—
"Psychopathic disorder and any other disorder or disability of mind".
As it is a term already used by professionals in connection with the Mental Health Act, it seems suitable that it should also be used in this welcome extension that the amendment provides of safeguards to vulnerable people.
Then I have added a further amendment
"that at the time he made the confession he was under the age of 17;".
We have covered some of the ground on that already and perhaps I need add no more in support of that proposition. I beg to move.
The Lord Chancellor: The original Question was, That amendment numbered 128 be agreed to, since when an amendment numbered 129 has been moved. The Question I now have to put therefore is that the amendment to No. 128 in No. 129 be agreed to?
Lord Renton: My Lords, I wish to speak to the amendment to Amendment No. 129, but especially first of all to the new clause contained in Amendment No. 128. As president of MENCAP, I greatly welcome this new clause, which follows the representations made on both sides of your Lordships' House and sympathetically considered by my noble and learned friend the Lord Chancellor at both Committee and Report stages.
I must say that from the point of view of the mentally handicapped the new clause gives us 90 per cent., if one may so put it, of what one could have hoped for. Therefore I welcome it. The noble Lord, Lord Allen of Abbeydale, our chairman, asks to be associated with that welcome and to join me in expressing thanks to Ministers—especially, I think one should say, to my noble friend Lord Elton, who I know
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has done so much work on this—and their advisers for the immense amount of prolonged and careful thought that we know they have given to reaching what is for us such a satisfactory solution, which will be a great safeguard for mentally handicapped people who are taken into custody.
So much for the new clause. As to Amendment No. 129, and that which follows it, Amendment No. 131, it assumes that the mentally handicapped, the mentally ill and the psychopaths, are, for the purpose of this new clause, all to be regarded as being in the same mental condition, but, as we know, they are different. As my noble and learned friend the Lord Chancellor pointed out on Report, the mentally handicapped are a special case. Their mental condition is permanent and incurable, while the condition of the mentally ill varies from time to time.
I can understand the disappointment of those who are active in MIND, and in the Mental Health Foundation, of which the noble and learned Lord, Lord Elwyn-Jones, is the distinguished president. In MENCAP we rejoice in the excellent contacts that we have with those two bodies. But I feel bound to point out that the proposed new clause in Amendment No. 128 is tailored to needs of the mentally handicapped and it would not, in my opinion, apply satisfactorily to the mentally ill, whose condition varies. Indeed, I think it would be a mistake to assume that people with a psychopathic condition should also be treated in the way that is envisaged in Amendment No. 128. Therefore, while warmly welcoming the new clause I fear that I cannot support these amendments.
Lord Campbell of Alloway: My Lords, I should like to speak briefly to Amendment No. 128 because at one time I was attracted to the option of exclusion along the lines of Amendment No. 126 of the noble and learned Lord, Lord Elwyn-Jones. The substance of this is old Amendment No. 132C, tabled on Report in the names of my noble friend Lord Renton, the noble Lord, Lord Allen of Abbeydale, and myself. But after some hesitation I have certainly come to the conclusion that the question of the degree of mental handicap and its causative effect on the reliability of a confession is far better assessed not by one man, a judge, but by the composite wisdom of a bench of magistrates or by the composite wisdom of 12 jurors. It is for that reason that I welcome the way in which the Government have drafted the new clause, notwithstanding that I supported the exclusionary line advocated in Amendment No. 126 of the noble and learned Lord, Lord Elwyn-Jones.
Lord Hooson: My Lords, may I say from these Benches that we prefer the term "mentally handicapped" to "mentally disordered". I do not think that the Government had in mind, nor did most contributors to the last debate, that, for example, psychopaths should have the benefit of the protection intended for the mentally handicapped.
The Lord Chancellor: My Lords, I am grateful to those who have taken part in this debate, from the noble and learned Lord, Lord Elwyn-Jones, onwards and particularly to my noble friends Lord Renton and Lord Campbell of Alloway. Amendment No. 129

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involves two quite separate issues. The first is the one to which my noble friend Lord Renton has drawn attention, as did the noble Lord, Lord Hooson, and my noble friend Lord Campbell of Alloway, as to whether it is appropriate to introduce the words "mentally disordered" and give the new clause the meaning which is given in the 1983 Act. I am bound to say—and I think that, on reflection, the noble and learned Lord may agree—that I agree, at any rate, with my noble friends Lord Renton and Lord Campbell of Alloway and the noble Lord, Lord Hooson, because the definition which would be imported into Amendment No. 128 were Amendment No. 129 to be accepted, is imported by reference. I know the preference of my noble friend for textual amendments and this might have been a good case for using one. At any rate, what would happen if this part of the amendment were accepted is that "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder, and any other disorder or disability of mind.
When we were debating this at an earlier stage I readily accepted the view which was put forward, I think, by my noble friends and by the noble Lord, Lord Allen of Abbeydale, that the mentally handicapped needed special protection; but I also pointed out at that stage—I hope without any degree of flippancy because mental disorder of any kind does not lend itself to flippancy—that it is almost impossible for a man to prove that he is sane. I do not know how I should set about it if I were to attempt to do so. If the proposed definition is introduced I should have to show, among other things, that I was suffering from no other disorder or disability of mind. I do not know how many Members of this House, after having seen the way in which I have had to handle the order of the last four amendments, could possibly think that I had discharged the onus of proof which rested upon me.
The fallacy in this part of the amendment is that the definition which has been imported by the amendment into the Bill—the Mental Health Act 1983 definition—is very helpfully broad for the purposes of that Act because that Act is about the reception, care and treatment of persons to whom it applies. It is dangerous to import into this Bill, which is about criminal evidence, the definition which was originally designed for a totally different purpose. If it were, it would not only have the defects of substance to which my noble friends have referred; it would also create confusion and put people in an almost impossible position.
The other point raised by the amendment to the new clause, which is quite separate, is that which refers to the age at which the author of the confession made his confession if he was under 17. I do not need to say very much about that. It is a separate issue and the view which the Government have taken is rather that which was suggested by the noble Baroness, Lady Ewart-Biggs, during the course of discussions at an earlier stage of the Bill; which is that the young need to be treated and protected in a rather different way from the mentally handicapped. We have already discussed the young on an earlier amendment and therefore I think that, on reflection, I might suggest to the noble
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and learned Lord, although I appreciate the reasons underlying this amendment and the requirement for some sort of definition, that he withdraws the amendment. I hope that he will do so.
Lord Elwyn-Jones: My Lords, I will gladly do so. I felt it right to put the issue before the House, particularly in the absence of my noble friend Lady Ewart-Biggs, who had the heat and burden of the day on this matter in her hands but, unhappily, owing to other duties, is not able to be here. As there were representations from another organisation too, I felt it right that the matter should be ventilated.
Therefore, I do not ask leave to withdraw the amendment relating to "mentally disordered" and to the age of 17, which we have already traversed on other matters, but I wonder whether the noble and learned Lord would be prepared to approve the drafting amendment at the beginning of my Amendment No. 129 which is to leave out "and" and insert "or" and, if so, whether this could be considered during the later progress of the Bill?
The Lord Chancellor: My Lords, that was a courteous but rather fast ball. I should like to think about it. There will be time for reflection. I shall make sure that those who reflect upon these matters take it on board.
Lord Foot: My Lords, before the noble and learned Lord withdraws the amendment, the insertion of "or" instead of "and" would be a major alteration of the whole purpose of this new clause. The sidenote, if that is the proper word for it, reads "Confessions by mentally handicapped persons". If we were to accept the noble and learned Lord's suggestion to take out the word "and" from line 12 and to insert in its place the word "or", we should reach the situation in which the clause would apply to anybody under the age of 17, whether or not he was mentally handicapped. That seems to me to be an entirely unintended extension of the new clause which has been put before us.
The Lord Chancellor: My Lords, by leave of the House, may I say that I believe that the noble Lord, Lord Foot, is right. However, I understood the noble and learned Lord, Lord Elwyn-Jones, to have abandoned the age of 17. I thought I had taken the right course by saying that it was a fast ball, though a courteous one, and that perhaps I had better reflect upon it before going any further. Nevertheless, the noble Lord, Lord Foot, must surely be right about the form of the amendment.
Lord Elwyn-Jones: My Lords, that may well be so. In the circumstances, I shall not press the amendment. I beg leave to withdraw it.
Amendment to the amendment, by leave, withdrawn.
The Lord Chancellor: My Lords, Amendment No. 130 has now disappeared into asterisks. The next amendment is Amendment No. 130A.
12.52 p.m.
Lord Campbell of Alloway Lord Campbell of Alloway moved, as an amendment to Amendment No. 128, Amendment No. 130A:
Line 19, leave out from ("above") to end of line 21.
The noble Lord said: My Lords, the object of the amendment is to excise otiose verbiage. It is self-explanatory. I beg to move.
The Lord Chancellor: My Lords, the original Question was that Amendment No. 128 be agreed to, since when Amendment No. 130A has been moved. The Question that I now have to put to the House is that Amendment No. 130A be agreed to as an amendment to Amendment No. 128. I need only say that I have been advised to accept this amendment.
On Question, Amendment No. 130A agreed to.
[Amendment No. 131 not moved.]
On Question, Amendment No. 128, as amended, agreed to.
Clause 81 [Part VIII—interpretation]:
Lord Elton Lord Elton moved amendment No. 132:
Page 72, line 34, at end insert—
(" "confession" includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise;").
The noble Lord said: My Lords, I believe that this amendment is consequential upon the amendment which your Lordships have just approved. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved amendment No. 133:
[Printed earlier: col. 1184.]
The noble Lord said: My Lords, Amendment No. 133 has already been spoken to. I beg to move.
On Question, amendment agreed to.
Clause 83 [Preliminary]:
Lord Elton Lord Elton moved amendment No. 134:
Page 74, line 31, leave out ("nothing in this Part of this Act has") and insert ("none of the provisions of this Part of this Act which relate to the recording and investigation of complaints have").
The noble Lord said: My Lords, Amendments Nos. 134, 136, 137, 139 and 141 are drafting amendments. Their purpose is to clarify the saving provision contained in Clause 38(6). That provision is designed to exempt from the duty placed on a chief officer of police to record and investigate complaints any case where the conduct complained of has already been investigated and proceedings of either a criminal or a disciplinary nature have been brought. That saving is already in Section 49(1) of the Police Act 1964. This subsection is designed to replace that subsection but does not make the saving sufficiently clear. The amendments will remedy that deficiency. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved amendment No. 135:
Page 77, line 23, leave out subsections (4) and (5) and insert—
("(4) Where an investigation is to be supervised by the Authority may require—

(a) that no appointment shall be made under section 84(3) or 85(3) above unless they have given notice to the appropriate authority that they approve the officer whom that authority propose to appoint; or

(b) if such an appointment has already been made and the Authority are not satisfied with the officer appointed, that—

(i) the appropriate authority shall, as soon as is reasonably practicable, select another officer and notify the Authority that they propose to appoint him; and

(ii) the appointment shall not be made unless the Authority give notice to the appropriate authority that they approve that officer.").

