Sitting of 7 June 1994

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

Internal Market: Strategic Programme
Lord Bruce of Donington Lord Bruce of Donington asked Her Majesty's Government:
Whether, in the Council of Ministers of the European Community, they are prepared to give their endorsement to the strategic programme of the European Commission Making the Most of the Internal Market (No. 4248/94) as requested by the Commission.
The Minister of State, Department of Trade and Industry (Lord Strathclyde): My Lords, the Internal Market Council on 16th December 1993 agreed conclusions which endorse the general approach of the Commission's strategic programme for the internal market.
Lord Bruce of Donington: My Lords, is the noble Lord aware that that is quite typical of the Commission's and the Government's attitude towards democratic parliaments? Even though the document concerned was endorsed by the Council in December 1993, it was only issued to this Parliament on 17th January this year. Will the noble Lord explain why we had no opportunity to examine the document requiring endorsement until after it had been endorsed?
Will the noble Lord further explain whether in any part of the document there are any measures which would assist British exporters in plying their trades in the usual way? Is it not the case that, despite the endorsement, the document as a whole is a lot of Commission waffle?
Lord Strathclyde: My Lords, I certainly cannot explain why the noble Lord and other Members of the House did not have an opportunity to examine the document before the Council. However, I shall certainly look into it and let him know. The noble Lord says that the document is "a lot of waffle". It is true that it is wordy and lengthy and it could have been more precise. But the reason why we generally endorsed its overall purpose is that it continues to encourage the completion of the single market, which will do more than anything else to help our exporters and indigenous industries.
Lord Peston: My Lords, I do not believe that there is anything between us on the desirability of pressing for the completion of the single market. What troubles many noble Lords is that we in this country seem to take our responsibilities and what we agreed to rather more seriously than our colleagues abroad. Without for one moment denying my noble friend's view that the document is full of waffle, the general question we have to ask Her Majesty's Government is whether we can do
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more to press other countries to recognise the commitment under the single market; that is, essentially to get rid of restrictive practices, particularly those connected with foreign trade. Almost ever)' day we read about other countries managing to protect themselves from freedom in the market. What are the Government doing in the matter? It is; quite separate from other matters, but it seems to me to be of central importance.
Lord Strathclyde: My Lords, I am glad that one of the areas where there was. not a lot of waffle in the document was precisely the one dealing with the noble Lord's question. We very much agree that action must focus on monitoring the operation of single market rules which is needed to ensure that single market measures are evenly applied and enforced across the Community, We agreed that that should include monitoring of quality of transposition of Community law into national law. The Commission commits itself to that in the paper.
In the United Kingdom the DTI has set up the single market compliance unit which exists to help British businesses which meet problems because single market measures are not sufficiently well transposed into the law of other member states.
Lord Stoddart of Swindon: My Lords, can the noble Lord say what there is in the document to assist British exporters to get rid of the £6,000 million per year overall deficit in trade with the EC? Every year £6,000 million is added to the already existing £97,000 million deficit which we have had with Europe since 1973.
Lord Strathclyde: My Lords, the best way for this country to create a balance of trade surplus is to vote against the Social Charter, to vote against parties that believe in a greater role for the European Community. That policy has been carried out by this Government and it is why the United Kingdom is the fastest growing country industrially in Europe in 1994, and I believe will be so again in 1995.
Earl Russell: My Lords, does the Minister agree that it might assist our exporters to the European Union if they did not have to listen to so many answers like the preceding one which portrays them as the enemy?
Lord Strathclyde: My Lords, it would assist exporters of this country if the noble Earl's party, the Liberal Democrats, believed more in British sovereignty, preserving British jobs and not surrendering everything to a federal Europe.
Lord Peston: My Lords, I expressed the hope yesterday that we discontinue electioneering in this House, especially as I do not believe that anybody is listening to us anyway. But that is by the way. There is a point on which the noble Lord might care to reflect, and perhaps he can tell us whether he has thought about it; namely, that the lack of our exports to the European Community cannot possibly be attributed to the Social Chapter, because we do not have that yet. There must be some other failing that causes us to do so badly in trade. Would he care to reflect on whether that failing has anything to do with the fact that his Government have been in power for so long?
Lord Strathclyde: My Lords, the competitiveness White Paper published a couple of weeks ago indicated a number of measures that the Government would take to improve our competitive position throughout the world. The point about the Social Charter is that if we were to go down that route, as is proposed by the socialist parties opposite, then the position would be far worse for British industry.
Lord Bruce of Donington: My Lords, in order to bring the matter back to the document itself, the noble Lord, in quoting from page 11 of the document—which he must have received retrospectively because he passed it before he had read it—indicated that comprehensive monitoring was one of the advantages that were to be held out to British exporters. Will he confirm that it will be of advantage to British exports for the following additional steps to be taken, as set out in the document:
"use of external consultants",
(ha, ha!);
"multilateral and bilateral meetings with Member State officials",
(ha, ha, ha, ha!);
"direct contact with economic operators in the sectors concerned",
(ha, ha!); and,
"complaints as a means of identifying problem areas"?
Will the noble Lord confirm that it is the Government's view that those particular points will be of decisive importance to those of our fellow countrymen who seek to promote this country's exports?
Lord Strathclyde: No, my Lords, of course I do not agree with that. Those areas will be up for individual negotiation. The general thrust of the document is to be welcomed because it will aid the completion of the single market. That will be of great benefit to British producers and consumers.

Women's Refuges
2.45 p.m.
Lord Ashley of Stoke Lord Ashley of Stoke asked Her Majesty's Government:
What steps they intend to take to prevent the closure of REFUGE (formerly Chiswick Family Rescue) which provides sanctuary for the victims of domestic violence.
The Parliamentary Under-Secretary of State, Department of the Environment (The Earl of Arran): My Lords, we consider that the provision and funding of women's refuges, including REFUGE, is a matter for local judgment. We therefore have no plans to intervene in this matter.
Lord Ashley of Stoke: My Lords, I am very sorry to hear that response. Is the Minister aware that many women and children from all over Britain are given safe haven from violence and from psychopathic spouses by REFUGE? Is he further aware that despite some funding from the London Boroughs Grants Scheme and others, REFUGE is now faced with curtailment of services and even, in the long term, with closure, which
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will severely damage the welfare, and even the safety, of those women and children? Will the Minister please think again?
The Earl of Arran: My Lords, the noble Lord is extremely well known for his compassion and understanding of this matter, to which he has paid great attention over many years. I have to say again, however, that while we understand the problem of refuges, we have always taken, and continue to take, the line that the matter is best left to local authorities. They know the circumstances; they know their housing stock; and they know what is available within that housing stock for dealing with the situation.
Lord Tordoff: My Lords, will the noble Earl give some encouragement to the people who run the refuges? Are the Government so insensitive to the problem that he cannot offer at least a word of sympathy, even if there is no money?
The Earl of Arran: My Lords, I have just given sympathy to the noble Lord. I hope that I have given humble and understanding sympathy. As regards money, I can tell the noble Lord that the Government provide between £10 million and £11 million; £8½ million coming from the Housing Corporation, £55,000 from my own department, £290,000 from the Women's Aid Federation of England, £180,000 from Scottish Women's Aid, £250,000 from Welsh Women's Aid, and a separate £61,000 from Northern Ireland Women's Aid. I hope that that expresses sympathy and money.
Earl Russell: My Lords, is the Minister aware that there is a difficulty in leaving this matter to local initiative? In order to evade pursuit, women often need refuges outside their own environment. Is the Minister also aware of the view of the Select Committee on Home Affairs in another place that provision of more refuges is the single greatest cost-saving measure that could be taken? Will he undertake to bring that view to the attention of the Treasury?
The Earl of Arran: My Lords, certainly I understand the seriousness of the situation concerning refuges. I understand also the situation concerning local authorities and that some local authorities are able to pass on responsibility for refuges to other local authorities. I give yet another indication of the seriousness with which the Government regard the matter. No doubt the noble Earl is aware that the ministerial group on domestic violence which met a short time ago is considering what precisely to do about it on a central level. It is a group of which I am very proud to be a member.
Lord Ennals: My Lords, will the Minister accept thanks for his last announcement? Is he aware that the Chiswick centre has been in existence for around 30 years and that it is not just any old centre but one of the original centres providing a service for battered wives? Bearing in mind the point made in the previous question that it is not just people from the local area who use the refuge but many people from other parts of the country, will he refer the particular problems of this centre to the committee to which he has just referred?
The Earl of Arran: My Lords, I understand that the committee to which I referred is aware of the situation that exists at Chiswick, as it is of other situations. We are trying to deal with it on a national basis. The noble Lord is right. The centre was founded in 1971 and was the first one to be established. It has done magnificent work. I return to what I said originally. We feel that it is the responsibility of the local authority to deal with the situation as it considers appropriate.
Lord Hailsham of Saint Marylebone: My Lords, will the Minister say to what extent it is possible to compel those who do the battering to assist with funds?
The Earl of Arran: My Lords, we are looking at whether it is possible to try to prevent such situations happening by raising public awareness about this domestic difficulty.
Lord Williams of Elvel: My Lords, I have first to declare an interest in that my wife is a member of the council of the the Stonham Housing Association, which supports refuges. Having said that, is the noble Earl aware that this is not just a matter for local authorities? There are two reasons. First, a third of the budget of REFUGE is provided by grants from the organisations mentioned by the Minister; so two-thirds of its budget has to be raised from organisations, charities and everyone else in that market. Secondly, REFUGE accommodates 400 women and children each year and receives 10,000 calls a year on a 24-hour national telephone crisis line. That is a national question, and not a local authority one. Does the Minister agree that it is right that the committee of which he is proud to be a member should treat this matter not as a local issue but as a national issue? Will he confirm that these are questions of national importance?
The Earl of Arran: My Lords, I tried to indicate in my previous answers that we regard the matter not only as a local question but also very much as a national question. That is why the ministerial group was formed —to address the issues on a national basis.
Lord Ashley of Stoke: My Lords, I greatly appreciate the tone of the Minister's reply which was very helpful but not quite helpful enough. Does he care to dispute two propositions? First, is he aware that, unless the Government act, a great national institution will close and as a consequence women and children will go on the streets? We know that the men are waiting for them. Secondly, does he agree that it is in the Government's own interest to provide the money? If those children go into local authority care it will cost £18 million a year—that is a very careful calculation —whereas if they stay in REFUGE it will cost £150,000 a year? Is it not a matter of simple economics and in the interests of both the Government and the women and children?
The Earl of Arran: My Lords, we are aware of all the points mentioned by the noble Lord. They are being considered. We will never allow women and children to go on to the streets in situations of that kind. They are among our first priorities.
Baroness Hamwee: My Lords, I must declare an interest as chairman of REFUGE. I resist the temptation to comment on the Government's homelessness review in the light of the Minister's last answer. Will he draw to the attention of the ministerial working group the fact that if REFUGE and other refuges for victims of domestic violence and their children are to be funded largely locally, there must also be a review of spending assessments and grant to local authorities to enable that to be done? Will he also suggest to the working group that the Government should set a good example in highlighting the importance of the issue in a society in which there is far more support for animals who need sanctuaries than there is for women and their children?
The Earl of Arran: My Lords, as the noble Baroness knows well, guidelines are issued to local authorities on that aspect of the matter. I repeat that all that the noble Baroness says is completely understood. We are sympathetic. I have given a strong indication that we are looking carefully at the matter to discover the best way forward.

Northern Development Company: Grant
2.55 p.m.
Lord Dormand of Easington Lord Dormand of Easington asked Her Majesty's
Government:
Why they have reduced the government grant to the Northern Development Company
Lord Strathclyde: My Lords, since 1990-91 the Northern Development Company's grant for inward investment activities has been increased by 24 per cent. In the current year its grant has been reduced by 2.1 per cent. That may have come as a disappointment, but it will still allow the Northern Development Company to carry out a full programme of inward investment activities.
Lord Dormand of Easington: My Lords, the Minister's reply was not only a disappointment to the NDC but a disappointment to me. Is he aware that the northern region has the highest rate of unemployment in the United Kingdom outside Northern Ireland and recovery in the region is very slow indeed? The NDC normally secures some 5,000 jobs annually. This year it says that it will be lucky to get 4,000 jobs. May I remind the Minister, who is dealing with the Coal Industry Bill, that every pit in the northern region is now closed? There are five northern counties without a pit. Will the Minister accept that the NDC is made up of the northern CBI, the northern TUC and the northern local authorities? Does he agree that it is therefore a self-help organisation and deserves every encouragement? Is he aware that a reduction in grant, as he has just informed us, could not have come at a worse time?
Lord Strathclyde: My Lords, I certainly join the noble Lord in saluting the work of the NDC. It does an extremely good job and has brought many valuable jobs to the North East, not least companies such as Nissan, Fujitsu and many other Japanese companies. I find it extraordinary that someone from the party that supports

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the Social Charter, which will damage job prospects in the United Kingdom, should complain about a cut of 2 per cent.
Lord Taylor of Gryfe: My Lords, does the Minister agree that the reduction in grant to the NDC is a reflection of the total lack of regional policy on the part of the Government and that there are other areas similar to the area mentioned by my noble friend? Will he accept that it would be wise to look at spending more money on the development of regional policy in north-eastern Scotland, for example, instead of pouring vast sums into improving the infrastructure in a congested city such as London? Is he aware that more and more employment is drifting down to the South East?
Lord Strathclyde: My Lords, I am very surprised by what the noble Lord said. The Government carry out an extremely effective regional policy. Most recently we set up government regional offices, bringing together all the departments responsible for funding in the regions into a single unified body, so that they can deal effectively with the public sector and private sector partnerships mentioned by the noble Lord, Lord Dormand.
Lord Dean of Beswick: My Lords, can the Minister say whether the reduction of grant to the Northern Development Company has been matched by reductions to other development companies in other parts of the region? Does the same apply to development corporations, which are government appointed bodies? The Minister gave figures for the North East, but is he aware that 90 per cent. of government aid has been spent in Greater London and not in other regions of this country where, in some cases, it is needed more?
Lord Strathclyde: My Lords, I am glad that the noble Lord recognises that there has been substantial funding in London. As for the overall budget for regional development organisations, some £5.6 million grant-in-aid is available for funding all the RDOs' inward investment activities for this year. In total that was an increase of £50,000 on last year.
Lord Peston: My Lords, I really do not understand the noble Lord's idée fixe with the social chapter, especially as he has not even been provoked by my noble friend Lord Bruce of Donington. Perhaps he will at some point tell me what is really troubling him on that. Am I right that the figures he quoted are in current prices and that the increase in real terms is a good deal less? Indeed, the cut is a much larger real terms cut. Am I right that these are current price figures?
Lord Strathclyde: My Lords, the social chapter does not trouble me; it troubles British industry, as the OECD report which was published today notes. I hope that the noble Lord's party will therefore change its policies. The figures I mentioned were indeed in cash terms and therefore they will be affected slightly by inflation. However, I am glad to say that since the
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Government's record on inflation is far superior to anything produced by Labour governments, that too will show an improvement.
Lord Peston: My Lords, as the noble Lord raised the other matter, is he aware that the OECD report was written "by a group of distinguished economists"? Does he not think, therefore, that it would be sensible to take it with a pinch of salt?
Lord Strathclyde: My Lords, that indicates precisely why the noble Lord and his party do not want to have a discussion about the social chapter.
Lord Bruce of Donington: My Lords, has the noble Lord yet read the OECD report; and if he has, will he explain why copies are not available in the Printed Paper Office?
Lord Strathclyde: No, my Lords, I have not read it, and I can understand why the noble Lord himself may not wish to read it.
Lord Dormand of Easington: My Lords, will the Minister clarify the answer that he gave to me? Is he saying that because the Northern Development Company receives a certain percentage of grant it was, in fact, too much and therefore warrants a decrease of 2.1 per cent., however small that might be? If that is the case, how does he reconcile that with the fact that the northern region still has, and has had since statistics were first available, the highest rate of unemployment in the country?
Lord Strathclyde: My Lords, perhaps I may put this into perspective. There has been a 2.1 per cent. cut in funding for the current year but the NDC will not be making any cutbacks in its programme of inward investment and will be sticking to its original programme. The cutbacks will come from staff and bureaucracy.

EC Parliamentary Elections: Vote Counting
3.2 p.m.
Lord Monson Lord Monson asked Her Majesty's Government:
What is the justification for the votes in European parliamentary elections held in the United Kingdom on a Thursday not being counted until 9 p.m. on a Sunday at the earliest.
The Minister of State, Home Office (Earl Ferrers):My Lords, under Article 9(2) of the Council Act the counting of the votes in a European parliamentary election may not begin until after the close of the poll in the member state whose electors are the last to vote. In a number of member states voting will take place on Sunday 12th June. Counting of the votes will begin after 9 p.m. in the evening our time when the polls will have closed in all member states.
Lord Monson: My Lords, I am grateful to the noble Earl for his reply, but he has not actually given the justification for which I asked. Is he aware that in

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presidential and congressional elections in the United States results from states on the Atlantic seaboard are announced before voters in California, Oregon and so on have gone to the polls and that this has never caused any problems in the United States? Does he agree that one of the main reasons for the very low turnout in this country for these elections is the three or four day gap between polling and the announcement of the result, which kills any element of excitement or dramatic tension that there might otherwise be?
Earl Ferrers: My Lords, I do not think that European polls are supposed to be the focus of excitement which the noble Lord seems to suggest. He referred to the United States system. That system may suit the United States but it does not happen to suit the European Community. In 1976, when the first elections were planned, the nine member states agreed on electoral procedures under what is called the European Act. The noble Lord said that I have not given any justification for why this was done. I have, I think, given him the justification, which is that the Act says that. The whole purpose is that member states should not be influenced by the outcome of the elections which have already taken place in other member states.
Lord McIntosh of Haringey: My Lords, the noble Lord, Lord Monson, referred to the low turnout in European elections in this country and talked as if the delay in announcing the result is the reason for it. Is not the real issue the fact that other countries—all but three other countries—hold their elections on a Sunday, which is not a working day, and that our turnout figures may well be reduced by the fact that we insist on having elections on a working day?
Earl Ferrers: My Lords, that is a point of view, but I do not know whether the noble Lord, Lord McIntosh, has any reason to suggest that. The fact is that Thursday has always been a traditional polling day in this country, as it has been in Denmark, the Republic of Ireland and the Netherlands. Those four countries always do it on Thursday because that is the day that they have traditionally been used to. Other countries do it on Sunday, which is the day that they have been used to.
Lord Harris of Greenwich: My Lords, is the noble Earl aware that some of us are rather concerned about the analogy drawn by the noble Lord, Lord Monson, who appears to be suggesting some form of federal solution to our difficulties?
Earl Ferrers: My Lords, the noble Lord is perfectly correct. The position which the noble Lord, Lord Monson, put forward happens in a United States of America. But as the noble Lord, Lord Harris, pointed out, we are not a United States of Europe and I do not think there is any intention of being so.
Baroness Gould of Potternewton: My Lords, have the Government given any thought to changing the day from Thursday to Sunday? I know that Thursday is traditional but that does not mean that thought cannot be given to such a change in order to stop the rather farcical situation of having to wait three days for the results. If the question is related to influence of the electors by our
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declaring our results on the Thursday, why is it that exit polls will be allowed to declare their results on Thursday evening?
Earl Ferrers: My Lords, polls which are not electoral polls can be taken at any time. The noble Baroness said—I have forgotten now what she did say. If she would be kind enough to repeat her first question very briefly, I shall answer it equally briefly.
Baroness Gould of Potternewton: My Lords, I asked whether the Government have given any consideration to changing the day to Sunday in order to stop the farcical situation of having to wait three days for the results.
Earl Ferrers: My Lords, I am sure that the Government do give it consideration; but as soon as; they start considering it they decide not to change the day. It seems to me to be a perfect example of the excellence of subsidiarity.
Lord Boyd-Carpenter: My Lords, is my noble friend aware that a change from Thursday to Sunday would cause great inconvenience to a great many voters, in view of the practice in this country of many people going away at the weekend?' Is there not much to be said for retaining Thursday, as a working day, when people are used to going to vote?
Earl Ferrers: My Lords, that is a very good point of view, too. I think that we had best stick to Thursday.

Petition: Criminal Justice and Public Order Bill
Lord McIntosh of Haringey: My Lords, I beg to present a Petition from the National Romany Rights Association containing some 3,000 signatures which prays that this House will amend the Criminal Justice and Public Order Bill to prevent the repeal of the Caravan Sites Act 1968 and alleviate the misery and suffering which the petitioners foresee if the proposed legislation is allowed to pass into law unchallenged.
Petition presented.

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

Criminal Justice and Public Order Bill
3.9 p.m.
Earl Ferrers: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Earl Ferrers.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 67 [Violent entry to premises: special position of displaced residential occupiers and intending occupiers]:
Lord Desai Lord Desai moved Amendment No. 86A:
Page 52, line 13, leave out ("or a protected intending occupier").
The noble Lord said: In moving this amendment I shall speak also to Amendments Nos. 86B and 86C with which this amendment is grouped. Since this topic and subsequent amendments which I am moving all refer to what are called "squatters"—although legally we should call them "trespassers" I shall still call them "squatters"—perhaps I may be allowed to make a few general remarks on what my intention is in moving this amendment before I turn to the specifics of Amendments Nos. 86A to 86C.
In the Criminal Justice and Public Order Bill now before the Committee there is clearly an intention, as shown in Clauses 67 to about Clause 71, to change the existing law about squatters. There seems to be a panic about it which I argue is not justified. It seems that an attempt is being made to highlight the issue of squatters in an emotional way and to change the law in order to criminalise certain activities which are currently not criminal.
I begin by speaking about the current situation concerning homelessness and empty homes. It is true that currently there are more empty homes than there are squatters. There are nearly 850,000 empty homes and only about 60,000 squatters. That is the first matter. There are so many empty homes in both the public and private sector that we have the very curious situation of empty homes and homelessness. The second point is that there are 60,000 or so squatters. A survey carried out by a squatters service shows that most squatters are occupying public and not private property. It is either local authority property, housing association property or some such property in the public domain and not in the private sector.
In so far as there is occupation of property in the private domain, the existing regulations allow for someone who is a displaced residential occupier to have recourse to the law and remove the squatter. However, Clause 67 extends that category and changes the definition of a "protected intending occupier" in such a way that it will increase the amount of violence used by unscrupulous landlords who will be able to conjure up leases shorter than two years. The property having been
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unoccupied for more than 24 months will allow the landlord to forcibly and violently enter the property and remove the squatter.
Clause 67 amends Section 6 of the Criminal Law Act 1977. That lays down that people may not use violence to force entry into a property. The clause before us refers to a displaced residential occupier and a protected intending occupier. The latter category of occupier which my amendment seeks to remove is a peculiar category of people who are not actually living in the property and who have been displaced by a squatter. It is not the case of an ordinary residential family which has gone on holiday and then found its property occupied and therefore has an absolutely legitimate reason to remove the squatter.
I am not proposing a sort of squatters' charter for anarchy. I am opposing the extension of the definition under the category of what I call a "PIO" (protected intending occupier) in such a way that people with short leases will be able to claim the same rights as a domestic occupier. That will lead to the practice of many unscrupulous landlords creating artificial PIOs and therefore having a right to remove violently a squatter. That will increase the degree of violence in society and therefore cause problems.
That is unnecessary because, as I pointed out, there is very little evidence of private persons' property being occupied. In recent years, because many people have failed to pay their mortgage or have negative equity, those who have bought out those mortgages are arbitrarily replacing them with other prospective occupants. Very often they are not even aware that that is what has happened. In those conditions very often those whom we call "squatters" do not come within the ordinary image of a squatter. They are families with children who are unable to pay the mortgage and things of that kind.
We have to be quite sure that in amending the present Criminal Law Act 1977 we do not do things that arbitrarily empower people who are unlikely to be scrupulous about these matters or add to the degree of violence in our society which is already worrisome. I beg to move.
The Chairman of Committees (Lord Ampthill): I remind the Committee that if this amendment is agreed to I shall be unable to call Amendments Nos. 86B or 86C.
3.15 p.m.
The Minister of State, Scottish Office (Lord Fraser of Carmyllie): Clause 67 makes "protected intending occupiers" of property exempt from the provisions of Section 6 of the Criminal Law Act 1977. Its date indicates under which Administration this Act was passed. Section 6 makes it an offence, without lawful excuse, to use violence or the threat of violence in order to gain access to premises. "Violence" in this context may mean no more than breaking a window. Displaced residential occupiers are already exempt from this offence and Clause 67 preserves their existing exemption.

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Section 6 is clearly useful and desirable in many contexts but unfortunately it has been the subject of abuse by squatters who frequently erect notices threatening to prosecute the rightful owners and occupiers of property if they break into their own property. As I say, that may be no more than breaking a window. This situation is clearly quite unacceptable; squatters in this context deserve no such special protection.
Contrary to what the noble Lord said, squatters will retain the protection of the general criminal law. That means that it will continue to be an offence to assault a squatter, for example, or to commit a breach of the peace. Moreover, Clause 67 does not change the protection given to lawful tenants. Those who have suggested, as I understood the noble Lord to suggest, that Clause 67 will legalise the activities of violent landlords and heavy-handed private bailiffs are simply mistaken.
The first of the three amendments would delete the protection given to protected intending occupiers altogether, while the others would limit it to certain classes of protected intending occupier—either private owners or private tenants. The Government do not believe that any such distinction is justified. This clause does not affect the general criminal law; it simply denies squatters a special protection which, as unlawful occupants of property, they do not deserve. With that short explanation I hope the noble Lord will feel that he can agree to withdraw these amendments.
Lord Renton: I wonder whether my noble and learned friend can help us on the meaning of "protected intending occupier". That is not defined in the definition clause at the beginning of Part V. I must confess that I have not looked to see whether there is any such definition in the 1977 Act. What exactly is "a protected intending occupier"?
Lord Fraser of Carmyllie: If my noble friend looks at Clause 69, he will see that it provides an extended definition of what is "a protected intending occupier" of any premises. According to what will be the new Section 12A(2) of the Criminal Law Act 1977, "a protected intending occupier" is defined as someone who has,
"a freehold interest or a leasehold interest with not less than two years still to run".
My noble friend may recall that the provisions originally required a lease of some 21 years. If my noble friend then reads subsection (4), he will see that "a protected intending occupier" can also be a tenant. The circumstances in which that individual is protected if he is a tenant are fully set out in that provision. It may appear somewhat unusual to include that definition, but I think that my noble friend will find on examination that the position is fully set out.
Lord Renton: I am grateful to my noble and learned friend. However, is it not rather strange that the application of something so fundamental should take nearly three pages of Clause 69 to explain? I wonder whether between now and Report stage my noble and
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learned friend might consider inviting Parliamentary Counsel to redraft Clause 69 to require rather less detailed clarification.
Lord Fraser of Carmyllie: I am certainly prepared to ask the draftsman to look at it, but it must be appreciated that it is important that, where a protection is given to an occupier in this category, there should be a very clear definition of exactly the extent of that protection and when the occupier is entitled to it. The reason that the definition has been given in Clause 69 is that, as I suggested, Clause 69 is intended to provide a textual amendment to the Criminal Law Act 1977. However, I shall certainly invite the draftsman to look at it.
Lord Stallard: I rise to support the noble Lord, Lord Desai, in his amendment. That is not to say that we support squatting generally. We certainly recognise that squatting is an emotive issue which makes people's hackles rise straightaway. Although many people do not understand the situation of somebody who finds it necessary to begin squatting in a property, those who have served in local government in any inner-city area, and especially in London, will understand the paints made by the noble Lord, Lord Desai, and his reservations about the introduction and extension of the provisions relating to protected intending occupiers. We all lived through the Rachman era, and it appears that these provisions will return us to that era and reintroduce the Rachman element into what is already a serious situation.
Personally, I can understand squatting. I have lived with it and through it for many years, and I understand that we ought to look at squatting as a symptom of something much deeper. Its cause is homelessness and the shortage of affordable rented property. There would be no need for squatting—and we would all then support measures to stop squatting—if there were sufficient properties for people to live in or statutes that would allow people to move into empty properties. As the noble Lord said, there are thousands of empty properties, mostly within the ambit of government. By comparison, very few are in the public authority sector. Some properties have been empty for 10 years or more.
We must consider the position of a fellow who is redundant and who has literally no chance of getting a job. He may have moved all over the place and done his best. He is in dire straits and has no chance of ever being rehoused. If he sees a property that has been empty for 10, 12 or 13 years and which is without electricity or water, and if he then squats in it, why should he be subjected to all the horrendous effects of the law? It would be far easier to accept that he has a real problem and to try to deal with his problem instead of setting the whole force of the law against him.
I am reminded of what Mike Bennett, who was then the chairman of the Metropolitan Police Federation, said some years ago:
"I can forsee police involved in the forcible eviction from premises and those premises remaining empty, boarded up and people saying: 'Was it necessary?"'—
that is, for the police to go in and the place then to be boarded up—

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"I can see the problem of making criminals of people who are desperate to get their lives back in balance. Someone who has been made redundant, someone who squats in premises—who pays for gas, electricity and water. Along comes a policeman and evicts them. That's not what I joined the police for and I don't think a lot of people did".
Many ordinary folk understand what makes people squat, but that does not mean that they condone it. Such people cannot see the necessity for introducing provisions such as this in a Criminal Justice and Public Order Bill. They are seeking legislation that will do something about homelessness generally and prevent the necessity for squatting.
Lord Campbell of Alloway: Surely the analogy with Rachman is a little wide of the mark. As I understand it, Rachman was an evil landlord who evicted people who had a right to be there, using thugs, dogs and other forms of oppression such as cutting off supplies. The people we are considering are squatters. They have no right to be there. Therefore, any form of such analogy is misconceived. I know that this is an emotive subject, but cannot we keep our feet on the ground?
Lord Stallard: I do not want to get into a debate about Rachman, but I know about Rachman. I was there. I can show the noble Lord press cuttings showing that I was subjected to some fierce opposition from the Rachmanite people who went much further than the noble Lord has suggested. The noble Lord should reread reports from the Rachman era to see exactly how far such people went. They did board up premises in the way that has been suggested, and that is what will happen again. Such people will evict squatters and then board up the premises to create protected occupiers.
Lord Fraser of Carmyllie: This short debate has ranged pretty widely, and it now seems appropriate to return to Clause 67 and the offence that was introduced by Section 6 of the Criminal Law Act 1977. A limited class of people was provided with a defence against that offence and we are proposing to extend that. Perhaps I may emphasise the point that was so lucidly made by my noble friend. These provisions have nothing to do with the likes of Rachman. If noble Lords will read Clause 69, as I have asked previously, they will see that one of the qualifications within the definition of,
"a protected intending occupier of any premises"—
whether that person has a freehold interest or is a tenant —is that that individual,
"requires the premises for his own occupation as a residence".
We are not talking about a landlord trying to get rid of tenants for whom he does not care. We are talking about an owner who requires the premises for his own occupation. I am bound to advise the Committee that given the conflict between a squatter and someone with a property in which he has either a freehold interest or a right as a tenant, it seems entirely right that such a person's interests should be superior to those of a squatter.
Lord Desai: I am somewhat disappointed by what the Minister has said. As we have already strayed into a discussion of Clause 69, it seems that the nub of the issue is that the length of lease previously had to be 21
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years, but that requirement has now been shortened to two years. That change fundamentally alters the situation. While we may not return to Rachmanism completely, we are certainly advancing towards it. Under the legislation, it will be possible for some landlords to create a dummy lease for an intending occupier so that within two years the landlord can eject (by violent means) whoever happens to be occupying the property.
Many of the people who are supposed to be squatters today are rescuing properties which have been abandoned by local authorities and other public corporations; they are rescuing and restoring such properties. However, it will now be possible for local authorities, as well as private landlords, to go in and evict such people. Section 6 of the Criminal Law Act 1977 was quite right in being careful and restricting the sorts of people who were allowed to use violence to enter property.
When one takes this clause together with Clause 69, I entirely agree with the noble Lord, Lord Renton, that it is very difficult to understand what is going on. One really has to read various provisions so as to be able to put two and two together. The situation will be changed in a most fundamental way. It will now be possible, as it was not previously, for landlords to do certain things.
I believe that people who have a genuine domestic right of occupation should be protected against squatters —there is no doubting that fact—and that the current provision for "intending occupiers" which relates to people with leases of longer than 21 years should remain unchanged. I do not see the logic for shortening the period. That is why many associations and bodies interested in housing—for example, Shelter, SHAC, CHAR, the Law Society, Liberty, the Police Federation and the AMA—are all against such clauses which they suspect will cause much trouble in the sector. That is why I am saying that we ought to stop now. We should allow the present situation which is affording protection to genuine occupants to continue and not extend or weaken that provision. In the circumstances, I feel that I must test the opinion of the Committee.
3.32 p.m.
On Question, Whether the said amendment (No. 86A) shall be agreed to?
Their Lordships divided: Contents, 50; Not-Contents, 166.

Division No.1

CONTENTS

Archer of Sandwell, L.

Gould of Potternewton, B.

Ardwick, L.

Graham of Edmonton, L.

Boston of Faversham, L.

Gregson, L.

Brooks of Tremorfa, L.

Hollis of Heigham, B.

Bruce of Donington, L.

Hughes, L.

Campbell of Eskan, L.

Irvine of Lairg, L.

Carmichael of Kelvingrove, L.

Jay of Paddington, B.

Cledwyn of Penrhos, L.

Jay, L.

Cocks of Hartcliffe, L.

Jeger, B.

David, B.

Jenkins of Putney, L.

Dean of Beswick, L.

Kagan, L.

Desai, L. [Teller]

Kilbracken, L.

Dormand of Easington, L.

Kirkhill. L.

Ennals, L.

Listowel, E.

Fisher of Rednal, B.

Llewelyn-Davies of Hastoe, B.

Gallacher, L.

Macaulay of Bragar, L.

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Mallalieu, B.

Sefton of Garston, L.

McIntosh of Haringey, L.

Shepherd, L.

Milner of Leeds, L.

Stallard, L.

Monkswell, L.

Strabolgi, L.

Monis of Castle Morris, L.

Taylor of Blackburn, L.

[Teller.]

Taylor of Gryfe, L.

Nicol, B.

White, B.

Perry of Walton, L.

Williams of Elvel, L.

Rea, L.

Williams of Mostyn, L.

Richard, L.

NOT-CONTENTS

Ackner, L.

Grimston of Westbury, L.

Addison, V.

Hailsham of Saint Marylebone, L.

Alexander of Tunis, E.

Halsbury, E.

Allen of Abbeydale, L.

Hampden, V.

Allenby of Megiddo, V.

Hanworth, V.

Alport, L.

Harding of Petherton, L.

Annaly, L.

Harmar-Nicholls, L.

Archer of Weston-Super-Mare, L.

Harrowby, E.

Arran, E.

Hayter, L.

Astor of Hever, L.

Henley, L.

Astor, V.

Hives, L.

Balfour, E.

HolmPatrick, L.

Barber of Tewkesbury, L.

Hood, V.

Belhaven and Stenton, L.

Hooper, B.

Birdwood, L.

Howe, E.

Blatch, B.

Hylton, L.

Boardman, L.

Ironside, L.

Borlhwick, L.

Johnston of Rockport, L.

Boyd-Carpenter, L.

Kenyon, L.

Brabazon of Tara, L.

Kimball, L.

Bruntisfield, L.

Kinloss, Ly.

Burton, L.

Kinnaird, L.

Butterworth, L.

Kintore, L.

Cadman, L.

Lauderdale, E.

Campbell of Alloway, L.

Lindsey and Abingdon, E.

Carnegy of Lour, B.

Lloyd-George of Dwyfor, E.

Chalker of Wallasey, B.

Long, V.

Chelmsford, V.

Lucas, L.

Chesham, L.

Lyell, L.

Clanwilliam, E.

MacLehose of Beoch, L.

Clark of Kempston, L.

Macleod of Borve, B.

Cochrane of Cults, L.

Mancroft, L.

Constantine of Stanmore, L.

Manton, L.

Courtown, E.

Marlesford, L.

Craig of Radley, L.

McColl of Dulwich, L.

Cranborne, V.

Melville, V.

Crawshaw, L.

Merrivale, L.

Cross, V.

Mersey, V.

Cumberlege, B.

Middleton, L.

Dacre of Glanton, L.

Miller of Hendon, B.

Darcy (de Knayth), B.

Milverton, L.

Daventry, V.

Monteagle of Brandon, L.

Davidson, V.

Montgomery of Alamein, V.

Dean of Harptree, L.

Mowbray and Stourton, L.

Denlon of Wakefield, B.

Moyne, L.

Digby, L.

Munster, E.

Dixon-Smith, L.

Murton of Lindisfarne, L.

Downshire, M.

Nelson of Stafford, L.

Dudley, E.

Nelson, E.

Eden of Winton, L.

Oppenheim-Barnes, B.

Elibank, L.

Orr-Ewing, L.

Ellenborough, L.

Peel, E.

Elles, B.

Pender, L.

Elliott of Morpeth, L.

Peyton of Yeovil, L.

Elphinstone, L.

Platt of Writtle, B.

Elton, L.

Plummer of St. Marylebone, L.

Erroll of Hale, L.

Polwarth, L.

Faithful1, B.

Porter of Luddenham, L.

Ferrers, E.

Pym, L.

Flather, B.

Quinton, L.

Fraser of Carmyllie, L.

Rankeillour, L.

Fraser of Kilmorack, L.

Reay, L.

Gainford, L.

Rees, L.

Gardner of Parkes, B.

Renfrew of Kaimsthorn, L.

Gisborough, L.

Renton, L.

Goold, L.

Renwick, L.

Goschen, V.

Richardson, L.

Gridley, L.

Rippon of Hexham, L.

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Rodger of Earlsferry, L.

Strathcona and Mount Royal, L.

Rodney, L.

Strathmore and Kinghorne, E

Savile, L.

[Teller.]

Seafield, E.

Sudeley, L.

Seccombe, B.

Thomas of Gwydir, L.

Sempill, Ly.

Trumpington, B.

Shannon, E.

Ullswater, V. [Teller.]

Sharples, B.

Vaux of Harrowden, L.

Sherfield, L.

Vivian, L.

Skelmersdale, L.

Wakeham, L. [Lord Privy Seal.]

St. Aldwyn, E.

Wharton, B.

St. Davids, V.

Windlesham, L.

Stanley of Alderley, L.

Wise, L.

Stewartby, L.

Wynford, L.

Strafford, E.

Young, B.

Strathclyde, L.

Resolved in the negative, and amendment disagreed to accordingly.
3.42p.m.
[Amendments Nos. 86B and 86C not moved.]
Clause 67 agreed to.
Clause 68 [Adverse occupation of residential premises]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 87:
Page 53, line 13, leave out from ("conviction") to ("to") in line 14.
The noble Lord said: In moving Amendment No. 87, I wish to speak also to Amendments Nos. 88, 107, 108, 111, 113 to 115, 120A and 120B, some of which are in my name and some of which are in the name of the noble Lord, Lord Avebury. The noble Lord, Lord Avebury, has given valuable service to the Committee on earlier days of our sessions in seeking to insist that we should not, when we were dealing with the issues of trespass and aggravated trespass, seek to create more imprisonable offences. As a general principle that is a sound one and one which applies, I suggest, even more strongly to the issue of squatting, with which we are concerned now, than to the issues we debated on previous days.
There is no doubt that squatting is a great nuisance. There is no doubt that it causes severe pain to those whose residences are taken over by squatters. There is no doubt that it costs money to public authorities and to private landlords, who are not just inconvenienced but are caused extra expense by the activities of squatters. But that surely does not mean that we should put into prison—that is what the Bill proposes—large numbers of people who are squatting.
I have made this point before and I know many Members of the Committee do not much care for it but I shall make it again. The people we are discussing do not believe that they are criminals. They do not believe that they are doing something wrong. One must either accept what they say or not—that is up to the Committee —but they believe that they are forced into the position of squatting because they have no alternative place to live. They believe they are doing a useful job in occupying properties which would otherwise remain vacant and they believe that they are improving the level of occupation of dwellings in this country. They believe that they are not doing anyone any serious harm and they believe that they should not be punished for that.
My noble friend Lord Desai has opened the debate on the issue of squatting and he has expressed views which we on these Benches share. There is clearly something wrong which has to be put right and there are clearly elements of this legislation which can, under certain circumstances, be justified. It is clear that, if there is a breach of the law, that breach of the law must be capable of punishment, but surely that should not be done by sending these people to prison. These are people who would otherwise almost certainly be homeless people on the streets. Whatever the Prime Minister may think about beggars and people on the streets, I do not think that even he is suggesting that they should be sent to prison for offences under the 19th century vagrancy legislation. But that is almost in effect what is being proposed in this legislation. I suggest to the Committee that we should be very wary of creating these new imprisonable offences. By all means we should consider fines and preferably community service orders but we should not consider prison for people of this sort. I beg to move.
Lord Avebury: I am sure the Minister will have been relieved that it fell to the noble Lord, Lord McIntosh, to move this series of amendments because, if it had been left to me, I certainly would not have agreed to their all being grouped together in this way. As the Committee may recall, on the previous occasion when we dealt with a series of criminal offences which were created under this Bill, I sought the Committee's permission to discuss each of them individually because each of them created a separate offence. We were not just talking about one offence which is punishable by imprisonment under this Bill but a number of them. I think I counted up to six or seven on the previous evening that we discussed this Bill. Now at the very beginning of our proceedings this afternoon we come to some more offences. However, now the term of imprisonment which is specified in the clauses we are dealing with has increased from three months to six months.
I hope that when he comes to reply the Minister will explain why when we discussed offences on the previous occasion we were talking about a maximum sentence of three months' imprisonment and now we are talking about a maximum sentence of six months' imprisonment, when, as the noble Lord, Lord McIntosh, has rightly pointed out, people do not squat for pleasure. They do it because they have nowhere else to go. In the eyes of most people in this country, they are not committing an offence if they find an empty property and they camp in it pending its occupation by someone else. I do not see any harm in that. If they refuse to go on the first demand made to them by the intending residential occupier, that may be because they have no alternative. The local authority will not give them a house all of a sudden, nor is it easy for people without means to move into rented accommodation in some of our larger cities. It may be force majeure that requires them to stay where they are.
We are dealing in this series of amendments with two completely different offences, as I mentioned earlier.
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Amendment No. 87 concerns the person who refuses to comply, or fails to comply, with a request to leave made to him by a displaced residential occupier or an individual who is the protected intending occupier of premises. I do not believe that anything is said about the time that is allowed to him to comply with the directions under the Bill. One is not dealing with the kind of cases that fell within the jurisdiction of the county court. In those cases the county court when granting an order for possession would invariably accompany it with a statement as to the period within which the direction had to be complied with.
I should like to know from the Minister when this offence is committed. Is it committed the instant that the notice is delivered to the squatter or is it committed some time after that? If so, why is that not on the face of the Bill? Who decides? When is it, following receipt of the notice, that the squatter commits the offence and the police move in?
Amendment No. 107 refers to Clause 69. It is a completely different matter. I am glad to see that the noble Lord, Lord Elton, agrees with me. There we are considering the offence created under subsection (8) of Clause 69 of making a statement which the person concerned knows to be false in a material particular or of recklessly making a statement which is false in a material particular. For that the offender can also go to prison for six months. This time the boot is on the other foot, because it is the person requiring possession of the premises who makes the statement that he is a protected intending occupier, that he requires the premises for his own occupation and that he has been granted a tenancy of the premises. I can see all kinds of problems arising from that. It may well be that he has a flimsy reason for believing that he has been granted a tenancy of the premises. The court may say that he has recklessly made a statement to that effect which is false in a material particular. When it transpires that although he thought he was granted a tenancy it turns out that he was not, he would nevertheless render himself liable, in making that statement, to six months' imprisonment. Obviously, the Minister will say that in those circumstances the court would not send him to prison for six months. Why do we not say that on the face of the Bill?
To multiply the offences that render a person liable to imprisonment, however few the number of cases in which the courts may impose such a penalty, is not desirable when our prisons are bursting at the seams and people are being kept on remand in police cells and other temporary premises. Are we really intending to create additional places over and above those we already have to house the vast number of remand prisoners? If the Minister says that the number will be quite small, perhaps he can answer the question that I repeatedly put the other day to his Front Bench colleague, the noble Earl, Lord Ferrers. Why is nothing said in the financial memorandum about the cost of imprisoning the people who will be sent to gaol under all these provisions? We dealt with six of them the other evening, and I dare say that we shall deal with a further six this evening. Even if a fairly small number of people were sent to prison under each of these clauses at a cost of £3,000 per week, multiplied by 12 weeks (representing three months'

1095
imprisonment), one would be talking of a very substantial sum of money. I should like to know what that sum is.
I suggest to the Government that there is no point in having a provision which requires them to state on the face of the financial memorandum how much a particular clause will cost when they resolutely decline to say in this particular case what burden a whole series of clauses will impose on the taxpayer. Each time this evening that we come to the offences that are to be created, I hope that the Committee will consider whether it wishes continually to increase the number placed on the statute book or whether, after due consideration—perhaps not this evening but at Report stage—the whole matter should be reviewed and the attempt made to deal with it, as in the past, through the civil law.
Lord Campbell of Alloway: I wish to speak briefly in opposition to the amendments. I shall, however, confine my observations to Amendments Nos. 87 and 88. Surely, we are concerned with two questions. The first is the status of the squatter; the second is how serious the offence is. The noble Lord, Lord McIntosh, said that the Labour Benches share the views expressed by the noble Lord, Lord Desai, on squatters. The noble Lord says that they do not believe that they are criminals and claims that they do very little harm. That is assuredly a very dangerous doctrine to adopt because it creates a dispensation from the ordinary process of law. Although it can be done in certain circumstances, I believe that there is no justification for it in this case, certainly not on any of the grounds that have been advanced.
One comes to the question of how serious is the offence. It can be trivial; it can be very serious. Merely because there is power to imprison for up to, say, six months does not mean that one will imprison for more than 14 days. It is merely an enabling power in a very serious case. Personally, I can see no possible reason for restricting the discretion of the magistrates in a serious case to impose a fine at scale five, if appropriate and subject to means, and imprisonment. I would have thought it extremely rare—indeed it is—that magistrates ever impose the maximum sentence allowed by law.
As regards Amendment No. 88, a community service order is inherent in the disposal available to magistrates. They do not have to fine or imprison; they can make a probation order, give a conditional or absolute discharge, or impose a community service order. I hope the Committee will agree that it is not right in these circumstances, where the matter can constitute a serious crime committed against residential premises, that the discretion of the magistrates should be limited in any way other than as proposed by the Government in this clause. That is why I oppose the amendment.
Lord Elton: I have an almost professional interest in keeping people out of prison, having spent almost three years as Minister responsible for prisons in the 1980s and as founder of a charity that tries to keep young people away from crime and custody. Following upon what my noble friend said, I hope that the Committee will recall that hard cases make bad law. From time to
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time this Chamber develops a tendency to apply the severest sentence to the most trivial of cases and then assumes that that will be the result of its legislation. Amendment No. 107 applies to the people about whom the noble Lord, Lord Desai, waxed understandably eloquent in his first group of amendments. The amendment strikes at the power in the Bill to punish somebody who makes a false statement purporting to be a protected intending tenant.
When the noble Lord, Lord Desai, inveighed against those evicting using the powers available as a consequence of Clause 69, he appeared to have in mind unscrupulous landlords who wished to evict tenants in order to relet, refurbish or redevelop. The noble Lord nods his head. However, the clause is so drafted that the power can only be invoked if the person requires the property for his own occupation. Therefore, the power cannot be applied to an entire block of flats. It can only be applied to a single flat.
In this case it would be possible for an unscrupulous person who did not want the property for his own occupation to claim that he did and wave a piece of paper. That would be a serious criminal offence in the view of the noble Lord, Lord Desai. I should have thought that he might think that such a person ought to go to prison so that he would not do it elsewhere in his extensive properties in the East End of London.
I hope that in this case the Committee will leave in the Bill the power to imprison.
4 p.m.
Lord Renton: I, too, feel that we should leave these powers in the Bill. We are dealing here with crimes of violence. If more than one crime of violence has been committed it may well be that imprisonment is right. That is always within the discretion of the court.
I agree with what my noble friend Lord Campbell of Alloway said, but I shall be grateful if my noble and learned friend the Minister of State, when he replies, can confirm the proposition that my noble friend Lord. Campbell put forward; namely, that the court has power to award a community service order just as it has in any circumstances a power to award probation.
Lord Avebury: I do not want to cross swords with such a distinguished lawyer as the noble Lord, Lord Renton, but we are not dealing here with crimes of violence. If a person who declined to comply with a notice requiring him to quit, made under the earlier of the two clauses we are now dealing with, were to strike the bailiff or whoever delivered the notice then of course he would be liable to be prosecuted for actual or grievous bodily harm, or something of that nature. In any case where a squatter commits violence, either against an intending residential occupier, a member of the public, the police, or whoever knocks on the door and speaks to him about his unlawful occupation of the premises, it is much better that he should be dealt with under the existing law than that an attempt should be made to label that act as refusing to comply with the notice.
The offence of refusal to comply with a notice must presumably have been designed to cope with those cases

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where no violence is offered. The new offences are being created under the Bill because it emerged that if a squatter remained in occupation of premises entirely peacefully there was no way in which he could be brought before the courts for a criminal offence. That is the whole purpose of this part of the Bill. It has nothing to do with violence.
Lord Windlesham: I anticipate that when the Minister replies to the debate he will have little difficulty in assuring the Committee in relation to the argument used by the noble Lord, Lord Avebury, that when considering cases on summary conviction the magistrates' courts have to take account of the seriousness of the offence. Any court is subject to the provision in Section 1 of the Criminal Justice Act 1991 that a custodial sentence may only be imposed if the offence is so serious that a community sentence will not suffice. That provision would apply in every case involving squatting.
What I have found missing from the debate so far is an acknowledgment of the inadequacy of the existing civil proceedings. The issue of squatting has been before Parliament for many years. In 1991 the Home Office published a consultation paper in which it was pointed out that the application of the law to squatting was complicated due to the overlap between public and private wrongs and criminal prosecutions or civil remedies. Whereas the powers under the Criminal Law Act 1977—to which the Minister of State referred in the debate on the previous amendment—include criminal sanctions there were fewer than 100 prosecutions under that Act in each of the previous three years. Compare that with more than 10,000 applications made in 1989 for relief against squatters by way of civil proceedings in the High Court or the county court in England and Wales.
This Bill does not criminalise the act of squatting. It introduces penal sanctions against a person who, being subject to an interim possession order made by the court, fails to leave the premises within a period of 24 hours beginning at the time of the service of the order. That is set out in Clause 71 and I believe answers one of the points made by the noble Lord, Lord Avebury.
If one considers the issue of squatting over a period of time and the inadequacy of the civil remedies because of the appalling delays and the cost involved, to introduce this limited criminal sanction in the circumstances described in the Bill is a proper solution.
Lord Desai: We are drifting into later clauses and I regret that. I wish to point out that the proposal in the Bill creates a criminal offence which was not previously required. The 10,000 applications which the noble Lord, Lord Windlesham, mentioned do not necessarily relate to 10,000 properties. Multiple applications are possible. It is also true that in one-quarter of those cases there was no case to be made. A great deal of alarm is being created about this problem and we have to put it in perspective. If there were only 100 prosecutions why do we take it for granted that the other 9,900 were genuine cases which were frustrated by squatters? Why not
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acknowledge that it is a very small problem? We shall make matters worse by introducing this criminal sanction.
The Committee should be aware that two-thirds of squatters are women. According to a survey undertaken by the Advisory Service for Squatters one-third of squatters are women with small children. One's image of squatters has to be amended. Some of those women have run away from domestic violence. That is why they are squatting. One should not believe that all squatters do is commit criminal acts of violence. This is a problem created by homelessness and many other problems over the past 15 years. We shall make the situation worse by introducing these criminal sanctions into what is currently a civil matter.
Lord Elton: As I listen to the noble Lord, Lord Desai, I wonder whether we have the right picture in our heads. I may be wrong. However, Amendment No. 87 in the name of the noble Lord, Lord McIntosh, relates to Clause 68. The offence dealt with in that clause is the offence of not leaving premises on being asked to do so by somebody who already lives there. For example, the noble Lord, Lord Desai, comes home and finds another family occupying his house who refuse to go. I should have thought that that required some form of sanction.
The alternative is an individual who is a protected intending occupier of the premises. We have discussed that category. It is somebody who needs to live in the premises and who either owns the property or has a lease which has another two years to run. I should have thought that person required protection as well. Indeed, I am surprised that there should be a requirement for a lease to have two years to run, and when we get to Clause 69 I shall ask about that. Surely in the case of someone actually refusing to leave the home of a person who has come back from holiday, or even from work, and to let that person come back into their own home is a very serious offence. If persisted in, it surely requires a severe sanction. If the sanction exists maybe the offence may not be persisted in.
Lord Taylor of Gryfe: I wonder, having listened to the noble Lord, whether there is not some legal provision at the moment covering the cases that he quotes of someone coming back from holiday and finding his property occupied, or even one such as the noble Lord, Lord Desai, returning home from the House of Lords, and finding his property occupied. I am not a lawyer, but I presume there is some legal protection already. I see the Minister is nodding his assent.
I must say that the issue of squatting raises all kinds of emotions. I have been looking at some references made in another place. For example, a former Minister referred to anti-social parasites, and someone said that was the reason why we should get tough on armed robbers, tough on rapers and tough on squatters. I think sometimes, because of the presentation in the media of squatters in dilapidated properties, there is immediately a kind of emotional feeling that they are some kind of dangerous criminals. We are treating them in this Bill as if they might be dangerous criminals. I would hope, with the noble Lord, Lord Windlesham, that the magistrates, in dispensing justice, would take into

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account all the factors in each case. But what we are doing is putting a law on the statute book in this regard, and I would hope that we could see it in perspective before making a dramatic change. A survey of over 2,000 squats found that 90 per cent. of these properties were owned by local authorities or housing associations.
As has been quoted already, the local authorities happen to have a much larger number of empty properties than are occupied by the squats. The real problem is: why are they there? No one goes into a squat because they would like to live in a property with no water or electricity supplies. They go there because they are homeless: they have nowhere else to go. To suggest that they are all criminals who ought to be punished by the extension of the criminal law is unjust and morally wrong. Consequently, I would support the noble Lord, Lord Avebury, in the case he has made.
Lord Avebury: I do not want to prolong our discussion, but the noble Lord, Lord Elton, gave us a very partial explanation of what a protected intending occupier is. He limited it to the case of the noble Lord, Lord Desai, coming home from work or from his holiday and finding someone in occupation of his house. But I would ask your Lordships to consider the case of a local authority which grants the tenancy of a house occupied by squatters to someone who is on their housing list, knowing that it is occupied by squatters. That person then holds a written statement specifying his interest in the premises under Clause 69(2) (d) and stating that he requires the premises for a residence for himself, notwithstanding the fact that the local authority could have granted him the tenancy of some other premise. So he has a prior claim over the squatter and when the notice is issued—I am obliged to the noble Lord who explained that that has 24 hours to take effect, which was a point I omitted earlier—in 24 hours the squatters have to get out and give way to the person who has the prior claim, as the nominated tenant of the local authority.
In those circumstances we see a totally different picture, because this squatter may be a woman with three children who has been displaced from the refuge. We were talking about that at Question Time and the noble Earl the Minister then said that there was no question of anybody being thrown out on to the streets. He dismissed that suggestion as absurd. However, if the refuge was closed and the battered woman who is at present occupying the premises with her children happens to take up occupation of a squat, perhaps somewhere in the neighbourhood of Chiswick, and the local authority then issued a notice saying that somebody else was qualified to occupy the premises, that battered woman and her three children would have to leave within 24 hours. Would she then not be on the streets? What is the noble Lord suggesting that a person in that category should do, bearing in mind that the vast majority, or two-thirds I think was mentioned, of the people in squats are women and that a substantial proportion of them have young children? These are people who are not well able to fend for themselves in the housing market, and I cannot understand how anybody would think that they were able to comply with
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a direction to leave within 24 hours. In those circumstances they would be liable to the penalties imposed by this Bill.
Lord Elton: We need to decide this, but the noble Lord, Lord Avebury, has usefully illustrated what I was trying to suggest: that there will be a wide range of culpability. It will be for the court to decide in the light of circumstances. We have merely to produce penalties which are suitable to meet every point on that scale and not to cut the scale off arbitrarily half-way up, on the grounds that the severest case will never occur.
Lord Windlesham: Before the Minister replies, he may be able to help the Committee with some further information. In order to get a fuller picture, is he able to say something about the unlawful occupation of commercial premises? The debate so far has been entirely about families, often homeless families. As I understand it, in the London boroughs where there was such a great concentration of squatting two or three years ago there has been a marked decline. For example, in the London Borough of Lambeth, as few as 58 local authority properties were squatted in October 1993, compared with an all-time high of 1,250 in 1987. As a greater stock of local authority housing has become available, one must assume that the problem of homeless families has declined. Against that has been a counter trend of more squatting in commercial premises, which on the face of it would seem to be unlikely to have anything to do with homelessness.
Lord Fraser of Carmyllie: It might be helpful if I were to intervene now to make this simple point. Anyone coming to this debate ignorant of the issues involved might have been brought to the conclusion that the power and the penalty introduced under Clause 68 was a wholly new one. The fact is that Clause 68 merely re-enacts the existing provisions of Section 7 of the Criminal Law Act 1977. The only change to it is that it omits those parts which relate to the definition of a protected intending occupier. As I previously explained to my noble friend Lord Renton, the provision has been extended and is now to be found in Clause 69. Otherwise, Section 7 is left intact and the existing Section 7 makes it an offence for a squatter to fail to leave the property when required to do so. So there is nothing new there. I should also say to the Committee: that indeed the existing penalty that may be imposed is, at its maximum, a period of six months' imprisonment, and so there is no change there.
I am grateful to my noble friends Lord Windlesham, Lord Renton and Lord Campbell who have supported the provisions that we have suggested as being necessary. They are of course the maxima that we are providing the courts with. We are not suggesting in any sense that on each and every occasion these maximum penalties of imprisonment of six months should be imposed.
My noble friend Lord Campbell of Alloway said that the offences would range from the trivial to the serious. They will indeed. It is also of concern that on some occasions they may be repeated, in which circumstances one would wish to give the courts sufficient powers. In

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the worst case there may be those who are—however else one may wish to put it—politically motivated and habitually defy court orders. In those circumstances it would seem appropriate that such a person should be sent to prison.
I think it was the noble Lord, Lord Avebury, who asked why in three of the four offences with which we are dealing the maximum is six months but for the fourth it is two years. Having regard to the sentiment expressed in the earlier debate by the noble Lord, Lord Desai, I should have thought that he would welcome the increase in the penalty to two years in the circumstances where it is allowed by the Bill; that is, where someone who has sought to obtain an interim possession order from a court has given to the court false or misleading information. In those circumstances, it seems to the Government that it would be entirely right that if anyone wished to take the risk of misleading the court—be he a landlord or an owner—it would be appropriate to have a serious deterrent in place to prevent him from doing so. I trust that, far from there being any opposition to that level of penalty, it will be appreciated that it is highly desirable that we should have a distinction between the six months and the two years in such a case.
I wish to address a more fundamental point to the noble Lord, Lord McIntosh, about his proposal. In any case where imprisonment is provided as a maximum sentence, the courts have the power to impose a community service order if they think it is an appropriate penalty in the circumstances. However, a community service order is never prescribed as a maximum penalty in its own right. Community service is one of the most demanding and restrictive types of community penalty available to the courts. As I understand it—and I am open to correction—this side of the Border since as far back as 1973 the policy has been that a community service order should be available only for those offences which can be so serious as to justify a custodial sentence. The noble Lord may not have intended it, but it seems to me that in his amendments he has opened up an issue of policy which probably goes rather further than he intended in putting the proposal forward as a simple restriction.
I hope it will be appreciated that in the four sets of offences that we have created two might affect the squatter, but in respect of the other two, given the sentiment expressed by the noble Lord, Lord Desai, I should have thought that it would be considered by Members of the Committee opposite that it would be quite appropriate for a custodial sentence to be imposed in an extreme case.
Lord Renton: Before my noble friend sits down, will he confirm that the court may award a community service order without it being specifically mentioned in the Bill?
Lord Fraser of Carmyllie: I apologise if I have not made that clear. Yes, that is the case. It would be a novelty if we were to allow for a community service order in relation to an offence when at present it would not also be capable of attracting a sentence of imprisonment.
Lord Harris of Greenwich: The noble and learned Lord will recall that his noble friend Lord Windlesham asked a question relating to commercial premises. I should be grateful if he would answer it in a moment. On the last point that he made about the position in 1973 when community service was introduced, at first on an experimental basis and then extending to the rest of England and Wales, he is quite right. It was then described as an alternative to imprisonment. But it would be wrong to assume that in the 20 years that have elapsed since then it has only been handed down by a court as an alternative to imprisonment. Since then, the sentencing procedures have changed radically.
Lord Fraser of Carmyllie: Perhaps I may briefly respond to the point on which the noble Lord, Lord Windlesham, asked for clarification. Clauses 68 and 69 do not relate to commercial premises at all. I thought that would be clear from the circumstances. Owners of commercial premises would be able to apply for an interim possession order, but that is in relation to Clauses 70 and 71 which we have yet to reach.
Lord McIntosh of Haringey: I am grateful to Members of the Committee who have taken part in the discussion. I wish to make two points entirely clear before I consider more specific issues. The first is the issue raised by the noble Lord, Lord Campbell of Alloway, about the position of our Front Bench on the amendments moved by my noble friend Lord Desai. I should make it clear that although we agree with him that there are such grave defects in Clauses 67 and 69 that they should not stand part of the Bill, we have not felt the same about Clause 68. That clause refers to adverse occupation of residential properties where the complainant is the occupier or owner or the occupying owner of that residential property. For that reason, we do not oppose all the provisions in this part of the Bill. Our only amendments proposed to Clause 68 are Amendments Nos. 87 and 88, to which I have spoken, referring to the penalties to be imposed. That is the first point to make, that we are not in any sense being soft on squatters who move in on the home of my noble friend Lord Desai while he is on holiday, or my home or that of anyone else. If I were to suggest that we were being soft on them, Mr. Tony Blair would have me shot at dawn. I can assure the Committee that he is not.
The second point I wish to make is about imprisonable offences and community service orders. The Minister is, of course, correct in saying that the intention, when community service orders were first introduced, was that they should only be available for imprisonable offences. The Minister is also correct in saying that the Criminal Law Act 1977 which was introduced by a Labour government provided for that to be an imprisonable offence. We are moving forward from the position of the Labour government in 1977 —if the noble Lord, Lord Harris, does not mind my saying so, since he was a member of that government —if we take away the imprisonment capability which is provided in Clause 68.
The point I seek to make which was not particularly taken up in the debate was that those squatters who are the subject of Clause 68 are not criminals. They do not

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see themselves as criminals and are not best treated as criminals. To take the example of my own borough, Haringey had a serious squatter problem, as did Lambeth some years ago. That has been dealt with not by increasing the severity of the offences by seeking to use the criminal law, but by sensible, civilised negotiations. Squatters who move into council properties which the council does not have the resources to improve and make available for occupation are allowed to stay, on the agreement that they will get out as soon as the builders are ready to move in to renovate the properties. There have been occasions—one close to where I live—where many squatters moved into a smallish tower block. At the end of the period they showed that they were not only careful and suitable tenants, but that they would probably come high on the list of tenants who would be eligible for that property when it had been renovated. The agreement was that they could stay there and renovate it themselves—a very satisfactory agreement it was, too.
Lord Campbell of Alloway: I am grateful to the noble Lord for allowing me to intervene. To save confusion, I should say that, of course, if there is an agreement I am not worried. If there is an agreement between those who own the premises and the squatters that they may stay there until the builders come, that is not the position which I have been addressing. I accept that.
Lord McIntosh of Haringey: I do not think that we are in great disagreement. I was responding to the point made by the Minister about the effectiveness of criminal sanctions. It is not a point with which I agree.
A number of noble Lords directed the point at my noble friend Lord Desai that because Clause 68 is concerned with squatters and Clause 69 with those who falsely claim to be prospective tenants (whatever the correct phrase is) he would be in favour of the imprisonment of those people. I do not believe that he would or has ever said that he would. These are offences and they need the sanctions of the law, but they do not need to be added to the list of criminal offences.
The Minister pointed out the technical defects in our amendments. He also made a point about the use of community service orders which, although I agree with the noble Lord, Lord Harris, that sentencing policies have changed in the past 20 years, deserves some further consideration. Although I do not in any way resile from my fundamental disagreement with the creation of new imprisonable offences, I do not think it is proper that I should seek the opinion of the Committee on this group of amendments. I beg leave to withdraw Amendment No. 87.
Amendment, by leave, withdrawn.
[Amendment No. 88 not moved.]
Clause 68 agreed to.
Clause 69 [Protected intending occupiers: supplementary provisions]:
4.30 p.m.
Lord Desai Lord Desai moved Amendment No. 89:
Page 53, line 37, leave out ("two") and insert ("21").
The noble Lord said: In moving Amendment No. 89 I shall speak also to Amendments Nos. 90 to 106.
A particular feature of this piece of legislation is that it changes the definition of "protected intending occupier". The purpose of my amendments is to make quite sure that the change in the status of refusal to comply with an interim possession order is not lightly treated. We want to make quite sure that the protected intending occupier is a genuine person who really needs accommodation and not just that a dummy lease has been created by the landlord or the local authority merely for the purpose of claiming repossession of the property.
The amendments in this series are quite straightforward. Amendment No. 89 goes back to the status quo; namely, a lease of 21 years rather than only two years. Later, instead of the person giving a statement signed by a commissioner for oaths—very often landlords use their solicitors—it could be signed only by a Justice of the Peace; and sufficient evidence would have to be adduced that the facts are as they are. Again, that is intended to make quite sure that when this Bill becomes law it will not be used lightly and unscrupulously by landlords.
Lastly, some of the amendments add the word "immediate" before "occupation". They are designed to ensure that in the event of a genuine housing need there is no intention of stopping that sort of possession order. What we seek to prevent is the creation of a dummy lease, with a person being evicted not for the intending occupier but so that after a week or so the property can be sold.
Amendments Nos. 89 to 106 aim to make quite sure that the intending occupier is a genuine person in genuine housing need and that whatever statement he or she makes is absolutely bona fide. I beg to move.
Lord Renfrew of Kaimsthorn: This is; a field with which I am not greatly familiar. The noble Lord, Lord Desai, will, I am sure, correct me if I misapprehend his intention, but the first of these amendments seems to me to be extraordinary. If I were to acquire the freehold interest in a property with the intention of occupying it as a residence, and if my freehold interest were, for instance,' 15 years, is it really the case that that would be considered altogether an insufficiency by the noble-Lord, Lord Desai? It seems to me that the factor that he seeks to introduce (or re-introduce) of having not less; than 21 years still to run is a very considerable time period. I find this amendment difficult to comprehend.
Lord Fraser of Carmyllie: There is a considerable number of amendments here, the first of which is. Amendment No. 89. The set of amendments that the noble Lord has tabled are all designed to weaken proposals that have been put forward by the Government, and indeed they might be considered to weaken the existing law, which, as we have previously appreciated, was introduced in 1977.