The noble Lord said: My Lords, your Lordships have recognised that the power to approve the appointment of an investigating officer is vital to the functions which your Lordships wish the Police Complaints Authority to perform. As drafted, the Bill only gives it the opportunity to exercise that power before the appointment is made. We had until now, I regret, not catered for the case which does not at first sight appear to be sufficiently serious but which is subsequently found to be one required to be referred to the authority, or cases of which the authority itself learns only after investigation has started and decides at that stage to exercise its discretionary power to supervise the investigation.
The amendment accordingly provides, in addition to the existing power of prospective approval, that where, for whatever reason, an appointment has been made prior to the submission of the case and the authority is not satisfied with the appointment it may require another appointment to be made. I believe that this accurately reflects your Lordships' intentions. Accordingly, I beg to move.
On Question, amendment agreed to.
Clause 89 [Steps to be taken after investigation—general]:
Lord Elton Lord Elton moved amendment No. 136:
Page 79, line 3, leave out ("It shall be the duty of a chief officer of police.")
The noble Lord said: My Lords, Amendments Nos. 136, 137, 139 and 141 have already been spoken to with Amendment No. 134. I beg to move Amendment No. 136.
On Question, amendment agreed to.
Lord Elton Lord Elton moved amendment No. 137:
Page 79, line 9, at end insert ("it shall be the duty of a chief officer of police—")
On Question, amendment agreed to.
[Amendment No. 138 not moved.]
Clause 90 [Steps to be taken where accused has admitted charges]:
Lord Elton Lord Elton moved amendment No. 139:
Page 80, line 31, after ("89") insert ("above")
On Question, amendment agreed to.
Clause 100 [Discipline regulations]:
Lord Scarman Lord Scarman moved amendment No. 140:
Page 87, line 29, after ("committed;") insert—
("(aa) for racially discriminatory behaviour to be made a specific disciplinary offence;").
The noble and learned Lord said: My Lords, the purpose of this amendment is to give effect to a specific recommendation contained in the Brixton report. The reference in the Brixton report is to Chapter 5, paragraph 41. The recommendation which I made in the report was that racially discriminatory behaviour by a police officer should be a specific disciplinary offence, so stated in the police discipline code. I made that recommendation after listening to the evidence in the course of the inquiry and after visits that I carried out in Brixton, Toxteth and elsewhere in the couse of the inquiry. The evidence persuaded me that and it is still my view, as I shall explain, that there is no single step that could be taken which would be more effective in building up confidence among black people in the attitudes of the police than that there should be included in the police disciplinary code this specific offence.
As some of your Lordships know, since 1981 I have sought within the limits of my position to keep in touch with ethnic minority opinion, particularly the opinion of the West Indian minority in Brixton. The view which I formed after hearing evidence in 1981 has been tremendously strengthened by what people of all sorts, in particular black people, have said about their relations with the police since then. The happy message I bring to this House from Brixton is that relations between the black community and the police in Brixton have greatly improved since 1981. The police are entitled to take very great credit for the constructive part they have played in rebuilding relations with the community since 1981.
It is a pity, therefore, that opposition has been developed within the police force to including in the police disciplinary code this specific offence. It is a small matter to include it. It is perfectly possible for me as a lawyer to say that one could charge racially discriminatory behaviour as an offence under the existing code, taking advantage of the offence of discreditable conduct which is to be found in the code. Unfortunately, that will not do the confidence-building job among black people which is my concern at the moment.
Indeed, I am not really addressing your Lordships as a lawyer: I am addressing your Lordships as the man who conducted that inquiry, who heard certain evidence about the attitudes and feelings of black people, and who has had that evidence confirmed by subsequent experience. It is no anwer to this amendment to say, "Oh well, disciplinary proceedings could be taken under the code". They could be, but if there is a specific offence included, it will be clear to all the world that racially discriminatory behaviour by a policeman is a specific offence. I beg to move.
Lord Gifford: My Lords, it is perhaps worth repeating, in support of the amendment of the noble and learned Lord, Lord Scarman, something that I said at Report stage. This question of racialism in professional bodies came up quite recently at a
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meeting of the senate of the Inns of Court at the Bar and of the Bar Council. They tackled the very question which is before your Lordships so far as their own ranks are concerned. They had before them a report which indicated that there was substantial racial disadvantage and evidence of discrimination. The senate and the Bar, in two separate meetings, reacted immediately to deal with the complaints that had been voiced, particularly by black barristers. They made it a specific recommendation at their meetings that it should be professional misconduct for a barrister to cause or permit racial discrimination. They indeed went further and set up various machinery for monitoring complaints of racial discrimination.
The point was made that it was probably a disciplinary offence in any case, but because of the need to emphasise to those who have dealings with the profession the importance that is placed on our behaving and living in a multi-racial society, the response was clear and immediate. As far as the public are concerned, the problems we have to contend with in respect of police public relations are much more serious.
It does not matter how serious the problem really is—we can debate that at other times. The point is that this area is perceived to be a major problem. I believe that it is a major problem. The report of the Policy Studies Institute brought out a lot of interesting, important and disquieting evidence about racialist attitudes. But it does not really matter for the purposes of this amendment whether it is or is not a major problem. Why are the police not responding? If the police do not respond and if the Government do not respond, there is only one message that then goes out to those in the black community: it is that the police and the Government are less than keen to get to grips with the problem—great or small, whatever it may be—of racialism in their ranks. If the police and the Government have not responded, then I urge your Lordships to respond to this call.
Lord Hooson: My Lords, from these Benches I should like to say that we totally support this amendment. As I said on Second Reading, we think it is very important. We all know something about race relations in this country and of the relationship between the black community and the police, but none of us has investigated it in depth, as has the noble and learned Lord, Lord Scarman, at Brixton. Those of us on these Benches feel that this House would be very foolish to neglect the advice which has been given to us today by the noble and learned Lord.
Lord Mishcon: My Lords, I wonder whether one Member of your Lordships' House who was born in Brixton and who, in the field of local government, had the privilege of representing the place of his birth for some 20 years at County Hall could say a word not only of support for this amendment but also about the difference which the noble and learned Lord, Lord Scarman, has made in that area. He referred very modestly to the reports he has received from time to time and to the happier message he was able to bring to your Lordships' House about the improvement in the very sad relationships between the coloured community in Brixton and the police.

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I say without equivocation that that improvement owes so much to the noble and learned Lord, not only for the report he has mentioned and which your Lordships know so well but also because of his continued interest—and because the coloured population of south London saw a judge who showed complete and absolute impartiality and who was prepared to listen equally to the representations of the police and of that community. As a result, he produced a series of recommendations, and one of those recommendations—a major one—is now before your Lordships' House.
I can say that the people of Brixton, both white and coloured—the white citizens of Brixton who have a fair mind and who want to live in peace with their neighbours, and the decent coloured population of that area who also want to live in peace with their neighbours and to observe the law, the customs and the traditions of this country—equally look to your Lordships' House to see whether this amendment will be carried today.
I hope that we are not going to hear any answer from the Government about the fact that a disciplinary code already exists which covers this matter. I have taken the trouble to study the disciplinary code. I have it in front of me. There is the heading:
"Disciplinary arrangements for officers up to and including Chief Superintendent".
I am reading from paragraph 9.3. It states:
"Proceedings for the offence of discreditable conduct"—
and that, presumably, would be the offence under which racial discrimination of the kind mentioned in the amendment would be brought—
"should be brought sparingly. Wherever possible, a more specific charge under one of the other paragraphs of the disciplinary code should be laid. A charge of discreditable conduct should not be added to a charge under another paragraph unless it is based on facts distinct from those underlying that other charge".
So the message of the present disciplinary code is: use that general charge very sparingly and try to make it a specific charge. This will be a specific charge.
I hope that we will not hear the argument, when such a great principle is involved, that the wording may leave such a charge as a vague charge. This is inside a service. This is not meant to be a criminal charge. One can rely upon those who will be dealing with that charge to see that fair play is given to anyone who is accused of it, and that evidence of it will be required. I repeat that Brixton looks at the House of Lords today.
Lord Hylton: My Lords, I should like to support this amendment. I have West Indian friends in England, and I believe that they look on it as a very important amendment. My knowledge of Northern Ireland makes me particularly sensitive to measures that will help to build confidence in the police force. The amendment is also widely supported both in Parliament and outside, in particular by the National Association of Community Relations Councils. I very much hope that the Government will accept it.
1.10 p.m.
Lord Elton: My Lords, I am glad that we have at last come to this issue. We were unable to do so previously because of the lateness of the hour and, more cogently,
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because of the unavoidable absence of the noble and learned Lord, Lord Scarman, without whom our proceedings on such an occasion would have been thought to be deficient.
Lest there should be any misunderstanding, I must start by placing it firmly on the record that Her Majesty's Government totally abhor racial discrimination. We are committed to ending it throughout our society, and considerable resources are devoted to that purpose within the home departments. I will go further and declare that racially discriminatory behaviour by the police is something that we regard as totally unacceptable and not to be tolerated. It would be wrong, therefore, for your Lordships to think that anything at all divides us from noble Lords opposite or the noble and learned Lord, Lord Scarman, either as to our aims and objectives or as to our motives.
It would also be wrong, I think, to accept the inference of the noble Lord, Lord Gifford, that there has been no response to these needs either by the police or the Government, and I shall return briefly to that. This debate is not about whether racially discriminatory behaviour should be tolerated in the police. We are all determined that it should not. Where such behaviour takes place it should be stopped. What divides us is not whether that should be done but how it should be done.
Indeed, our differences are even narrower than that. I was glad to hear the noble and learned Lord say that he was not speaking as a lawyer. I fear that even that does not bring him down quite to my level because of his immense experience and authority in race relations matters, particularly in Brixton. But perhaps it puts him almost within reach. I think that I should like to pick up and reinforce one point that he made as a layman. We are in absolute agreement with him and others who have spoken that a police officer abuses his authority if he is so much as uncivil to any member of any ethnic minority. Noble Lords opposite may think that a striking position for us to be in, but if they reflect I think that they will agree that they share it.
That is the precise position of the Police Discipline Regulations 1977 under which all police forces at present operate. If I may give an abbreviated extract from paragraph 8 of Schedule 2 to the regulations—and that is not the passage that the noble Lord, Lord Mishcon, was quoting—the reference is to abuse of authority:
"which offence is committed where a member of a police force"—
and there follow three sorts of conduct, of which the third reads—
"is uncivil to any member of the public".
Noble Lords may say, "He is talking about members of the public; we are talking about the members of the ethnic minorities". What a revealingly, or at least a profoundly, racist distinction that is! Are not people of Pakistani, African or West Indian descent members of the public, too? How odd, then, to propose that we should discriminate between ethnic minorities and the whole of the rest of our community on grounds of race alone!
Do not consider, my Lords, that you would be doing them a favour by that discrimination simply because you think that that discrimination itself is favourable. Let me say again that we are united with all noble