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Clause 69 amends existing Section 7, reducing from 21 years to two years the length of the lease required in order for the leasehold to be included in the definition of a "protected intending occupier". The noble Lord's amendment would effectively retain the 21-year requirement.
There is no good reason why those with leases shorter than 21 years should not be offered the same protection as other protected intending occupiers. This amendment would simply retain the provision of the 1977 Act which, as my noble friend indicated, we consider would place at an unfair disadvantage those who should in justice be offered the same protection as any other home owners.
As regards the other amendments, it is necessary for a protected intending occupier in the private sector to hold a written statement, witnessed either by a magistrate or a commissioner for oaths—that is to say, a solicitor—setting out the circumstances of his case. These amendments would change the nature of that requirement by making it necessary to adduce evidence before a magistrate, who alone would be able to witness the statement. This conversion of a simple witnessing of a statement into a quasi-judicial proceeding before a magistrate is quite unnecessary and, indeed, is a radical departure from the existing Act. It is entirely contrary to the purpose of the Bill, which is to increase the protection that is given by the criminal law to lawful owners and occupiers of property. There is, so far as we are aware, no evidence that the existing system has been abused by the commissioners for oaths, and there is no reason to deprive them of their ability to witness this kind of statement.
Lord Elton: Can my noble friend the Minister explain to us why a person who has two years to run on a lease is protected, but a person with 18 months is not? My anxiety relates to the smaller end of the scale. I point out that the ends of leases are sometimes a way in which families in difficulty, who could not otherwise obtain accommodation, can do so. These tenants may require protection very much more than those who have substantial periods of a lease to run. Why, if a person has a proper title under a lease to occupy a place as the resident, should he not be entitled to do so regardless of the fact that the period is a short one?
Lord Fraser of Carmyllie: I invite my noble friend to look not just at new Section 12A(2) in Clause 69, but also to have regard to what is provided for in subsections (4) and (6), which allow for protection to those who have tenancies of premises.
Lord Elton: Subsection (4) again has:
"not less than two years still to run".
The other reference is to tenants of a local authority or housing association. What about tenants of the private landlord? I am sorry that I did not give my noble friend notice of this question. Perhaps I should give him time to look at the text in front of him.
Lord Fraser of Carmyllie: The noble Lord put me off because when he read subsection (4) he read it short. Where he has seen a restriction, it is where there is:
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"a licence to occupy those premises granted by a person with a freehold interest or a leasehold interest with not less than two years still to run in the premises".
If he is a tenant, there does not have to be more than two years to run.
Lord Elton: Perhaps, after reflection, my noble friend will write to me. If I have a right to occupy for 18 months a place for which the head lessee has 18 months, I do not see why I should not be able to enjoy that right as I would be able to do if he had a lease of two years. It seems to me to be an extraordinary form of discrimination. But we are getting into the small print of property law. I should be very happy if my noble friend would discuss it with me later.
Lord Desai: The short debate that we have had on this group of amendments has demonstrated once again that, whatever else happens by Report stage, some of these matters should be clarified so that we can all understand what is being done, what are the definitions and how they will be interpreted when this legislation is enacted.
I still maintain that to go down from 21 years to two or, as someone suggested, even less than two, will create opportunities for some unscrupulous people to exploit this piece of legislation. I can say no more than that. I hope that I do not have to remind the Chamber of it in the future. I imagine that what will happen is that we shall see once again the introduction of some rather underhand practices which somehow will be encouraged by shortening the period from 21 years to two years. After all, there has been a piece of legislation which has stood and 21 years has been considered proper for that time. Suddenly it seems that we want to have practically no length of lease at all —24 months, 18 months, or one might propose six months. I believe that this will lead to trouble.
This is a technical issue. It is not the kind of issue on which one seeks the opinion of the Committee. Therefore I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 90 to 108 not moved.]
Clause 69 agreed to.
4.45 p.m.
Clause 70 [Interim possession orders: false or misleading statements]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment
No. 109:
Page 56, line 14, at beginning insert:
("( ) An interim possession order shall only be issued if the person or persons subject to the order have been given reasonable notice of the intention to seek such an order in a form prescribed by the Secretary of State, which shall include information about where and how to object to the making of an order and how to appoint a legal representative, together with information about provisions contained in subsections (1) and (2) of this section.").
The noble Lord said: In rising to move Amendment No. 109, I shall also speak briefly to Amendments Nos. 110, 112, 116 and 117 tabled in the name of my noble friend Lord Desai.
We now come to Clause 70 of the Bill which deals with offences in relation to interim possession orders if the person who tries to obtain an interim possession

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order makes statements which he knows to be false or recklessly makes statements which are false. We shall not move later amendments about imprisonment because they have already been debated. The concept in Clause 70 of making it an offence, though not an imprisonable offence, to make such statements for the purpose of obtaining interim possession orders is totally laudable. But this provision provides an opportunity for us at least to ask what assurances are being given that the person against whom the interim possession order is sought shall be properly informed about the order.
At the beginning of the clause our amendment provides that:
"An interim possession order shall only be issued if the … persons subject to the order have been given reasonable notice of the intention to seek such an order in a form prescribed … which shall include information about where and how to object to the making of an order and how to appoint a legal representative, together with information about provisions contained in subsections (1) and (2)".
I hope that to some extent we are pushing at an open door. 1 do not know whether or not this is the right place for the amendment. The Lord Chancellor's department published a consultation paper on changes to the rules of court to facilitate the interim possession order procedure which is introduced by this Bill. Paragraph 13 of the Lord Chancellor's consultation paper states:
"It is proposed that an applicant should be required to give a written notice to the occupier to leave, explaining his intention to seek an interim possession order. The notice will also set out the consequences of an order, how it can be challenged and the benefit of seeking independent advice".
If that suggestion in the consultation paper is indeed the firm intention of the Government—at the moment it is only a consultation paper—we should be satisfied and there would be no need for this amendment.
Amendment No. 109 seeks an assurance that that is the Government's intention. It looks for an indication of whether they would be willing to see the intention that is expressed in the consultation document introduced onto the face of the Bill, either in this or a similar form and either in this or a comparable place—or "a better place" it would perhaps be right to say. I beg to move.
Lord Elton: There will be some sympathy for the principle behind Amendment No. 109 which deals with the need to give reasonable notice before telling a family which will not be one of the best funded families in society that it has to be out and under another roof in 24 hours. Not many of us, with our resources and at considerable expense, would find that easy. The people subject to these orders are not likely to have such resources or be able to afford expensive recourse. Common humanity suggests that where there is an order which may very well be justified and heeded, time should be given for alternative accommodation to be found.
Lord Desai: I wish to speak to Amendments No. 112 and 110 which are in my name and are placed in this group of amendments. The purpose of Amendment No. 110 basically is to add negligence as an additional offence for people making a misleading statement. There have been examples of that, especially in the case
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of some local authorities. It has been said that some misleading orders have been issued through negligence rather than any intent or recklessness.
I want to make quite sure that no loophole is left for people to make mistakes. When people are evicted without any proper cause, under current legislation a person has to comply with the order before he can appeal against it. He has physically to move out. If he does not, he is liable to have committed a criminal offence. Therefore persons have to move out and then appeal. We want to be quite sure that people are asked to comply with an order which has been made with proper due care and not out of negligence. That is the purpose of Amendment No. 110. Amendment No. 112 basically stiffens the punishment for making misleading statements.
Lord Fraser of Carmyllie: This is an important: amendment to clarify the policy on this issue before we: return to it, possibly at a later stage. Amendment No. 109, spoken to by the noble Lord, Lord McIntosh of Haringey, is, I would say to him, out of place here because it relates to the new proposed civil interim possession order and not to the criminal consequences of granting such an order, which is what the Bill deals with. Having said that, it is an appropriate moment to explain what is proposed here.
The civil order itself will be introduced by amendments to the rules of court, and that is a matter, as he will appreciate, for which my noble and learned friend the Lord Chancellor has policy responsibility. As the noble Lord observed, my noble and learned friend has issued a consultation paper on the details of how the interim possession order will work and he is currently considering responses to it.
One of my noble and learned friend's proposals was that there should be a period of notice before an interim order is granted. I notice that my noble friend Lord Elton has indicated his firm approval of such a period and I understand, more generally, that that has been welcomed by respondents. The periods suggested in the consultation paper were either 24 hours or 48 hours. Seven days is clearly rather longer than that suggested in the consultation paper and it would appear that that is too long. The matter of the appropriate period is one on which my noble and learned friend the Lord Chancellor will have to reflect, given the responses to his consultation. What we are clearly anxious to secure is a quicker and more effective procedure than the existing one.
With that explanation I hope that the noble Lord will be satisfied that, while it is an important point, it is not an appropriate place to introduce it on the face of the Bill.
Amendments Nos. 110 and 112 would create a further offence of negligently providing false or misleading information in order to obtain an interim possession order, and differentiate between the maximum penalty for this offence, which would be two years' imprisonment, and the penalty for the deliberate and reckless offender, which would rise to seven years. It is a standard provision in many Acts that it shall be an offence to provide any false information either

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knowingly or recklessly. Clause 70 goes further and penalises those who make false or misleading statements knowingly or recklessly. This is designed to give special protection against any abuse of the new interim possession procedure. No such offence exists where negligence is the basis of liability. Negligence involves a lower degree of culpability than recklessness. English law generally provides sufficient grounds for a criminal prosecution, and I see no reason to depart from this principle in these circumstances. With that explanation I hope that the noble Lord will withdraw his amendment.
Lord McIntosh of Haringey: I am most grateful to the Minister for his response to my Amendment No. 109. I am aware, as I think was obvious to him, that my amendment has been put in the wrong place. I was suggesting to him that it could be put in a better place in the Bill, but in the light of what he has told me about the process of the consultation—and he has not indicated that there is anything in the responses to the consultation which indicates disagreement with the proposal of the Lord Chancellor's Department—I am perfectly content to leave it to that process of consultation and to the making of rules of court.
As to the time of the notice, the Minister will have noted that in our amendment we said "reasonable notice"; we did not specify whether it should be 24 hours, 48 hours or seven days.
Lord Fraser of Carmyllie: I appreciate that the noble Lord used the word "reasonable". That was said in response to his noble friend Lord Desai, who did wish to include a period of seven days.
Lord McIntosh of Haringey: I recognise the distinction. I should have looked more closely at the amendments of my noble friend Lord Desai and certainly more closely at his Amendment No. 112, which goes directly against my Amendments Nos. 113 and 114. I must say to my noble friend that however much we deplore the possibility of Rachmanism— which is what this clause is about—it seems to me that seven years' imprisonment for these offences is going a bit far. I understand that my noble friend will not be moving these amendments as part of the same group, but I hope that on mature reflection he will agree with me that it would not be desirable to increase the maximum period of imprisonment—or, indeed, to have any such period of imprisonment—for an offence of this kind.
In view of the very helpful response from the Minister, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 110 to 117 not moved. ]
Clause 70 agreed to.
Clause 71 [Interim possession orders: failure to comply an offence]:
Lord Desai Lord Desai moved Amendment No. 118:
Page 56, line 39, after ("served") insert ("personally").
The noble Lord said: In moving Amendment No. 118, I wish to speak also to Amendment No. 119—in
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the name of my noble friend Lord McIntosh and myself —as well as to Amendments Nos. 119, 119B, 120 and 121 to 123. We have had some clarification about the interim possession order from the Minister and I am grateful to him for that. However, the procedure under which an interim possession order can be obtained is a peculiar one, where the person against whom the order is obtained may not even know that such a thing is going to be done to him. He is not going to be there; the hearings are ex parti and that person—let us call him a squatter—would be faced with an order to leave within 24 hours.
My amendments first allow more time for the person to comply with the order—within seven days rather than 24 hours. Then, having left the premises, the periods for re-entry are amended to within seven days or three months rather than one year. Amendments Nos. 118, 119, 119Aand 120 refer.
The purpose of the later amendments is again to make sure that the order is served properly and in person to the occupant, and therefore that he has full knowledge of what is being done. I am not a lawyer and I want to make quite sure that the person against whom an interim possession order is made—and it is a rather new thing in as much as the person against whom it is obtained is not going to know about it until after the landlord has been to court—has as much protection as possible and as much time as possible to comply with the order before criminal punishment is visited upon him or her. I beg to move.
Lord Fraser of Carmyllie: As I said in discussing the previous amendments, it is not for this Bill to determine how the new interim possession order is to be served. The question as to whether such an order will have to be served personally on the alleged squatters is therefore another matter to be governed by the rules of court and not by this Bill. Doubtless my noble and learned friend the Lord Chancellor will wish to take account of the views expressed by the noble Lord.
Amendments Nos. 119 and 120 are designed to undermine the new procedure by providing that the squatters do not have to leave until seven days after the interim possession order has been served on them, and that they do not have to leave at all if they serve notice of their intention to have the interim order set aside. If they do that, they would be able to stay until a full court hearing eventually resolves the case, which in fact would be no improvement on the present arrangements. The owner's position would, if anything, be even worse than at present since he would have wasted both time and money on an entirely useless interim procedure instead of applying straightaway for an order for possession in the usual fashion.
With regard to Amendments Nos. 119A and 119B, once squatters have left property in compliance with an interim possession order we believe that it is then necessary to protect the property for as long as possible thereafter against the same squatters regaining access. I cannot accept that either seven days or even three months is a sufficient period of time for this protection to last. We have quite deliberately provided that an offence will be committed if the same squatters return to

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the property as trespassers within one year in order to avoid the situation where they simply leave temporarily, perhaps taking the keys to the property with them, and then come back after a few weeks before the owner has been able to arrange for the property to be occupied legitimately by someone else.
These amendments would improve the position of squatters at the expense of the legitimate property owner. They run contrary to the thrust of what we propose. I think the noble Lord will appreciate that, for those reasons, I cannot accept them.
5 p.m.
Lord Desai: I thank the Minister for his answer. The noble Lord, Lord Elton, mentioned 24 hours. I wish that the Minister had at least accepted Amendment No. 119, which allows seven days for someone to comply with an order, rather than 24 hours. Twenty-four hours is a little harsh, especially as a person cannot appeal until after he has moved out. If it happens to be a false eviction much hardship will be caused by someone having to move out at such short notice. If the person is to comply, allowing seven days seems reasonable. However, I shall read the Minister's remarks with interest. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 119, 119A, 119B and 120 not moved. ]
Lord Avebury Lord Avebury had given notice of his intention to move Amendment No. 120A:
Page 57, line 6, leave out ("imprisonment for a term not exceeding six months or").
The noble Lord said: I know that this amendment appeared in an earlier grouping but perhaps I may point out that this is the fourth new criminal offence that your Lordships have created this afternoon.
[Amendment No. 120A not moved.]
[Amendments Nos. 120B, 121, 122 and 123 not moved. ]
Clause 71 agreed to.
Clause 72 [Power of local authority to direct unauthorised campers to leave land]:
[Amendment No. 124 not moved.]
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 125:
Page 57, line 24, after ("authority") insert ("which is designated under section 175(1) of the Local Government Planning and Land Act").
The noble Lord said: In moving this amendment I shall, with your Lordships' leave, speak also to Amendments Nos. 128A, 128B and 135. To understand these amendments it is necessary to appreciate a crucial feature of the Caravan Sites Act 1968. That feature was that the criminal offence of unauthorised camping could be committed only in a designated area. Unauthorised camping in an area which was not designated was not a criminal offence. A designated area was one in which the Minister had decided that there were adequate camping sites for those residing in or resorting to the area. The rationale was that unauthorised camping in such an area could properly be made a criminal offence because resort could be had lawfully to an available site. In the substantial majority of cases that would be at sites
1112
provided by the local authority. In areas which were not designated, unauthorised camping was not a criminal offence because ex hypothesi sufficient sites were not available for lawful camping.
The underlying philosophy of the Act was that no man should be made a criminal because he had nowhere to rest lawfully. This Bill is a reversal of that philosophy. The concept of designated areas has been removed. In essence the criminal offence is unauthorised camping in a vehicle on land after notice of a direction to leave. That notice can be given irrespective of whether there is a lawful site available in the area to which the vehicle and its residents may lawfully move.
I shall address these features in greater detail when opposing the Motion that Clause 72 stand part of the: Bill. The short point, however, under this amendment is that it is a matter of common humanity that no one should be made a criminal by failing to move himself and his family when there is no site to which he may lawfully remove himself and his family. The purpose therefore of Amendment No. 125 is to retain the concept of designation so that only designated authorities may give directions, non-compliance with which constitutes a criminal offence.
The purpose of Amendments Nos. 128A and 128B is to ensure that no direction may be made which does not specify an available site to which those subject to the direction would be able to remove themselves. Perhaps I may at this point refer to Amendment No. 135. It is intended to be of similar effect in that the magistrates, before ordering removal of a vehicle and persons residing in it, must be satisfied not only that they are present on land in contravention of a local authority direction given under Clause 72 but also that there is an alternative site in the locality on which the vehicles may remain either temporarily or permanently. I shall deal more fully with those amendments in a moment.
I wonder what the Government will say in reply to this group of amendments. No doubt it will be along these lines. I feel confident that the noble Karl will not disappoint. He will say that 62 per cent. of local authorities are not designated and that only 38 per cent. are, so it is only the 38 per cent. which have criminal sanctions available to them. The 62 per cent. do not, and they can only have criminal sanctions to hand if the concept of designation is abandoned. It would be difficult to think of a more unmeritorious argument. The 62 per cent. are not designated because they have failed to comply with their duties under the 1968 Act. Their duty under Section 6 was to provide adequate accommodation for gypsies residing in or resorting to their area. It is notorious that across the country there has been a continuing failure to perform this statutory duty, notwithstanding the availability of 100 per cent. capital grants. Thus, put at its shortest, the law breaking local authorities will be rewarded with criminal sanctions against unauthorised campers whose predicament is attributable to the local authorities' failure to fulfil their statutory duty.
If the noble Earl says, "Well, that's life. We had to give authorities in non-designated areas power to deal with the nuisances created by unauthorised campers", the answer is that they already have such power and

1113
there is no need for the creation of these extended offences which are not directed to nuisance but only to unlawful occupation. In 1990, Parliament, by the Environmental Protection Act of that year, improved the summary procedure for dealing with statutory nuisances. Why are those powers not fully adequate to deal with any nuisance which may be caused by unauthorised campers? For example, if the campers create any nuisance on land a local authority can serve an abatement notice, non-compliance with which can lead to a level 5 fine. The central justification for these amendments is that no man should be made a criminal merely for remaining where he is when he has nowhere else in the area to which he and his family can move.
I turn to deal in more detail with Amendment No. 135. When a local authority has directed under Clause 72 that persons and vehicles remove themselves from land, then it is the magistrates' court under Clause 73(1) which has to deal with offences arising out of non-compliance with the notice. Under that subsection the local authority can complain to the magistrates' court which in turn may make an order requiring the removal of the offending vehicle. The order may authorise the local authority to do what is necessary to remove the vehicle.
I invite the noble Earl to give a very particular response to this amendment, the effect of which is that the court may only make an order if it is also satisfied that there is an alternative site in the locality on which the vehicles may remain either temporarily or permanently. We submit that the central vice of the Government's policy is that they are legislating for orders to remove without the least notion of the place to which the vehicles are to be removed. There is a gaping hole in Clause 73(1). Is there any reason why, under such an order, the local authority may not simply dump the vehicle on a lay-by in an adjoining district, so moving the problem on to its neighbour? There is no power, so far as I can see, for the local authority to detain or store what is the property of another pending its relocation. If the local authority has nowhere within its locality to which the vehicle can be moved, what is actually to be done with it?
What are the powers of the officers and the servants of the local authority? Under Clause 73(2) they can enter the land and take such steps to render the vehicle suitable for removal as the order may specify. But what does that mean? Does it mean putting the vehicle into working order so that it can be driven without breach of the law? Does it mean taking steps to ensure that it has an MOT certificate? Despite the fact that the authority is not specifically authorised to remove, does the noble Earl say that that is one of the things that the authority may do as a step,
"reasonably necessary to ensure that the order is complied with",
under the opening words of Clause 73(2)? Or is something quite different contemplated; namely, that the local authority shall not do the removing itself, but shall order the owner to remove the vehicle so that an offence of wilful obstruction is committed if the owner does not remove it?
We believe that what must be contemplated is removal by the servants of the local authority. That returns us to the point of the amendment. What are the local authority's powers to remove and to where is it to remove the vehicles? I hope that the noble Earl will endeavour to give an informative reply. I beg to move.
5.15 p.m.
Lord Avebury: The noble Lord, Lord Irvine of Lairg, has opened up a very general debate on the question of designation which, as he rightly said, was part of a bargain entered into between the local authorities and the gypsy community in 1968 whereby local authorities providing adequate sites for gypsies residing in or resorting to their area were given additional powers contained in the 1968 Act to remove gypsies from unauthorised encampments.
As the noble Lord pointed out, what the Government are proposing under the Bill is to remove the obligation on local authorities to provide sites but to extend the draconian powers of the removal of caravans to the whole of England and Wales without any new obligation being placed on the local authorities. He rightly asks: what is to happen to the vehicles which are removed from these sites and to the people living in them? I wish to reinforce the questions he has put to the Government which go right to the heart of this part of the Bill.
In the Government's consultation paper Access to Local Authority and Housing Association Tenancies of January 1994, the duty to provide temporary accommodation where the local authority has reason to believe that the applicant is homeless and in priority need—that is to say, pregnant, with dependent children or otherwise vulnerable—is to be rescinded. However pressing the need of the applicant, he or she remains on the street until inquiries are completed.
At present a local authority has a duty to secure permanent accommodation eventually for someone who is homeless, not intentionally, and in priority need. The consultation paper replaces that with a duty to provide temporary accommodation only, so that an applicant could become homeless again on the expiry of a fixed period still to be determined. Assuming that the applicant had not declined an offer of accommodation which the local authority considered satisfactory to the needs of the family, then the local authority would have a new duty to provide temporary accommodation, but whether at once or after another period on the streets is not clear.
There is no mention in the consultation paper of what is to happen to gypsies who are evicted under Clause 72. The Association of Municipal Authorities has already submitted detailed criticism of the proposals. It says that the changes in the duties towards the homeless, added to the proposals in the Criminal Justice and Public Order Bill,
"could mean that travelling families were deprived both of the right to a site and right to a home".
Clause 72 makes it unlawful for gypsies to stop anywhere except on an authorised site. Local authorities are to have the power, which in the 1968 Act was

1115
conditional on the provision of adequate accommodation for gypsies residing in or resorting to their area, to direct gypsies to leave any land they are residing on. If the gypsies fail to leave the land, they commit an offence punishable by a level 3 fine. So the 6,000 gypsy families for whom provision has yet to be made on authorised sites will be harried from place to place, accumulating fines. They will no longer have the expectation that one day local authorities will have provided enough sites in England and Wales to cater for the whole of the gypsy population and that in the meanwhile counties which have not made adequate provision will not have the powers, which the Government now propose to give all of them, to move gypsies on.
The new duty to provide emergency assistance in the consultation paper applies to,
"households in priority need who have no accommodation of any sort available for occupation".
I wish to reinforce the question put by the noble Lord, Lord Irvine of Lairg, as regards the application of those words to gypsies evicted from an unauthorised site. Do they mean that a gypsy family, evicted from an unauthorised site—which it may have occupied for years and without having the faintest hope of somewhere else to go—is not eligible?
Already we see the kind of problem that that will give rise to, affecting every gypsy family not on an authorised site. There is the case of Dommett Wood in the constituency of my right honourable friend the leader of the Liberal Party. I believe that it was reported in the Guardian last Saturday that 10 adults and six children in a clearing where gypsies were said to have camped traditionally for 120 years were to be evicted by the district council following the refusal of planning permission which they had applied for. As an aside, perhaps I may mention that that connects with another aspect of government policy which we may have an opportunity to discuss later, because it is the Government's belief—far fetched though it may be— that private provision of sites by the gypsies themselves is to replace the whole of the provisions hitherto offered to them by the local authorities.
It was reported in the newspaper that the eviction would not take place until next March when this Bill has become an Act. Presumably the powers in this clause apply in Somerset, a county which has not been designated under the 1968 Act. The district council would not be able to evict them now because Somerset, as I understand it, has not provided adequate accommodation for the gypsies in that area. But once the Bill is law, all the gypsies in the county not already on authorised sites will be threatened with eviction. The Government have an obligation to explain what will happen to thousands of gypsies who will be evicted and who will not be able to camp anywhere lawfully after this provision comes into effect.
What will be the combined effect of the proposals in the consultation paper, and the continuing duties of local authorities under the Children Act 1989 as far as gypsies are concerned? In that connection, have the Government considered the implications of the case of R. v Northavon District Council ex parte Smith, which was
1116
heard in July 1993? Perhaps I may remind the Committee that in that case Mr. Jimmy Smith, his wife: and five children under 10 were threatened with eviction from a caravan which was parked illegally by the side of the road. Avon County Council asked Northavon District Council either to provide the family with assistance in securing a full tenancy commensurate with their housing needs or to secure accommodation for them in a private rented property.
Section 27 of the Children Act 1989 provides that,
"Where it appears to a local authority that any authority mentioned in subsection (3) could, by taking any specified action, help in the exercise of any of their functions under this Part, they may request the help of that other authority …, specifying the action in question. An authority whose help is so requested shall comply with the request if it is compatible with their own statutory or other duties and obligations and does not unduly prejudice the discharge of any of their functions".
The court ruled that Avon had a general duty under Section 17(1) of the 1989 Act to safeguard the welfare of children in need, and a specific duty under Section 20(1) to provide accommodation for children in need. It had the power to ask for Northavon's help in exercising those functions under Section 27 just quoted, and Northavon had no discretion to refuse that request on the ground that the council had already considered its duty under Section 65(3) (b) of the Local Government and Housing Act 1989, and had decided that it was not obliged to offer a tenancy to the Smiths. The Master of the Rolls, Sir Thomas Bingham, said:
"Reading these two statutory codes side by side, I find a clear parliamentary intention that children in need should not fall between them. That means a clear duty to provide or secure the provision or give assistance in relation to the securing of accommodation must rest somewhere".
I should like to hear the Government reaffirm that intention this afternoon. Is it Parliament's intention—is it the Government's intention?—that families with children should continue to be protected by a safety net which ensures that if they are denied the right to continue residing in one place and have no chance of being able to reside lawfully anywhere else, they will be offered accommodation suitable for their needs? That is what the Children Act provides. The case that I have just mentioned does not give the answer because the Smith family were being evicted from the caravan that they occupied but did not own. The usual pattern of living in the gypsy community is for the family to own their own caravan. If they are evicted, it is from the site, not from the vehicle itself.
Let us suppose the Smith family had been evicted from a site, and were then unlawfully camped on the roadside after Clause 72 has come into force. As I have already suggested, under paragraph 5(1) of the consultative document, they would not be defined as "homeless", because they would still have the use of their caravan, even though by continuing to reside in it they would be committing an offence. Section 65 of the Local Government and Housing Act, or its future equivalent, would not come into play. But the Children Act still applies, and it is essential to know what the Government's policy is on this matter. Are they going to let the Northavon appeal take its course, and if the House of Lords upholds the decision of the Court of Appeal, will they refrain from attempting to alter the

1117
law? If that is so, what will be the position of families evicted from one unauthorised site, and having no alternative but to station their caravans on another unauthorised site? Would a county council still be able to invoke Section 27 of the Children Act, and would that action not restore the duty in the 1968 Act which it is proposed to repeal in Clause 75?
This may be the right moment to refer to an opinion which was given to the Save the Children Fund by the distinguished human rights lawyer, Peter Duffy, a former chairman of the international executive committee of Amnesty International and an expert on the European Convention on Human Rights. Mr. Duffy points out that the application of Mrs. June Buckley to the European Commission was declared admissible by the European Commission of Human Rights in March 1994. Mrs. Buckley, a gypsy, complained about the cumulative effect on her and her children of designation and the criminal offence which follows it under the 1968 Act, and the strict enforcement of the planning law. Mr. Duffy emphasises that up to now, all applications by gypsies against the United Kingdom have been found inadmissible by the European Commission, largely because of the existence under the law of a duty to provide sites. This, he believes, would change if the Bill (containing Clause 72) is enacted in its present form, making it likely that breaches of Articles 8 and 14 will be found.
The criminalisation of the gypsy way of life under this clause would violate the recommendations made by the Committee of Ministers against discrimination against gypsies. The Committee declared that:
"In their law and practice regarding the movement and residence of persons, States should refrain from any measures which would lead to discrimination against nomads for reasons of their nomadic lifestyle".
Will the Government say whether they have considered the possibility of a flood of applications under Articles 8 and 14 being declared admissible by the Commission, and how they answer the charge that I now make, that what they are doing in this clause is a deliberate violation of our obligations under the convention?
The attitude of respondents to the new criminal offence in the consultation paper Gipsy sites policy and illegal camping: reform of the Caravan Sites Act 1968 was critical. I mention the example of Hertfordshire County Council (about which we know a great deal) which said:
"The creation of the proposed criminal offence is not likely to be helpful …, as it will bring with it major enforcement problems, which will continue indefinitely so long as there are not adequate authorised public or private sites which gipsies can use as an alternative to illegal camping. It is possible to envisage a situation where groups of gipsies are being moved on almost daily, with an increasing number of stopping places, not just traditional ones, becoming involved. This is likely to generate a much more confrontational atmosphere than exists generally at the present time. The new legislation would foster a public expectation that illegally camped gipsies should be removed immediately, which would be very expensive and which local authorities and the police might find impossible to meet. Orders prohibiting return to sites would not be easy to enforce because of the problem of identifying that it was the same gipsies who had returned. Districts that have been designated may feel aggrieved that other areas having resisted site provision, will be granted similar powers".
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The Association of Metropolitan Authorities said that increased powers to move gypsies off unauthorised sites should only be considered in the context of adequate alternative provision being available, which of course is precisely what we tried to do in the 1968 Act. Justice expressed concern that new criminal laws were being proposed to remedy a social problem.
I am advised that the Government received nearly 1,400 responses to the consultation paper, and that the overwhelming majority believed these proposals to be unworkable. I am also told that only 660 of the responses were lodged in the Library of another place, the remainder having been excluded on the spurious grounds that they did not mention particular paragraphs of the paper.
The proposal in Clause 72 is thoroughly reactionary, taking us back to the bad old days prior to the 1968 Act when gypsies were harried from pillar to post. It will mean increased local authority spending on evictions; more unnecessary work for the courts; misery and confusion for a great many gypsy families; burdens on the county councils under the Children Act, and many cases against Britain at Strasbourg. All that to placate a small but vociferous section of the right wing of the Tory Party which is animated by fanatical hatred of gypsies and an unreasoning opposition to any measures that allow them to continue their way of life without causing disturbance to the settled population. They are mean and despicable provisions which have no place on the statute book of a nation which prides itself on its treatment of minorities.
5.30 p.m.
The Lord Bishop of Liverpool: I listened at an earlier stage to the noble Lord, Lord Stanley, speaking as a landowner about the difficulties of trespass and about the unquestioned nuisance of illegal camping; and I listened with a great deal of sympathy. I was reminded of the time when, as Bishop of Woolwich, I was taken by a landowner, Uvedale Lambert, to be shown as a matter of great pride a site in Surrey properly provided and prepared for lawful camping. The simple issue of removing illegal camping has to include a proper provision of legal sites. I support Amendment No. 128A, tabled in the name of the noble Lord, Lord Irvine of Lairg, and Amendment No. 135. I believe that they hang together with the fact that my own name has been tabled to oppose the Question that Clause 75 stand part of the Bill.
The argument appears to have been, "Local authorities have failed to obey the requirement laid on them by the law, so let us repeal the law". But how can a discretionary power be expected to produce further proper provision? We are dealing with an unpopular group of people. A great deal of prejudice is expressed against gypsies. Again, I refer to a time when I was Bishop of Woolwich. I lived in a road called Asylum Road in Peckham. I remember when the gypsies arrived in that road. It was said that black people were given a rest because the hatred of so many people was turned on the gypsies. How are local authorities to resist such prejudiced feelings if they are not obliged to make