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Lords whose view is that racial discrimination against ethnic minorities is unacceptable. Conduct of that sort—and they must agree with this—is among the most discreditable that a policeman can indulge in, and is more than likely to bring discredit on the reputation of the force or the service to which he belongs. The noble Lord, Lord Mishcon, has already referred to the reference in the Police Disciplinary Code, which has the force of a statutory instrument made under the force of an Act of Parliament. The entries that we have referred to give exactly the protection that noble Lords now ask us to provide. Their effect differs in only one material aspect from that of the amendment: they treat the public as a whole. They do not extend a specific protection to a specific group from a specific wrong.
What would your Lordships be doing if, contrary to our advice, you were to proceed with this amendment? What the House would be doing would be to say on the face of an Act of Parliament on the statute book that all members of ethnic minorities, for no matter how many generations they had been settled in this country, were inescapably different from the rest of the community. They must be inescapably different, because conduct towards them and them alone is to be singled out for specific mention in the law. Of uncivil conduct by a white policeman towards a white man in the street, one would be saying, "Oh, that is all right. We can deal with that as we have always dealt with it under the code of discipline"; but of uncivil conduct by a white policeman to a black man, or indeed by a black policeman to a white man, one would be saying by statute that that is different, and must be punished.
How do your Lordships think that will go down with the police? Will that convince them that all men are equal under the law? Will that encourage them to establish good and increasingly close relationships with these particular groups, as the noble and learned Lord said is already beginning to happen in areas of crucial importance with which he is familiar? The police have made and are making considerable efforts in that direction already.
One of my earlier duties as a Home Office Minister was to announce the considerable progress being made in training in racial awareness. Again, this was acknowledged in an earlier debate. Your Lordships will know of the numerous community relations departments that have been established and the community liaison officers who have been appointed since then. That effort is directed to changing attitudes, and it is having effect. But one does not encourage the essential respect and confidence that we have to establish by singling out one group of people for particular and specific statutory protection. The proper way to tackle this admitted problem, I believe, is in the way that we are tackling it with the tools already to hand. What your Lordships want to see is the administration of the police in the full spirit of those paragraphs of the discipline code from which we have quoted. Your Lordships wish to see that more urgently pursued, perhaps, but I do not think you ought to feel that different instruments need to be used.
I add a footnote, only as something else for your Lordships to bear in mind. It is this. Discrimination
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against anyone on racial grounds is very unpleasant, and it is dangerous to our society. It should be stopped; that we agree. But it is because they think that it is so unpleasant and dangerous that noble Lords behind this amendment have decided to cite it, and it alone, upon the face of the Bill. Nothing, we have to infer, can possibly be as bad, therefore. But is that a true perception, or is it an overreaction? Discretion on sexist grounds is, I suppose, some of your Lordships may think, a little less unpleasant and dangerous, but discrimination on grounds of mental or physical handicap would give some of your Lordships serious grounds to pause. What about political grounds? What about policemen or a police force that treated members of the public in different ways according to the political views that they expressed in public?
I recall only last week a supporter of the Alliance party saying—I profoundly disagree with him, but it must represent the views of that party—that we already had a para-military police force under centralised control. If that is really their perception, is it the case that political discrimination by the police is less important than racial discrimination?
Lord Hooson: My Lords, it seems to me that the noble Lord's remarks completely ignore the passing by Parliament of, for example, the Race Relations Act.
Lord Elton: My Lords, I am grateful to the noble Lord for that intervention. That was brought onto the statute book in one place and as one subject—the question of racial attitudes towards ethnic minorities. There it is in context and clearly understood. But here we have policemen in the back room with their cup of tea expected to absorb the lesson that one ought not to be rude to somebody of the same race but one must not be rude to somebody of a different race. I do not think that is within the spirit of the Bill that we have before us.
I do—and this is not false modesty—recognise the enormous stature and experience of the people against whom I am arguing, not only the noble and learned Lord, Lord Scarman, whose stature does not need to be emphasised by me; but also the close identification of the noble Lord, Lord Mishcon, with that particular part of London, his ability to compare it as it is now with as it was five years ago, and perhaps as it was 30 years ago; and the close experience of the noble Lord, Lord Gifford, with people in these communities who are at odds with the law and therefore with the police force.
I know that there will be an enormously persuasive wind-up to this debate after I have sat down. However, I believe that your Lordships should think twice, and a third time, about making this specific amendment to treat in a different way, where it is committed against a black citizen by a white policeman, something which is already an offence when it is committed by a white policeman against a white member of the public. I do not think that that is the way to write our statutes. I can give your Lordships the assurance that the Government stand four-square behind the intention of the disciplinary code that racial discrimination should be stamped out. If I speak for longer, I shall weary your Lordships further. I hope that your Lordships will agree with me not to amend the Bill in this way.
Lord Elwyn-Jones: My Lords, I rise merely to indicate my support of the amendment. It is brought before us by the authority of a distinguished man who has examined this matter in great depth, who has friendly relations with the ethnic minorities and with the police, if I may say so. He has indicated this as a vital step to improve the relations between the police and the whole community. I support it.
Lord Morris: My Lords, the supporters of the argument put forward by Her Majesty's Government must feel indeed proud of the way in which the noble Lord, Lord Elton, has managed to turn an argument on its head with the confidence and skill of someone who spends a great deal of his time standing on his head. It is astonishing that the only fundamental point that he made was that the attempt of this amendment to curb admitted racial discrimination within the police should in itself be racially discriminatory. I find that argument extremely difficult to swallow. I must confess that I will be supporting the argument in the lobbies today.
Lord Monson: My Lords, I think somebody ought to support the Government in this matter, and I am very glad to do so. The case against singling out one particular form of bad behaviour for disciplinary action has already been well made at earlier stages of this Bill. I think the noble Lord, Lord Elton, repeated the arguments very well again today.
However, there is one other aspect of this amendment which I do not believe has been touched upon. Let us suppose that in the month of February one year a constable observes a man of Far Eastern appearance letting off loud fireworks in the street. His first instinct is to arrest him. Being an astute individual, the police officer then remembers that the Chinese New Year takes place at round about this time. As none of the residents of the area nor any of the passersby appear to be unduly frightened or offended by the fireworks, he decides to take no action, given that this is such an important festival for those of Chinese origin. This is clearly racially discriminatory behaviour, in that if the individual letting off the fireworks had been white, brown or black, he would not have been treated in such a benign fashion. If this amendment were passed, the police officer would be subject to disciplinary action. I wonder whether that is what the sponsors of this amendment would wish, given that a large number of similar examples could be cited.
Lord Milverton: My Lords, I have listened carefully to the arguments. With due respect to the noble Lords who put forward the amendment, I believe that I shall support the Government because I feel confident enough, with the Government's proclaimed intentions and with what has already been written into this Bill, that fairness will be done. I also have confidence enough in the police to believe that the majority of them wish fairness to be done. If on any occasion it does not happen, I feel confident enough that there are the measures available and that the police authorities will bring to court, as you may say, any member of their police force who committed a misdemeanour of the kind indicated by the amendment. Therefore, I shall support Her Majesty's Government.
Lord Scarman: My Lords, I confess that I am deeply troubled by the speech that the noble Lord, Lord Elton, made on behalf of the Government. It appears to me to be based on a misunderstanding, if not complete ignorance, about the feeling among the black communities and the West Indian community in particular. With respect, even though it was done with charm, grace and ability, it really is absurd to suggest that race relations is a subject that ought not to be touched upon in the Police and Criminal Evidence Bill.
As the noble Lord, Lord Hooson, said when he interposed in the course of the noble Lord, Lord Elton's, speech, race relations already has legislation of its own. We have to legislate in regard to race relations in the world in which we live because race relations in a society that is now multiracial has become one of the burning problems of our civilisation. Are we therefore to withhold from the police disciplinary code a provision that it is contrary to police discipline to commit the racial discriminatory offence merely because it is not really very acceptable to some who sit behind the noble Lord, Lord Elton?
I find this disturbing. The argument reminded me of my own profession, and I am all the more delighted that it should come from the noble, but not, technically, learned, Lord, Lord Elton. But of course one can argue that abuse of authority includes this offence. One can argue that discreditable conduct, which also appears in the code, includes this offence.
But that is not the point. We are here at this moment being asked by this amendment, and by myself in proposing it, to confirm in as emphatic a way as we can to the whole of our society that racially prejudiced police action on the part of a police officer is something that will not be tolerated, is a specific offence, and is not merely to be subsumed under some other, larger, vaguer offence. It is this which will give the black community confidence that we really mean it when we say, as the noble Lord, Lord Elton, very properly, eloquently and sincerely said, that we are determined that there shall be no racially prejudiced or discriminatory conduct in the police forces. But if we are so determined, why not have the courage to say so in the police discipline code? Let it be read.
The code, in fact, comes into being as Schedule 2 to the disciplinary regulations made under the Police Acts 1964 and 1976. It is made under Section 33 of the Police Act 1964, and under the provision that regulations are to be made for the maintenance of the discipline of police forces. There cannot be a more sensitive question of police discipline at the moment than proper conduct in matters of race relations.
I was delighted to hear from behind me the fictitious story of the Chinese New Year. I do not think, somehow or other, that that kind of problem really weighs on the scale against the necessity of it going out that discriminatory conduct by police officers in matters of race and race relations is a specific offence and will be so dealt with. I beg to move.
1.31 p.m.
On Question, Whether the said Amendment (No. 140) shall be agreed to?

1227
Their Lordships divided: Contents, 71; Not-Contents, 65.

DIVISION NO. 1

CONTENTS

Airedale, L.

Jacobson, L.

Ampthill, L.

Jeger, B.

Ardwick, L.

Jenkins of Putney, L.

Attlee, E.

John-Mackie, L.

Auckland, L.

Kilbracken, L.

Aylestone, L.

Kilmarnock, L.

Bernstein, L.

Kinnoull, E.

Boston of Faversham, L.

Kitchener, E.

Bottomley, L.

Lawrence, L.

Broadbridge, L.

Llewelyn-Davies of Hastoe, B.

Brockway, L.

Longford, E.

Bruce of Donington, L.

McIntosh of Haringey, L.

Cledwyn of Penrhos, L.

Mersey, V.

Collison, L.

Mishcon, L.

Cooper of Stockton Heath, L.

Morris, L.

David, B.

Mulley, L.

Elwyn-Jones, L.

Oram, L.

Ewart-Biggs, B.

Pitt of Hampstead, L.

Faithfull, B.

Ponsonby of Shulbrede, L.[Teller.]

Falkland, V.

Fitt, L.

Prys-Davies, L.

Gaitskell, B.

Scarman, L. [Teller.]

Gallacher, L.

Shackleton, L.

Gifford, L.

Shaughnessy, L.

Gosford, E.

Stallard, L.

Graham of Edmonton, L.

Stamp, L.

Halsbury, E.

Stoddart of Swindon, L.

Hanworth, V.

Strabolgi, L.

Hatch of Lusby, L.

Tordoff, L.

Hayter, L.

Underhill, L.

Hooson, L.

Wallace of Coslany, L.

Houghton of Sowerby, L.

Wedderburn of Charlton, L.

Howie of Troon, L.

Weidenfeld, L.

Hutchinson of Lullington, L.

White, B.

Hylton, L.

Wigoder, L.

Hylton-Foster, B.

Wilson of Langside, L.

NOT-CONTENTS

Avon, E.

Headfort, M.

Bauer, L.

Hood, V.

Belhaven and Stenton, L.

Hornsby-Smith, B.

Beloff, L.

Inglewood, L.

Belstead, L.

King of Wartnaby, L.

Bessborough, E.

Kinnaird, L.

Boothby, L.

Lane-Fox, B.

Boyd-Carpenter, L.

Lauderdale, E.

Brabazon of Tara, L.

Long, V. [Teller.]

Bruce-Gardyne, L.

Mancroft, L.

Campbell of Alloway, L.

Marley, L.

Coleraine, L.

Milverton, L.

Cork and Orrery, E.

Molson, L.

Cottesloe, L.

Monson, L.

Craigavon, V.

Mountevans, L.

Davidson, V.

Murton of Lindisfarne, L.

Denham, L. [Teller.]

Napier and Ettrick, L.

Denning, L.

O'Brien of Lothbury, L.

Eden of Winton, L.

Plummer of St. Marylebone, L.

Effingham, E.

Ellenborough, L.

Portland, D.

Elles, B.

Renton, L.

Elton, L.

Rodney, L.

Ferrier, L.

Skelmersdale, L.

Fraser of Kilmorack, L.

Spens, L.

Gainford, L.

Stanley of Alderley, L.

Gibson-Watt, L.

Sudeley, L.

Glanusk, L.

Trefgarne, L.

Glenarthur, L.

Trumpington, B.

Gray of Contin, L.

Vaux of Harrowden, L.