1119
provision? How will planning authorities ensure that planning permission is given when, again, prejudice is at work in opposing those requests?
I remember a councillor in Southwark approaching me in a very threatening manner and saying, "You are in favour of the homeless". Southwark was one of the boroughs which did its duty much better than others in London at a time in the 1960s when authorities in other parts of London were inclined to give such people their fare and tell them to go east to some of the boroughs which did make provision for homeless people. I understood the anger about inconvenient people who did not fit in.
It will be interesting to follow what Southwark have been doing in the meantime. In 1986 Southwark made a decision to make provision rather than to proceed with evictions. The authority had already provided, as it was required to do, for at least 15 caravans. Some argued that the borough would be swamped by gypsies. However, in 1973 Southwark produced a new 16-pitch official site and they are upgrading two further sites. Families are registered on the electoral role and children are settled in local schools. The fear of being swamped has not been fulfilled.
The statement that the 1986 Act was a failure needs further consideration. The figures that I have been given show that 60 per cent. of gypsy caravans are now legally sited, whereas in the 1960s, before that Act, less than 10 per cent. were legally sited. I do not believe we should call that a failure. I know that district councils have made the decision that swifter evictions are unworkable unless they are balanced by adequate provision of sites to which people may be moved.
I am deeply unhappy about the proposed measures. A civilised country is properly measured by how it treats its minorities, especially minorities who, for various reasons, have attracted unpopularity. A distinguished Jewish judge told me only last month when I mentioned that I was going to speak on the subject in your Lordships' House that, "Gypsies today are the Jews of yesterday". We need a mixture of private development with people being encouraged—with, perhaps, measures to encourage them—to buy their own sites and develop them, together with a mixture of local authority provision. If the duty to provide is removed, how can we expect sufficient provision to be made? How can we expect sufficient planning applications to be accepted?
Members of the Committee have talked very much about "them over there" as being a nuisance. But let us start to think about them as people—that is, families, mothers and children—and ask, "How will proper provisions be made for them?" I am thinking especially about health and education. The senior public health officer in Liverpool, Dr. Ruth Hussey, has shared with me details of a major study that she undertook about travellers and their access to health. Gypsies and ethnic minority groups have a right to equal access to health services. Can the Minister tell us how those families will receive equal access to health? Dr. Ruth Hussey says that,
"problems are created for health services [by] local authority policies of actively moving travellers on, thereby making follow-up more difficult".
1120
For vaccination, one must have a postal address, and the same applies for hospital appointments. Members of the: traveller community are disadvantaged as regards health and as regards health care.
To enable preventive health services to be provided, health professionals need to know when travellers arrive in a district. They need to know where they are so as to be able to follow them up. The constant moving on does not help the situation. I am not sure what is the Government's intention. Do they want to accelerate a. process of assimilation? If they do, surely what would be most important would be the co-operation of the traveller community. Moreover, if they want assimilation, what would be more important than anything else would be the provision of education for children of traveller families so that they are built in and become part of a community. When we talk about health care, we need to stress that the proper pursuit of health care needs to be discussed with members of the traveller community. They may perceive that the most important parts of health care will be targets of clean water and a secure camp site.
I shall speak briefly on education. I am informed that the school attendance rate varies between 10 per cent. and 50 per cent. of eligible traveller children. Local authorities have responsibilities. Indeed, the noble Lord, Lord Avebury, asked some very important questions about the Children Act and how its provisions will be fulfilled. I have questions to ask about the Education Act 1980. Under that legislation, the local authority has a duty to make education available for all school-age children residing in its area, whether permanently or temporarily, which must embrace traveller children. How will that provision be made if then; is no duty to provide lawful sites? It seems to me that all the perfectly proper wishes to prevent illegal camping will only be sensibly and properly met if there is provision of legal sites.
Earl Ferrers: The amendments which have given rise to the debate are Amendments Nos. 125, 128A, 128B and 135. In their different ways, they would all restrict local authorities in the use of what we believe is a new, quick and effective power to deal with unauthorised camping which Clause 72 provides. Let us be perfectly clear. There is unauthorised camping and there is a problem. I believe that even the right reverend Prelate the Bishop of Liverpool, who is so concerned —and rightly so—about these matters, would agree that there is a problem here which has to be addressed.
I shall run quickly through some of these amendments to explain why we believe that the power which we have in the Bill is a good one which is designed to meet the needs of both the local authority and the community it serves. Local authorities are responsible, experienced bodies and it must be for them to decide, given the availability of resources and the other duties which rest upon them, how best to use this power.
Amendment No. 125 restricts the use of the power to local authorities which have been designated under the Caravan Sites Act 1968. It is wrong in principle. Unauthorised camping can cause great nuisance,

1121
damage and distress to landowners and to local communities wherever it occurs. It does not seem sensible to us that only those authorities which have made adequate provision on caravan sites for gypsies should have adequate powers to control unauthorised camping in their areas. The fact is that only 37 per cent. of authorities have been designated, as has already been stated.
Clause 72 empowers authorities to direct any unauthorised campers, not just gypsies, to leave land and to remove their vehicles and property. However, the designation procedure, which the amendment seeks to link with the new power of direction, relates solely to the provision of sites for gypsies. It would be illogical to confine the powers of local authorities to deal with unauthorised campers (who may not be gypsies) just to those local authorities which have provided accommodation for gypsies. The amendment would therefore deny to non-designated authorities the powers which they need to control unauthorised camping by non-gypsies.
Amendments Nos. 128A, 128B and 135 also refer to the use of the power which is implied in this clause. Amendment No. 128A would require a direction given under Clause 72 to specify any available site or sites in the borough or district concerned where the unauthorised campers to whom the direction applies can lawfully reside in their vehicles. Amendment No. 128B is, I think, intended to be a proviso to the clause emphasising that for a direction to be given at all such alternative sites must be available within the borough or district. Amendment No. 135 would have a similar effect by preventing a local authority from using the direction power until it had demonstrated to a magistrates' court that there was alternative accommodation available.
The noble Lord, Lord Irvine of Lairg, wondered what I was going to say on this matter. He then proposed to tell the Committee what I would say. I do not know whether he was quite right in his submission but the Committee will be able to determine that for itself. We fully accept that the problem of unauthorised camping arises mainly because not all travellers have a lawful site on which to reside. Indeed, we have already taken steps to encourage more gypsies to establish their own sites under the planning system as it is at present. However, we do not agree with the principle that local authorities should be constrained from evicting an unlawful encampment simply because the persons whom they are evicting have no lawful place in the area where they can reside in their vehicles.
We entirely agree that the lack of alternative accommodation for unauthorised campers must be a factor in an authority's decision whether or not it should evict those people. But there may be other equally important factors which it has to consider: an encampment may cause an intolerable nuisance to the landowner and the local community; it may create a public health nuisance; or it may constitute a hazard to traffic. These amendments pay no regard to those factors. I do not think it is reasonable that a local authority should be impotent to evict such encampments
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on the grounds that an alternative site in the locality cannot be identified. We fully understand the problems which are experienced by genuine nomads without proper site accommodation, and we intend to reinforce our advice to authorities that they should not evict gypsy families needlessly where they are camped on council or unoccupied land and are causing no nuisance. We will also advise authorities to continue to make emergency stopping places available to gypsies where they may stay for short periods.
The noble Lord, Lord Irvine, has claimed on a previous occasion that our proposals,
"represent a high watermark of repressiveness"
and that gypsies
"will be harried from pillar to post with nowhere to stay and no lawful option other than to remain on the move".
That was, I thought, a somewhat intemperate and uncharacteristically unfair indictment by the noble Lord of local authorities which have a proud history of tolerance towards gypsies. Perhaps I could remind the noble Lord, and indeed the noble Lord, Lord Avebury, that at present 46 per cent. of gypsy caravans in England and Wales are stationed on council sites and a further 24 per cent. are on private authorised sites. Another 10 per cent. are stationed on land which is owned by the gypsies concerned—albeit much of it may not have planning permission. The picture of repression which the noble Lord painted, and indeed which the noble Lord, Lord Avebury, painted, does not accord with the facts.
The noble Lords, Lord Avebury and Lord Irvine, were concerned about where the gypsies would go if they were evicted. That is a perfectly genuine and correct concern; but gypsies who are without lawful accommodation will continue to do what they do now —they will camp on bits of surplus highway land and other unoccupied or derelict land for short periods and then they will move on. They will be expected to choose the location of those unauthorised sites carefully so as to avoid causing a nuisance to others. We would expect them also to be careful in how they use such sites so as to avoid giving offence to others. Provided that they meet these expectations it is unlikely that local authorities will try to evict them. We intend to reinforce our advice to local authorities that they should not evict without good cause.
I believe it was the noble Lord, Lord Avebury, who referred to families with children and asked whether they will continue to be protected by a safety net. If a gypsy household has nowhere else to park its caravan, the household may be found to be in priority need and may be deemed to be unintentionally homeless under the homelessness legislation. If that is so, the local housing authority would have a duty to secure accommodation for the household.
The Committee should also bear in mind that Clauses 72 and 73 relate to all unauthorised campers, and not only to gypsies. The so-called New Age travellers adopt a travelling lifestyle as a matter of choice. Furthermore, they appear to have no wish to establish or to reside on authorised sites. Their desire is to roam unchecked through the countryside. These amendments would

1123
accord to these persons a remarkable degree of protection under the law which frankly I do not think is justified.
I understand the logic behind these amendments. It is easy to paint a bleak picture of the future in which local authorities wield their new powers like zealots and every unauthorised camper is repeatedly moved on. However, I do not believe that that is likely to be the case. The right reverend Prelate the Bishop of Liverpool said that a civilised country is judged by how it treats its minorities. That may be perfectly true, but everyone in the country has to live within the law and it is not sufficient for people to say, "Because I want to move around I am entitled to trespass or to place myself on someone else's land and create such problems as may arise simply because that is what I wish to do".
The noble Lord, Lord Avebury, was concerned about the human rights issue. I can inform the noble Lord that we have no quarrel with the nomadic way of life. But nomadic people have to keep within the confines of the law. Illegal camping can cause great nuisance and distress. Nomadic people cannot expect to be free of the constraints which affect other citizens or to have special privileges.
The noble Lord was also concerned about the Strasbourg cases, in particular the Buckley case. The Commission has asked for further observations on the case of Mrs. June Buckley. The case is not finished and has not yet come before the Court of Human Rights and may never do so.
The right reverend Prelate the Bishop of Liverpool was concerned about planning permission not being granted to gypsies. I believe that that was what he found when he was Bishop of Southwark. The Department of the Environment's circular Gypsy Sites and Planning advises local planning authorities to include within their development plans policies to meet gypsies' accommodation needs. The law requires planning authorities to determine applications for planning permission in accordance with development plans and any other material consideration. The Government policy advice can be treated as a material consideration. Gypsies can appeal against unfair decisions by planning authorities. I believe that the planning system is transparently fair.
The right reverend Prelate and also the noble Lord, Lord Avebury, were worried about access to health facilities. Of course it is difficult to maintain continuity of health care when people are travelling around. However, regional health authorities are required to take account of travellers' needs in formulating their plans, and there are well-established arrangements for general practitioners either to provide emergency treatment to unregistered people or to treat people as temporary residents for a period of up to three months. The Department of Health is funding a number of special schemes across the country to help travellers and encourage them where possible to link up with mainstream services. Our proposals will not affect any of those arrangements and will not exacerbate the difficulties that travellers may already experience.
If, as the noble Lord, Lord Avebury, has said, it is felt that the Government are being too harsh, let us remember that everyone in this country has to live
1124
within the law. The correct steps have to be taken to protect those who are in minorities and are deserving cases, but I invite your Lordships to look at the reality. Every week local newspapers throughout the country include reports of appalling mess, nuisance and environmental damage caused by the illegal encampment of travellers. Many gypsies cause no trouble but a good number create intolerable conditions for local communities. In practice, eventually they are moved on by court action, or they may move on themselves, but I believe it is naive to imagine that none of them has a place to go. Part of the rationale for the gypsy lifestyle is the ability to move from place to place. It would be unduly constraining to require a local authority to identify an alternative site within its area, and it would be bureaucratic to impose such a requirement on local authorities collectively.
This is a sensitive and a difficult area. Of course it is important that those who are in minorities and are in difficulties should be adequately protected. I said earlier that 80 per cent. of gypsies were already on sites provided either by the council or privately, or were on their own sites. It is not the case that there is a mass; campaign, if I may so put it, against gypsies. One has to balance the rights and desires of people to move around with the conditions that those rights and desires impose upon other people. We believe that that is, the balance that we have got right in the Bill.
Lord Avebury: A few years ago an American scientist named Milgram conducted an experiment in which he brought ordinary American citizens into a laboratory where it was explained to them that they would be taking part in an experiment designed to measure the effect of pain on the learning process. He discovered that ordinary doctors, housewives, lawyers and so on could be persuaded, under the influence of a prestigious university institution and the professor who was standing beside them, to inflict serious pain on the so-called subjects of that experiment.
The noble Earl is a man I greatly respect. He is humane and kind and has all the human virtues. Yet he pushes this inhuman policy on gypsies because he is part of the institutional framework of the Conservative Party and the Government. I cannot believe that there can be any other explanation for the reply that he has given this evening. It totally ignores the effects on the gypsy community which will result from this provision. It is no use the Minister saying that there are plenty of other places to go and that with a little ingenuity gypsies can find alternative places to park. He knows perfectly well that that is not true. If he has any doubt about it, let him ask people like the Romany Guild, Hertfordshire County Council or any of the other 1,400 eminent persons and organisations who made representations to the Government about the original consultation paper.
The noble Earl says that it is for the local authorities to decide how they will best exercise their powers. These are powers which are to be given to them. They never had those powers in the past. They have not needed those powers in order to persuade them to provide sites under the 1968 Act. It was the bargain that

1125
they were to be given the powers if they provided the sites that resulted in a major advance in the past few years.
I know it is the opinion of the noble Earl that the 1968 Act has not worked. The figures show that he is wrong. The number of gypsies camping on unauthorised sites has decreased in the past year to its lowest level since a point in 1989. The combined total provision by local authorities and private owners has increased every year since 1990. The noble Earl is aware that we would have been on the way to a complete solution to the problem and the provision of an adequate number of sites in England and Wales for all gypsies residing in or resorting to local authority areas if we had not suddenly wiped out the incentives that local authorities had to provide such sites. First, we wiped out the financial incentives in the form of the 100 per cent. grant. I hope that we shall have an opportunity to discuss that matter later on. We are now wiping out the incentive that local authorities had under designation in the 1968 Act to provide their own sites.
It is not true that the private sector is able to provide anything like an alternative. I challenge the Minister to say what has happened since the circular was issued at the beginning of January 1994 and what changes in development plans have been effected by local authorities that include greater provision for gypsies.
Lord Stanley of Alderley: I am grateful to the noble Lord for giving way. Unless I read this clause wrongly —as I may well have done—the provision deals with moving on unauthorised encampments. The next clause, Clause 75, deals with the provision of sites. My noble kinsman is dealing with the provision of sites when the clause with which we are now concerned deals with moving on illegal, unauthorised campers.
Lord Avebury: It does indeed. It was the Minister who went into these areas. I spoke originally about the criminalisation of the gypsy way of life. The Minister said that gypsies could get along perfectly well without the sites that would otherwise have been provided by local authorities. It is said that there are plenty of unauthorised sites to which they can go which are unobtrusive and will not attract use of the powers that are being conferred on local authorities by this clause. They can camp somewhere else, either in the neighbourhood or perhaps in other parts of the country. That was the situation which obtained prior to 1968. A local authority would evict gypsies from the places they formerly occupied in one area and they would go into a neighbouring area.
I remember very well that when I was in another place the problem arose constantly. The local authority whose area included the constituency which I represented used to evict gypsies, who then went to the neighbouring county of Kent, where there was no provision for them, and they were harried from pillar to post. The same would happen now.
Whatever the Minister may say about the Government's policy on looking after the homeless, the fact is that these people will not be in priority need. Under the guidelines which his Government have
1126
published, a family which is rendered homeless by being evicted from an unauthorised site will have no claim on the authority in whose area they happen to reside because they will still be in possession of their caravan. That will disqualify them under the guidelines which have been published by the Government.
The noble Earl and his Government are creating enormous social problems by giving local authorities the power to evict in this way. I am sure that when local authorities see the results of the clause they will bitterly regret it. Not only will it result in an increase in legal costs and staffing costs in carrying out the convictions, but they will have to pick up the pieces afterwards too. This will affect not only the gypsy families in question: the next generation will suffer from the trauma which has been inflicted on it by the Government's Clause 72.
6 p.m.
Earl Ferrers: Perhaps I may clarify one or two matters for the noble Lord, Lord Avebury. He has made out that the Government are doing terrible things and gypsies will be harried from pillar to post. He implied that the Caravan Sites Act had almost cracked the problem. That is not so. Gypsy numbers have been increasing year after year. The noble Lord disagrees but I think that he will find that that is so. Ever since 1981 —and we are now talking about a period of more than 12 years—there have regularly been 4,000 caravans on unauthorised sites, despite all the money that has been spent. Therefore the problem has not been cracked.
Throughout that period, local authorities have dealt with this difficult problem humanely, as I am sure the noble Lord will recognise. What he is really saying is that if people want to stop somewhere and camp illegally on an unauthorised site they should be entitled to do so. I do not think that that is right. The law of the land requires people to live within the law. Just to say, "I want to stop here because it is convenient to me", is not good enough.
Lord Avebury: The law says that only the 38 per cent. of local authorities which are designated have the powers which are contained in Clause 72. I want to revert to that position.
When I contradicted the noble Earl I was looking at the Government's own figures in local authority returns, published by the Department of the Environment, for the number of gypsy caravans, analysed by region, every January. In January 1993 there were 13,198 caravans in total. In 1994 there were 13,060. Between those dates the number of gypsy caravans on unauthorised encampments decreased from 4,183 to 3,838.
I did not say that the problem was almost solved. I said that it was on the way to a solution. I also pointed out that the number of caravans which have been provided on authorised sites is considerably greater than the number provided on private sites. The figures so far are 5,951 in the case of councils as against 3,271 in the case of private sites. Therefore the Government's assertion that the private sector is able to take up the loss of any provision by the public sector is simply pie in the sky.
Baroness Faithfull: Perhaps I may ask for guidance from my noble friend the Minister and the noble Lord, Lord Avebury. I am confused. A number of us want to speak on this subject but intended to speak to Amendment No. 134. We seem to have strayed. Therefore, we are in some confusion as to whether we should speak now. Many of us, particularly my noble friend Lord Stanley and I, had intended to speak to Amendment No. 134. Perhaps we may speak on the general issues raised by Amendment No. 134.
Lord Taylor of Gryfe: Can the Minister give me some guidance? I understand that we are discussing relieving local authorities of the obligation which exists to provide sites under the present Act. Is that the issue, or are we discussing some other issue? Otherwise I should like to speak on the matter.
Earl Ferrers: The position is fairly clear. We are discussing Amendment No. 125. That amendment is grouped with Amendments Nos. 128A, 128B and 135. Those are the amendments which are under discussion.
The Lord Bishop of Liverpool: I understand that there is some difficulty. The noble Lord, Lord Stanley, said that the amendments we are discussing were concerned with moving on and legal trespass. I believe that he wanted to head us off from talking about the provision of legal sites. However, I am not quite sure how one can consider one without the other. Amendment No. 128A is concerned with the provision of other sites.
In relation to the points that I tried to make I feel that there is a gap in the response from the Minister. I do not see that we can have an answer to those issues until he tells us why the Government are repealing the duty of local authorities to provide sites. In responding to me, the noble Earl said that everyone has to live within the law and we should not trespass. I fully agree. But the way to deal with that is to ensure that proper provision is made. That is the problem which is addressed by Amendment No. 128A. I do not see how we can keep away from Clause 75. I believe that it has to be included in a rounded discussion of the matter.
I want to press the Minister. He spoke with some pride of the figures and said that 46 councils provided sites. That was surely the result of the law as it stands. That is not failure. Nor is it a case of having almost cracked the problem. However, some progress has been made. Why do we not keep that law in place and bring greater pressure on local authorities to fulfil their obligations?
In thinking of the good of gypsy families, I asked the Minister whether the answer was to get more gypsy children to school. In response to the question as to what the gypsies would do, the Minister said that they would camp for short periods, and move on. We would hope to see steadier provision as a result of which there would be a greater possibility of children becoming established in schools.
Earl Ferrers: The position which the right reverend Prelate addresses is this. At the moment, a local authority which has a certain number of caravan sites is a designated area and can move people on. We suggest
1128
that local authorities have not taken up the 100 per cent grant which was available for these people. As they have. not done so over the past 15 or 25 years, there is. no point in continuing that provision.
We are encouraging gypsies to find their own sites, as they have in the past, where they will be able to make their home. However, the very nature of being a gypsy is that one wishes to be a nomad and to move around. The two objectives conflict.
Lord Taylor of Gryfe: In response to the right reverend Prelate, what we are doing now is to relieve local authorities of a certain responsibility which they have at present. The Minister said that they have not fulfilled the obligation as extensively as they might. Nevertheless, to relieve them of that responsibility would not be a wise step, economically or socially. Economically, the Minister has said, if there are difficulties in the local authorities in providing housing, they could be accommodated under the Housing Act by a local authority and presumably put into bed and breakfast or their children might even be taken into care once community and the environment in which they live at the moment has been broken up. On economic and social grounds this dramatic change in the responsibilities of local authorities does not seem to me to be justified.
The Minister said that we were trying to encourage the gypsies to provide their own sites but, however desirable that may be, it is a gamble. If the local authorities have been unable to exercise this responsibility to the full in the past it is a bit of a gamble to say that perhaps the gypsies will develop their own sites. I return to the point that was made earlier. We are talking about people, about families and about breaking up families. I have been impressed by some of the briefings I have received on this matter from the Homelessness and Housing Need people and from Save the Children, who indicate that the best way to guarantee stable conditions will be through the provision of authorised sites. They are convinced of the importance of access to stable and suitable accommodation for children of mobile families.
Children are in danger if we do not place responsibility on local authorities, as exists in present legislation. In the consultative documents which preceded this Bill, I was impressed by what the Country Landowners' Association and also the National Farmers' Union said. They say that an additional criminal offence whereby it is illegal to station a vehicle on public or private land is to be encouraged but that, as currently drafted, the offence raises difficult questions of enforcement. I think that is true.
Similarly, the NFU and the police officers who will have to operate the law in due course have said that the local authorities should continue to be encouraged to provide suitable facilities for gypsies and itinerants. They also made the point that it is going to be extremely difficult to enforce this legislation. That point of view is supported by a number of constabularies which were asked to comment on the consultative document. I have

1129
an important submission from the gypsies themselves, who have made alternative proposals for the constructive reform of the Caravan Sites Act 1968.
I suggest that, before we make the substantial change implied in the legislation before us, these matters should be given very serious consideration. I have also the submission of the religious Society of Friends, with which I am associated. They too stress the importance of this in social terms. Therefore I feel that we must be extremely careful in changing the legislation in the way that has been suggested, because we are moving into an area which could have very serious social consequences.
6.15 p.m.
Lord Hooson: It seems to me that the weakness of the Government's case here, as expressed by the noble Earl, for whom we all have a great deal of respect, is the emphasis of the obligation placed on travellers, with which we all agree: the obligation on gypsies not to park on unauthorised sites and create a nuisance for the rest of the community. With that one can agree, but there are also obligations on local government under the 1968 Act which many local authorities have chosen to ignore. There have actually been attempts in the courts to bring about a realisation of the obligations upon local authorities. These have not resulted in any action. Am I not right in thinking that there are many local planning authorities in this country which have never granted planning permission for gypsy sites, whatever the applications have been?
I have been a fairly consistent supporter of the Government in this legislation in so far as it affects travellers, who make a huge nuisance of themselves by moving in great numbers and causing the kind of reaction in our community which I think has been fully justified. It is that movement of large numbers which people in rural areas and in other areas feel threatens their own way of life. It has resulted in popular support for the Government for criminal sanctions —that is what it amounts to—against such people. But when you have the genuine nomad, the gypsy, with whom we are primarily concerned here, travelling about in fairly small numbers and when there has been a failure by local authorities to provide proper licensed sites for them, then the noble Earl is losing out on his balance. We all have rights in the community and we all have obligations. We all have obligations to obey the law, but, when obeying the law is not compatible with the nomadic life because those who are responsible for the law have not provided licensed sites, then I think it is grossly unfair. It is this element which is troubling the Committee.
Lord Avebury: If I could ask the noble Earl to deal with one other point, he keeps saying that the local authorities after 25 years have not complied with their obligations under the Caravan Sites Act and therefore it is not reasonable to expect them to do so now. He may well be aware that in recent years the Government have been issuing directions to local authorities which have not provided sufficient sites for gypsies in their areas to comply with the Act and to provide fixed numbers of
1130
pitches for the gypsies. I have before me, for example, an order issued by the Secretary of State on 28th November 1988, requiring Hertfordshire County Council to provide accommodation for a further 110 caravans for gypsies residing in or resorting to their area. In the case of Hertfordshire, I believe that since the publication of the Bill only one of the three sites which were to have been provided under this direction given by the Secretary of State is to go ahead. Therefore, as the Bill approaches the statute book, it has meant that the projected provision in the county of Hertfordshire has been cut by two-thirds.
I want to know from the Minister—and if he cannot answer the question today I should be grateful if he could write to me—to how many local authorities has the Secretary of State issued directions under Section 9 of the 1968 Act to provide what number of pitches, and in how many cases has the Secretary of State exercised the power of mandamus that was conferred on him by the 1968 Act to enforce those directions. I believe the answer to the latter question is probably, none. I have not heard of any, but this is the key to the statement that was made by the noble Earl that the Act has not succeeded after 25 years. The reason why it has not succeeded is that the Government have not been sufficiently firm in using the powers that they were given. As I say, it is only in very recent years that they have started issuing directions such as the one I have here in the case of Hertfordshire. I believe half a dozen similar ones have been issued to local authorities but that in no case have the Government ever sought to enforce those directions by the power of mandamus which they possess. Had they done so, they would have found that the number of pitches provided by local authorities would have accelerated considerably.
Also, the Government are being too pessimistic about the rate of provision at the moment and the ability to exceed the number of unauthorised encampments. Since the noble Earl was obviously badly briefed by the department in saying that the number of unauthorised encampments had increased every year when it declined between 1993 and 1994, I suggest that he examines the figures. Perhaps on reflection he may agree with the argument put by myself and other noble Lords that if we allowed the 1968 Act a chance to work, and if the Government were firmer about using the enforcement provisions, we would not need Clauses 72 or 75.
Lord Northbourne: I urge on the Committee that the ownership of sites by the gypsy population is the worst of all possible solutions. The reason local authorities have had so much difficulty in establishing sites is that people hate having them near their own property. That is because the sites are not properly managed. In order of preference, in regard to gypsy sites near me, I would put as worst of all a site owned by the population who occupy it. The next best solution would be a site owned and managed by the local authority and the best would be a site owned and managed by me.
If we could reduce the aggravation caused by the sites through having them properly managed by the local authority and ensuring that the gypsy population moved on every two or three months and that they were turned

1131
off the site if they caused trouble or left mess, then I believe that the difficulty in obtaining gypsy sites would be less than today.
Earl Ferrers: I do not know whether I can help the Committee any further. The noble Lord, Lord Avebury, asked me how many directions had been given. Three directions have been given, none were for mandamus, the directions were for Hertfordshire, Avon and Surrey. My advice is that each authority is acting in good faith.
There are a number of problems here. The first is that the gypsy population has been increasing year after year. There are now some 13,000 caravans, a considerable increase on the figure of under 10,000 in 1981. Despite all the advantages of the Caravan Sites Act 1968, there is a continuing number of caravans on unauthorised sites, as there has been all along, amounting to 4,000 a year. That has been the case since 1981. The existing policy has not reduced the level of illegal camping by gypsies. Local authority site provision is not keeping pace with the growth in the gypsy population, even though since 1978 local authorities have been able to claim a 100 per cent. grant in respect of the capital costs of site provision.
I agree with the noble Lord, Lord Northbourne, that on the whole people are not keen on having caravan or gypsy sites on their doorstep. That is one of the problems. However, because there is that difficulty, it does not give the right to gypsies to set themselves down anywhere else. We need to try to encourage people to obtain the sites. The local authorities will still have the ability to make caravan and gypsy sites and the gypsies will be able to have their own caravan sites. The number of sites privately owned by gypsies has increased substantially, I think I am right in saying by about 135 per cent.
The picture that hereafter all gypsies will be pilloried, left, right and centre, is not fact. Eighty per cent. are already on sites. We must try to ensure that they are looked after—if that is the right expression, which it is not—in a way that is compatible with their form of life and with the law. Local authorities have difficult and conflicting duties to carry out. There is often with campers—I use that all-embracing term, whether they are gypsies, New Age travellers or whoever else—an appalling mess, nuisance and environmental damage. Local authorities must take that into account. It may be that they will have to say to the people who cause the damage: "I am sorry, you've got to move on and find somewhere else because it's not fair to the rest of the community that this area should be in such a parlous state". That is a perfectly justifiable reason for a local authority to move someone on.
Those reasons cause us to suggest that it is right for local authorities to have powers which they will carry out sensitively, as they have in the past. It is right for them to do that and for the community as a whole that there should be places where gypsies can reside. But it is not right for them to remain if they are residing there unlawfully. However one argues the case, we cannot justify —no one can—the continuation of illegal acts. However, that is a separate matter from trying to find a suitable, adequate alternative which would be legal. The
1132
conditions which local authorities have are difficult and these powers will enable them to carry out their duties properly.
Lord Irvine of Lairg: The debate will continue tonight under the rubric of the many amendments which lie ahead and when we will have the opportunity to deal with some of the arguments which the noble Earl has brought forward. Specifically, I desire to repudiate the suggestion which recurred in the noble Earl's address, that a principal solution would be for the gypsies to provide sites for themselves through the use of the planning system.
Planning policies have, as the noble Earl is or should be aware, become less accommodating, so that even if a gypsy had the resources to provide a site for his family or others, he would find it much more difficult to do so lawfully. Earlier this year, the Government of which the noble Earl is a member reversed to a significant extent the supportive approach hitherto extended to applications for planning permission for gypsy sites. The new approach is to be found in Circular 1/94, issued by the Secretaries of State for the Environment and Wales. Gone is the previous recognition that it is necessary to accept such sites, even in areas of open land where there are land use policies severely restrictive to development, such as green belts and areas of outstanding natural beauty. Now it is the policy that:
"As a rule it will not be appropriate to make provision for gypsy sites in such areas".
Moreover, the Secretaries of State have declared that:
"Past gypsy sites might be acceptable in some rural locations. The granting of permission must be consistent with agricultural, archaeological, countryside, environmental and green belt policies".
The likelihood of many new privately provided gypsy sites being consistent with all such development plan policies is remote, particularly if businesses are to be run from the site on which the caravans are stationed, which many gypsies prefer.
Moreover, the Government have now explicitly abandoned earlier advice that:
"The special need to accommodate gypsies and the consequences of not accommodating them should be taken into account as a material consideration in reaching planning decisions".
So Secretaries of State will apparently no longer recognise such considerations of significant factors in favour of the grant of permission notwithstanding any conflict with planning policy.
Moreover, it needs to be remembered, as has been mentioned, that planning applications for gypsy sites are generally not welcomed locally, and were not, even under the previous approach, which was more supportive. The research that was published in 1991 by the Department of the Environment stated:
"The refusal rate for gipsies who have applied for permission is extremely high, perhaps 90 per cent.".
The result of the Secretary of State's new planning policy can only be a significant reduction in the number of applications that will achieve planning permission. With very great respect to the noble Earl, he does not give the Committee realistic advice in suggesting that any solution to the problem will be found in gypsies providing lawful sites for themselves.

1133
There was at the heart of the noble Earl's reply a non sequitur. On the one hand he was saying that the Caravan Sites Act 1968 has not completely cracked the problem. That is of course correct, because so many local authorities flouted the will of Parliament and did not comply with that Act. But the noble Earl then drew from that proposition the wholly inadmissible conclusion that therefore the Act should be repealed, when manifestly that would make the existing situation so much worse.
There is a problem. We accept it. The issue, however, is one of principle. It is, as the noble Earl himself acknowledged, that there are insufficient lawful sites for gypsies. He acknowledged that that was a problem. Why does that problem exist? It exists because so many local authorities have flouted the will of Parliament and have not complied with their statutory duty under the Caravan Sites Act. I have to say to the noble Earl that it is rather rich, when he refers to gypsies, to intone to this Committee that everyone has to live within the law, when the principal cause of the problem is that 62 per cent. of local authorities have not achieved designation because they have not complied with their legal obligations.
In these circumstances, and in view of the many supportive speeches that have been made around the Chamber, I desire to test the opinion of the Committee.
6.32 p.m.
On Question, Whether the said amendment (No. 125) shall be agreed to?
Their Lordships divided: Contents, 66; Not-Contents, 144.

Division No.2

CONTENTS

Addington, L.

Liverpool, Bp.

Airedale, L.

Lockwood, B.

Archer of Sandwell, L.

Longford, E.

Ardwick, L.

Macaulay of Bragar, L.

Avebury, L.

Mackie of Benshie, L.

Blackstone, B.

Mallalieu, B.

Carmichael of Kelvingrove, L.

McIntosh of Haringey, L.

Congleton, L.

Merlyn-Rees, L.

Dean of Beswick, L.

Mishcon, L.

Dean of Thomton-le-Fylde, B.

Monkswell, L.

Desai, L.

Morris of Castle Morris, L.

Donaldson of Kingsbridge, L.

Mulley, L.

Donoughue, L.

Nicol, B.

Dormand of Easington, L.

Pitt of Hampstead, L.

Elis-Thomas, L.

Plant of Highfield, L.

Ennals, L.

Rea, L.

Falkland, V.

Redesdale, L.

Gallacher, L.

Richard, L.

Gladwyn, L.

Robson of Kiddington, B.

Glasgow, E.

Russell, E.

Gould of Potternewton, B.

Sefton of Garston, L.

Graham of Edmonton, L.

St. Edmundsbury and Ipswich,

[Teller]

Bp.

Greenway, L.

Stedman, B.

Harris of Greenwich, L.

Stoddart of Swindon, L.

Hooson, L.

Taylor of Gryfe, L.

Irvine of Lairg, L.

Thomson of Monifieth, L.

Jay of Paddington, B.

Thurlow, L.

Jeger, B.

Tordoff, L. [Teller.]

Jenkins of Putney, L.

Turner of Camden, B.

Judd, L.

White, B.

Kagan, L.

Williams of Elvel, L.

Kirkhill, L.

Williams of Mostyn, L.

Kissin, L.

Winchilsea and Nottingham, E.

1134

NOT-CONTENTS

Addison, V.

Lauderdale, E.

Allenby of Megiddo, V.

Leigh, L.

Annaly, L.

Lindsay, E.

Arran, E.

Lindsey and Abingdon, E.

Astor, V.

Liverpool, E.

Balfour, E.

Long, V.

Banbury of Southern, L.

Lucas of Chilworth, L.

Barber of Tewkesbury, L.

Lyell, L.

Belhaven and Stenton, L.

Mackay of Clashfern, L. [Lord

Blatch, B.

Chancellor.]

Boardman, L.

Macleod of Borve, B.

Borthwick, L.

Mancroft, L.

Boyd-Carpenter, L.

Marlesford, L.

Brabazon of Tara, L.

Marsh, L.