Greenway, L.

Vickers, B.

Haig, E.

Vivian, L.

Hailsham of Saint Marylebone, L.

Young of Graffham, L.

Resolved in the affirmative, and amendment agreed to accordingly.
Clause 102 [Disciplinary appeals]:
1.39 p.m.
Lord Elton Lord Elton moved Amendment No. 141:
Page 93, line 30, leave out ("with") and insert ("at").
The noble Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Clause 112 [Application of Act to Armed Forces]:
Lord Trefgarne Lord Trefgarne moved Amendment No. 142:
Page 99, line 36, leave out ("subject to subsection (3) below,").
The noble Lord said: On behalf of my noble friend, I rise to move Amendment No. 142. It may also be for the convenience of your Lordships if I speak at the same time to Amendments Nos. 143, 144 and 145.
Amendment No. 143: Page 99, line 36, leave out ("(9)") and insert ("(6B").
Amendment No. 144: Page 99, line 40, leave out subsections (3) and (4) and insert—
("(2A) The Secretary of State may issue a code of practice, or a number of such codes, for persons other than police officers who are concerned with enquiries into offences under the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957.
(2B) Without prejudice to the generality of subsection (2A) above, a code issued under that subsection may contain provisions, in connection with enquiries into such offences, as to the following matters

(a) the tape-recording of interviews;

(b) searches of persons and premises; and

(c) the seizure of things found on searches.

(2C) If the Secretary of State lays before both Houses of Parliament a draft of a code of practice under this section, he may by order bring the code into operation.
(2D) 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.
(2E) The Secretary of State may from time to time revise the whole or any part of a code of practice under this section 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.
(2F) A failure on the part of any person to comply with any provision of a code of practice issued under this section shall not of itself render him liable to any criminal or civil proceedings except those to which this subsection applies.
(2G) Subsection (2F) above applies—

(a) to proceedings under any provision of the Army Act 1955 or the Air Force Act 1955 other than section 70; and

(b) to proceedings under any provision of the Naval Discipline Act 1957 other than section 42.

(2H) In all criminal and civil proceedings any such code shall be admissible in evidence, and if any provision of such a code appears to the court or tribunal conducting the proceedings to be relevant to any question arising in the proceedings it shall be taken into account in determing that question.
(2J) In subsection (2H) above "criminal proceedings" includes—

(a) proceedings in the United Kingdom or elsewhere before a court-martial constituted under the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957 or a disciplinary court constituted under section 50 of the said Act of 1957;

(b) proceedings before the Courts-Martial Appeal Court; and

(c) proceedings before a Standing Civilian Court.").

Amendment No. 145: Page 100, line 4, after second ("1955") insert—
("(aa) before the Courts-Martial Appeal Court:").
I realise that there are on the Marshalled List amendments which seek to amend Amendment No. 144. I shall therefore allow that to take its course in a moment.
Clause 112 deals with the application of the Bill to the armed forces. It recognises that not all of the Bill's provisions are relevant or appropriate to the conduct of investigations within the services and it therefore makes provision for the Secretary of State to be able to apply and modify relevant parts of the Bill to meet the services' particular requirements. At the moment the clause includes a power for the Secretary of State to direct that those responsible for the conduct of such investigations shall be bound by Clause 67(6B) to have regard to the codes of practice to be issued by the Home Office—subject, again, to any practical modifications which may be necessary.
It is the Government's intention that, as in civilian life, the activities of service police investigators should be properly codified and that the interests of those under investigation should be adequately safeguarded. The Government consider that these aims would be even better met if, rather than merely adapting the Home Office codes to which service police investigators would only have to have regard, provision was made for the Secretary of State to issue codes specifically for use within the services by which those police would be bound.
The purpose of the amendments to Clause 112 is therefore to give the Secretary of State such a power to issue service codes of practice. The codes would be laid before Parliament before being brought into operation by order subject to the negative resolution procedure, as already provided for in Clause 112(6). I believe this is an improvement which will benefit both investigators and the investigated, and I commend it to your Lordships. The last of the amendments proposed to Clause 112 is a technical point to include reference to the Courts Martial Appeal Court, as has been done elsewhere in the Bill. I beg to move.
Lord Mishcon: My Lords, it may be a convenient moment for me to speak to Amendments Nos. 144A, 144B, 144C and 145.
Amendment No. 144A: In the first line of the proposed subsection (2A), leave out ("may") and insert ("shall").
Amendment No. 144B: In the second line of the proposed subsection (2B), leave out ("may") and insert ("shall").
Amendment No. 144C: Leave out the proposed subsection (2C) and insert—
(" (2C) The Secretary of State shall lay before both Houses of Parliament a draft code of practice under this section, and subject to the approval of both Houses of Parliament, he shall by order bring the code into operation.").
[Printed above.]
The main purpose of these amendments is to make a very desirable matter mandatory and not just permissive. One immediately thinks—I would hope your Lordships would agree—that the members of the armed forces deserve the protection of a code of practice in exactly the same way as do the citizens of our country, and that this should be mandatory, as I have said, and not permissive.
On Question, amendment agreed to.
Lord Trefgarne Lord Trefgarne moved Amendment No. 143:
[Printed above: col. 1228.]
On Question, amendment agreed to.
Lord Trefgarne Lord Trefgarne moved Amendment No. 144:
[Printed above: col. 1228.]
The Deputy Speaker (Lord Aylestone): My Lords, there are three amendments to this amendment. I will call the first one, No. 144A, in the name of the noble and learned Lord, Lord Elwyn-Jones.
Lord Mishcon: My Lords, I have already spoken to this amendment and to Amendment No. 144. I hope that the noble Lord the Minister will find it possible to agree with it.
Lord Trefgarne: My Lords, I have considerable sympathy with the noble Lord on this point. In regard to Amendment No. 144A, which will place a duty on the Secretary of State to issue service codes of practice, the Government can accept this proposal since it is our firm intention to issue such codes as appropriate to service requirements.
Amendment No. 144B, however, is more difficult. Although, as I have already said, it is the intention to issue codes governing the conduct of service police investigations, it might not be appropriate or necessary to issue codes on all the aspects to be covered in the equivalent Home Office documents. For example, it may not be considered necessary or appropriate for some of the powers provided in the Bill to the civil police to be available also to the service police. Consequently, the matters which will need to be covered by service codes of practice may equally differ. Therefore, although Clause 1 12(2B) provides a power for service codes to be made on a number of topics it remains to be seen whether such codes are in fact necessary on all of them.
Where a code proves to be necessary, one will be issued—for example, we envisage a possible need for a service code on the tape-recording of interviews, based on whatever the Home Office may itself issue—but we would not wish to be bound to issue codes where it was neither appropriate nor needed. For this reason we would wish to keep the power given in Clause 112(2B) permissive, and I therefore hope that the noble Lord will not wish to press Amendment No. 144B.
Amendment No. 144C would have the effect of making the order bringing a service code of practice into force subject to affirmative resolution by both Houses. Again, I understand why the noble Lord has proposed this change, but I hope I can satisfy him that it is not necessary. The codes to be issued for the services will be based on the equivalent Home Office documents, amended only to reflect the particular circumstances within the services. The Home Office codes themselves will be subject to affirmative resolution, and I therefore suggest that it would be an unnecessary burden on Parliament to ask it to approve the same set of principles twice. Instead, Clause 112(6) provides for all orders made under the clause, including those introducing codes of practice, to be subject to the negative resolution procedure, which will still afford Parliament the opportunity to satisfy itself as to the provisions of the service codes of practice. I hope that will persuade the noble Lord that Amendment No. 144C ought not to be pressed.
Lord Mishcon: My Lords, may I at once thank the noble Lord the Minister for the consideration he has given to these amendments? When he proffers three-

1231
quarters of a loaf it would be most ungracious to refuse it, even though one might have wanted to have the whole of the loaf. But one accepts his explanations in regard to Amendments Nos. 144B and 144C as being completely reasonable. As I understand it, Amendment No. 144A will be agreed to. When my turn comes I shall be withdrawing Nos. 144B and 144C.
On Question, amendment to the amendment (No. 144) agreed to.
[Amendments Nos. 144B and 144C not moved.]
On Question, Amendment No. 144, as amended, agreed to.
The Deputy Chairman: My Lords, I call Amendment No. 145; Lord Elwyn-Jones.
Lord Mishcon Lord Mishcon moved Amendment No. 145:
[Printed earlier: col. 1228.]
Lord Mishcon: My Lords. I beg to move.
The Deputy Speaker: My Lords, the Question is that this amendment be agreed to.
Lord Trefgarne: My Lords, I apologise for being a bit slow on my feet. Amendment No. 145 is consequential. It is a Government amendment. I think it was called in the name of the noble and learned Lord, Lord Elwyn-Jones, which was slightly off-putting.
Lord Mishcon: My Lords, if I may I shall try to explain what I think is the position. I believe it is a mistake in the Marshalled List. I have been given the dignity of being associated with this amendment. I am happy to be given that dignity, but I think that in fact it is a Government amendment.
Lord Trefgarne: My Lords, I apologise to your Lordships that I was not quicker. This is a Government amendment. I beg to move.
On Question, amendment agreed to.
Clause 113 [Application of Act to Customs and Excise]:
Lord Elton Lord Elton moved Amendments Nos. 146 and 147:
[Printed earlier: col. 1138.]
The noble Lord said: My Lords, I have spoken to Amendments Nos. 146 and 147. I beg to move them together.
On Question, amendments agreed to.
Clause 116 [Power of constable to use reasonable force]:
Lord Trefgarne Lord Trefgarne moved Amendment No. 148:
Page 102, line 7, leave out ("police officer") and insert ("constable")
The noble Lord said: My Lords, this indeed is a Government drafting amendment. I beg to move.
On Question, amendment agreed to.
Clause 117 [General interpretation]:
Lord Elton Lord Elton moved Amendments Nos. 149 to 153:
Page 102, line 23, at end insert—
(" "parent or guardian" means—

(a) in the case of a child or young person in the care of a local authority, that authority; and

(b) in the case of a child or young person in the care of a voluntary organisation in which parental rights and duties with respect to him are vested by virtue of a resolution under section 64(1) of the Child Care Act 1980, that organisation;")

Page 102, line 25, at end insert—
(" "recordable "offence" means any offence to which regulations under section 27 above apply;")
[Amendments Nos. 151 to 153 printed earlier: col. 1183.]
The noble Lord said: My Lords, I spoke to Amendment No. 149 with Amendment No. 111. Amendment No. 150 is consequential upon Amendment No. 24 which was moved by my noble friend Baroness Trumpington. I have already spoken to Amendments Nos. 151, 152 and 153. With your Lordships' leave, I beg to move Amendments Nos. 149 to 153 en bloc.
On Question, amendments agreed to.
Clause 119 [Extent]:
Lord Elton Lord Elton moved Amendments Nos. 154 to 159 en bloc:
[Printed earlier: col. 1185.]
The noble Lord said: My Lords, my noble and learned friend the Lord Chancellor spoke to Amendments Nos. 154 to 159 inclusive with Amendment No. 123. With your Lordships' leave I shall move amendments Nos. 154 to 159 en bloc. I beg to move.
On Question, amendments agreed to.
Schedule 1 [Special procedure]:
Lord Elton Lord Elton moved Amendments Nos. 160 to 164:
[Printed earlier: col. 1099.]
The noble Lord said: My Lords, I spoke to Amendments Nos. 160 to 164 inclusive with Amendment No. 13. I beg to move Amendments Nos. 160 to 164 en bloc.
On Question, amendments agreed to.
Lord Trefgarne Lord Trefgarne moved Amendment No. 165:
Page 106, line 2, after ("computer") insert—
("(a)").
The noble Lord said: My Lords, on behalf of my noble friend I rise to move Amendment No. 165. It may be for the convenience of your Lordships if I speak at the same time to Amendment No. 166:
Amendment No. 166: Page 106, line 4, at end insert ("and
(b) an order under paragraph 4(b) above shall have effect as an order to give a constable access to the material in a form in which it is visible and legible.").
These amendments remedy a small and inadvertent omission in the drafting of paragraph 5 of Schedule 1. I beg to move.
On Question, amendment agreed to.
Lord Trefgarne Lord Trefgarne moved amendment No. 166:
[Printed above.]
On Question, amendment agreed to.
Schedule 4 [The Police Complaints Authority]:
Lord Trefgarne Lord Trefgarne moved Amendment No. 167:
Page 113, line 23, leave out ("or") and insert—
("(ii) of a deputy chairman; or").
The noble Lord said: My Lords, again on behalf of my noble friend I rise to move Amendment No. 167 and to speak at the same time to Amendment No. 168:
Amendment No. 168: Page 113, line 43, leave out ("November") and insert ("August").
These amendments are both minor technical amendments. I beg to move.
On Question, amendment agreed to.
Lord Trefgarne Lord Trefgarne moved Amendment No. 168:
[Printed above.]
On Question, amendment agreed to.
Schedule 5 [Serious arrestable offences]:
Lord Gifford Lord Gifford moved Amendment No. 168A:
Page 115, line 25, leave out paragraph 8.
The noble Lord said: My Lords, if your Lordships look at Schedule 5 to the Bill you will see that it is the schedule in which there are set out those offences which are always to be serious offences no matter what the circumstances of their commission. Of course, if they are always to be serious offences the consequence is that all the provisions of the Bill affecting serious offences—the possibility of denying access to lawyers or to friends, the power to detain for long periods of time—apply to those offences.
My amendment seeks to delete the last one from that list of eight offences. This is a matter which was raised earlier in Committee, and the noble Lord, Lord Elton, said that it was something at which he would look again although he did not hold out very much prospect of meeting the points which were being made at the time. The matter did not arise on Report and so I now wish to raise it.
The list is undoubtedly a list of serious offences if one goes from one to seven. It comprises: treason, murder, manslaughter, rape, kidnapping, incest with young girls, buggery with young boys and buggery without consent—which is equivalent to homosexual rape—and then we get:
"Indecent assault which constitutes an act of gross indecency".
Gross indecency is one of those delicate euphemisms which occur in our law. Nearly always in our law it means sexual contact between homosexuals. Gross indecency between men is the way in which unlawful homosexual acts are categorised in our law. However, it does not necessarily mean that, because—as I am sure we shall be told—it can include sexual contact between men and women or between adults and children. But to the police and to the public generally and to those who will be operating this Act it concerns essentially homosexual offences.
So those who are suspected of an indecent assault, which is suspected to involve this concept of gross indecency, may be subject to the severe restrictions of the Bill. In my submission this eighth category is right out of line with the other seven. Indeed, the offence of indecent assault has been included in the research paper of the Home Office as a less serious sexual offence. In the Home Office Research Study No. 54 about sexual offences, indecent assault is a less serious offence. The statistics show that it is only visited with imprisonment in a small minority of cases even if committed against young children.
If this offence is kept as part of the serious offences the effect will be to give a weapon of harassment to police officers against homosexual men. There is already ample evidence that police officers in many parts of the country are grievously prejudiced against homosexuals. There are many instances of arrests taking place in homosexual clubs and of homosexuals being taken from public lavatories and the like.
When people are arrested under this Bill and there is any basis for the police officer to say, "I suspect that there has been some indecent assault involving some act of gross indecency", then the rights which are given by the Bill to most people who are not committing serious offences are taken away.
I know that the matter has been raised with the Home Office, particularly by the Campaign for Homosexual Equality and I have a letter dated 17th August from the Home Office which says that Ministers will be considering whether the inclusion within the category of serious offences of offences involving serious sexual abuse could be effected in any better way. But we do not have any response or any amendment put forward by the Government. This so-called category of serious offences undoubtedly includes offences which would not be regarded as in the same category of seriousness as the other seven. It will be a weapon of harassment and I ask your Lordships to support the exclusion of this category from the Bill. I beg to move.
Lord Elton: My Lords, the offences listed in paragraphs 6 to 8 of Schedule 5 were added on Report in another place to the Bill as originally drafted, after it was pointed out by the Opposition in Standing Committee that the definition of "serious arrestable offence" in what is now Clause 115 did not adequately cover serious sexual assaults or sexual abuse, particularly sexual abuse of children. Honourable Members on the Opposition Benches sought what they termed a:
"wider approach than that proposed by the Government"
and suggested that an arrestable offence should be serious if it led or was likely to lead to serious damage to the physical, mental or emotional health of the victim.
While we had reservations about the language in the amendment then tabled, we accepted that if one looks at Clause 115, one will see that it does not fit a number of serious sexual offences which do not necessarily involve violence. The most callous and gross sexual abuse of a child might well not lead to any physical or indeed even any lasting emotional trauma, simply because of the tremendous resilience that many children fortunately possess. Equally a bad indecent

1235
assault on a person of any age can be at least as bad as a rape. Some very horrifying events do unfortunately take place; but it is very questionable whether, however bad such an assault might be, it would necessarily be caught by Clause 115 as drafted.
I am sure that your Lordships will agree that on any common-sense reckoning serious sexual offences should be capable of attracting the powers reserved to serious arrestable offences. It may be particularly important in sexual cases to have the power to take body samples to provide firm scientific evidence to support allegations or to disprove them. We consulted the Law Society about the best way of bringing serious sexual offences within the definition. These consultations led us to the view that it would be better to expand Schedule 5 rather than Clause 115 itself, as this ran the risk of introducing an undesirable degree of uncertainty and subjectivity as the concept of "emotional health" proposed in another place is a difficult one to embody in legislation, and particularly legislation of the present kind.
This then is the origin of paragraphs 6 to 8 of Schedule 1, the last of which this amendment would omit. Much unnecessary anxiety has been caused among homosexuals by a failure to distinguish the separate offences of indecent assault and gross indecency. The offence under Section 13 of the Sexual Offences Act 1956 of committing an act of gross indecency with another man is not an arrestable offence in the first place unless one man is over 21 and the other is not. If it is not an arrestable offence it obviously cannot be a serious arrestable offence. So the reference to gross indecency in paragraph 8 does not have the effect of drawing in the kind of cases of indecency mentioned, for instance, by the noble Lord, Lord Hutchinson, in Committee when we were debating Clause 25. I hope that I can keep that firmly on the record. The main point to be clear on at the outset is that in order to get into Schedule 5 in the first place an offence has to be indecent assault: the question then is whether or not it is an assault of a grossly indecent kind.
However, I am aware that concern has been expressed about the fact that an act may become an assault not because consent has been withheld but because one party to it is under the age at which he can in law give consent. So, it is argued, a relatively minor offence could become an indecent assault constituting an act of gross indecency simply by the virtue of the ages of the participants. It is further pointed out that relatively few indecent assaults attract an immediate custodial sentence at all. Here I echo what the noble Lord said.
I understand these anxieties, but I do not believe that they are justified. Our aim in paragraph 7 was to distinguish minor indecent assaults—I gave the example in Committee of the friendly but unwelcome pat on the behind—from much more serious and dangerous abuse, such as penetration by a bottle or other object. Now the Criminal Law Revision Committee has only recently reported on the law on sexual offences, and looked carefully at the question of whether the offence of indecent assault should be divided into two degrees of seriousness, precisely in order to reflect the wide range of circumstances in
1236
which the offence can be committed. The committee were unable to make a firm recommendation. This is a pity from our point of view, but it does not remove the need to devise some dividing line for the purposes of the present Bill. The question is whether the expression:
"indecent assault constituting an act of gross indecency"
draws the line in the right place. I believe that it gets as close as reasonably possible in the Bill as at present drafted.
The terms "assault" and "gross" in relation to the indecent act which it involves, taken together pick out a range of activity in relation to the sexual abuse of young people which brings these offences into a category which justifies the use of the reserved powers, as the Royal Commission orginally intended. It may be that an act becomes an assault not because the victim withholds consent but because he or she is too young to give a consent which is valid in law. But the whole purpose of setting an age in law below which consent cannot be given is to protect the young from sexual abuse and exploitation. So long as Parliament judges it right to maintain this position, then it must follow that sexual interference with those under age constitutes an assault. If it is accepted, as I believe it must be, that the buggery of a young boy is an offence which rightly belongs in Schedule 5, then it makes no sense to exclude from the schedule cases in which not a member but a bottle is employed. In other words, the offences in paragraphs 6, 7 and 8 can be of equal degrees of gravity; and in context I am sure that paragraph 8 will be interpreted by all concerned in a way which is consonant with paragraphs 6 and 7.
I have sought to do two things. The first was to give some reassurance to people unnecessarily alarmed by the statute as it is intended, and the second is to give an answer in relation to the next letter which the noble Lord was expecting from the Home Office. The answer to the question posed is that our conclusion has been that there is no better way of covering serious sexual abuse than the formula in the Bill. No outside body has come up with a better one. We do not think that the noble Lord's proposal itself is better. I hope that this debate has performed a useful function.
Lord Gifford: My Lords, I am very grateful to the noble Lord, Lord Elton, for the fullness of his answer. He has recognised that there have been and legitimately still remain anxieties about the definition of this clause. It troubles me that he is in effect saying that this is an approximation to some ideal definition, but it is not an ideal definition, and that there are alleged offences which could automatically be treated as serious according to the Bill as now drafted which should not be so treated. We shall have to watch it.
Overshadowing this debate and the representations that have been made is a real fear of the conduct of certain police forces in relation to homosexuals; that is the abuse of power, of which there is abundant evidence, and that is what we must watch. We shall not get the Bill right at this late stage on a Third Reading. On the basis that we have had a full debate and that in future we shall have to watch how this provision works, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn

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Schedule 6 [Consequential amendments]:
Lord Elton Lord Elton moved Amendment No. 169:
Page 116, line 35, leave out ("or as a conductor").
The noble Lord said: My Lords, Amendments Nos. 169, 171 and 178 are drafting amendments to Schedules 6 and 7.
[Amendment No. 171 printed earlier]
Amendment No. 178: Schedule 7, page 125, line 18, leave out ("91(1)") and insert ("9(1)").
I beg to move Amendment No. 169.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 170:
Page 117, line 14, at end insert—
("Dogs (Protection of Livestock) Act 1953 (c. 28).
In the Dogs (Protection of Livestock) Act 1953 the following section shall be inserted after section 2—
"Power of justice of the peace to authorise entry and search.
2A. If on an application made by a constable a justice of the peace is satisfied that there are reasonable grounds for believing—

(a) that an offence under this Act has been committed; and

(b) that the dog in respect of which the offence has been committed is on premises specified in the application, he may issue a warrant authorising a constable to enter and search the premises in order to identify the dog.".").