Brentford, V.

McColl of Dulwich, L.

Bridgeman, V.

Melville, V.

Brigstocke, B.

Merrivale, L.

Brougham and Vaux, L.

Mersey, V.

Bruntisfield, L.

Milverton, L.

Burnham, L.

Monteagle of Brandon, L.

Burton, L.

Morris, L.

Cadman, L.

Mountevans, L.

Carlisle of Bucklow, L.

Mowbray and Stourton, L.

Carnegy of Lour, B.

Moyne, L.

Carnock, L.

Munster, E.

Chalker of Wallasey, B.

Murton of Lindisfarne, L.

Chesham, L.

Napier and Ettrick, L.

Clanwilliam, E.

Nelson, E.

Clark of Kempston, L.

Newall, L.

Clinton, L.

Nickson, L.

Cochrane of Cults, L.

Northbourne, L.

Colwyn, L.

Orkney, E.

Cork and Orrery, E.

Orr-Ewing, L.

Courtown, E.

Oxfuird, V.

Craigavon, V.

Palmer, L.

Craigmyle, L.

Pearson of Rannoch, L.

Cranbrook, E.

Peel, E.

Cross, V.

Perry of Southwark, B.

Cullen of Ashbourne, L.

Peyton of Yeovil, L.

Cumberlege, B.

Platt of Writtle, B.

De L'Isle, V.

Plummer of St. Marylebone, L.

Dean of Harptree, L.

Quinton, L.

Denton of Wakefield, B.

Reay, L.

Dixon-Smith, L.

Renton, L.

Dudley, E.

Rodger of Earlsferry, L.

Elibank, L.

Rodney, L.

Ellenborough, L.

Saltoun of Abernethy, Ly.

Elphinstone, L.

Savile, L.

Elton, L.

Seccombe, B.

Faithfull, B.

Selborne, E.

Ferrers, E.

Sharples, B.

Flather, B.

Sherfield, L.

Fraser of Carmyllie, L.

Shrewsbury, E.

Gibson, L.

Simon of Glaisdale, L.

Gisborough, L.

Skidelsky, L.

Goschen, V.

St. Davids, V.

Grantchester, L.

Stanley of Alderley, L.

Gray of Contin, L.

Strathclyde, L.

Gridley, L.

Strathcona and Mount Royal, L.

Halsbury, E.

Strathmore and Kinghorne, E.

Harmar-Nicholls, L.

[Teller.]

Henley, L.

Teviot, L.

Hertford, M.

Thomas of Gwydir, L.

Hives, L.

Thomas of Swynnerton, L.

HolmPatrick, L.

Trumpington, B.

Hooper, B.

Ullswater, V. [Teller.]

Howe, E.

Vinson, L.

Ingrow, L.

Wakeham, L. [Lord Privy Seal.]

Jeffreys, L.

Wharton, B.

Johnston of Rockport, L.

Windlesham, L.

Kenyon, L.

Wise, L.

Kimball, L.

Wynford, L.

Kitchener, E.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
6.42 p.m.
Earl Ferrers Earl Ferrers moved Amendment No. 125A:
Page 57, line 25, after ("vehicles") insert ("within that authority's area").
The noble Earl said: In moving this amendment I shall speak also to Amendment No. 134A. These are technical amendments which make clear the intention that local authorities may only use the proposed powers under Clauses 72 and 73 to give directions to unauthorised campers and evict them from land within their own areas. I beg to move.
On Question, amendment agreed to.
[Amendment No. 126 not moved.]
6.45 p.m.
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 127:
Page 57, line 29, at beginning insert:
("and that such persons are behaving in such a manner as to create a significant nuisance or a significant highway obstruction").
The noble Lord said: I rise to move this amendment and, with the leave of the Committee, I shall speak also to Amendment No. 129A, which was formerly Amendment No. 134. We shall not move Amendment No. 129.
The effect of Amendment No. 127 would be that a local authority could only give a direction under Clause 72(1) where it appeared to it that the persons to whom the notice was directed were behaving in such a manner as to create a significant nuisance or highway obstruction. We invite the Government to say whether their position is that local authorities should be entitled to give directions in respect of unauthorised encampments which are causing no harm or nuisance whatsoever. That is the effect of the Bill, because the only conditions for giving the direction are residence in a vehicle on the highway or on unoccupied land or on occupied land without the consent of the occupier.
Will the noble Earl confirm that the local authority in its absolute discretion can require unauthorised campers to leave, although the unauthorised encampments are causing no harm or nuisance whatsoever? We ask how it can be just to require them, under pain of criminal sanction, when they have nowhere to go, to leave places where they are causing no harm or nuisance whatever.
On 10th February the Minister in another place said that there was no reason why local authorities should not continue to tolerate unlawful encampments that cause no harm or nuisance; local authorities would not be forced to use their powers under the proposed legislation.
Why do we not do it and put the matter right in this Chamber? The purpose of this amendment is to remove the right of local authorities to use the new powers in circumstances in which there is no practical justification for their use because the unauthorised encampments are causing no harm or nuisance whatsoever.
We support Amendment No. 129A. Clause 72 gives draconian powers to local authorities to evict families from unauthorised encampments even in cases where, as I have just emphasised, no harm or nuisance is being caused. Could anyone of ordinary conscience doubt that no reasonable local authority could make a direction until it had considered the age of the children affected,
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the arrangements for their schooling, their health and their general welfare—and do it not only for the young but for the old as well?
As it stands the Bill gives summary powers of eviction to local authorities without imposing on them any responsibility to consider the human consequences of their action. This amendment gives the Government an opportunity to accept some restraint on humanitarian grounds. I beg to move.
Lord Renton: I am unwilling to support this amendment. I can well imagine circumstances—I speak from experience of living in a village—in which people just place themselves in a position where it is undesirable for them to be but might not be behaving technically in such a manner as to create a significant nuisance or a significant highway obstruction. One does not want to weary the Chamber with specific examples, although there are many. I should have thought that the Bill as it stands has the matter about right.
The amendment uses the words "a significant highway obstruction". People could be creating an obstruction to the occupiers, perhaps the farmers, and those who are on the land without obstructing the highway. They might merely be obstructing the work that is being done on a farm, for example. Therefore, to that extent I believe that the amendment is quite unacceptable as well as for the more general reason that I mentioned.
Lord Hylton: In regard to an earlier clause in this Bill I cited two examples within the last year, one from Somerset and one from Avon, in which campers were creating nuisance and obstruction. One of them happened to be on a bridle path and footpath and the other was in a small public park. Those seemed to me to be exactly the kind of cases envisaged by Amendment No. 127, which is a useful amendment and one that I wish to support.
Earl Ferrers: There is a range of circumstances in which an authority might consider using the direction power which falls outside the scope of Amendment No. 127. For example, an authority might judge that the loss of an amenity was a sufficient reason to direct unauthorised campers to leave a site in an area where development is subject to strict control; or it might consider it reasonable to use. the power where a private landowner complained about being deprived of the use of his land.
The noble Lord, Lord Irvine, was particularly worried about these matters. I have no doubt that the level of nuisance caused by the presence of an unauthorised encampment, whether or not a highway is subject to obstruction, will be factors that a local authority will weigh in the balance before deciding whether to use its power of direction. I think we can and must rely on local authorities not to take precipitative action, for these and other reasons.
Amendment No. 129A requires authorities to take account of the personal circumstances of unauthorised campers before they can give their directions. I know that there are certain organisations—such as the Children's Society, the Save the Children Fund and the

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National Childbirth Trust—who have expressed concern about the Government's proposals to reduce unauthorised camping. They fear that authorities will use their powers arbitrarily and that increased evictions will further restrict the access of gypsies to education and health services. Those organisations are, quite understandably, particularly concerned about the implications for children, and for women who require ante-natal or post-natal maternity care.
I understand those concerns but, for a number of reasons, I think that they are misplaced. Our proposals are intended to encourage gypsies to establish their own authorised sites, which should provide a stable home base. This would secure both regular school attendances and easier access to health and welfare services. The Government commit considerable resources towards resolving the particular difficulties experienced by local education authorities in ensuring access to educational services for travellers' children. In the present financial year grant payments of some £10 million expenditure in England and Wales have been made on this work.
General medical and hospital services are available to travellers on the same basis as they are to the rest of the population. Health authorities are expected to take account of travellers' needs when planning services.
We recognise that the nomadic lifestyle is one which can inevitably cause problems with the continuity of healthcare —that is inherent with the very style of life —but in terms of primary medical healthcare there are well-established arrangements for general practitioners either to provide emergency treatment to persons not registered with the practice, or to treat people as temporary residents for a period of up to three months. In an attempt to improve the access to primary health services for a variety of people who are without permanent accommodation, the Department of Health is funding some 30 special schemes across the country.
Clause 72 provides a statutory defence where an unauthorised encampment is established on land because of illness or other emergency. Local authorities are experienced and responsible bodies, and their duties towards homeless people and children are already laid down in statute. It remains incumbent upon local authorities to observe those duties in all that they do, and to act upon them where appropriate. I do not think, therefore, that it is necessary to place such a requirement as the noble Lord, Lord Irvine, has in mind on the face of the Bill.
Lord Irvine of Lairg: The noble Earl is not in a giving mood on this amendment. I hope that that situation will not continue throughout the whole of this stage of the Committee's proceedings. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 128, 128A, 128B, 129 and 129A not moved.]
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 130:
Page 57, line 36, at end insert:
("( ) A direction under subsection (1) shall not take effect until 24 hours after it is served.").
The noble Lord said: I hope that this modest amendment will find the noble Earl in a somewhat more giving mood. The purpose of this amendment, which is very modest in scope, is to give a mere 24 hours for compliance with a direction after it has been served. It is important that the criminal law be certain, and this provision guarantees at least 24 hours before the direction bites. Such a period would enable legal advice to be taken on an urgent basis.
It is true that the obligation is to leave as soon as practicable under Clause 72(3) (a), but a minimum period of 24 hours in which to take stock—without being under any obligation—and to consider one's position, without the direction having any effect, is surely only reasonable. It would, incidentally, be likely to lead to fewer breaches of the peace, because it is too obvious that an eviction order which is sought to be imposed with immediate effect and without any prior notice could lead to serious trouble in practice.
Finally—I hope that the noble Earl will find this a compelling point in favour of this amendment—it is vital that there be this short breathing space of 24 hours to reduce the risk of families being broken up. The danger of a speedy eviction is that if the family is not all together at the moment of eviction they can be separated and experience great difficulties in establishing future contact. This would cause unendurable hardship.
I hope that the merit of this modest amendment will find favour with the Government and that the noble Earl will at least indicate that he will give an amendment along these lines very serious consideration. I beg to move.
Lord Renton: I wonder whether it has occurred to the noble Lord, Lord Irvine of Lairg, that the words of subsection (3) (a), "as soon as practicable" could last longer than 24 hours?
Lord Irvine of Lairg: It may be that the noble Lord, Lord Renton, did not hear me, but I did refer to the obligation to leave as soon as practicable. Of course that could extend beyond 24 hours, and would continue to do so if this amendment was accepted. The point of this amendment is that there should be 24 hours within which the obligation to leave does not arise; that there should be a period from the giving of the direction, the making of the direction, of 24 hours, in which a family has an opportunity to take stock of its position, to get itself together and to consider how to move forward, without being under any obligation to leave at all, whether as soon as practicable or not. After the 24 hours has elapsed they would be under an obligation to leave as soon as practicable.
Earl Ferrers: The last intervention of the noble Lord, Lord Irvine of Lairg, was the most telling of the lot, because what he really said is that these people must be allowed to take stock of their position, get themselves together, and do everything like that, before they move but, he said, they ought to move after 24 hours. The words are perfectly clear. My noble friend Lord Renton was right to refer to this when he said that the words say that they have to move as soon as practicable. It may well be that it would be more than 24 hours, but of

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course if you put in "a minimum of 24 hours", that would become the accepted minimum. The whole point about this clause is that the direction, once it is given, should be carried out by the campers as soon as practicable.
In the case cited by the noble Lord, Lord Irvine of Lairg, where children were away—where they were possibly at school—and had not gathered their bits and pieces together, it would obviously be impracticable for them to move as quickly as that. But to say that once you have issued an instruction there should in all cases then be a 24-hour moratorium under which you do not have to leave but after which you have to leave as soon as practicable destroys the noble Lord's case. What you really want to do is to say, "As soon as is practicable those people must leave". If that is more than 24 hours, so be it, but I do not think that they should automatically be given a moratorium of that nature if in fact they could move with convenience beforehand.
7 p.m.
Lord Irvine of Lairg: The capacity of the noble Lord, Lord Renton, to mislead the noble Earl is greater than I had thought it could possibly be. The position that I am submitting is perfectly plain. I am not suggesting by this amendment that these persons should be disadvantaged so that they have 24 hours within which they must move. Under the existing provision they will have to leave as soon as practicable. The point is that they should have 24 hours within which they will not be under any obligation to move. No one can come along to them in that 24 hours and say, "It is practicable for you to have left by now", and harry them to leave when they may have all manner of reasons for saying that it is not practicable. What in the name of goodness is wrong with a modest provision which says that an eviction may not take place immediately? People will be given 24 hours within which to gather themselves together and to consider their position without anyone being able to say to them, "You must go" or "It is practicable for you to go". After they have had this modest mercy, then the obligation on them will be to leave as soon as practicable. I urge the noble Earl to consider again.
Lord Hylton: Before the noble Earl replies, I hope he will address himself to the point made by the noble Lord, Lord Irvine of Lairg, in his first speech about the avoidance of violence when people are told to move from somewhere where they have been encamped.
Lord Renton: We should also remember that very often the occupier of the land will have asked these people to go; and perhaps asked them several times. It is only as a last resort that he tells the local authority about them and asks the local authority to give a direction. When that happens I should have thought that they should be asked to go as soon as practicable, even within 24 hours.
Earl Ferrers: The noble Lord, Lord Irvine of Lairg, is so persuasive that one always has to be very careful when one listens to him because he would charm the leaves off a tree. He suggested that we had said that there are 24 hours in which a person must move. No one
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has said that. What the noble Lord has said is that there should be 24 hours in which one need not move. If one is going to give a direction to move which has to be carried out as soon as is practicable, I cannot see any reason for saying, "Do it as soon as possible, but you don't have to bother for 24 hours". As my noble friend Lord Renton said, people may have been asked to leave. The owner may have become totally frustrated and so goes along to the local authority and says, "Look, will you give a direction?" The local authority considers all the circumstances of the case and says, "Yes, we will give a direction". Then the direction is, "You have to move but you have to move as soon as is practicable". I cannot see any advantage in building in the 24 hours; in which they need not do anything.
Lord Irvine of Lairg: The advantage is that there would always be scope for argument as to whether it was practicable for people to leave. They could be; harried with suggestions that they should leave immediately because it is practicable for them to leave immediately, which they dispute. Why not just give them 24 hours in which they cannot be harried?
Earl Ferrers: For the very reason that that would be even worse. If they are going to argue, fuss and complain about whether their moving is as practicable as possible, there will be much more of an argument if you have 24 hours in which to let the whole thing fester —and then 24 hours later you start the battle royal. If an order is given to move, they are not to move immediately but to move as soon as is practicable. I do not see the point in saying, 'That's all right, but you can stay on for another 24 hours and then we will consider all the arguments in 24 hours' time".
Lord Avebury: In that case, why has the Minister put 24 hours as the period which is allowed for a person to comply with an interim possession order under Clause 71?
Earl Ferrers: That is a different matter entirely.
Lord Harris of Greenwich: The noble Earl is clearly under instructions from his right honourable friend to accept none of these amendments. So, irrespective of the merits of the arguments, there is very little prospect of any concession being made. That is a great pity because I think major social problems will arise as a result of the Government's posture on this matter.
Lord Irvine of Lairg: I brought forward the amendment with some expectation that it would be accepted, despite the attitude of the Government which the noble Lord, Lord Harris of Greenwich, has identified. I do not think there is any rational objection to this amendment. If accepted it would be both humanitarian and would have a tendency to reduce the risk of violence. But worse arguments, plainly, will prevail. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 130A:
Page 57, line 46, leave out ("3") and insert ("1").
The noble Lord said: The Government propose to increase the maximum fine for unauthorised camping from level 1 under the 1968 Act to level 3 under this Bill. Level 1 is £200; level 3 is £1,000; so the increase is fivefold. What is the justification for the increase? So far as I am aware, none has been offered.
I appreciate that the noble Earl will say/Trust the courts. The fact that £1,000 is the maximum does not mean that £1,000 will be imposed in all cases", and so on. But once you increase the maximum to £1,000 there is every risk that it will be imposed in some cases. The higher the level of maximum fine the greater the risk of non-payment and imprisonment in default. The risk of imprisonment is a matter to which I shall return when we oppose the Question that Clause 72 stand part of the Bill. Meanwhile, I would welcome the noble Earl informing the Committee what is the rationale for this increase.
Earl Ferrers: For a fine to be effective as a fair penalty it has to be commensurate with the offence and also sufficiently onerous to deter a potential offender.
The circumstances of unauthorised camping vary enormously. At one end of the scale is the single caravan, parked temporarily and inconspicuously, causing offence to nobody. We would not expect a direction to be given in such circumstances, and no question of a penalty should arise from that. But at the other end of the scale is the mass invasion by travellers who appear determined to demonstrate their disregard for the rights, feelings or safety of landowners, the safety of neighbouring occupiers or the opinions of members of the public. They just want to sit wherever they wish.
In the most serious of cases, the police would be expected to take action under their powers in Clause 56. Failure to comply with a direction under those provisions would attract a fine not exceeding level 4, which is £2,500, and also a possibility of imprisonment. Where, for whatever reason, the police decide not to take action, the matter would be left to the local authority. It is right that failure to comply with a direction given by a local authority should be a less serious offence than failure to comply with a direction given by the police. This is reflected in the level 3 fine prescribed by Clause 72. But I do not think that failure to comply with a local authority direction is necessarily so much less serious as to justify only a level 1 fine, nor do I think that a level 1 fine is likely to deter potential offenders.
Whatever the maximum penalty may be, the amount of the fine in any particular case will be a matter for the court to decide. The Government have merely to set the maximum and the court decides within that limit what is the correct fine for the case under consideration. The Government believe that magistrates need wide powers to deal with the wide range of circumstances of unauthorised encampments. I do not think that the limit proposed by the noble Lord in his amendment provides those wide powers. On reflection, I hope that the noble Lord will agree.
Lord Irvine of Lairg: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Ferrers Earl Ferrers moved Amendment No. 131:
Page 58, line 15, after ("(b)") insert ("in England").
The noble Earl said: In speaking to this amendment perhaps I may also speak to Amendments Nos. 132 and 133. These are purely technical amendments which take account of the new titles which will be accorded to local authorities in Wales from 1st April, 1996 by the Local Government (Wales) Bill. They are necessary so that statutory references to local authorities include reference to the new authorities when they are created. I beg to move.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendments Nos. 132 and 133:
Page 58, line 16, at end insert:
("(c) in Wales, a county council or a county borough council").
Page 58, line 27, at end insert:
("(7) Until 1st April 1996, in this section "local authority" means, in Wales, a county council or a district council.").
On Question, amendments agreed to.
[Amendment No. 134 had been withdrawn from the Marshalled List.]
On Question, Whether Clause 72, as amended, shall stand part of the Bill?
Lord Irvine of Lairg: Hitherto criminal sanctions have applied only in designated areas where there was an acceptable provision of sites. Now criminal sanctions will apply on the service of a notice by a local authority whether or not there is any site in the area to which a nomad may lawfully resort. The likelihood is that local authorities will adopt a policy of serving such notices irrespective of whether there is a lawful site to go to and irrespective of whether there is any harm sufficient to require intervention.
The failure of over 60 per cent. of all authorities to comply with their statutory duty after nearly a quarter of a century demonstrates a general lack of sympathy for gypsies. At the very least, once some authorities pursue an aggressive use of the new powers to drive unauthorised campers out of their areas, others will respond with a similar policy, if only to protect their own areas. No authority is likely to volunteer to provide a refuge for those driven out of other areas.
Similarly, outside the metropolitan areas, there will be two authorities under this Bill who will be given powers to serve notices in each district—the county council and the district council. It will soon become known which authority will use its powers more readily and no doubt which will gain the popularity such action may attract locally. In practice, intolerance will drive out tolerance. That has always been why a national policy to ensure that all authorities provided an adequate number of sites was necessary.
The reality is that these powers will be used and not left unused, even if there is no lawful site for a person to resort to in the area and even if the gypsies are doing no harm or nuisance. That must be what the Government intend should happen as a result of

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removing the need for designation if the powers are to be invoked and by not restricting the circumstances in which notices can be served under Clause 72.
There are five fundamental objections to the Government's approach to the extension of the criminal law in this area. First, it constitutes unjustifiable discrimination against those residing in vehicles. Secondly, it condones the failure of local authorities to comply with their statutory obligations and will penalise the individuals whom these duties were intended to assist. Thirdly, there is a high risk of imprisoning individuals because they have no lawful place of abode. Fourthly, force will be fruitless in practice, and, fifthly, there are already adequate statutory remedies for nuisances caused by unauthorised campers.
One of the less attractive features of the Government's attempt to justify their approach has been to claim that they propose to remove existing discrimination in the legislation. The Government's case is that the existing offences do not apply to all illegal campers and only to gypsies, who are defined as those of a nomadic habit of life, whatever their race or origin. The Government propose to make the new criminal offences applicable to all persons residing in vehicles.
First, the increased ambit of the offences may bring within the criminal law, for example, those on holiday in a caravan on an unauthorised site. Do the Government really believe that to be desirable? But it remains perfectly obvious that these provisions will principally affect, and are designed to apply to, those falling within the statutory definition of a gypsy. Who else resides in a vehicle on an unauthorised site normally but a person of a nomadic habit of life?
Whatever the precise group to which the provisions apply, they remain fundamentally discriminatory. There is no criminal offence of intentional trespass as such, but the offences which the Government propose discrimi-nate against those who trespass with a vehicle in which they reside. There is no rational ground for such discrimination. Is it to be suggested that the public interest would be better served if the same individuals were to camp unlawfully in a tent or sleep rough? Why should individuals be subject to the criminal law for having their own mobile roof rather than trespassing under someone else's roof? What is the rational basis for that discrimination?
Under the present law, it is arguable that the discrimination is justified. Circular 57/78, which stands today, says of the use of criminal sanctions that they,
"are severely discriminatory against one group of people and their use is justifiable only on the basis that the duty of the responsible authority with regard to that group has been fully implemented—that is to say, by providing sufficient sites".
It is that justification which is negated by this Bill. The discrimination which this Bill involves condones the failure of local authorities to comply with their statutory obligations and penalises those individuals whom those duties were intended to assist.
In replying to the debate on Second Reading, the noble and learned lord, Lord Fraser of Carmyllie, stated that the Government accept that there is a direct connection between the shortfall in authorised sites and the high levels of unauthorised camping. What the
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Government are in reality inviting Parliament to do in this Bill is to abandon any national policy of assistance supporting the provision of sites when there are around 4,500 caravans on unauthorised sites. But they are then; because over 60 per cent. of local authorities have not discharged the duty which Parliament imposed on them over 20 years ago. The Government's response to that lamentable failure, the resulting shortfall in supply and the unauthorised camping is a perverse one. The rational response would be to ensure that the authorities comply with their legal duties, so removing the major cause of unauthorised camping. The Government's response is effectively to condone the breach of statutory duty by large numbers of local authorities, to abandon the major source of supply for new sites, and to impose criminal penalties on those who have no authorised site to which to go.
The Government's new approach also risks imprisoning individuals because they have no lawful place of abode. It is quite true that the offences proposed under Clauses 72 and 73 have as their sanction a fine but the reality will be different, as the Government themselves recognised in a consultation paper they issued on gypsy site policy in 1992, which stated:
"Fine enforcement action by the courts against a moving population is very difficult and the last resort, imprisonment, may be reached in a high proportion of cases".
Notwithstanding that recognition, the Government propose to increase the likelihood of imprisonment by, as I pointed out, increasing the scale of fines.
What kind of penal policy is it that creates offences; for those with no lawful place of abode, recognising that in a high proportion of cases imprisonment may be the manner by which offenders will have to be dealt? I shall answer that question: it is a penal policy that appeals to this Government and to no one else. Is it really sensible; to provide accommodation for a person in prison rather than accommodation for the vehicle in which that person lives?
There is no need to look further for a recognition of the sheer crassness of the Government's approach than the Government's own extant advice to local authorities, which states:
"The departments have always taken the opportunity to remind local authorities of the human misery as well as the considerable waste of time and financial resources and the increased pressure on neighbouring authorities caused by the indiscriminate eviction of gypsies from illegal encampments when there is no space available for them on an authorised site. It will continue to be the policy of the Secretaries of State that Government should act in conformity with the departments' advice to local authorities that gypsies should not be moved unnecessarily from unauthorised encampments where there is no authorised site for them".
Similarly, the Government have recognised the difficulties of providing acceptable sites for public provision, but they have emphasised—and appear to continue to emphasise in an extant circular—that the alternative is the continued proliferation of unauthorised sites in locations chosen by the gypsies themselves and with no facilities at all. Eviction from such sites contributes nothing to the overall solution of the problem. Successive governments have repeatedly emphasised that until enough sites have been provided, gypsies should not be needlessly moved from place to place and particular authorities should not drive gypsies

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out of their areas to become the responsibility of neighbouring authorities. Moreover, the money spent on evicting gypsies and on the subsequently clearing, ditching or fencing of land, which can be considerable, could be used for providing suitable sites. Again, in time past, the Government have said:
"It may be that curtailment of indiscriminate eviction, costly to carry out and fruitless in effect, could release resources for the provision of emergency stopping places equipped to a minimal level of facilities".
The new criminal sanctions are unnecessary and will do more harm than good. Where camping causes a nuisance or is in breach of planning controls, there are summary statutory procedures which are wholly adequate and which can be supplemented by court injunction. Similarly, it is already an offence to obstruct the highway. The solution is not the creation of more criminals; it is the provision of adequate sites. The Bill will reduce their supply. It will drive gypsies from area to area at considerable expense and in total disregard for the welfare of their families and without providing a solution other than the ultimate solution of imprisonment. We therefore oppose the question that Clause 72 should stand part of the Bill.
Lord Avebury: I agree completely with the noble Lord, Lord Irvine, that Clause 72 does nothing whatever to address the problem caused by the inadequate provision of accommodation for gypsies in England and Wales and the nuisance that is caused by unauthorised sites which everybody agrees must be dealt with.
I am at a loss to understand the logic of the Minister's case, having heard him on several occasions simply repeat what was said by Mr. David Maclean in another place. I am not the only person who has had difficulty. I have, for example, a letter from the Quakers which states:
"We remain unclear why the Government is taking this action against gypsies and other travellers. A variety of organisations and local authorities generally consider that the Caravan Sites Act was working reasonably well and public sites were gradually being established at relatively little cost"
and, I would add, "private sites also". If one looks at the figures in the Government's annual survey, undertaken in January each year, one sees that both public and private providers of accommodation have been making their contribution and that the gap between the number of people wanting accommodation and the number of pitches available on local authority and private sites has gradually been diminishing. Why not let that process continue to completion, which would happen during the next few years?
I asked a question about directions by the Government. The Minister replied that only three such instances had occurred, one being that of Hertfordshire which I mentioned earlier. The other two cases involved Surrey and Avon. Despite the fact that 38 per cent. of local authorities in England and Wales have made no provision under the 1968 Act and that for 25 years they have been completely ignoring their obligations, the Government have seen fit to take action against only three authorities. They have made no attempt to see that
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the 1968 Act is working properly, although, as I mentioned, the figures show that the number of sites is gradually increasing.
Why this sudden insistence on scrapping what has been on the statute book for 25 years and what was slowly and painfully leading to all the gypsies in England and Wales having somewhere lawful to camp? The Minister simply repeats what his colleague Mr. David Maclean said—that nomadic persons must keep within the confines of the law. How can they do that unless adequate provision is made? How do we improve matters by criminalising encampments on unauthorised sites when plainly the public provision over the past 25 years has not been adequate?
It seems to me that the result of the clause will be that many gypsies are thrown onto the roadside. They will become homeless. They will gravitate from one local authority to another, causing disputes between neighbouring authorities of the kind we used to see prior to the 1968 Act when gypsies departed from the outer London boroughs into the county of Kent where there was no provision for them. The same thing used to happen in the north of London as gypsies moved into Hertfordshire.
We shall be imposing extra obligations on local authorities to whose areas such decanted gypsies will have to migrate. They will be thrown out of one area and, inevitably, move on to the local authority next door which, in turn, will use the provisions of the clause against them so that they then move into a third area. In other words, there will be nowhere in England and Wales where the gypsies can safely call a halt and live in peace with their neighbours.
It is quite insane for the Minister to say, as he did earlier, that there are plenty of places where gypsies can camp—albeit, unlawfully—without causing nuisance to their neighbours and where the local authority will take no action against them. Where are those places? Can the Minister tell us? I do not know any of them. Moreover, if it is that easy, why have not the counties which have failed in their duty over the past 25 years been able to locate them and say, "We will put them there"?
There has always been the difficulty, about which we are aware, of the counties identifying sites and then finding that objections from the districts make it impossible for agreement to be reached, which means that the wrangle continues indefinitely until, as on the three occasions that I mentioned, the Secretary of State steps in. However, if the Secretary of State was able to step in on those occasions and identify places where such provision could be made for the gypsies concerned, why cannot he do so for the other 38 per cent., or whatever the balance may be?
It is a mean little provision which will run us into trouble with the European Commission of Human Rights, whatever the department may think and despite the advice given to the Secretary of State. It is a provision which will cause immense suffering among the families that are evicted and one which will lead to trauma for the children of those families. Further, it is a provision which will cause enormous trouble for the local authorities which have to pick up the pieces as regards dealing with the homeless problems that it will