The noble Lord said: My Lords, at Report I promised your Lordships, and particularly my noble friend Lord Stanley of Alderley, that I would bring forward an amendment which would permit a magistrate to issue a warrant in respect of a dog suspected of worrying livestock. There was support from all sides of the House for the case for such an amendment. I therefore optimistically commend this amendment, which has that effect, to your Lordships.
Lord Stanley of Alderley: My Lords, I should like to thank my noble friend for bringing forward this amendment. Although it was suggested to me by one party that it might be better to allow the police officer to inspect more fully, I feel that the sight of a police officer putting a truncheon down a dog's mouth to look for bits of sheep is more worthy of a cartoon than common sense. I should therefore like to thank the Government for this valuable if minor amendment.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 171:
[Printed earlier.]
On Question, amendment agreed to.
Lord Elton Lord Elton moved amendment No. 172:
Page 118, line 7, at end insert—
(" . In section 43(5) of that Act (central service) after the word "constabulary" there shall be inserted the words "or with the Police Complaints Authority".").
The noble Lord said: My Lords, the Police Act 1964 entitles police officers giving what is there defined as "central service" certain rights, and of these the most important are the right to return to their forces afterwards and certain rights in regard to pay and promotion in their absence. These central service
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rights are enjoyed, for example, by police officers appointed to assist Her Majesty's Inspectors of Constabulary.
Your Lordships have agreed that the Police Complaints Authority shall be served by, among others, serving police officers. The purpose of the amendment is to make it clear that service with the Police Complaints Authority also will be central service and attract to this service the central service rights without which I doubt whether we should have many police officers available for the work. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved amendment No. 173:
Page 118, line 46, at end insert—
("Child Care Act 1980
.In subsection (1)(b) of section 73 of the Child Care Act 1980 (provisions as to places of safety etc.) for the words "section 29(3) of the Children and Young Persons Act 1969" there shall be substituted the words "section 38(7) of the Police and Criminal Evidence Act 1984".").
The noble Lord said: My Lords, this is a consequential amendment which updates a reference in the Child Care Act 1980 to take account of the detention provisions of the Bill. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved amendment No. 174:
[Printed earlier.]
The noble Lord said: My Lords, this amendment was spoken to by my noble and learned friend the Lord Chancellor with Amendment No. 123. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved amendments Nos. 175 to 178:
Amendment No. 175: Page 121, line 7, leave out ("purpose") and insert ("purposes").
[Amendments Nos. 176 to 178: printed earlier:]
The noble Lord said: My Lords, Amendments Nos. 175 to 178 were variously spoken to by my noble and learned friend and myself at various stages. I therefore beg to move them en bloc.
On Question, amendments agreed to.
2.11 p.m.
Lord Elton: My Lords, I beg to move that this Bill do now pass.
We are now, I might almost say at last, approaching the end of our work on this Bill. I do not propose to prolong our proceedings with a lengthy speech on a subject upon which your Lordships are already not just familiar but expert. It is an important Bill affecting the liberty of the individual and the ability of the police to bring criminals to justice in a way which commands public confidence. Other Bills may have given rise to longer sittings and more numerous amendments, but few can have been subjected to such a thorough and searching review. Your Lordships could not expect Her Majesty's Government to be content with every amendment and the fate of them will be for another place to decide. But in general your

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Lordships' scrutiny has, I believe, benefited the Bill and important improvements have been made to it as a result of our debates.
I would weary your Lordships if I attempted to recapitulate all of them. But it may be worthwhile to recall just a few. The Bill now requires a code of practice for stop and search to be issued. A draft has been published, and has received favourable comment. At the suggestion of noble Lords opposite we have removed references to "a pattern of crime" from the clause governing the setting up of road checks. The provisions in Part II, which govern the seizure and retention of evidence of crime, have been clarified. The reserve power to arrest a convicted offender to take his fingerprints has been narrowed, so that every person who is convicted of a serious offence and whose fingerprints are not already on record for that offence will have a period of grace to provide his fingerprints before a power of arrest comes into play.
Chief officers of police will be required to designate police stations with sufficient accommodation and staff for the accommodation of suspects; and it will be possible for arrested persons to be detained at smaller police stations only in defined circumstances, and only for a short period.
One of our most important debates concerned the concealment of drugs in body orifices. The Bill now permits an intimate search for hard drugs intended to be supplied to others: an evil crime which your Lordships have decided justifies the use of this distasteful power in strictly defined circumstances. But such searches will not be carried out by police officers; and I believe that the Bill, in what is a very sensitive and emotive area, now strikes a fair balance between the need to curtail the hard drug menace and the integrity of the human body. Indeed, I hope that the mere fact that the Bill preserves the power to search in this way for this purpose will actively deter the internal concealment of hard drugs—which is of course a very dangerous practice for the person who does it anyway—so that the powers will need to be invoked only very rarely.
Part IX of the Bill, which deals with complaints and discipline matters, has been subjected to very detailed scrutiny and some aspects have given rise to keen debate. It is a significant part of the Bill, reflecting the importance that the Government attach to a system of complaint investigation which carries public confidence, and to ensuring a fair disciplinary system for accused officers. We have made a number of changes to clarify the effect of the provisions and the concepts involved. In particular, the Police Complaints Authority's considerable powers have been made more explicit and its scope for action has been extended.
We have made some very worthwhile improvements. Some were the idea of noble Lords opposite; others were suggested by noble friends and others were put forward by noble Lords from the Cross-Benches: some were even thought of by Her Majesty's Government.
The provisions of the Bill will lead to more accountable policing, both in terms of the general accountability of the police to the public, and, more
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specifically, the accountability of police officers to their superiors. It presents a series of very valuable opportunities for management at all levels of the police service to review in detail the resources available to them—powers, men and equipment—and the ways in which these may most efficiently and most effectively be deployed for the benefit of our society.
The next task will be to ensure that the Bill works in practice, and a major training effort will be needed, not just to familiarise all officers with the details of the Bill but also to bring out and emphasise the principles and philosophy which it embodies. I well understand the concern which some police officers have expressed that there is much in the Bill and the codes of practice which is new and will have to be assimilated by the service. In consultation with the Association of Chief Police Officers we are now preparing standard training packages for the use of all provincial forces either on an in-force or regional basis. Similar packages are being prepared by the commissioner for the Metropolitan Police and this work is well in hand.
Every serving officer will need to become familiar with the Bill's provisions, since they will permeate every aspect of his work. While reform of the law in this area is badly overdue it would be a mistake to risk its success for the sake of a few months when there is an opportunity to put across not only the provisions of the Bill but also the philosophy underlying them: the philosophy of the Royal Commission's report. This clearly has a bearing on the date of implementation; so also does the need of the legal profession and other practitioners to assimilate what is in the Bill.
Because of the exceptional pressures to which the police service is at present subject, in terms of both available manpower and resources, we therefore think it sensible to plan for an implementation date as far as the bulk of the provisions of the Bill are concerned at the end of 1985. Different considerations apply in the case of Part IX and here the date to which we are working is March next year. We also propose to bring other provisions into effect at an early date, principally those concerned with consultation between the police and the local community. We have already debated the special considerations concerning the tape recording of police interviews with suspects and I need say no more about that.
I believe that the process of assimilation and the lessons it will teach about the way in which resources are deployed will be seen in the future as a major asset both in the effective management of the police service and in meeting the overall objectives, which I am sure all noble Lords will support, of developing more accountable and more acceptable policing in this country. That is the intention of the Bill. I welcome your Lordships' help in making it more effective for that purpose than it was when I brought it to your Lordships' House. I beg to move.
Moved, That the Bill do now Pass— (Lord Elton.)
2.19 p.m.
Lord Elwyn-Jones: My Lords, it is a sombre thought that this Bill has been before Parliament for over 18 months. The Government have taken us on this prolonged marathon and it may well be that it has not finally reached its end yet.

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I should like to begin by saying how grateful we are for the courtesy, the care and patience which have been shown by the principal bearer of responsibility on the Government side, namely, the noble Lord, Lord Elton. Indeed it was fitting that his services should have been so suitably recognised. With him in the battle have been the noble Baroness, Lady Trumpington, the noble Lord, Lord Trefgarne and, from time to time, powerful artillery has been directed at us from the Woolsack.
My Lords, at the end of the day, I regret to say that this Bill, which began as unloved, remains unloved. What troubles me about it is this. On Second Reading I ventured to express the view that to be effective in their battle against crime the police need the trust and support of the whole community. I fear that many of the provisions of this Bill will dispel and diminish that trust. In recent years few Bills have engendered such widespread opposition as this Bill has in well-informed and multi-party quarters and across the board. When one recollects and looks at some of the provisions in the Bill, such as the powers in respect of stop and search and of road block, and the power to enter into and search premises of innocent people on warrants issued after a private interview at his home between a Justice of the Peace and a constable, I venture to think that those provisions in the Bill are calculated to cause the maximum ill-will from the community instead of the goodwill that we should be seeking to sustain.
I will not now traverse the provisions in regard to detention. The 96-hour provision remains a scandalous provision, in our view on this side of the House. What has been most disappointing is the treatment in the Bill of the Royal Commission Report, in its broad handling and effect. The balance of the Philips Report has been tilted in favour of authority and the police and against the liberty of the subject. There are deleciate matters, such as the requirement of tape recording, to which the Royal Commission attached such great importance. That, for instance, is at the very least in abeyance, and our efforts to make its provision a condition precedent on the bringing in of these powers has failed.
So I regret the failure to bring in the confidence of the community and to legislate in an atmosphere where the challenge of increasing crime is so great, and the failure to enlist the goodwill and support of the community towards the police is, I fear, a very serious fault of this Bill. It has disclosed almost an insensitivity on the part of the Government to the need to cultivate the essential element of goodwill towards the police authorities—who, heaven knows, have a hard enough task—and the community which should have been the principal aim of the Bill.
We have done our best to improve matters, and I concede, of course, that the Government have given way to the opposition in various parts of the House—and for that we are grateful. We regret that more was not done by way of meeting what we thought were the essential points of principle that were raised and the important safeguards that were raised. However, we can take some comfort from the fact that your Lordships' House did at any rate something to repair some of the worst horrors that came to us from another place. At least we can take comfort from that.
Lord Hooson: My Lords, few can underestimate the importance of this Bill and, at this juncture, my first pleasant task from these Benches is to congratulate the noble Lord, Lord Elton, and his team for the highly sympathetic way in which they handled their task. It is right to say that we always found him and his team extremely approachable on these matters and, although we had, and still have, basic disagreements of principle with him, he was always extremely courteous in the way that he received our representations. We not only enjoyed the heavy artillery when it was directed in open battle, as it were, but from these Benches we also enjoyed the staccato bark of the aside of the machine gun as well.
Having said that, I should like to advert to the point that the noble and learned Lord, Lord Elwyn-Jones, raised on the long passage of the Bill through this House. I should like to raise a question about our procedure with regard to this Bill. It seems to me that the Bill has set a very bad precedent. This is the Third Reading of the Bill, and we have had two days of amendments, the bulk of which, to be fair, were Government amendments. It seems to me to suggest that, after such a long passage, this Bill was not very well thought out in the first instance.
Secondly, it seems to me that the Report stage must have been very much rushed. I believe that in the future we should at least try on all sides to ensure that we deal with these matters we have dealt with here either on Committee or Report stage, and that at the Third Reading amendments should be restricted very much more than has been the case during the passage of this Bill: otherwise we are all under constant pressure by pressure groups who, quite rightly, are greatly interested in these matters, to continue battles right up to the very last ditch. For a revising Chamber like this House, I am not at all sure that that is a wise precedent to follow.
With regard to the Bill itself, as was said on Second Reading, there are many things that we greatly welcome. There are other things about which we have the most extreme doubts. As the noble and learned Lord, Lord Elwyn-Jones, said, it is right that the relationships of the police to the community is the most important feature of all. I would echo the words of the noble and learned Lord, Lord Scarman, when he said that whether or not we become a police state largely depends upon the police themselves. It is the standard of recruitment and the integrity of the personnel in the police force which is of the greatest possible importance in a democracy such as ours. Let no one be under any illusion: an enormous power is vested in the police forces of this country, and how that power is exercised is of supreme importance.
Perhaps by its very nature Part X of the Bill, which deals with the relationships between various police forces and the community and the means whereby chief constables can, as it were, bring into being various organisations to improve the relationship between the community and the police forces, had comparatively little attention; but potentially it is very important.
I think it is quite right that the Government should allow a year to go by before the main provisions of this Bill are brought into effect, because a great deal of