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create. I beg the Government, even at this late stage, to think again and return with more sensible provisions when we reach the Report stage.
7.30 p.m.
Lord Renton: The main reason put forward by the noble Lord, Lord Irvine of Lairg, against Clause 72 is that it gives rise to a criminal sanction. However, we must remember that, in order to make the clause effective, the local authority is given power to issue a direction. Therefore, there must be some sanction to ensure that the direction is complied with. The sanction is not a very stringent one. Admittedly, there could be imprisonment in the worst type of case; alternatively, there could be a fine. If we are to give local authorities the power to issue directions there must be some sanction to make them effective, otherwise there will be no compliance.
The other objection put forward by the noble Lord, Lord Irvine of Lairg, was also mentioned by the noble Lord, Lord Avebury. Both noble Lords said that local authorities have not used their powers under the 1968 Act to provide camping sites everywhere. My recollection of that legislation is that local authorities are obliged to provide them only where it is necessary and practicable to do so. It has just not been possible to provide camping sites in congested urban areas. Of course, one must realise that that does not really matter because gypsies and New Age travellers, wisely, do not resort to the congested urban areas: they go to villages, farms and so on. We must accept that fact realistically.
The failure to provide alternative camping sites under the 1968 Act is really a separate matter. However, one hopes and believes that, in practice, local authorities will find that as a result of the Bill they will consider it kind, wise and necessary to make use of their powers under the 1968 Act and provide such sites where required. We must not fail to deal with this very real problem—and; indeed, it is a real problem—for that somewhat irrelevant reason. I am quite sure that it will work out all right in the end.
Lord Harris of Greenwich: I should like to make a few brief observations. I believe that the noble Earl has told us on a number of occasions that people must keep within the law. Well, that is a proposition which is extremely difficult to dissent from. However, a second question arises to which the noble Earl has given absolutely no answer; namely, precisely how are these people supposed to keep within the law? That is the issue before the Committee this evening.
First, as we heard from the noble Lord, Lord Irvine of Lairg, what is the answer to the suggestion that such people should ask for planning consent from the local authority? Well, surprise, surprise, in over 90 per cent. of the cases the local authority says, "No". The fact is that many people in the community do not want to have one of those sites anywhere near where they live. Moreover, in exactly the same way, they do not exactly demonstrate with enthusiasm if they hear that a prison, a probation hostel or a bail hostel is to be established in
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their area. There is great opposition in the community to the provision of such facilities. That is why, in the real world, such people will nor. obtain planning permission.
Secondly, as a result of the Bill there will be no statutory obligation on local authorities to provide such sites. Therefore, I fear that in many areas the consequences are obvious: the attractive populist cause will be, "Let's get rid of the gypsies". It will flow from one local authority area to another and yet again to another. By and large, such people are not even on the electoral register, no more in fact than are beggars— another group of people that have been identified by the Government as being particularly unattractive members of the community.
All we are ensuring by way of the provision is that unrealistic fines will be imposed and that some of the people concerned will go to prison. There will also be a great deal of disturbance within the families in many such cases. It is really something approaching humbug for Ministers to say that they are the Government of the family when they are in fact introducing such proposals. As I said, it is pure humbug.
Earl Ferrers: The noble Lord, Lord Harris of Greenwich, is entitled to his view, although I thought that it was a slightly extravagant one. Moreover, it seemed to me from his speech that the noble Lord, Lord Irvine of Lairg, was hardly living in the real world. He asked why the Government were taking such action against gypsies and other travellers. It is not a question of taking action against people. Over the past 13 years, about 2,172 local authority pitches have been provided for gypsies. However, even that number has barely been able to keep up with the rise in the number of gypsy caravans. As I explained earlier, some 80 per cent. of gypsies are on sites; that is, local authority sites, private sites or sites of their own. We are not talking about a. mass migration of gypsies because of the provision. What we are really talking about is the effect which people have when they rest upon the land of other people and the effect that that has upon the community.
It is a contradiction in terms to say that all those people must have sites because that is what we want when, in fact, we are talking about nomads. A nomad is a person who moves around and does not necessarily want to stay on a site. Despite all that has been done over the past 25 years or so, there has been constantly a roving population of about 4,000 gypsy caravans. We are saying that that is fine, provided that the people who do the roving rove and rest where they are so entitled and not where they are not entitled so to do.
Lord Avebury: Is the Minister saying that the 4,000 caravans which are at present on authorised sites will remain at that number for ever more? The Minister is admitting that what the Government are doing in this legislation is to make it impossible for any local authority in future to provide the sites through the withdrawal of the 100 per cent. grant and through the criminalisation of gypsies on unauthorised sites. Therefore we will never break out of this 4,000 figure. It will remain constant.
Earl Ferrers: I cannot tell whether or not it will remain constant. All I can tell the noble Lord, Lord Avebury, is that since 1981 it has remained constant, despite the grant and despite the fact that it is a 100 per cent. grant, which is almost a unique form of grant. In very few other parts of national life will one find examples of 100 per cent. grant. But, despite that, there has been a roving population and one of the reasons why there has been a roving population is that gypsies want to rove. That is fine provided they do their roving in a way that is not offensive either to the land or to the possessions of other people.
A noble Lord—I forget now who it was—referred to New Age travellers. Of course these people are not nomadic according to the courts. Clause 72 gives local authorities powers against these non-traditional, itinerant groups of people. This has been widely respected and has been widely acclaimed by local authorities, and for good reason; namely, that the chaos which is often created by these people in particular localities has been intolerable. If it is intolerable, something must be done about it. Some Members of the Committee have said that these poor people will experience a lot of difficulty and trouble. There are often occasions where a small number of gypsies camp in an inoffensive manner and do not cause any trouble at all. Those people will not be harried.
But where the presence of gypsies, either in small or large numbers, becomes an offence to the neighbourhood or to the landlord, steps ought to be taken to move them on. We have been encouraged by the fact that gypsies often have their own caravan sites. In fact there are 3,300 gypsy caravans on private sites today, and that is a good move. However, my noble friend Lord Renton was perfectly correct in saying that, if a local authority is to have a sanction or an obligation that it can impose upon people, that sanction must be capable of being imposed on people who are not prepared to abide by the appropriate direction. That is why there is a sanction in the Bill.
It is all very fine to say that the sanction may be too severe and to say that people should not be imprisoned but the sanction imposed will depend entirely on the nature of the offence. Some incursions by large numbers of New Age travellers create the most terrible problems. I have no doubt whatsoever that many people in the countryside will be glad to see that there is some provision for moving people on who encamp and create great offence to a locality and to a neighbourhood. That is the reason for this clause and I believe it is a perfectly respectable reason. I hope the Committee will agree that it should remain in the Bill.
7.45 p.m.
Lord Irvine of Lairg: The noble Lord, Lord Renton, and the noble Earl are well aware that we on this side of the Chamber approved of the balance of the 1968 Act; that was that a local authority was under a duty to provide sites and, if it fulfilled its duty, it became designated and only then was it entitled to have access to criminal sanctions. What the noble Earl persistently fails to do in this debate is to meet the points that are being made. He has given us no answer as to why the
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Government have condoned the local authorities' breach of their statutory duty. He has given us no reason for assuming that existing sites established under statutory duty by local authorities will continue to exist once the duty is repealed. Further, if over 60 per cent. did not fulfil their statutory duty, what possible basis can there be for assuming—and proceeding on a policy basis—that they will provide sites under a mere power? I am not minded to press the Question—
Earl Ferrers: I hope I may interrupt the noble Lord for one minute to get the record straight about one thing. He said that 60 per cent. of local authorities have not done what they are supposed to do. Of course they may not have established sufficient sites to become designated areas but that does not mean to say that they have not produced sites.
Lord Irvine of Lairg: I entirely accept that, but the full fulfilment of their duties would result in designation. I am not suggesting that local authorities which have not achieved designation have necessarily done nothing but I have put on record three central points in this debate which have been made before and which the noble Earl has failed to meet. Perhaps the future course of this Committee will afford the noble Earl an opportunity to answer those points directly. Meanwhile, I do not propose to press the Question to a vote.
Clause 72, as amended, agreed to.
Lord Annaly: I beg to move that the House do now resume, and, in doing so, I suggest that the Committee stage shall begin again not before 8.45 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Bodmin Moor Commons Bill [H.L.]
7.46 p.m.
The Earl of Cranbrook: My Lords, I beg to move that this Bill be now read a second time.
Last week, on 3rd June, this country was host to the World Environment Day 1994—the annual celebration of the United Nations Environment Programme. Since its establishment in 1972, this yearly event has been a key element in the United Nations Environment Programme's drive to promote awareness and action for the protection of the environment. In his address to the delegates that evening, the Secretary of State for the Environment emphasised the essential role that must be played by people—that is to say, individuals and local communities—in the achievement of sustainable development, to which so many national governments, including ours, are now committed.
I remind the House that legislators also have a distinctive duty to enact laws and regulations that facilitate the right action by people and communities towards this target of sustainability. So I find it fitting in this respect to bring before your Lordships tonight a Bill that will do just that. It provides the regulatory framework for sustainable utilisation of the Bodmin

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Moor Commons, which are an important natural resource and which under proper management can yield a multiplicity of benefits for many people.
Bodmin Moor is the most south-westerly upland in England. It is exceptional as an unglaciated granite massif of special geological interest and unusual, striking topography. In the County of Cornwall it is the largest single open area of semi-natural habitat. The moor is transected by a main road, the A.30, which is fenced where it crosses open country, and is also traversed by minor roads and rights of way which give public access to motors, walkers and riders.
The importance of Bodmin Moor lies in its diversity, which is out of all proportion to the size of the area. There are about 30 parcels of common land large and small which are separately registered under the 1965 Act. These commons support a mosaic of moorland habitats, including valley mire, acid grassland, wet and dry heath, standing and running water and scrub with woodland on the fringes. Because of the location at the western seaboard of Europe, and as a result of past land use, many of the plant communities that are present have national and international significance. There are also several intriguing plants, some of them very rare, which are associated with the old mineral workings for which Cornwall is notorious.
The moor as a whole is of major importance for wintering birds, especially for golden plover and birds of prey, including short-eared owls, peregrines, merlins, red kites and hen harriers. In summer there are important breeding populations of curlew, wheatear and whinchat. At the other end of the scale, a few dunlin nest here at the extreme southern limit of the world range of that species. It is also a rich area for dragonflies, of which there are 17 known species, and is valuable for butterflies, including the rare marsh fritillary.
These features of land form, geology and diverse wildlife have been recognised by selection for local, national and international nature conservation designation. There are county wildlife sites and SSSIs. Bodmin Moor is also' under review as a potential special protection area under the European Community directive on wild birds.
The moor's wildlife interest adds to its value as an attractive open landscape which draws many visitors. It lies within the Cornwall Area of Outstanding Natural Beauty, which has been designated by the Countryside Commission, and it contains recognised areas of great landscape value categorised by Cornwall County Council for structure plan purposes.
It is also in rich in archaeological sites marked by hundreds of surviving ancient monuments dating back to the second millennium BC, many of them scheduled by English Heritage, and there are whole blocks of historic landscape formally recognised by the county as areas of great historic value.
It is evident from this that people have lived and worked on Bodmin Moor for thousands of years. The most profound influence on the commons through many past centuries has been farming. Agriculture has shaped the environment and fostered its important natural values. The traditional land use of the commons is grazing by cattle and sheep belonging to occupiers of
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adjoining farms who hold rights of commoning. Grazing by stock has prevented the invasion of scrub and woodland which would naturally follow by biological succession and has thereby served to preserve the inherent open character of the moor that is essential for its wildlife and enjoyed by so many people.
There have been changes. Changes in land use have encroached on the moor. In 1827 there were 22,900 hectares of open moorland. In 1984 there were only 9,500. It is known that, between 1946 and 1984, 1,448 hectares were lost to enclosure or intensive agricultural use, 714 hectares to forestry, 415 hectares to reservoirs and 124 hectares to the china clay industry, which is also a feature of Cornwall.
In many places on the surviving moorland, changes in agricultural practices, including the abandonment of grazing in some places, but more generally inappropriate and uncontrolled grazing leading to overstocking and other non-traditional farming practices, such as the out-wintering of stock with supplementary feeding,, fertiliser application or land drainage, have altered the: character of the vegetation. From the recollections of the: older generation of farmers we know that, for instance., great areas of heath and heather have disappeared. The: quality of the moorland has been reduced in terms of its nature conservation and landscape value.
We have to recognise that farming is not easy on these cool wet uplands which receive 1,400 to 1,700 millimetres of rain a year. Bodmin Moor has been classified as a Less Favoured Area under the European Community directive. The land surface of this moorland is fragile. Some of the visible damage it has suffered has resulted from agricultural vehicles, especially in winter. It is also vulnerable to other traffic and inappropriate uncontrolled access. There are new forms of public use, such as motorbike trials or Land Rover club rallies— seemingly innocent pastimes but damaging at the wrong time or in the wrong place. Bodmin has also been used by model aeroplane flyers, travellers' encampments and pop festivals. They are not necessarily offensive actions but they need to be sited appropriately for the protection of the wildlife, landscape and historic heritage of the area.
I re-emphasise that above all these commons are an integral part of traditional farming at Bodmin. Through well managed agriculture there is an opportunity to restore the Bodmin Moor commons and enhance their natural qualities. Management for sustainable utilisation must be resolved by the people whose interests are directly affected. The key partners in this exercise are the commoners and landowners of Bodmin Moor. Also involved are the Cornish local authorities concerned with local prosperity and good governance, amenity and access, and the statutory agencies that are responsible for agriculture, nature conservation, ancient monuments and landscape protection and access.
I take this opportunity to congratulate Cornwall County Council on its role in promoting the Bill. I also welcome the initiative of the commoners and landowners and their close involvement in the formulation of the Bill. I find it impressive that the local community has identified the various problems on the moor and recognised opportunities and a solution. The

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community has been the driving force and impetus behind the Bill, seeking to work in partnership with all concerned bodies to the overall benefit of Bodmin Moor. I also stress the close involvement of the Ministry of Agriculture, Fisheries and Food. I note especially the initiative of Mr. Garth Waters at a critical meeting at the Jamaica Inn in the middle of Bodmin Moor when consensus was achieved among the people and parties involved at local level. I take this opportunity to declare the support of English Nature for this Bill.
The Countryside Commission originally objected to the Bill in the form in which it was deposited. I have been told by the promoters and the commission that they have been involved in intense and productive discussion. As a result, amendments to the Bill as it stands have been drafted with the aim of achieving a formulation that is acceptable to all. I have assurances that Clause 4 of the Bill as it is before you is to be heavily amended and Clause 10 totally revised. Consequently, I am authorised by the commission to state that the commission supports the Bill as modified, though it has residual concerns about the fencing of common land, the sources of advice on nature conservation and archaeology, the consultation of the public on the access strategy and the way in which trespassers will be dealt with. The promoters have expressed their wish to be as flexible as possible in response to other objectors.
I turn to the Bill itself. The most important provision is the creation of a commoners' council. It will be broadly representative of the 230 commoners but will also include representatives of the local authorities and the 29 identified owners, some of whom are also commoners. Much of the Bill is concerned with the structure, procedure and funding of the council. The council will have a general responsibility to take steps for the sustainable management, conservation and enhancement of the commons on the moor and to provide and manage access on horseback and foot. Conservation in those terms is widely defined in the Bill to include
"references to the conservation and enhancement of its flora, fauna, ecological, archaeological, geological and physiographical features, natural beauty, peace and quiet and integrity of the soil surface".
The powers of the council for the discharge of those responsibilities will be exercised within the framework of a management plan which must include an access strategy. This plan can be prepared only after consultation with agencies, such as English Nature and the Countryside Commission and open-air and recreation bodies. It can come into effect only with the approval of, and after consultation with, the Secretary of State for the Environment and the Minister of Agriculture.
The council will have two substantive sets of powers: first, to undertake various works of management with the permission of the owner of the land concerned; secondly, to make and enforce regulations to ensure proper and consistent farming practices by all persons entitled to use the commons for farming. This includes,
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on the one hand, the prevention of overstocking and, on the other, the encouragement of more grazing livestock where there is understocking.
In the promoters' proposed alterations that have been agreed with the Countryside Commission the making and enforcement of an access strategy is part of the management plan that describes the type and extent of public access available on the commons.
In addition to the need for consultation with the government departments, public bodies and other bodies and authorities already mentioned, and the need to obtain government approval for the management plan and access strategy, there is a whole raft of precautions built into the Bill to ensure that the powers given are not abused. There is a right to make representations and a right to hearing by landowners and right holders. There is a right to compensation. There is specific provision for judicial review and a requirement for special majorities before controversial decisions are taken.
The underlying object of the Bill is to ensure a well-managed and attractive area of moorland with adequate protection for natural species and landscape features and objects of historic and archaeological interest and for the enjoyment of the public at large, underpinned by a vigorous and healthy upland economy. The Minister of Agriculture, Fisheries and Food has indicated that the proper management of Bodmin Moor, which the Bill would provide, is a prerequisite for the designation of the commons as an environmentally sensitive area.
I argue that this is a local issue. It requires a specific tailor-made solution compatible with traditional local rights and present day aspirations of the people who live and draw livelihood from fanning on the commons. There is no need to link it to general principles, although it may point the way to other future successful imitations.
I understand that there are still two objectors whose petitions remain on the table. I ought to express anxiety that the promoters' funds are not limitless and the cost of taking an opposed Bill through committee will be in competition with other public funds and may be prohibitive. I should therefore like to take this opportunity to urge all those with outstanding reservations to make a final and determined effort to achieve consensus, especially respecting the people who must be directly involved on Bodmin Moor under the terms of the Bill as participants in the sustainable management of this famous area of Cornwall. Bodmin is a key feature in the natural and historic heritage of England. There is too much to be lost to regard the failure of this Bill with equanimity. I beg to move.
Moved, That the Bill be now read a second time. —(The Earl of Cranbrook.)
8.2 p.m.
Baroness Nicol: My Lords, I am grateful to the noble Earl for the comprehensive manner in which he introduced the Bill. He mentioned a number of amendments which are being put forward. I received a fax from the Countryside Commission late this afternoon setting out the key elements of proposed amendments to the Bill and also the residual concerns of

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the commission, which the noble Earl explained. However, without seeing the wording of the changes being proposed, it is difficult to decide whether all the objections raised in the petitions have been dealt with. Therefore, if your Lordships will forgive me, I shall deal with the Bill as it is before us this evening in the hope that when it goes to committee the committee can decide whether all the objections have been met.
I strongly support the need to take measures to conserve the wildlife and natural beauty of the moor. The last thing I wish is that any actions of mine should lead to those aspects being weakened. Until now there has been considerable public use of the moor, which I shall discuss at greater length later. For that reason, and because of the nature of the petitions which have been lodged, I shall confine most of my comments to the question of access.
Until yesterday evening—or perhaps it was early this morning—there were three petitions against the Bill. There were petitions from the British Horse Society and the Countryside Commission and a joint petition from a number of organisations led by the Open Spaces Society. There is a long list of those involved with that particular petition. It includes the British Mountaineering Council, the British Mountain Bike Federation, the Cyclists' Touring Club, the Ramblers' Association, the Youth Hostels Association and so on.
It appears that late yesterday—or, again, early this morning—the Countryside Commission withdrew its petition. It did so having issued a statement which makes clear that some of its most important objections are still not resolved. The noble Earl mentioned three of them. I shall return to those in a moment. However, I confess that I find the actions of the Countryside Commission somewhat confusing at this stage. One of its main activities is the promotion of public access to the countryside for the purposes of recreation and quiet enjoyment. I have the greatest respect and admiration for the noble Earl, Lord Cranbrook, but I am concerned that the Bill is being presented by the chairman of English Nature.
The aims and expertise of English Nature are not directed mainly at questions of access. Quite the contrary. Its main concern is with conservation, often in conflict with public access, and most of the objections to the Bill are connected with access arrangements. As I said, the need for conservation is not disputed, but it is believed that conservation has not suffered unduly under the present access arrangements where that access consists of horse riding and walking. I make no point at this stage about motor cycling. That is obviously a different problem.
I am particularly worried that because the Countryside Commission petition has been withdrawn it will not be available to the committee on the Bill. I hope that I may be wrong, but I fear that that is so. However, the objections, and the reasons which the Countryside Commission gave in its petition, are extremely important. I therefore propose to put at least a few of them on record in the hope that the committee will take note.
I come to the content of the petitions. The British Horse Society points out that the Bill does not
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specifically provide for access to the commons on foot or on horseback and submits that it should do so. I believe that the noble Earl suggested that that might be one of the amendments, but, as I said, we have not seen the actual wording. The society feels that access for recreational purposes should be included as a public right and not at the discretion of the new council.
The British Horse Society is also anxious that powers over rights of way should remain with the local authority and should not pass to any other body. I strongly support the society on both those points. It does not press for the more liberal arrangements which exist on Dartmoor and is perfectly willing to accept reasonable regulation so long as access is provided for in the Bill and management of the commons allows reasonable levels of such access.
The Open Spaces Society and the others included in the petition make many detailed objections which are worthy of close scrutiny by the Committee. I do not propose to go into all of them this evening. I am particularly concerned about points relating to fencing and rights of access, which should surely not be left to a private interest body to decide, and the provision which would make trespass a criminal offence—not a new subject in your Lordships' House but one which nevertheless in this context needs to be examined. Surely, in a situation such as the case of Bodmin Moor, the matter would be better handled by way of county council by-laws.
The Countryside Commission petition sets out the commission's anxieties very clearly. Since it is a statutory body whose remit is relevant to the Bill I feel it essential that those anxieties are brought to the attention of the Committee. As I said, although the petition has been withdrawn the Countryside Commission's objections have not all been met. I propose to quote from the petition and from the commission's latest statement. It is a very long petition and I propose to abbreviate it considerably.
First, the commission draws attention to the Common Land Forum report which, as your Lordships will recall, was produced in 1986 and was. widely accepted at that time. The commission states:
"The Commission submit that any legislation for Bodmin Commons should be consistent with the recommendations of the CLF".
I am selecting parts of the petition to give a feeling of it. It states:
"Whilst clause 4 of the Bill alludes to one of the uses of the Commons as a place of open air recreation by the public, the Bill does not ensure that that will always be so. The Bill fails to define what is to be granted in terms of public access".
I feel that the Bill, when finally approved, should contain those details. The petition goes on:
"In short, the Bill pays insufficient regard to the public interest in the Commons … The Commission's concerns are not assuaged by the provisions of clause 10"
which, we have heard, is to be revised, but I am anxious that the Committee should compare the two and see that all the objections are met. Clause 10 refers to public access to commons but, according to the petition,
"regulations made under subsection (1) of that clause may just as easily prohibit as permit public access. Moreover, as a matter of law, access to the commons by the public will not be allowed unless it is expressly permitted by regulations and the criteria given in subsection (3) for making regulations under subsection

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(1) make no reference to public access. The Commission regard as seriously deficient a Bill which fails to ensure public access to the Commons in exchange for powers of the kind being sought.
"The Commission further allege that if public access to the Commons is to be curtailed or restricted, the circumstances in which this should be allowed should be set out in the Bill … The Commission are also concerned that the power given by clause 10(5) to fence and enclose parts of the Commons may override the application to the Commons of section 194 of the Law of Property Act 1925. The Commission submit that this should not be allowed".
Finally, the petition states:
"One of the consequences of the Bill as drawn is that if a member of the public enters upon the Commons in contravention of regulations made under clause 10(1), not only will he be a trespasser, he will also be committing a criminal offence. Moreover the maximum fine for this is to be set subject to an overall upper limit, not by Parliament but by the Council. Whilst acknowledging the need for effective regulation, the Commission would regard these provisions as unacceptable".
Those are all extremely important points, and I am very anxious that the Committee on the Bill should be made aware of those original objections. The statement which I received this afternoon repeats quite a deal of that, and so I shall not repeat it again.
Worries about the possible uses of this Bill have been exacerbated by the way in which it has been produced and handled. The noble Earl drew attention to the consultations that have taken place, but there are other sections which have not been consulted; in fact, they have been ignored. For example, the very reasonable approach of the British Horse Society has not elicited any response whatever from the promoters. Letters from other petitioners remain unanswered. Consultation which did take place has been very selective. Offers of help and discussion from petitioners have been ignored. The sad thing is that many of those who are worried about the Bill are convinced that, given the opportunity, satisfactory compromises could have been reached.
These are concerns which have become general throughout the country as pressures on remaining commons and open spaces continue to grow. From a situation where not so terribly long ago in historic times most of our land belonged to the community, we have progressed to a point where 75 per cent. of our land belongs to one per cent of the population. What remains in community ownership becomes ever more important. The Government's failure to implement the promise made in the 1987 Conservative manifesto to implement the findings of the Common Land Forum has allowed these losses to continue. It is at least arguable that the very existence of that promise has made matters worse by accelerating pressures ahead of this mythical legislation which we have yet to see. I hope that the committee on the Bill will seek to ensure that public rights, such as they are at the moment, and expectations are not infringed by the proposals now before us. I hope the amendments to which the noble Earl referred will prove to be as good as we hope they will be.
8.15 p.m.
Earl Peel: My Lords, I too would like to thank my noble friend for having introduced the Bill and explained it in such a thorough and comprehensive manner. I am bound to say I was not aware of the fact that there were outstanding objectors to the Bill, as
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explained by the noble Baroness, Lady Nicol. My remarks, I have to say, tend to revolve around that which I have read but perhaps later I will touch on some of the points that she has made. I am glad that it has given her the opportunity to have another go about the Common Land Forum. I did not expect her not to.
I should like to start by reiterating a point made by my noble friend about the hard work that has gone into securing the consensus necessary to produce this Bill. It is not a straightforward matter. When one is dealing with matters of common land intricacies tend to develop, as we have seen in the past. The fact that there are 26 clauses demonstrates, I think, what a difficult subject we are dealing with.
Clearly, the main catalyst behind the Bill was the need to secure a suitable body representing the interests of those who own land and who farm on the commons of Bodmin, through which the Ministry of Agriculture can operate the necessary payment to accompany an ESA designation. That is a jolly good reason, I think, for the Bill. If we can secure an ESA on Bodmin Moor this will not only benefit the inhabitants and those who work and farm there but it will also enhance wildlife objectives. I take this opportunity to ask my noble friend —I appreciate that this is not particularly his subject, but I am happy to note that my noble friend Lord Howe is sitting next to him—whether in fact we are likely to see an ESA designation on Bodmin Moor before too long.
I am bound to say that there are some aspects of the Bill which concern me. I would not want your Lordships, or indeed anyone else, to regard this Bill as a blueprint for future common legislation. I know that may be a temptation but I believe it is absolutely imperative, when we discuss legislation on common land, that we should take into account the traditions of management and use of individual commons. They differ very considerably within England and Wales and I believe those points need to be reflected very carefully indeed.
I am concerned that the access arrangements may go too far —which may not surprise the noble Baroness opposite—and that they are going to be quite difficult to implement. However, I was a little surprised when she cast aspersions, if I may use that term, on the fact that my noble friend had introduced the Bill as the chairman of English Nature. I should have thought that to be thoroughly appropriate because at the end of the day we are really talking about the enhancement of the wildlife and habitats on Bodmin Moor. I can think of nobody more suitable than my noble friend to introduce such a Bill. However, I do not want to get into a debate now about public access because it would be totally inappropriate.
There is one part of the Bill which I am very pleased to note. I refer to the acceptance of what has become known as the "Sandford principles" where conservation will be put before any rights of access. I believe that that is absolutely fundamental for the management of the countryside and if we move away from that we do so at the peril of the wildlife.
I also welcome the control of dogs, which we have failed to put in previous legislation. I am bound to say that nowadays when we see people wandering around

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with leads that extend for ever and a day the idea of a dog on a lead being under control is something which I seriously question.
The noble Baroness referred to the question of fencing on common land. Fencing on common land, or on any open land, is a useful means of trying to regenerate habitat. There is a myth nowadays that that can be done through shepherding, but shepherding is a thing of the past. Temporary fencing for habitat restoration is extremely effective. We hope that to go through the cumbersome process of seeking permission from the Secretary of State for the Environment will be bypassed in the Bill and that the council will be allowed to do that. I welcome it. It is a thoroughly practical solution to a difficult problem that has existed for a long time, for many of us involved in common land.
I do not wish to go into great detail. The important point is that the people of Bodmin Common want the Bill. It has been introduced at their behest and is not being imposed upon them. That is most important. They have decided that it is workable in their circumstances and I very much respect that.
As my noble friend mentioned, there is clear evidence of considerable overgrazing on Bodmin Moor. When we had an English Nature meeting recently, I took the opportunity to look at the moor and take a short walk over it. I was disappointed at the extent to which overgrazing has occurred and I need hardly say to my noble friend on the Front Bench that it is yet another example of the ravages of the headage system of subsidy without the necessary conservation safeguards. As my noble friend is only too well aware, I greatly welcome the new regulations which his department has introduced and which I hope will go a long way towards resolving the problem in the future.
I welcome the Bill. I believe it produces an opportunity of harnessing the needs of agriculture and the local community through a sustainable means of farming. I am delighted to see that those words appear in Clause 4 and that is a most important and welcome addition. If we can harness the well-being of the farming community through sustainable farming to the benefits to the wildlife, as is envisaged, then we shall have a very useful Bill and I welcome that prospect wholeheartedly.
8.23 p.m.
Baroness David: My Lords, I should like to thank the noble Earl, Lord Cranbrook, for giving us such a good introduction to the Bill and explaining the reasons for it. I am totally with him that there is a need for the Bill; a number of interests are involved and he explained them all. It fits in with everything that I have known and learnt about what is going on on the moor at the moment.
Perhaps as three people are speaking from this side of the House, I should explain why I have come in and what are my interests in Bodmin Moor. They go back over 50 years. I spent part of my honeymoon on Bodmin Moor and have visited it every year since then, except for four years during the war. I was on the electoral register for the North Cornwall District Council for over 20 years and I still go back every year. I think that I
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know the area fairly well and I am well acquainted with the botanists and others who live there and are involved with what goes on there.
I have tried to get up-to-date responses on what is happening and they fit in very well with what the noble Earl said in his introduction. I understand that the heathland is giving way to grassland a good deal and that this, presumably, is from overgrazing. Fencing causes anxiety, I suppose that it is one way of stopping overgrazing, but I hope that it will be done with great care. I do not know that all the safeguards which are there at the moment should be removed.
I think that the farmers in the area need particular consideration. Upland farmers—if you can call this upland—are having a hard time; it is difficult to make a living and their interests must be carefully considered. It may be that they are responsible for some of the: overgrazing, but I hope that they can be considered carefully. I understand that some of the fanners I heard about particularly in the St. Breward district, have made: sure that there is a right of way so that the public can climb up to Brown Willie and Rough Tor. That is good, but I also understand from another of my informers that there are not enough public rights of way, that public; access is not good. This should be looked at and, as we; know from what my noble friend said, most of the petitions are about public access. We should listen carefully to what they have to say.
The bodies interested in recreational activities which involve public access are the ones who are most concerned and they have expressed their doubts about the way the Bill is framed. It does not give the public the legal right to walk on the commons nor to ride there. I think that we or the Committee which will consider the Bill should look at that matter carefully.
The Long Title says that the Commoners' Council is:
"to provide for and manage public access to the commons … it is expedient that the public be afforded managed access".
But there is no requirement on the council to provide access; the phrase "managed access" could mean restriction of access. Clause 10 states that the council may make regulations,
"permitting, regulating or prohibiting public access".
That, of course, could lead to restriction of access.
Another complaint is that there is no provision in Clause 3, which deals with membership of the council, or in the preamble to the Bill, for recreational interests to be represented. That naturally creates suspicion, as does the ability of the council to make regulations to close off the rights of way, a matter mentioned by my noble friend Lady Nicol. I should have thought that that should remain with the county council as the highways authority.
I have already mentioned, as have others, the problem of fencing. Criminalising trespass is something which we should be careful about and I hope that can be taken into consideration.
I should like to ask two questions. Could the noble Earl, when replying to the debate, say why the deposited plan does not show all the existing common land that ought to be covered by the Bill? Can he also say why land owned by the National Trust is included in the

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provisions of the Bill? I understand that normally the National Trust land is excluded. I should like an answer in relation to that.
In conclusion, I think that the Bill is necessary but I do not think that the county council set about it in a sensible way. They should have had more consultations and been willing to hear representations from the various petitioners while the Bill was being considered. Not to have done so is a pity. But I hope that perhaps they have now learnt their lesson and that this debate will help them. Alas! we have not seen the amendments. They may be quite adequate. I hope that attention will be paid to what has been said tonight and that the amendments are adequate to deal with the reservations which have been expressed. I repeat that I think that the Bill is necessary; good luck to it!
8.30 p.m.
Lord Williams of Elvel: My Lords, the House will be grateful to the noble Earl, Lord Cranbrook, for introducing the Bill. I have to make it clear at the outset that, although I speak from this Despatch Box, since this is a Private Bill I take no party view. I speak for myself only. I should perhaps also say, although it is not necessarily relevant—it is tangentially relevant to the Bill—that I am president of the Council for the Protection of Rural Wales, and have an interest in common land in Wales. If I speak, to a certain extent, with Welsh knowledge rather than Cornish knowledge, I hope that the House will forgive me.
I should like to echo the query of my noble friend Lady Nicol, about the position of the noble Earl, Lord Cranbrook, for whom we have a great regard. He is, after all, as I think he will acknowledge, chairman of English Nature which is a quango—if I may use that expression. He is paid as such, and I am, I must say, slightly surprised that he has come as the promoter of the Bill. I say that in the gentlest possible way, because it seems to me odd that a chairman of a quango could promote a Bill for a particular area of the country. It should be a government Bill.
The Earl of Cranbrook: My Lords, since this issue has been raised twice, I believe that it should be made clear that I am not the promoter of the Bill. English Nature is not the promoter of the Bill. I have merely agreed to present the Bill because, as an individual deeply interested in conservation through my experien-ces and knowledge as the chairman of English Nature, through the visits that I have made to Bodmin Moor, the friends I have on Bodmin Moor, and from walking across Bodmin Moor, I am deeply concerned about the condition of Bodmin Moor. I am not the promoter of the Bill; that is Cornwall County Council. I have merely, out of sympathy with the Bill, agreed to present it to your Lordships' House tonight. That is a requirement because Cornwall County Council itself, as such, has no place in this House.
Lord Williams of Elvel: My Lords, it is certainly true that Cornwall County Council has no place in this House, but I take it from what the noble Earl has said that the Bill would have the support of English Nature.
The Earl of Cranbrook: My Lords, perhaps I may make it clear that professionally the Bill has the support of English Nature. I also made it clear, and I reiterate, that the words I uttered on behalf of the Countryside Commission were words that were faxed to me today and were words which I was authorised to utter on behalf of the Countryside Commission. So, in both those cases, I was speaking professionally to advise your Lordships of the position of the statutory government bodies in both those cases.
Lord Williams of Elvel: My Lords, I am grateful to the noble Earl, because that clarifies the position, that although he is speaking as the introducer of the Bill, and not the promoter of the Bill, we understand that it has the support of English Nature and of the Countryside Commission, as the noble Earl has said, but subject to the remarks that my noble friend Lady Nicol made about the slightly ambivalent approach the Countryside Commission has adopted towards the Bill in the past few days.
As I say, I take no position from my party's point of view or from the point of view of the CPRW. I am trying to explore certain issues with the noble Earl who is to reply, because he introduced his remarks by saying that the Bill was in tune with sustainable development and all the things that he, as chairman of English Nature, quite rightly wishes to support, and which indeed I support.
My noble friend Lady Nicol remarked that there had been a certain amount of activity in the past few days, or indeed hours, about petitions: who was making what petition, withdrawing what petition, and making what points. I do not want to follow her particular path because I think she made her position perfectly clear. Those are points which must be considered, in my view, by the committee, if your Lordships agree to give the Bill a Second Reading.
The noble Earl, Lord Peel, will not be surprised if I disagree with him on certain matters. I agree with him on one point. This is not a straightforward Bill. I also agree with him on a second point. That this should not necessarily be the model for the common land legislation that the Government have been pledged to introduce since 1986, 1987, 1903, or whenever it was the Government made a pledge in their manifesto to introduce common land legislation. This is a special case. As such, I am happy —as I say, in my personal capacity—to say that I welcome the Bill.
The noble Earl, Lord Peel, went on to ask whether Bodmin Moor was going to be an ESA. I have experience of ESAs in Radnor. We are now an ESA in Radnor, and I am bound to say that the system is not working in quite the way that perhaps the noble Earl imagines. There is considerable confusion. It does not help upland fanners, and I have evidence which I am perfectly happy to communicate to the noble Earl, Lord Howe, who I see sitting on the Government Front Bench.
Earl Peel: My Lords, is the noble Lord referring to that noble Earl or this noble Earl?
Lord Williams of Elvel: My Lords, the noble Earl, Lord Howe.
Earl Peel: My Lords, in that case I shall make no comments.
Lord Williams of Elvel: My Lords, there are so many noble Earls in the House that I find the situation difficult. There are four of them on the other side of the House. I am a mere Life Peer.
I am worried about one or two things in the Bill, apart from the points made by my noble friend Lady Nicol, which I hope that the committee will accept. I am worried about the fencing in of commons. I am bound to say that, living as I do on the edge of 800 acres of common land in Wales, I should be very very worried if anyone produced legislation which allowed any fencing of a temporary or permanent nature (that is contained in Clause 4(4)) into my particular common in Wales. We have 28 graziers on my common, and it would be difficult to sort out where the fencing would go; it would also impede the access which my noble friends Lady Nicol and Lady David have very much —quite rightly, in my view—insisted upon.
I am also a little worried about Clause 3. I accept that there has to be a council of some sort to run common land. The whole approach could have been prevented had we had serious legislation introduced by the Government along the lines that the Common Land Forum recommended.
Earl Peel: My Lords, is the noble Lord saying that there has inevitably to be a council to run matters of common land? If so, I disagree with him, because if one has an owner of the common and three, four or five commoners, they can work the thing perfectly adequately themselves. The difficulty in this case, as I see it, is that there are 230 commoners on Bodmin Moor, and it is only because of the number of commoners that it is perceived necessary to have a council to operate, particularly in this case, the ESA.
Lord Williams of Elvel: My Lords, I am grateful to the noble Earl, Lord Peel, whom I have to identify. I am in favour of the Common Land Forum recommenda-tions that there should be some body which represents graziers, owners and local authorities to run such commons. I hope that there is no dispute about that. I thought that the Government and everyone had accepted that.
I do not know what the ownership of Bodmin Moor is. As I say, I speak from ignorance. I am a little worried that the proportions should reflect adequately the different interests. I hope that when it studies the Bill, the committee will take that matter into account.
I do not want to bore your Lordships with difficult points. My last point is whether Cornwall County Council will exist by the time the Bill, if it does, achieves Royal Assent, because we have, as the noble Earl, Lord Arran—if I may specify that particular Earl —knows, a Local Government Commission is investigating all these matters. What happens if tomorrow the Banham Commission says, "We have looked at Cornwall, and we have decided that it is going to be split up into X districts", or whatever it may be?
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That is a slightly frivolous remark, but I am sure that the noble Earl, Lord Arran, will understand what I am talking about.
I join with other noble Lords in believing that, in general, this is a desirable arrangement. As my noble friend Lady David said, there is no doubt that there is a need for such a Bill and such an organisation. However, I have certain doubts which arise from my own point of view and the extensive experience of my noble friend Lady Nicol. I hope that the committee, when established, will take those doubts into account.
8.40 p.m.
The Earl of Arran: My Lords, I was becoming a little anxious that we had jumped Second Reading and gone straight into Committee and were even nearing Report stage. However, it may be helpful at this time for me to intervene briefly to give your Lordships an indication of the Government's view of the Bill.
Both my department and the Ministry of Agriculture, Fisheries and Food strongly support the principle that common land should be subject to proper and effective management. The Bill's promoters are to be congratulated on efforts that they have made to provide for the means by which that can be accomplished for the commons of Bodmin Moor. Among the expected beneficial effects arising from the responsibilities placed upon the proposed Commoners' council will be a system of management of the countryside that is not only sustainable in terms of the agricultural utilisation of the commons but conserves and enhances their nature conservation value. I am sure that there will be widespread support for the Bill's objectives in those respects.
I recognise that the issue of access gives; rise to concerns. Access is, I fear, often a contentious matter. Our position is that access issues are best resolved in a local context. Only with the involvement of those directly concerned with the management of the commons can we be assured that access arrangements will be workable, and respect the legitimate interests of all those concerned. Your Lordships will be aware that it is not the policy of this Government to impose any general extension of rights of public access, although we hope that local arrangements will ensure that the public continue to enjoy access to open land wherever possible and sensible and wherever compatible with the other uses to which commons are put.
The Bill, as deposited, gives us cause for concern in one respect. Clause 10 proposes to grant powers to the commoners to stop up or divert rights of way which are presently only available to local authorities. Such delegation may pose a threat to the integrity of existing procedures, especially as the Bill gives the Commoners' Council powers beyond those available to local authorities, by enabling them to close a right of way for 56 days without requiring any form of notice to be given. It would further provide for the erection of fences, which could present problems if the fence obstructs a right of way, as that is an offence under Section 137 of the Highways Act 1980.
The Government believe that effective management of access to these commons should, in respect of public