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assimilation has to be done by the police officers and indeed by the lawyers who will have to interpret the Bill. I think we should understand that from the police point of view there is a great deal to be learnt before they can effectively bring the provisions of the Bill into effect.
I hope that the experiment which is contained in this Bill, of having various codes of practice, proves to be fruitful. A great deal depends on how those codes are to be interpreted, the importance attached to them by chief constables and so on. We have heard arguments throughout the Bill concerning the importance of not including very important provisions in legislation but rather leaving them to the codes of practice. In principle I rather support that view, but I hope that in practice the confidence that we as a House have reposed in that view is found to be justified.
Lastly, I should like to say this. I think this House is seen at its best when it is revising the provisions of this Bill. I echo the view of the noble and learned Lord, Lord Elwyn-Jones, that a great deal of the unacceptable material we received from another place has been changed and modified here. The passage of the Bill through this House shows the value of this House as a revising Chamber.
2.30 p.m.
Lord Hutchinson of Lullington: My Lords, may I add one word from the other half of the Alliance and also in the name of my noble friend Lord Donaldson? I, too, pay tribute to the Minister, listening to whose courtesy, ability and industry has been a pleasure and an education. If I may say so, it has also been a salutary education to have been reminded periodically from the Woolsack that your Lordships' House is not the Central Criminal Court.
Lord Elwyn-Jones: Touché, my Lords.
Lord Hutchinson of Lullington: My Lords, when this Bill comes to be considered and used in the courts thoughout the country, my own view is that it may well be that the codes of practice will be found the most valuable part of it. They go a very long way to guaranteeing the proper rights of the individual.
I must express regret, above all other parts of the Bill as far as those of us on these Benches are concerned, that the provision of legal advice to those who are held incommunicado for up to 36 hours in police stations was not acceptable to the Government. That provision would have been of the greatest possible benefit not only to those who work in the courts but to the police and the judges, because it would have removed at a sweep the arid controversy which continues in the courts and takes up so much of their vaulable time.
Lord Inglewood: My Lords, now that we are nearly at the end of this marathon I would not wish to add more than a few sentences, but I should like to make two points as briefly as I can. The first is that we are imposing a very great burden on police constables under the provisions of the Bill, particularly the early parts of it. It is clear that the police constable in the course of his duties will have to make a great number
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of decisions without warning—often small decisions which can develop suddenly and without warning into bigger incidents. Therefore, we must see that there is a great responsibility on those who supervise the young—not least the sergeants—to see that they continue to educate the young men to appreciate that common sense is the great basis of good policing in this country.
Many people in this country just do not appreciate, as we all do, what sort of responsibility comes the way of many police constables, including the young constables, and I want to mention one incident which I saw in America only three weeks ago. I was at the edge of a big city with two men in a vehicle which one could describe as being ready to answer 999 calls. We answered a call the basis of which was trouble concerning a knifing. We came to find an awful mess on a pavement. The two constables had to take responsibility to see that there was an ambulance and they tried to deal with the people who seemed to come from nowhere all around us, and then they tried to gain what information they could from any person likely to be a reliable witness. When another back up came, we went off after the offender, and I am surprised to say that we actually found him. He shut a door in our faces, and then arose the question of whether we had to kick in his door, which was private property. The man suddenly opened the door and the next decision for us was whether the constable had to impress on the offender that he was to come with us as a volunteer to the police station or whether he would come under arrest. Had he still got his knife? We took him as a volunteer to the police station, and there we got no further than the charge room sergeant who impressed on us that there was insufficient evidence. The story came to an end so we went to look for supper, which we thought we deserved. That sort of thing happens with the police every day and I would not like to enlarge or exaggerate on the particular incident.
My second point relates to Clause 105, a most important clause. This clause provides for arrangements for obtaining the views of the community. Both local people and the police must play fair. The police are inclined to be too secretive. They could have done all this on their own in previous years, which happens in some countries, though not in all. I have seen it working well in some countries.
This is part of the gap which exists between the police and local people to which reference has already been made this afternoon. Duties relating to cars, drugs, education and various monitoring functions are performed by police constables. Every effort must be made by both sides to narrow this gap which is such a sad feature of our society today.
We ought to give to those concerned a little time in which to get the Act working its way through the various procedures which have to be set up. There ought to be a debate on the progress made under the Act—perhaps usefully next July. But sooner or later we shall need to debate the provisions of this legislation.
Lord Gifford: My Lords, at the end of these long debates, how little of substance has been conceded by the Government! The Bill came to us with new and increased powers of stop and search, search of

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premises, arrest, detention and intimate search. Despite the attempts which we have made to bring them under control, they have emerged virtually without change. We have been told that they are all needed in the fight against crime. Whenever suggestions have been made to impose controls on the abuse of these powers the vision has been conjured up for us of some ghastly crime, either real or imaginary, as though ghastly crimes had never been solved under the powers which already exist.
In order to judge whether these powers are needed we need to look at the real world and see what is going on. While we have been debating the Bill the most extraordinary powers have been assumed during the course of the miners' dispute. We have seen a de facto national police force, subject to no control; the convoying of thousands of police officers around the country in a kind of military operation; the institution of a system of road blocks so vast that it was possible for the Nottinghamshire police to report that 164,000 people had been stopped at road blocks in their county alone over a period of six months. Perhaps not surprisingly, given the military nature of the operation, we have seen outrageous acts of violence and provocation, particularly during the early months of the dispute, long before missiles were thrown and serious violence inflicted by the other side. All this has taken place in a wholehearted endeavour to assist one side in an industrial dispute.
I am in favour of a police force. I believe that this country desperately needs a police force, but it needs one which is impartial and accountable, not a police force which is one-sided or oppressive. We do not need more powers. We need more controls. We need, first, a proper accountability of police forces to elected police authorities, secondly a truly independent procedure for the investigation of complaints, and, thirdly, the right of access by all suspects to their lawyers. This right was denied during the passage of the Bill. Fourthly, there is the automatic tape recording of all interviews between suspects and the police, which may one day happen but which has been shamefully long delayed. Fifthly, there is the exclusion of improperly obtained evidence from the courts. That we got, through the amendment of the noble and learned Lord, Lord Scarman, which was passed. If the amendment passed this morning is to be reversed, as is rumoured, in another place, by the Government's built-in majority, there will be immense anger.
The Bill has not given us the controls that are needed. It has given the police the powers they think that they need. I fear that police with too much power and under too little control could become an oppressive police; that is not something which freeborn English people ought to accept.
Lord Renton: My Lords, the noble Lord, Lord Gifford. would not expect me to follow the comments he made when he referred to the police action in the miners' strike. Surely the terrible mob violence and intimidation, and the damage that was done, were matters which called for action on the part of the police. The noble Lord said that he wanted a strong police force; I want strong police forces, and that is a different matter.
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I was surprised when the noble and learned Lord, Lord Elwyn-Jones, whose contributions to our debates have been so valuable and wise—even when one did not always agree with them—remarked that this was "an unloved Bill". If I may borrow an expression used by my noble and learned friend the Lord Chancellor today and on a previous occasion, I believe that this Bill will help more to secure the conviction of the guilty and the acquittal of the innocent.
So far as police powers are concerned, it is true that in some ways they are strengthened—I think rightly so—but they are also restricted in various ways in which they were not restricted before. As my noble friend Lord Inglewood has just pointed out, in the public interest fresh obligations are being placed upon the police by this Bill. That, too, is on the credit side. Indeed, in my opinion the Government deserve great credit for the Bill.
I consider that your Lordships' House also deserves great credit; in this I agree with the noble Lord, Lord Hooson. We have been able to improve the Bill considerably during our extremely thorough scrutinies of it. It is significant, especially for those of us who, like the noble and learned Lord, served in another place at one time, to find that in this House we were able to deal with nearly 200 amendments on Third Reading, whereas the procedure of another place would not have allowed that to be done at all.
I shall make a brief comment about the drafting. It has been a difficult Bill to draft, but for the most part it has been well done. However, some of the drafting—no doubt upon instruction—has been unnecessarily detailed and complex, and that I regret. Then, by contrast, we find that Clauses 9 and 26 repeal masses of provisions which are unspecified but which the Royal Commission listed, and which could have quite well been listed in a schedule.
I should like also to pay great tribute to my noble friend Lord Elton. His staying power has been terrific, and so has his patience. We are indebted to him for his clarity of thought, because although he is a layman and does not have the doubtable advantage of being a lawyer, he has mastered the intricacies of this Bill in a most remarkable way. Finally, we are grateful to my noble and learned friend the Lord Chancellor for his learned but spirited interventions on parts of the Bill.
Baroness Ewart-Biggs: My Lords, I should like to add just a few words. My major concern during the passage of the Bill has been to emphasise that the new powers accorded to the police under the Bill will fall heavily on young people. I think that possibly that has not been emphasised enough at any point. Indeed, the new powers of stop and search and of arrest will undoubtedly affect many young people in this country.
I reiterate once again that I do not think that the safeguards for juveniles, placed as they are in the code of practice, are sufficiently strong and will give sufficient confidence to those young people. For that reason I very much fear that the all-important relationship of trust and understanding between the police and young people may be further undermined by some of the provisions in the Bill.
I can only hope that individual members of the police will take it upon themselves to re-create a