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rights of way, continue to be subject to the overall control of the highway authority. In the Government's view, it would be inappropriate to adopt the Bill's proposals in those respects in their present form. Were they to remain, the Government would have to oppose those provisions in a report to the Committee on the Bill. However, I know that the Bill's promoters are aware of those matters and I was heartened by the assurance of my noble friend Lord Cranbrook regarding the opportunities for changes to be made. In that light I am happy to welcome the Bill and see no hindrance to it being given a Second Reading.
In closing perhaps I may refer to the point made by my noble friend Lord Peel, as to whether or not there will be a likely ESA designation on Bodmin Moor. My noble friend will have to accept for the time being that that point will be given due consideration at an appropriate time. Also, the noble Baroness, Lady Nicol, and the noble Lord, Lord Williams, raised the subject of general commons legislation. I too regret that it has not been possible to bring that forward. However, I see little prospect of it in the immediate future. But the promoters of the Bill are to be congratulated for providing an opportunity to resolve Bodmin's problems in a local context.
The Earl of Cranbrook: My Lords, I too feel certain that the promoters of the Bill will have listened carefully and will read Hansard with great attention and gain great benefit from the remarks passed tonight, notwithstanding the fact that some of the remarks—such as those made by the noble Baroness, Lady Nicol—were based on petitions which have now been withdrawn. I am not promoting the Bill; I am merely introducing it to your Lordships. It will be necessary for the Committee to make these decisions and I am sure that the Committee will read with great attention the remarks made by your Lordships tonight.
I emphasised that I introduce the Bill as an individual but that from my professional position I am acquainted with the nature conservation position of Bodmin. It is one that deeply concerns me. What also deeply concerns me—I do not believe that I am breaking the Addison rules entirely by mentioning it—is that the noble Baroness, Lady Nicol, who has attended so many of our presentations in English Nature, and is probably aware that hundreds of thousands of visitors are welcomed on the national nature reserves, should say that nature conservation is often in conflict with access.
That is not true. Nature conservation is often hand-in-hand with access. Many people who go to open moorlands such as Bodmin do so to enjoy the beauties of the natural wildlife. I believe that, properly managed after Committee stage, the Bill has all the potential to enhance the attractiveness of the wildlife. I shall be disappointed if the Bill seriously limits access and, as an individual, I shall be deeply disappointed if it interferes with existing public rights of way to the land which, perhaps I should emphasise, is not communal land; it is all land in private ownership. For the benefit of the noble Lord, Lord Williams, I can say that there are 29 individual owners, commercial and private.
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I am certain that the promoters of the Bill will read with interest the remarks of your Lordships and that the Committee will inevitably pay due attention to everything that has been said. I commend the Bill to your Lordships' House.
On Question, Bill read a second time, and committed to a Select Committee.

Criminal Justice and Public Order Bill
8.47 p.m.
House again in Committee.
Clause 73 [Orders for removal of persons and their vehicles unlawfully on land]:
Earl Ferrers Earl Ferrers moved Amendment No. 134A:
Page 58, line 30, after ("land") insert ("within that authority's area").
The noble Earl said: Amendment No. 134A was spoken to with Amendment No. 125A. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 135 and 136 not moved.]
Clause 73, as amended, agreed to.
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 136A:
After Clause 73, insert the following new clause:
("Orders for the removal of persons and their vehicles causing serious distress

.—(1) This section applies where persons are for the time being residing in a vehicle or vehicles or any land to which section 72(1) applies, but no direction has been given by a local authority under that section.

(2) A magistrates' court may, on a complaint made by an occupier of the land to which this section applies, or of any adjoining land, make an order directing the local authority to take such steps for the removal of any persons, vehicles or other property present on the land as could have been authorised under section 73 had a direction under section 72 been given, provided that the court is satisfied that the presence of the persons, vehicles, or other property is causing serious distress to the occupier, his family, or an employee or agent of his.

(3) It shall be the duty of a local authority to comply with any order made under this section.

(4) No order shall be made under this section unless the local authority has been given an opportunity to appear before the court to answer to the complaint.").

The noble Lord said: The new powers under Clause 72 for local authorities to direct unauthorised campers to leave are welcome, as are the back-up provisions in Clause 73 whereby the local authority can seek an order from a magistrates' court giving it the authority to enter the land and take the necessary steps to remove vehicles if, in contravention of Clause 72, the persons have not moved on. However, my noble and learned friend Lord Fraser made clear at Second Reading the Government's view:
"Our advice to local authorities will encourage them to continue to tolerate unauthorised encampments where there is no nuisance or harm".—[Official Report, 25/4/94; col. 509.]
I believe that my noble friend Lord Ferrers repeated that position when we debated that clause. That situation worries me. That remark surely gives local authorities a government-approved let-out, particularly where the nuisance factor may be regarded as minimal for most of the rest of us in the council area.
Anyone, in particular local authorities, will always prefer to dodge unpleasant issues. As we have heard tonight, moving unauthorised campers and causing

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discomfort to them, their women and their children is certainly an unpleasant task. I make no bones about that. However, I fear that the remarks made by my noble and learned friend Lord Fraser will do just that; they will encourage the local authority to do nothing.
As I said on Second Reading—and I made only one comment —I do not believe that the law should discriminate between those with children and those without. I can think of many reasons why the law should not apply to me. Therefore, I consider that this amendment is important. The nuisance—or, indeed, worse than a nuisance—to residents who live close to the encampment may be acute. Where the occupier of the land or the adjoining land is suffering serious distress due to the presence of the encampment he should have a legal remedy by means of applying direct to the magistrates' court rather than going to the local authority.
I must remind the Committee that Amendment No. 136A will operate only when the court is satisfied that the occupier is being caused serious distress as opposed merely to being apprehensive or angry. Subsection (4) ensures that the local authority, too, will be able to put its case before the magistrates. I beg to move.
Lord Irvine of Lairg: We encourage the Government to reject this amendment on the basis of the one argument that might appeal to the noble Earl; that is, the principle of equal justice, on which he is rejecting all amendments tabled in this Committee.
The civil law already provides adequate remedies to owners or occupiers of land complaining of trespass. Summary relief can be obtained both in the county court and in the High Court. Furthermore, we do not see why an occupier of adjoining land should be entitled to complain of trespass on his neighbour's land. If the activities of persons or vehicles on his neighbour's land are causing him serious distress he is already entitled to obtain summary relief from the magistrates' court under the Environmental Protection Act 1990.
We do, however, find a little revealing the language of subsection (2) of the amendment. It is the mere presence itself of such persons and vehicles and not their activities which is said to cause serious distress. The main point is that, while for all the reasons that we have sought to deploy we oppose in principle the new powers given under Clause 72 to local authorities, we see no good reason or necessity for individuals to be empowered to by-pass the discretion of local authorities to decide whether to exercise their new powers in cases which will call for the exercise of detached and balanced judgment. In particular, a local authority, with all its knowledge of its own area and its relationships with neighbouring areas, will be in a much better position than a magistrates' court to decide whether these new powers should be invoked.
There is a further defect in the noble Lord's amendment. It imposes no requirement that persons likely to be affected by the order should be served and given an opportunity to be heard by the magistrates. We oppose the amendment principally on the basis that if these objectionable powers are to be laid on the statute book they should be available to local authorities alone.
Earl Ferrers: It is always so difficult to keep sweet with the noble Lord, Lord Irvine of Lairg. He said that it would be equal justice if I were to reject the amendment because all evening I have done nothing but reject amendments. Of course, it is also difficult to keep on the right side of the noble Lord. If I were to accept the amendment he would say that again I am not agreeing with him. However, if I agree with him he would say that I was being dog in the manger and rejecting all amendments. One cannot get it right—
Lord Harris of Greenwich: Those amendments; from this side of the Committee!
Earl Ferrers: No, that is not what the noble Lord said; he said that I was rejecting all amendments. That was unfortunate because I was going to come down quietly on the side of the noble Lord, Lord Irvine of Lairg, and I thought that he would be pleased that I was; agreeing with him. I was going to say that I do not believe that this amendment is a good idea and that we have a common thread of agreement, for which he will be as grateful as I.
Amendment No. 136A would give the occupiers of land the right to complain to a magistrates' court in circumstances where a local authority had failed to give a direction under Clause 72 to unauthorised campers on private land, requiring them to leave the land and to remove their vehicles and other property. A complainant could be the occupier of the land where the unauthorised encampment is the established, or the occupier of adjoining land.
The court would have to satisfy itself that the presence of the unauthorised campers was causing serious distress to the occupier, his family or an employee or agent of his. The court could then make an order directing the authority to take steps to remove the campers and their vehicles and other property from the land.
The local authority would be given an opportunity to appear before the court to answer the complaint, but the effect of any order of the court would be mandatory on the authority.
Clauses 72 and 73 give local authorities discretionary powers to evict unauthorised campers from land, including private land where an encampment has been established without the occupier's consent. It is most important that local authorities should retain a discretion to exercise these powers, and should not be compelled to do so at the instance of private landowners or other interests. I acknowledge at once that landowners can suffer enormous inconvenience and distress from unauthorised encampments. But, in deciding whether to bring an end to an encampment, the local authority will need to consider factors besides the interests of the landowners affected.
Local authorities will need to consider the interests of the public. An authority might conclude that an encampment on council land or unoccupied land, although causing serious distress to an adjoining landowner, is not a particular nuisance to the public at large and that eviction of the travellers is likely to lead to their settling in an even less satisfactory location elsewhere. It may be possible to take steps to alleviate

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the distress to the landowner concerned—for example, by providing facilities such as skips, portaloos and a water supply—and, having done that, to tolerate the encampment at least for a period.
The local authority will need to consider the needs of the travellers themselves. There could be genuine reasons why they cannot move on at once. Health grounds are an obvious example. The local authority may need to consider its own statutory duties and responsibilities towards the travellers. For example, a local housing authority has certain obligations towards homeless persons and county councils have obligations in relation to children and their families.
The local authority will need to consider whether it has sufficient resources to put an effective end to the encampment at a stroke or whether the problem is better tackled by a more gradual approach. Of course, the local authority will need to consider the effects of the encampment on the landowners concerned. Nobody disputes that. The Government fully accept that a private landowner should not always be expected to bear the often-considerable financial burden of removing unauthorised campers from his land. There are circumstances in which public authorities should intervene in the public interest. But there is a strong distinction between local authorities intervening in the public interest and local authorities being compelled to invoke the criminal law at the instance of a landowner in circumstances where it may not be in the public interest to do so.
We believe that when an unauthorised encampment becomes established on land, it is necessary to weigh the several interests involved—those of the landowner or the lawful occupier, those of the unauthorised campers and those of the local community who may experience nuisance as a result of the encampment.
For all those reasons, I believe that the local authority is in the best position to decide whether it is appropriate to use its eviction powers. We consider that it would be wrong to give private occupiers the right to compel local authorities, via the courts, to take action against unauthorised campers.
9 p.m.
Earl Peel: Is it necessary for my noble friend to move this amendment? Clause 56 makes it perfectly clear that if two or more persons trespass on land, or if there are six or more vehicles involved, the power exists to invoke the help of the police in such matters. I should have thought that that would cope with any problems appertaining to the trespass. I believe that my noble friend Lord Stanley should be happy with that.
Lord Stanley of Alderley: I am sorry that my noble friend Lord Ferrers did not give me a positive answer. I felt that the length of his answer showed that he has a guilty conscience. If he believed that he was right, he would have been able to tell me in three words that I was wrong. But he took a long time to answer, so I am sure that he has a guilty conscience.
My noble friend Lord Peel is not right, because I am talking about cases which may not be on a particular
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person's land, in which case it would not be possible to invoke the help of the police; for example, the land may be on an oxbow or at the side of the road or whatever.
I am not just talking about landowners. I am talking about neighbours, or a number of neighbours who may be inconvenienced and who would like to go direct to the magistrates' court. In that regard, I should say to the noble Lord, Lord Irvine—and I was surprised by what he, as a lawyer said—I would rather prefer to have judgment given by magistrates than by a local authority. The amendment provides that it is entirely for the magistrates to decide whether or not a particular person has been grievously distressed.
However, I see that I do not have the support of the Committee and I shall leave the matter as it stands. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 74 [Provisions as to directions under s. 72 and orders under s. 73]:
[Amendment No. 137 not moved.]
Clause 74 agreed to.
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 138:
After Clause 74, insert the following new clause:
("Provision of caravan sites for persons with children.
.A local authority shall have a duty to exercise its powers under section 24 of the Caravan Sites and Control of Development Act 1960 (provision of caravan sites) in so far as may be necessary to provide adequate accommodation for those persons whom the authority deems to have children below the statutory school leaving age normally residing with them.").
The noble Lord said: The major debate which we are awaiting will be on Amendment No. 139 in the names of the noble Lords, Lord Avebury and Lord Kenyon, and on Amendment No. 139ZA which is in my name. The purpose of that is to retain the duty which local authorities have to provide adequate sites for gypsies residing in or resorting to their areas.
Amendment No. 138, which I now move, is designed to permit the Government to state at this stage in the progress of the Bill whether they would be responsive to a lesser duty—a duty of the local authority to exercise its powers under Section 24 of the 1960 Act to ensure adequate accommodation for gypsy families with children below the statutory school leaving age.
The reality is that if gypsy families with such children are to be evicted from place to place and then on again, regular school attendance will be impossible, with incalculable harm done to the education and future prospects of the children affected. The insecurity is likely to damage their emotional and mental development and the strain imposed on the family will be likely to cause more separations and more children being taken into care.
For families with children in the settled community, the policy has always been to require local authorities to provide them with accommodation if it was not otherwise available, to prevent children being taken into care and to promote their welfare. Why should gypsy families with children not be similarly protected? If the Government are unwilling even to accept any duty to provide sites for such families and children, it will be

1171
plain that in that sphere, too, they are prepared to introduce what is in effect discriminatory legislation against a small community.
The Government may say that the authorities may choose to provide sites to discharge their duties to the homeless and to children in need. However, that is less than frank, not least because the Government propose also to repeal the duties to the homeless as they now stand.
Also, it is not realistic because those duties generally come into operation only when an individual is in need. At that time, local authorities may not be able to offer a site if they have not already provided a sufficient stock and, in practice, they will not find capital resources to provide a new site in such a case.
Moreover, an offer of immobile or settled accommodation of some kind may well discharge any duty the authorities have and would be wholly unpalatable to those to whom it is proffered. Therefore, such duties are no substitute at all for a duty to provide adequate sites, nor are they likely to lead to the provision of more sites. They are more likely to lead to acrimonious disputes among authorities as to which authority is responsible for having to deal with the consequences of too few sites for children and homeless gypsy families.
Local authority temporary and permanent accommodation provided on sites is the only way in which to provide those families with the security which they need in order to avoid unnecessary family breakdowns, and to ensure a provision which will enable those children to gain access to proper education, community and health facilities. I beg to move.
Lord Hylton: I believe that the amendment is a kind of litmus paper which will test the Government's good intentions and bona fides and I support it.
Earl Ferrers: I do not know whether the amendment is a litmus paper but I should point out to the noble Lord that it has some far reaching effects.
The amendment would insert a new clause which would have the effect of requiring local authorities to provide accommodation on caravan sites for any person —not just a gypsy—who normally resides with children of school age, and requires such accommodation, presumably in the authority's area.
Under Part II of the Caravan Sites Act 1968 local authorities are required to use their powers in the Caravan Sites and Control of Development Act 1960 to provide sites for nomadic persons, called "gypsies" in the 1968 Act. County councils are required to determine what sites are to be provided and to acquire the necessary land; and district councils are to manage the sites. The Government have made it quite clear that we do not think it is justifiable to maintain an open-ended commitment to meet gypsies' accommodation needs at the taxpayer's expense. Clause 75 of the Bill, therefore, repeals local authorities' duty to provide sites.
The amendment that the noble Lord, Lord Irvine of Lairg, just moved would impose a far more onerous burden on local authorities. It would require them to provide sites for anyone who wants such accommodation, irrespective of their personal circumstances,
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provided only that they are normally residing with children of school age. That is far too wide. The amendment does not differentiate between the responsibilities of county councils and district councils as the 1968 Act does. The imposition of such a duty on both tiers of authority would be a recipe for confusion and duplication. I do not think that such a proposal is tenable or reasonable.
Under our proposals, local authorities would retain their discretionary powers to provide further caravan sites if they deem this to be necessary. We have also already taken steps to encourage more gypsies to establish their own sites under the planning system. Last January, the Department of the Environment issued a circular which aimed to ensure that gypsies' accommodation needs are fully taken into account by the planning system. I really do believe that this is a better and fairer way forward.
Lord Irvine of Lairg: Once again, the noble Earl has succeeded in disappointing but not surprising me. It is obvious that in this amendment we are talking about those of a nomadic way of life. The suggestion that the: amendment would in practice extend to others is not to live in the real world. Nonetheless, I beg leave at this; hour of the night to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 75 [Repeal of certain provisions relating to gipsy sites]:
9.15 p.m.
Lord Avebury Lord Avebury moved Amendment No. 139:
Page 59, line 34, leave out subsection (1).
The noble Lord said: I am happy to say that we come now to an amendment on which there may be some measure of agreement of a wider nature between all parts of the Committee than there has been on some that we have discussed up until now. I understand that with Amendment No. 139 we are also taking amendments up to Amendment No. 142, which deal in general with the provisions of Clause 75 and in particular with the question of the definition of "gypsy".
Perhaps I may start with a preface on that point. At an earlier stage of our debate there was a substantial measure of agreement among noble Lords on all sides that something should be done to provide accommoda-tion for what may have to be described, in the absence of any better terminology, as genuine gypsies, but that we should not oblige the local authorities to provide accommodation for New Age travellers (or NATs, as they are termed for short) or indeed any other person who takes to the road, acquires a vehicle and adopts a nomadic way of life, thus apparently bringing himself or herself within the definition of a gypsy as contained in the Caravan Sites Act 1968.
We have heard already that the Government's case is that the Caravan Sites Act 1968 has failed despite the fact that, according to their own consultation paper Reform of the Caravan Sites Act 1968, 9,000 pitches had been provided for gypsies under the Act by January 1992. The Government say —and they have repeated the assertion this evening—that the provision of sites has failed to keep pace with growing demand, ignoring

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the substantial under-enumeration of gypsies, which is agreed by all the experts, on which the original requirement of 200 sites was calculated.
In my view, the main reason why more substantial progress has not been made was the then Government's rejection of the proposals that were made by Sir John Cripps in December 1976, when he recommended to the then Secretary of State, Mr. Peter Shore, that,
"the Secretaries of State, after discussion, allocate a quota to each county outside Greater London and seek agreement on a time-related programme of site provision to fulfil it",
and that,
"the allocations be made and the programmes agreed not later than 31 October 1977, and they be reviewed at five-yearly intervals, or more frequently in counties and London boroughs where, in the opinion of the Secretary of State, circumstances make this necessary".
What the local authorities needed at that time was clear guidance from the Government on the scale of the provision that was to be made within each local authority area and a firm timetable within which they would be expected to satisfy those needs.
Another important reason already referred to this evening was the reluctance of Secretaries of State to use the enforcement powers contained in Section 9 of the Act. Under that provision the Secretary of State could give a local authority a direction to provide such number of pitches as he thought fit. The Minister told us earlier that in three cases such directions have been given—to Hertfordshire, Surrey and Avon—but that in none of those three cases has the Secretary of State used the power of mandamus contained in the 1968 Act, even though, as for example in the case of Hertfordshire, five-and-a-half years have elapsed since the issue of the notice.
As I mentioned, one of the consequences of the publication of this Bill is that the number of pitches to be provided by the local authorities has fallen drastically. In the case of Hertfordshire it is from 110, which was the number given in the direction of 28th November 1988 by the Secretary of State, down to one new site, which I believe is in Stevenage, containing only about 33 pitches. So immediately the number of pitches to be provided in that county has been reduced by two-thirds. I believe that the same kind of thing is happening all over the country.
The majority of county councils, London boroughs and metropolitan authorities which replied to the consultation paper favoured retaining the statutory duty to provide sites, as did 48 per cent. of the districts. All of them wanted retention of the 100 per cent. funding. Two-thirds of counties but a minority of other types of local authority were in favour of distinguishing between the gypsies and the NATs.
The Save the Children Fund points out that unless there is a legal duty to provide sites, councils will find it almost impossible to resist local pressure and hostility to gypsies, and without some further government finance sites will never be built. It envisages that existing sites may even be sold off to private operators who may rent to non-gypsies or use the land for some completely different purpose. It suspects that some local authorities are already taking advice on whether they
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can sell their sites once the Bill becomes law. I cannot see anything on the face of the Bill to stop them from doing so. I should be grateful if the Minister could give some advice on that point.
County councils will have no obligation to employ gypsy officers as they do now. The Save the Children Fund alleges that that will threaten the whole infrastructure of support for gypsies. There will be no annual census because there will be nobody to conduct it and gypsies will receive no advice on planning matters. That makes it even less likely that private sites could make up the shortfall caused by the repeal of Part II of the 1968 Act, as the Government claim. The National Farmers Union makes that point too. The head of parliamentary affairs of the NFU, Mr. Barney Holbeche, wrote to me:
"we remain concerned that by repealing the duty on local authorities to provide sites for gipsies there will be a substantial exacerbation of the existing problem of illegal encampments. We consider the Government's view that gipsies will be able to participate in the local planning and development control process in ways that will secure them authorised sites is, frankly, unrealistic".
In another place the Under-Secretary of State, replying to an adjournment debate on 21st April, said that,
"between now and the expected Royal Assent in July, there will be an inevitable hiatus over the proposed council sites. Such a situation is, of course, not infrequent when there are changes in legislation".—[Official Report, Commons, 21/4/94; col. 1152.]
What does that mean? Of course, local authorities are cancelling their plans to provide sites. But after Royal Assent there is no incentive for them to start up again. If the Minister meant that there would be a hiatus before private sites begin to come on stream at the rate that local authorities were providing them, what is the evidence for that? The Circular 1/94 of 5th January 1994 on Gypsy Sites and Planning has already been referred to. It requires local planning authorities to continue to make provision for gypsies in their development plans and structure plans after the statutory duty to provide sites has been repealed. I believe that that, of itself, will make no difference to the rate of provision of private sites.
Secondly, local plans and Part II of unitary development plans are to identify locations suitable for gypsy sites wherever possible. Where that is not possible, realistic criteria are to be set out for suitable locations as a basis for site provision policies. At the same time, as was mentioned earlier, the circular excludes areas of open land where development is severely restricted. In particular it says that green belt land should not be allocated for gypsy sites in development plans. I mentioned also in an earlier debate that if it had been an easy matter to decide where those gypsy sites should be located, local authorities would have been able to do it over the past 13 years, and since the 1968 Act came into force. The problem is not solved by putting it into a circular, but the proof of the pudding will be in the eating. If the planning authorities designate sites in their development plans sufficient to accommodate the gypsies residing in or resorting to their area, as private site providers come forward with plans to build on this land and to let pitches at prices that the gypsies can afford, then let us consider the position

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at that stage. Meanwhile, I suggest that we should not proceed with this proposal while the future remains so uncertain, and while we have not the faintest evidence about what sort of provision these private operators are going to be able to make.
The circular does ask local authorities to be as helpful as they can in considering planning applications from gypsies. I asked the Minister earlier—and I repeat the question now—can he say how many planning applications have been submitted by gypsies, for what number of pitches, in the five months since the circular? I agree that that might not be conclusive, but it may give some indication of what is happening at local authority level and of whether the gypsies are receiving a more sympathetic hearing than they have done up till now in respect; of their applications for planning permission.
Will the department monitor continuously the number of pitches for which planning applications are applied and granted, and compare this with the number during the equivalent period before the circular was issued, to see if any difference has been made by circular No. 194?
Since it is impossible to make sure that private sites will be provided on anything like the scale that the local authorities would have done, will the Government be prepared as an alternative to defer the coming into operation of Part V until the private sector has had a reasonable chance to show what it can do? If the public and private sectors both continue to make their contributions within the framework of the revised development plans that are to be drafted under the circular, then, after a period which could be determined by the Secretary of State, the number of gypsies on unauthorised sites would be greatly diminished and the harmful effects of Clause 72 about which we were speaking earlier would be correspondingly reduced.
I do accept that local authorities should not be obliged to provide sites for every applicant who buys a caravan or lorry and takes to the road. The definition in the 1968 Act requires a gypsy to be of a nomadic habit of life, and that must surely exclude someone who decides to embark on a nomadic life having always lived in settled accommodation. Then the question would be: how long does someone have to lead a nomadic existence before it is said to have become a habit? I have suggested, with the noble Lord, Lord Kenyon, whose name also appears on Amendment No. 140, that this should be a period of 10 years. But that is, of course, a matter for discussion if the principle is accepted.
It might be objected—and one or two of your Lordships, with whom I have discussed this, have made this point—that difficulties would arise in establishing the time that a person had been travelling. If the person had been living in a house as an adult the electoral register would show it; if he or she had claimed any social security benefits, there again the address of the claimant would be verifiable. I would suggest that there are many ways in which the length of time that a person has been on the road can be established.
The children's organisations which are particularly concerned about these clauses say that, from their point of view, it is not possible to distinguish between one kind of traveller and another. I accept the validity of
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their contention from the point of view of looking after the children. The safeguards for the children have to be effective whether they belong to a gypsy or to a NAT family, but the accommodation needs of the two groups may well not be the same. Gypsies have a long tradition of caravan life and it is part of their culture, whereas for the NATs it is a mere convenience and they may far more easily be persuaded to return to ordinary dwellings. As I pointed out earlier, there has in the past year been a reduction in the number of caravans on unauthorised sites which exceeds the net new provision of pitches on authorised sites. That indicates that some people are voluntarily returning to settled accommodation and no doubt, if there was plenty of low-cost rented housing, other NATs might be tempted.
I hope that, with these arguments, the Minister may at last be disposed to accept one of our amendments today.
Lord Kenyon: In supporting this amendment I should like to speak also to Amendments Nos. 140, 141 and 142. I am glad that we have now got on to gypsies because earlier this evening, in discussing Clause 72, we had a good deal of reference to gypsies yet the clause refers entirely to unauthorised campers. There is no mention in the clause itself of gypsies. But Clause 75 does refer to gypsies themselves.
As a borough councillor, I have considerable experience of the problems associated with the obligation imposed on county councils by Part II of the Caravan Sites Act. I have seen at first hand the public fervour that is generated whenever there is a hint of a gypsy site meeting to discuss the provision of a new site in the borough in a vain attempt to comply with the law. I have heard well educated men and women become totally irrational when it is their locality that is being threatened by a visit from the sub-committee.
The problem, of course, is that the current attitude has developed because we are no longer talking about the same kind of gypsies as we were 16 years ago, when the Caravan Sites Act came into force. True gypsies have been with us for centuries. They have been tolerated—indeed welcomed —in the rural community, where they regularly assisted in the harvest and did other casual jobs around the farms and houses. But today they have acquired their parasites, the hippies or drop-outs—generically referred to as New Age travellers—who do not work, who do not want to work, but who believe that, because the gypsies have the apparent right to roam the countryside at will, they can do the same at the expense of the local taxpayer. They are the ones who are so unwelcome in the countryside, and it is most unfortunate that their presence and the aggravation and disruption that they cause has tarred the gypsies with a stigma that they do not deserve.
It is argued that because only 38 per cent. of councils have provided sufficient sites to enable them to become designated since the 1968 Act came into force, that is an indication that the Act is not working and should be repealed. There is only one problem that such a repeal will solve—and that is the Government's obligation to provide financial grant to local authorities to provide and maintain the sites. But it will not solve the

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underlying problem; and more importantly, it will not put anything workable in its place. What it will do at a stroke is to make the whole country a designated area and will render, I am told, something like 4,000 genuine gypsy families currently living in unapproved sites in undesignated counties liable to prosecution for criminal trespass. Where are they to go to?
Under the provisions of the Bill, the gypsies will now be expected to find their own sites and to apply for planning permission in the normal way. That objective is reflected in the Government's planning guidance. But gypsies are nomadic. They do not own freehold land. They do not want to own freehold land. And to expect them to learn to cope with the planning system is frankly pie in the sky. It is totally unrealistic to expect them to be able to handle a successful planning application for a site against all local opposition when 62 per cent. of the county councils have been unsuccessful themselves since 1968. It would clearly be far more appropriate for the councils themselves, with all the facilities at their disposal, to be responsible for this procedure and to benefit from the new planning guidance.
Clause 75(1) will have the effect of rewarding those councils which have ignored the Act for 16 years and of penalising those which have complied with the law, because the 38 per cent. which have acquired sites and have taken the Government's grant to develop them will now have to continue to maintain them at local taxpayers' expense while those who sat on their hands and did nothing will walk away laughing. This is not the time to take the carrot away from the donkey. It is time to get out the stick and push the waverers forward to achieve compliance with the existing law.
Amendment No. 140 seeks to limit the definition of gypsies to encompass only those who are of truly nomadic intent by imposing a test that they have carried on a nomadic life for at least 10 years. No doubt that will allow some who are not true gypsies to slip through the net by showing that they have been on the road for 10 years or more; but at least it will not exclude a single genuine gypsy. I hope that the Government will give serious consideration to this or a similar amendment which will achieve the desired result.
Of the 152 clauses in this Bill I welcome 151 of them as steps forward in the battle against crime. Some of those I may even have criticised as not going far enough, but at least they go in the right direction. Sadly, this clause goes in the wrong direction. It takes something away without putting anything sensible in its place and in doing so it criminalises a small group of people who certainly deserve better.
9.30 p.m.
Lord Stanley of Alderley: My Amendment No. 139A is grouped with this amendment. I agree with my noble kinsman Lord Avebury that there should be some agreement on some of the amendments to Clause 75, many of which were discussed earlier with Clause 72 and which, in my opinion and obviously that of my noble friend Lord Kenyon, whose speech I much enjoyed, were actually addressed on the wrong clause. I hope that my noble friend Lord Ferrers will consider
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sympathetically the problems these amendments address, particularly those raised by my noble kinsman and my noble friend Lord Kenyon.
I have tried to tackle this problem in two ways. First I have tried by defining who is a gypsy and entitled to sites. Secondly, I have tried to make available more sites for genuine gypsies. As regards defining who is and who is not a gypsy I refer the Committee to a recent court case and the judgment of Mr. Justice Watkinson, which has been recently upheld by the Court of Appeal. Among other things it stated that these sites are not for "drop outs"—I believe I am right in saying that the judge actually used those words—and that their nomadic way of life was linked to work. Recently the Appeal Court stated that,
"there should be some recognisable connection between the wandering or travelling and the means whereby the persons concerned make or seek their livelihood. Persons, or individuals, who move from place to place merely as the fancy may take them and without any connection between the movement and their means of livelihood fall outside these statutory definitions".
New Age travellers certainly would not qualify under that description. Moreover, Lord Justice Leggatt, in supporting the judgment, stated that the privilege of site provision is,
"not available to occupants of caravans who do not live in them for that purpose and whose moves are actuated not by need but by caprice".
If these judgments are acted upon—and my Amendment No. 139A attempts to do just that—local authorities will at least have the numbers minimised. They certainly have no obligation, and nor in my opinion should they, as far as NATs are concerned.
I now turn to the much more difficult problem of sites. I regret that the Government have decided to repeal the Caravans Sites Act 1968. I understand why they have done so, but I believe that will only make matters worse and that there will be fewer sites for what I believe are more nomads, even though my noble kinsman says that there are fewer; but there are still many of them.
The Government issued a Department of the Environment circular on 5th January 1994 which has already been referred to by the noble Lord, Lord Irvine of Lairg. It addresses the provision of sites. I have to draw the Committee's attention to some of its snags. Paragraph 1 states that it is the intention to withdraw previous guidance allowing sites in green belts. Those are just the areas which genuine gypsies or nomads wish to have because there is work there. Paragraph 9 states that local authorities should have regard to the needs of gypsy sites and include them in their development plans.
But will local authorities actually do that? I ask Members of the Committee to consider the North Cornwall Development Plan which seems to make that virtually impossible. If I may say so, the story of a camel passing through the eye of a needle is what comes to my mind in that connection, but I very much doubt whether local councillors would consider themselves almighty. I have their policy (HSG 17) in front of me. I shall not read it out, but that policy makes it virtually impossible for genuine gypsies to have any chance of getting a site. I am more than happy to give that document to my noble friend later if he wishes.