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climate of trust with the present younger generation—a younger generation who, after all, has more than its fair share of difficulties in the form of unemployment and the breakdown of the family structure. If that trust cannot be re-established it will surely only mean the further alienation of young people from the society in which they live and which badly needs them.
2.46 p.m.
Lord Mishcon: My Lords, the courtesies of your Lordships' Chamber are well known. They are very pleasant and civilised, as the noble Lord, Lord Shinwell, said only yesterday at a very moving ceremony. I only want to add to those courtesies which have already been voiced by my noble and learned friend Lord Elwyn-Jones by paying tribute to those organisations which have taken the Bill so seriously and given their specialist knowledge for the benefit of Members of your Lordships' House. With my noble and learned friend, if I may say so, in that context I think of Justice, the children's organisations, the mental health organisations and the National Council for Civil Liberties. I am sure that your Lordships will want to join me in paying tribute to those organisations for their endeavours in connection with the Bill.
There is another courtesy that one ought to observe at this hour, and that is not to repeat to your Lordships on this debate contributions that have already been made. I only want to associate myself with the doubts that have been expressed about whether the balance has not gone slightly wrong. When talking about balance I know that my noble friend Lord Gifford will permit me one courtesy, and that is to differ from him in the emphasis that he put on one side in matters that have caused all your Lordships, people outside and indeed the whole of the country the gravest anxiety. The police have an extremely difficult and unpleasant job to do. If I may speak individually, it is the belief of all leaders—be they leaders of political thought, the police force or trade unions—that they should see to it that violence and intimidation disappear from this country and are not encouraged by any source whatsoever.
Having said that, I want to deal with one further aspect which I do not believe has so far been adequately dealt with. Wherever the balance lies—and that has been a difference between the Official Opposition and others and the Government—the safeguards that are written into the Bill must be sacrosanct. The Government must see to it that what they have promised in regard to safeguards is indeed carried out.
There was a contribution made by your Lordships on the subject of tape recording. That is a most essential matter if we are really to have faith in the provisions of the Bill dealing with confessions. The question of the ability of the accused to see a solicitor was dealt with by the noble Lord, Lord Hutchinson, in his contribution, and therefore it needs no repetition from me, but your Lordships know how greatly any solicitor such as myself feels about a matter of that kind.
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There is only one other matter that I intend to burden your Lordships with. There is another promise that is not being carried out as well as it should be at the moment. I am going to quote, if I may, from the right honourable and learned gentleman the Home Secretary when he spoke on the Second Reading of this Bill in another place. He said this on 7th November 1983, at columns 33 and 34; he was referring to the right to consult a solicitor privately:
"To make this right effective arrangements are needed for solicitors to be available at all times when legal advice may be sought … The Government recognise that strengthening a suspect's rights in this way will place an extra demand on resources. We have made provision for this, thereby showing in a practical way that the new safeguards in the Bill are not a mere paper exercise. We are putting public money where our mouth is".
Whatever be the beauty or otherwise of the exploitation of the English language in that last sentence, one at least knows what the right honourable and learned gentleman was intending to say.
This has not happened. I am instructed by the Law Society with the following facts. The Home Secretary's department have been co-operative; the police have been co-operative, but, whatever be the artillery fire that comes from the Lord Chancellor and his department, I am afraid there has been no contribution such as was sought from that department with any sort of effective armoury whatsoever. I have to refer to the following four facts, of which, as the noble and learned Lord knows, I did give him notice because I thought it was only fair that I should do so.
The first one is this, remembering the Home Secretary's words:
"In January 1984. the Law Society realised that it would be unable to make an accurate estimate of the demands for legal advice under the scheme without carrying out some experiments. Agreement in principle was quickly reached with the Home Office and Her Majesty's Inspectorate of Police (and later with Chief Constables) about the desirability of such experiments. Such experiments could not, however, be run without a modest budget and the Law Society accordingly applied to the Government for the necessary funding".
I stop there. Your Lordships will remember that elegant last sentence of the Home Secretary. To continue:
"It was, however, not until the end of July that agreement to provide the necessary funding was forthcoming from the Lord Chancellor's Department. As a result, the experimental schemes have had to be delayed until the beginning of 1985 with consequential delays to the planning of the whole scheme."
Secondly:
"In March 1984, the Lord Chancellor's Department was made aware that one of the options that the Law Society was considering was a central telephone service to handle requests for the duty solicitor from the police (and possibly friends and relatives, too). This could prove to be the best way to contact a duty solicitor and it might even be possible to provide one telephone number for the whole country. In May 1984 it became clear to the Law Society that some modest funds would be needed to commission a feasibility study from a company which would appear to be in a position to provide such a service. These funds have still not been forthcoming".
The Lord Chancellor's department has only very recently made other proposals.
"The delay"—
the Law Society says—
"has been most unfortunate as the Society does not yet know whether the centralised computerised telephone service will be feasible—and if it is not, it will be back to the drawing board".

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Thirdly:
"Since January 1984, the Lord Chancellor's Department has been aware that the Society has taken the view that friends and relatives of the suspect must have access to the duty solicitor, in addition to arrangements which are made for the police to contact the duty solicitor on behalf of the suspect.".
"There has been little indication that the Lord Chancellor's department appreciates the importance of this point, in spite of the experience of the very few existing voluntary 24-hour schemes, which is that the vast majority of calls to see a suspect at a police station come from friends and relatives, and not from suspects themselves".
Lastly, I say, on Law Society information given to me, that,
"The Society's view is that there must be incorporated in the body of the scheme some provision for payment for publicity to inform the public of the existence of the 24-hour scheme. Again, there has as yet been no recognition by the Lord Chancellor's department of the importance of this point".
I did say "lastly", but I also ought to say, finally, that there has been very little movement in regard to the agreement of remuneration for the duty service that is supposed to he a 24-hour service where some solicitors may, of course, be called out in the early hours of the morning.
It is with great regret that I have had to bring these matters to the attention of your Lordships. But it seemed to me, on the passing of this Bill, that your Lordships would want to know that the Government's open declaration of this particular, important safeguard is going to be matched by proper money supply in order to back it. I think that your Lordships would want to know that the happenings so far have led not to joy but to disillusionment in the Law Society, which has to administer this essential scheme.
The Lord Chancellor: My Lords, I am not intending to wind up the debate; my noble friend Lord Elton is the more appropriate Minister to do that. However, in view of what the noble Lord, Lord Mishcon, has just said, I think that I should defend the record of my department on the specific matters that he has raised. The noble Lord raised five points. I propose to deal with them serialim.
The first point had to do with the funding for an experimental 24-hour scheme designed to establish the extent of demand for the new service. The complaint was that it was agreed by the department only at a very late date. I think that I must say that although the noble Lord. Lord Mishcon, was perfectly correct when he said that he had given me notice of his intention to raise this question on the Motion that the Bill do now pass, this is the very first time that anyone has brought this, or any of these points, to my personal attention.
The facts are, I believe, that the Law Society approached the Home Office for funding for the research project that they had in mind, submitting proposals about which the Home Office had serious reservations. On the basis of revised research proposals submitted to the Government on only 6th July, the Lord Chancellor's Department agreed to provide the necessary funding on 26th July; that is to say, 20 days later.
The second point raised by the noble Lord, Lord Mishcon, related to a central telephone service. The department is concerned to see that, on the grounds of
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value for money, the arrangements will not be more elaborate than necessary. It has therefore been agreed with the Law Society that the possibility that there are alternative, more suitable options should be investigated. This is in progress.
The third point raised by the noble Lord, Lord Mishcon, concerned the suspect's friends and relatives being given access to duty solicitors under the scheme. I am not sure that I fully understand what this means. Under the Bill the suspect himself will, of course, be given the right to see a solicitor, though existing duty solicitor schemes have usually shown that the first contact is frequently made by a friend or relation. Allowing both the suspect and his friends and relatives such access might obviously lead to confusion. The answer may very well lie in recognising the interest of friends and relatives in knowing what is being done. But that is hardly a matter for legislation.
The fourth point raised by the noble Lord was totally new—totally new even as between officials. It was that there must be provision for adequate publicity of the new scheme. Full consideration will be given to the need for publicity in the light of the results of the experimental schemes.
The fifth point, which is obviously a somewhat delicate one for both of us, relates to adequate remuneration for solicitors taking part in the scheme. Discussions are taking place between the Lord Chancellor's Department and the Law Society. In particular, consideration is being given, in consultation with the Treasury, to the need for standby payments and hourly rates which reflect the unsocial hours in which the work is expected to be performed. At this stage of course I cannot give any direct undertakings. I can only say that the Government are still committed to the introduction of the schemes and that we wish to work as amicably as possible with the Law Society. I certainly do not wish to indulge in recriminations, but I thought that the Law Society's statement went a little further than the facts really justified.
3.1 p.m.
Lord Elton: My Lords, in bringing our proceedings to a close I should like to start on this side of the House by thanking my noble friends on the Front Bench and on the Woolsack for their very doughty performance. Without their support I do not think that we should have got anywhere near where we have.
I should like to briefly pick up a few points that were made by your Lordships in this debate. I gladly recognise my noble friend Lord Inglewood's recognition of the additional burdens placed on the police by this Bill. I hope that in my opening speech I reflected our awareness of that and the need for time before implementation to enable them to discharge their new functions properly.
The central point of interest that struck me in this debate was the speech by the noble Lord, Lord Gifford, because he emphasised, in ways that others have not, what I regard as a rather sideways view of the Bill. As my noble friend Lord Renton has rightly said, new increased powers for the police are generally welcomed by a public which is much concerned by present disorders and illegality in public conduct. But

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if one is going to draw attention to them then one really must also draw attention to the new increased protections that balance them. Noble Lords seemed to keep forgetting them and that is why noble Lords on the Alliance Benches, for instance, can start speaking of the Bill as if it departs dramatically from the balance in the Philips' Report.
If the noble Lord, Lord Gifford, is seriously to make the misleading statement that we now have a de facto national police force not under control—and if he says it I suppose he must believe it—ought he not to welcome the new powers, for instance, of the newly constituted Police Complaints Authority? It is of course quite wrong to say that the police are now operating under national control or are taking sides in an industrial dispute. They are carrying out their duty as they always have and always will, I trust, to maintain the Queen's peace and to enforce the law.
The complaints authority is a new balance. The codes of practice are new. The noble Lord apparently also believes, but must not be allowed to persuade others, although nobody has gainsaid him in this debate, that the power to detain suspects without charge is new. It is not; it has existed for a very long time. What is new is the 36-hour rule after which such people must be brought before a magistrate and the fact that they may not be kept so incommunicado for more than 36 hours altogether, under any circumstances; that is new. Nor, as he would suggest, is the power of intimate search new. The severe restrictions we have placed on it are new. The power to institute road checks is not new. We have had it at least since my late and noble father put an amendment into the Road Traffic Act in 1934. But what is new is the code of conduct and all the passages in the Bill which regulate it. So can we dispose of the idea that this is a new and draconian Bill? This is a codification and a clarification, for the most part, of laws of which your Lordships' approve.
I do not want to go into too much detail at this relatively late stage. However, I think that it is worth saying a word in defence of the Government as regards tape recording. I notice that no previous Government did anything substantive to bring it in. It was, in fact, introduced by my noble friend the Leader of this House when he was Home Secrtary and, as I have said, we are well on the road to implementation. But perhaps I should say a word about the procedures and the numbers of amendments.
I acknowledge that the numbers of amendments tabled at Third Reading have been quite unusually high, and much higher than one would wish, particularly at the Third Reading of a Bill which is for the second time going through Parliament. But it is a product of our care that there have been so many
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amendments and it is also a product of the Government's openness to the suggestions that have come to them from Benches opposite.
Nearly 30 of the amendments actually embodied ndertakings—concessions—given by the Government to those elsewhere in the House who requested them. About 70 were drafting amendments made necessary by concessions and other changes made at earlier stages in the Bill. Many of the remainder result from the fact that this Bill affects closely and intimately the procedures of the courts and, more especially, the actual working methods of individual policemen of all ranks. Quite often if an amendment were brought in at one stage in your Lordships' House it was not until after the next stage that the police made clear to us some of the technical and unexpected effects which had to be recognised on the face of the Bill.
I regret that I had to bring so many amendments before your Lordships at this stage and I would like to thank your Lordships for the astonishing courtesy and patience with which you have taken them. I came into this Chamber at the beginning of the Third Reading debate almost with my collar turned up expecting brickbats and shouts of derision and rage from all quarters because of the length of the Marshalled List. Your Lordships forbore. I am most grateful. It saved time and in fact I think that your Lordships were right to recognise that much of what we were doing was what your Lordships had asked us to do.
I started on this side of the House; perhaps may I proceed from there to the other. I stated jotting down names of individuals whom I wanted to thank for their courtesy, patience, penetration, wisdom, forbearance and eloquence. I found the list so long that it had two disadvantages. One was that the reading of it would have taken much time and the other was that in direct proportion to the length of the list would be the indignation of anybody whose name did not appear on it.
I sincerely think that your Lordships have been good and patient workmen as regards this Bill. Your Lordships have said most kind things to me, most of them I secretly think undeserved. But I am glad to think that we have actually taken a long, complicated and important Bill through this House. We have discussed it without undue acrimony. We have made numerous changes of substance, some major, some minor. I believe that it goes back to another place in a better state that it came here. Your Lordships have spent much time, but it has not been time wasted.
On Question, Bill passed, and returned to the Commons with the amendments.
House adjourned at nine minutes past three o'clock.