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On the more cheerful side, paragraph 11 of the DoE circular offers more help. It states that local authorities should consider,
"unused and underused land owned by public bodies".
Has my noble friend the Minister considered where those sites might be? Might they be Ministry of Defence sites of which, as we all know, many are available? Might it be possible—I put my head in a trap here, I am sure—for such sites to be used as temporary move-on sites for New Age travellers?
Your Lordships may well accuse me of being hardhearted towards New Age travellers and of posing problems about how to deal with genuine nomads. I accept both of those criticisms, but surely it is our job in this Committee to air such problems with a view to trying to find a solution. I shall certainly not press my amendment, Amendment No. 139A, and at this stage I do not support the removal of the clause from the Bill.
Baroness Faithfull: To help the implementation of the Bill should it pass through your Lordships' House and another place or, alternatively, if it does not pass, I have a strange request to make of my noble friend the Minister. Before making it, I should like to say first that I agree with the noble Lord, Lord Avebury, that the Caravan Sites Act 1968 should stand. I agree also with the right reverend Prelate the Bishop of Liverpool that every consideration should be given to the family life of those who lead a nomadic life and that they should have as much stability as possible, especially with regard to the education and health of their children.
I have a deep sympathy and concern for landowners and for the residents of towns, villages, hamlets and remote farms. Obviously, they have suffered greatly —and still they suffer. The noble Lord, Lord Harris of Greenwich, said that this Bill, if passed, will give rise to major social problems. Equally, if the Bill does not pass, there will be social problems which we shall have to face. Therefore, with respect and whether the Bill passes or not, may I ask my noble friend the Minister whether it is possible to set up a public inquiry, chaired perhaps by a judge, to look in the round at the position of the nomadic population? Some research has already been conducted by the Children's Society, showing that 60 per cent. of New Age travellers began their way of life because of homelessness. Such an inquiry should take into account the views of local authorities, housing corporations, voluntary organisations, the law, the police, the social services and, most of all, landowners.
We keep talking about the land, but whose land is it? What land is it, and where is it? My noble friend Lord Stanley of Alderley said that in my area two airfields formerly occupied by the Americans are standing empty, doing nothing, although both have water and houses. I understand—although I would have to go to see for myself—that there are great tracts of defence land on Salisbury Plain. Could not that land be looked at? What is happening in that respect?
Would it not be possible for local authorities to join together and have joint plans? If we are to have local government reorganisation and if—and I emphasise the word "if—instead of county councils there will be
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district councils, no small council will be able to deal with the problem on its own. There will have to be joint plans.
A much more thoughtful, planned policy must be considered. There also needs to be a committee of inquiry and research leading to rules and guidance for all those involved, be they landowners, travellers or local authorities. It is possible that my noble friend the Minister will say that that is not practically possible. However, unless that is done, we shall never get it right.
Lord Lester of Herne Hill: Gypsies are probably the smallest ethnic minority in the country. It seems to me that the way in which we, as a society, treat them and discharge our positive obligations towards them is a kind of litmus test for us as a civil society. Gypsies are not a popular group; indeed, they are easily tarred with the brush of the unattractive New Age travellers. I agree with all the remarks made by Members of the Committee that to substitute statutory duties towards that group of people by the kind of soft and unenforceable guidance given in the departmental circular is not satisfactory.
Another aspect that strikes me as deeply unsatisfactory is that, in considering the amendments, this place has no access to any authoritative, independent legal advice as to whether what is proposed complies with the international obligations undertaken by the United Kingdom in ratifying a whole host of international human rights treaties. I have in mind the European Convention on Human Rights which has already been mentioned, the International Covenant on Civil and Political Rights and the International Convention on the Elimination of all Forms of Racial Discrimination.
I appreciate that the Minister will not be in a position to disclose this evening the nature of any legal advice which was obtained before the provisions were placed before the Committee. However, when answering the points raised this evening, I should be grateful if the Minister could indicate how the scrapping of a statutory duty can possibly satisfy the positive obligations that international human rights law imposes on this country towards this ethnic minority. I have in mind in particular the right to respect for their families which is guaranteed by Article 8 of the human lights convention, to their homes and to the peaceful enjoyment of their possessions and the right to education which is guaranteed by the first protocol of the European convention. All of those rights should be read with the non-discrimination guarantee in Article 14 of the convention, or the other obligations in the International Covenant on Civil and Political Rights, especially Article 26 which guarantees the equality of treatment in effect as well as in intent, and the convention on the elimination of racial discrimination.
In being asked to pass such legislation, I believe that this Chamber is entitled to some reassurance that those points have been carefully considered by the Government and that they are satisfied that we are able to discharge our international obligations. Speaking for myself, I can only say that I agree entirely with the noble Lord, Lord Irvine of Lairg, that the statute we are asked

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to enact seems discriminatory in its effects, if not in its intent, and that it is seriously open to challenge on the international level.
9.45 p.m.
Lord Irvine of Lairg: I desire to support Amendment No. 139, in the names of the noble Lords, Lord Avebury and Lord Kenyon, whose contribution, if I may say so, was most powerful. Clauses 72 to 74 of the Bill can perfectly well co-exist with a continuing duty on local authorities to provide sites and the Secretary of State's power to direct them to do so. It would be true to say that, if the duty is repealed, local authorities will retain a power but no duty to provide sites. It would be humbug, however—would it not?—to suggest that the Government have any real intention that they should exercise that power to secure any new public provision. At best, if the Bill passes in its present form, any new public provision will be on a tiny scale compared with what has hitherto been achieved.
There will be no statutory duty to make adequate provision; there will be no central grants for the capital expenditure involved: the power to make them is to be repealed by Clause 75(5) of this Bill. There will be no Government pressure for authorities to provide an adequate number of sites, whether by means of directions or otherwise, and the incentive to provide sites in order to obtain the powers available on designation will be removed if this Bill becomes law. There are normally no votes or popularity to be had locally in providing sites: it is, frankly, often an unpopular task. There are many other pressures on local authorities' budgets which have greater appeal. At best any new public provision will be on a tiny scale compared to what has been achieved hitherto. Does the noble Earl agree?
Any new public provision, therefore, will be wholly inadequate to meet the needs which now exist. That has been proved by experience. It was recognised by all parties in Parliament in 1968 that the existence of a mere power to provide sites had proved insufficient of itself. It was for that reason that a duty to exercise the powers local authorities already had was sensibly imposed by Section 6 of the Caravan Sites Act 1968.
Throughout the whole course of the proceedings of the Committee today I have waited in vain for an explanation from the Minister as to what principal reasons there are for removing that obligation. The truth is that the Government do not want any further public provision. To some extent the Government are quite open about their ambitions. In another place the Minister, Mr. Maclean, said,
"we believe the time has come to call a halt to caravan site provision at public expense and, instead, to encourage gypsies to establish their own sites through the normal planning system". —[Official Report, Commons, Standing Cttee B; 10/2/94; col. 709.]
I dealt with the realistic opportunities that they had to do that during the debate on the Question that Clause 72 stand part. I do not repeat what I said then but simply record that the points that I made have not as yet been answered. Similarly, in replying to the debate on the
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Second Reading of this Bill in your Lordships' House, the noble and learned Lord, Lord Fraser of Carmyllie, stated that there was now,
"a reasonable level of public provision. The steps we have taken to encourage more gypsies to establish their own sites will, we trust, make up for the shortfall".—[Official Report, 25/4/94; col. 509.]
The Government in truth want public authorities to have no further role in the provision of sites. Does the noble Earl accept that?
I desire to refer in particular to Amendment No. 141A, in my name. The Government propose in Clause 75(5) to repeal the power of the Secretary of State to make grants in respect of the capital expenditure that local authorities incur in providing sites which was conferred by Section 70 of the Local Government, Planning and Land Act 1980—a piece of Conservative legislation. The purpose of this amendment is to retain the power to make grants. The power to make grants has been a key element of the public policy followed over the past 15 years and was adopted following a recommendation by Sir John Cripps in his report on gypsy accommodation.
The need for such grants is obvious: not only are gypsy sites an unpopular competitor for capital expenditure, their provision is likely to be unremunerative without them. As the Secretary of State put it in a circular issued in 1977, before grants were available:
"Even on the simplest sites rents for caravan pitches are unlikely to be economic and most cases will call for subsidy".
Without a duty to provide sites and financial assistance with the capital expenditure involved, the policy to provide an adequate number of sites would not have progressed to the extent that it has. Understandably, the Government decided that the rate of grant for capital expenditure should be 100 per cent. Moreover, the grants represented a recognition of the national interest in ensuring that gypsies should be satisfactorily accommodated. In Circular 11/79 (which is still in force) the Secretaries of State for Environment and for Wales stated that it was in the national interest that gypsies should be satisfactorily accommodated, and that therefore the total amount of grant had been found from central government voted expenditure and not piecemeal from housing investment programme allocations to individual authorities.
No doubt the noble Earl will reveal to the House when the Government considered that it ceased to be in the national interest that gypsies should be satisfactorily accommodated, so that one of the main reasons for the making of grants had disappeared. On the other hand, if the Government consider that it is still in the national interest that gypsies should be satisfactorily accommodated, no doubt the noble Earl will inform us why the Government propose to abolish the powers that they have to promote that national interest.
The Government have complained about the cost of these grants: £56 million between July 1978 and August 1992. The cost has been £4 million or £5 million or so a year. Complaints about expenditure on that scale in respect of an important social problem are quite unconvincing. Four or five million pounds a year pales into insignificance when set against the support that the national taxpayer provides for social housing each year

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for the settled population of this country. The noble Earl should inform the House, if he refers to expenditure on these grants, what the cost to the national taxpayer is of all forms of support for social housing for the settled community.
For example, did not local housing authorities alone receive over £4 billion—not £4 million—in subsidy in 1991/92? What proportion does the amount of grant paid towards gypsy site provision bear to the total amount of support provided by the national taxpayer to all forms of social housing? To complain about expenditure of £4 to £5 million a year is to lose any sense of proportion. Moreover, it is self-defeating. The Government's policy is likely to lead overall to more public expenditure in moving gypsies from place to place, imprisoning those who fail to pay fines and having to deal with the consequences for families and children that will result from the new approach.
Under the present arrangements the Government have a discretion as to how much grant, if any, to pay. If the existing amount of £4 million to £5 million is really unjustifiable, why do the Government not reduce grant, as distinct from extinguishing their power to make grant? The result is that any capital expenditure on sites by local authorities will now have to compete with other demands on their limited capital resources. That is a competition which the sites will certainly lose in the absence of any duty to provide sites and the general unpopularity of such expenditure. Unlike other forms of social housing, there will be no power for the making of an Exchequer contribution to public provision.
1 respectfully ask the noble Earl to make clear and distinct answer to the question whether the proposed repeal is not the clearest possible indication that the Government no longer consider that there is a national interest in the provision of adequate accommodation for gypsies. Taken with the proposed repeal of the duty to provide sites, and the hardening of planning policy spelt out in detail earlier—to which I have as yet heard no reply—is not all of this the clearest possible indication that there is no political will to achieve any real solution to the practical problem of site provision?
This mean-spirited repeal testifies to the Government's determination to rid themselves of any practical responsibility for the solution of a social problem and to try to treat it only as a problem of public order. It is lamentable that this Government consider that the proper agents for the solution of such social problems will in the long run be the police and not public authorities.
Viscount Brentford: I believe that the provision of sites is crucial to this issue. I should like my noble friend the Minister, when he replies, to explain exactly where additional sites will be found. It has already been said that the gypsies themselves will not provide them because they are nomads. What incentive will there be for landowners in a particular area to provide sites themselves? If there is a shortage at any time how will private enterprise otherwise be motivated to produce sites for this minority of people, the gypsies? Who will provide sites for them?
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We have given the local authorities powers to evict gypsies from unauthorised encampments whether or not sites have been provided and whether or not they have anywhere else to go. In this legislation we must not be guilty of forcing criminal behaviour on gypsies by evicting them from one place and not providing anywhere else for them to go.
I am extremely worried about this issue, both from the point of view of the gypsies themselves and from the point of view of their children and other vulnerable people who will be affected. My noble friend the Minister has already commented on the provision of education for the children of gypsies. That is vital. If gypsies have to move to unauthorised sites because: there is no authorised site for them to go to, the work of local education authorities in providing the education that is required will be made that much harder. Therefore, I hope that my noble friend will tell us how additional sites for gypsies will be provided.
Lord Greenway: I too should like to support the retention of the duty to provide sites for gypsies. The 1968 Act originally envisaged three types of site to be provided, namely, emergency stopping places, transit sites and the permanent residential sites about which we have heard so much this evening. The crucial sites which we need to consider are the transit sites.
Because they are nomadic gypsies move from place to place. If there are no transit sites to enable them to move from one permanent site to another they are forced to pitch on sites which are at present illegal. That would explain why the 4,500 families mentioned by Ministers break the law.
It is very difficult for gypsies who wish to travel, especially those who are on permanent sites. If they leave their site that site will be occupied by other gypsies wishing to take up permanent residence, and the original occupants will not be able to go back. They will have nowhere to go. Therefore, we have to look much more closely at the provision of more transit sites.
The lack of overall site provision also means that those few transit sites which have been provided are occupied by people who are taking up permanent residence and so destroying the object of the transit sites.
Lord Congleton: I should like to say a word or two in support of Amendment No. 139. Before I do so perhaps I may echo the words of the noble Lord, Lord Kenyon, who referred to the better aspects of Part V of the Bill, which I am sure will bring comfort and reassurance to those who live in the more isolated areas of our country who may have experienced the uninvited attentions of New Age travellers. I am referring to small communities, isolated farms, individuals and so on. I am sure they will be reassured by some of the provisions in the earlier parts of this Bill.
Clause 75 is raising a great deal of dismay and anxiety. I have lived in Wiltshire for 35 years, for 10 years of which I was an elected councillor in a small rural district council. In 1973 we succeeded in providing the first permanent site for gypsies in our county. There are now 29 sites with 233 pitches. Of those, 54 are transit pitches, to which the noble Lord, Lord

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Greenway, referred. There is all-party agreement, I am told, on Wiltshire County Council that the Caravan Sites Act 1968 should be retained. There is agreement also from the National Farmers' Union, the Association of County Councils and the Association of District Councils, with all of whom I have had brief consultations.
It was said, I think by the noble Earl, that one of the reasons for the Government's wish to repeal the Caravan Sites Act of 1968 was that it was not working. As I said, in 1973 a permanent gypsy site was established in south Wiltshire and there are now 29. Wiltshire is a designated county. If it has worked in Wiltshire, why on earth cannot it work somewhere else? Earlier I listened to the noble Lord, Lord Irvine, speaking to another amendment seeking 24 hours' dispensation before moving on campers who were staying illegally. I think that is what he was asking for —24 hours before the law was actually applied. Why did the noble Earl feel it was proper to resist that suggestion when the Government have not applied this legislation for 25 years—the length of time this legislation has been on the statute book—and have not made local authorities provide these so badly needed sites for the gypsies? It seems to me that the Government are acting in a very strange way, and I hope the noble Earl will be able to satisfy the Committee as to precisely why this legislation has to be repealed.
In conclusion, may I echo one particular concern of the Wiltshire County Council? What would be the position with a county like Wiltshire, where the council chargepayers have paid their money to support the provision of gypsy sites, when other counties, which have not provided gypsy sites in accordance with the 1968 Act, let loose their gypsies in Wiltshire? Will Wiltshire have to provide gypsy sites? Will that be used as an argument by neighbouring counties to move their gypsies into Wiltshire?
Earl Ferrers: We have had an interesting discussion on these various amendments, and of course there is the one basic complication to which I referred earlier, and to which I refer again. At one moment we are saying we must provide more sites for gypsies, and at the next moment we are saying that, of course, these are itinerant people who want to move around. There is a non sequitur there: you provide sites, which insinuates that people are going to be permanent whereas in fact they move around. When the noble Lord, Lord Greenway, says that what we actually want is more transit sites I am bound to tell him that the local authorities have provided few transit sites as there is very little demand for them. The majority of gypsy families want sites with full facilities, and a local authority is much more likely to tolerate emergency stopping places than to provide actual transit sites. This has, in fact, proved to be quite popular.
My noble friend Lord Brentford asks where all these sites are going to come from. I cannot tell him exactly where they will come from, and he would not expect me to. However, he must remember that not all the gypsies on unauthorised sites wish to move about, although they
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are nomads. Thirty per cent. of those on unauthorised sites own the land, which indicates a willingness and desire to provide their own sites. The National Gypsy Council endorsed that view.
The noble Lord, Lord Irvine of Lairg, said that the Government want no more provision of sites from public funds and he asked me to agree. I do not agree with that; it is entirely a matter for the local authorities to decide whether and where to provide sites. The difference is that the 100 per cent. grant, which is astonishingly high by any standards and has been available for a long while, is to be repealed. The noble Lord said that there was no national interest in adequate provision for gypsies. That is completely wrong. He knows perfectly well that there is adequate provision; a great deal of effort has been put in throughout the past 15 years to provide sites for gypsies. However, 4,000 throughout each year who are of nomadic origin are on unauthorised sites.
My noble friend Lady Faithfull said that she would make a strange request and I wondered what on earth she was going to say. She does a number of strange things with Bills going through your Lordships' House, but her request was nothing compared with some of the strange things she does. She asked whether we could set up a committee of inquiry and research, to draw up rules and guidance for landowners, local authorities and gypsies. I do not honestly think that that is the right way to go about it. There is no need for a further inquiry into the nomadic lifestyle of people, no new wisdom to be gained on this difficult issue. The Children's Society report indicates that some New Age travellers are homeless people seeking refuge, but it also shows that the travelling life holds some form of superficial attraction, particularly for younger people. New Age travellers take up the travelling lifestyle as a matter of choice and not of necessity and their activities cause intolerable nuisance. The Government have an obligation to act on that.
We had an inquiry, we put out a consultation paper in 1992. It attracted 993 formal responses from a wide range of organisations; it is true that many expressed reservations, while some were frankly hostile to the proposals. Many of those who replied recognised that the existing system of council site provision had not succeeded in reducing the unauthorised camping, but few who responded made any constructive proposals for change. The Government decided to proceed with their main proposals because they are committed to reducing unauthorised camping.
My noble friend Lady Faithfull was right. The noble Lord, Lord Harris of Greenwich, said that the Bill would give rise to grave social problems if it were passed, and she was right to remind him that there would be grave social problems if the Bill did not pass. What she did not say is that there are grave social problems now, and that is why the Bill is being introduced. Some people in the countryside are laid open to the most intolerable abuses by people who claim to be of nomadic habits.
It is not a matter of criminalising people. My noble friend Lord Kenyon said that it would criminalise small groups. Of course the gypsies will not have committed a criminal offence under Clause 72 by living on an

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unauthorised site. It is not until a direction has been issued and they have refused to obey it, or if they return within three months, that an offence is committed.
Unauthorised camping is not just a social problem arising from a shortage of accommodation, although both those issues may be connected. Unauthorised camping can cause great offence and nuisance. We believe that it is right that local authorities should be able to take strong measures to deal with the most serious cases. Unauthorised camping by a gypsy in a designated area is already an offence, and so that principle has been accepted. I believe that our proposals are a reasoned response to what is, as I think everyone recognises, a serious problem.
The noble Lord, Lord Lester of Herne Hill, was concerned about infringing human rights and so forth. I do not believe that we will be found to be doing anything like that. Our proposals are not discriminatory. They are aimed at reducing the level of unauthorised camping which can cause intolerable nuisance and distress to local communities. No one has the right to camp on another person's land without his consent. We have no quarrel with the travelling community. Those who aspire to economic independence and who wish to follow a nomadic way of life for that purpose are of course free to do so. But, at the same time, travellers have to accept their own responsibilities, among which is the responsibility to pursue their own way of life without causing nuisance or injury to others.
Successive Administrations have persevered with the Caravan Sites Act for some 24 years. Over £87 million of Exchequer funds have been expended through capital grants to local authorities since 1978; yet the level of unauthorised camping has remained almost the same for the past 13 years. Local authorities have provided sites for some 46 per cent. of the total number of gypsy caravans in England and Wales. In the Government's view that is a reasonable level of public provision. Yet the rate of public provision has failed to keep pace with the apparent growth in demand. We believe that the right approach now is to encourage more gypsies to provide their own sites. Private site provision by gypsies has increased at twice the rate of public site provision since 1981, and we want to encourage that trend. The circular, Gypsy Sites and Planning, for which the National Gypsy Council and other gypsy organisations have expressed support as an initiative to encourage gypsies to establish their own sites, was produced. In addition, local authorities will be able to lease their sites to other people. A number are considering leasing sites to the National Gypsy Council. I see nothing wrong with that. The terms of the lease will guarantee that the site will remain open and the gypsies would have an incentive to keep those sites open. Three thousand gypsy caravans are at present on sites which are owned and run by gypsies.
Amendments Nos. 139A and 140 variously define the word "gypsies". We have decided to retain the definition of the word "gypsies" at present employed in the Caravan Sites Act 1968 for the purpose of the provision of working space on sites, because it is one with which local authorities are familiar. Recent cases in the High Court and the Court of Appeal indicate that the
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courts are also coming to terms with the definition. As recently as the end of last month, the Court of Appeal endorsed earlier High Court judgments concerning large unlawful encampments of New Age travellers, stating that the notion of economic independence is inherent to the idea of nomadic life, as is the notion that a nomad's living is made in an activity in which he has to go from place to place.
The courts, as I have said, have now clearly taken on board the essential requirement that a nomad is a person who will invariably travel for the purpose of getting a livelihood, whilst commenting on the impossibility of constructing one simple test for the application of the statutory definition. I do not think that a change in the definition would assist either the courts or local authorities. The removal of the discretionary element in Section 70 of the Local Government, Planning and Land Act 1980 would require a Secretary of State to pay grant regardless of value for money and regardless even of the need for a site. Amendment No. 141A would simply reinstate Section 70 as it now stands.
The 100 per cent. grant for gypsy sites was introduced in 1978 in response, as has been said, to a recommendation by Sir John Cripps in his 1976 report. He suggested that such a grant should be. made available for five years to stimulate local authority site provision. The grant has been available now for over 15 years and what was intended as an incentive has turned into a dependency. Local authorities expressed the opinion that that would represent too much control and the Government agreed that county councils could usefully look at setting themselves quotas.
10.15 p.m.
Lord Stanley of Alderley: My noble friend passed on to the definition of what is or what is not a gypsy. He said that he accepted the ruling of the Court of Appeal of what is a gypsy. However, that does not appear to me to coincide with what is in the 1968 Act. Do I understand that in future sites will only be open to those who fall within the definition of the Court of Appeal?
Earl Ferrers: It will be for the court to determine exactly who is and who is not a nomad. That is a matter for the court to decide and the courts have made clear what they have decided. That is why we believe it is better to leave the definition as it is and as courts and local authorities are able to interpret it, rather than to try and change it. By that route one causes more confusion and uncertainty.
The Government agreed that county councils could usefully look at setting themselves quotas. But it would not be appropriate for the Secretary of State to impose them. Rigid quotas are not suitable when one is talking of what is a fluid population such as gypsies. Local authorities have already established over 300 sites in England and Wales. That is a high level of public provision and we believe that the right approach now is to encourage more gypsies to provide their own sites. Private site provision has increased at twice the rate of public site provision since 1981 and we want to encourage that trend. Our proposals offer a better and fairer way forward.
Lord Irvine of Lairg: Before the noble Earl sits down, will he accept that I did not assert that there was no national interest in providing accommodation for gypsies? On the contrary, I asserted the precise opposite and asked the noble Earl to explain why he proposed to abolish the powers which the Government had to promote that national interest; namely, the power to provide capital grants for the provision of sites.
Earl Ferrers: If I misquoted the noble Lord, Lord Irvine, I apologise. Sometimes, when one tries to write down what someone is saying, one gets it wrong. If I misrepresented the noble Lord, I apologise. I have spent a substantial amount of time on my feet trying to explain why we felt it necessary to make the change. I accept that it is a difficult change for some people to accept. However, the provision which was made for an experimental period of five years has continued for 15 years. I explained that £87 million of public finance has gone into providing those sites. We believe that that is sufficient on a 100 per cent. grant basis. Of course, it is up to local authorities if they wish to provide sites themselves. But the fact is, as I also tried to point out, that private sites have been increasing at twice the rate of public sites.
Lady Saltoun of Abernethy: I too must take issue with the definition of gypsies. Travellers and people with a nomadic way of life are not gypsies. I understand that gypsies are people of Egyptian descent, their descendants coming to this country many centuries ago. I believe that today there are few of them. Whatever the courts and local authorities may say, New Age travellers and people of a nomadic way of life are not true gypsies. That is my understanding of the definition of a gypsy.
Lord Stanley of Alderley: The noble Baroness ought to read the judgment of the Court of Appeal, which gives a description of what a gypsy is or is not—
The Earl of Halsbury: I must endorse what was said by my noble friend Lady Saltoun. The gypsies came from the North West Frontier of India, spoke their own language and for centuries infiltrated all over Europe.
Lord Renton: Is not the problem that originally the gypsies in this country were known as Romanies? In fact, during the Middle Ages many of them came from Hungary. In more recent times native British people adopted their way of life. They were not always good people and they became known as didicois.
Now we have yet another nomadic group, who call themselves New Age travellers. It will be impossible for us to legislate in different ways for each of these groups. Therefore, we must generalise and bring them all together and under the law we must treat them in the same way. We cannot discriminate between one group and another either on grounds of race or of motive.
Earl Ferrers Earl Ferrers: Perhaps I may help the Committee. Section 16 of the Caravan Sites Act 1968 states:
"'gypsies' means persons of nomadic habit of life, whatever their race or origin, but does not include members of an organised group of travelling showmen, or of persons engaged in travelling circuses, travelling together as such".
The Act clearly rejects any racial or ethnic basis for the
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definition and the courts have held that it is possible to acquire a nomadic habit of life and, indeed, to lose such a habit.
The Act requires local authorities to determine whether or not a person is a gypsy and each case is a matter of fact and degree to be decided on its own merits. Recently the High Court ruled that the notion of a nomadic habit of life means more than the mere fact of moving from place to place. The definition contemplated a class of persons whose means of obtaining an independent living necessarily involved their wandering from place to place. The notion of economic independence was inherent in the idea of a nomadic life, as was the notion that the nomad's living was to be made in an activity in which he had to go from place to place. The court also strongly emphasised the enduring character of the nomadic way of life.
In recent cases the courts have held that large groups of New Age travellers camped unlawfully on land in Devon, Dorset, Gloucestershire and Warwickshire were not gypsies for the purposes of the 1968 Act. On 27th May the Court of Appeal dismissed appeals brought by five travellers from unlawful sites in Devon, Dorset and Gloucestershire. It upheld the High Court rulings that local authorities' decisions to evict them could not be challenged on the grounds that the authorities owed a duty to provide caravan site accommodation for them. No such duty was owed since the travellers were not gypsies within the statutory definition.
Lord Avebury: Perhaps I may first deal with the point that the Minister just made. His clarification was helpful. Perhaps when we consider the matter further, as undoubtedly we shall on Report, we shall be satisfied with the interpretation of the definition in the 1968 Act which has been formulated by the Court of Appeal.
The reason why my noble kinsman Lord Stanley of Alderley, the noble Lord, Lord Kenyon, and I attempted to frame modified definitions was because we wished to exclude New Age travellers and to confer the benefits of the 1968 Act, if we could persuade the Government not to repeal it, on "genuine" gypsies.
But, with respect, I do not believe that the Minister quite answered the point which was put to him by my noble kinsman as to whether the definition as now laid down by the Court of Appeal would be the one that was binding on local authorities. If that were to be the case, it would be helpful if the department issued a circular confirming that that is its understanding of the position and that the local authorities are not obliged to provide accommodation on those sites for New Age travellers or other persons who do not come within the traditional definition of a gypsy.
That would certainly make life easier for those of us who have been trying to frame alternative definitions. We should no longer need to do so because the Court of Appeal would have satisfied the anxieties which we had on that point and, when we return to this matter on Report as we undoubtedly shall do, then we should be able to confine our attention to the simple point of whether we need to continue to impose the obligation on local authorities which they have always had under the 1968 Act.

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As to that point, I should have thought that the feeling of the Committee was extremely conclusive. Prior to the Minister's winding-up speech, nine consecutive speakers favoured the retention of the duty under the 1968 Act and not a single speaker defended the Government's position. Four speeches were made by Members of the Committee on the government Benches; we had two speeches from the Cross Benches; and three speeches from the Opposition Benches. Every single one of those speeches favoured the retention of the duty. I leave out the noble Lord, Lord Renton, because he spoke after the Minister.
Lord Renton: I thank the noble Lord for giving way. He is assuming that silence means dissent; it generally does not.
Lord Avebury: I hate to point this out, but there are not many Members on that side of the Committee apart from those who spoke. I believe that there are only the noble Lord, Lord Renton, and two other Members of the Committee who have been present throughout the proceedings. It was open to them to defend the Government if they wished to do so and I should have thought that anyone who believed that the balance was not correctly reflected in the speeches which had been made would have attempted to redress that balance by leaping to the Government's defence.
Earl Ferrers: Perhaps I may tell the noble Lord that I am delighted that nobody rushed to the Government's defence because it would have meant that more people would have spoken and that would have elongated the debate even further.
Lord Avebury: This is an important matter. I do not believe that the Minister should object to people speaking on a matter which is of such fundamental importance to many of us in this Committee and to many outside this Chamber. The speeches reflected the vast majority of submissions made to the Government. As I said, of the 1,400 responses to their consultative document, the overwhelming majority were in favour of the retention of duties under the 1968 Act.
In his defence of the Government's position, the Minister repeated several points that have arisen earlier this evening. He said that the private sector had provided accommodation at twice the rate of the public sector. I can only say that he must be looking at a different set of figures from those produced by his own department, a copy of which I handed to him earlier. Those figures show the number of pitches provided on local authority and private sites from 1990 until 1994 —a period of five years. They showed that, during that time, councils have provided in total 5,951 sites and the private sector have provided 3,271 sites. If one looks at the increases during that period in both the private and local authority sectors, the number was about 800. Therefore, if the private sector continued to provide accommodation at the same rate as it has during those five years, by repealing the 1968 Act the rate at which the backlog is cut down and the rate at which people on unauthorised sites are brought into conformity with the law would be halved. That is a point which the noble Earl has emphasised throughout the proceedings.
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The noble Earl said in answer to his noble friend Lady Faithfull that there was no new wisdom to be gained. I should have thought that that was a very extreme point of view to take after such changes as have occurred in the past few years in the nature of the problem which have made it necessary, according to the Government, radically to sweep away the legislation and provide something new. I should have thought that there was some new wisdom to be gained, and that, in particular, the Minister might address his mind to the reasons why, during the past year, the number of people on unauthorised sites has declined; contrary to the point he has reiterated that the number of unauthorised encampments continues to increase at a faster rate than the provision of new accommodation. Is the decline because people are leaving the nomadic community and settling in fixed accommodation? Is it because in previous years NATs were counted in the total and that they have now been excluded by the local authorities? There must be some good reason why there has been a change in the recorded totals of persons on caravan sites in England and a change in the recorded totals of persons on unauthorised sites.
Finally, the Minister spoke about "intolerable abuse", neglecting the important proviso that that always relates to the unauthorised sites. If one looks at the complaints that are received from people about gypsies in their neighbourhood, about the disruption caused by insanitary behaviour, noise, dirt and so on, those complaints nearly always relate to an unauthorised site. On authorised sites that are properly managed gypsies do not cause anything like that sort of unsettlement in the surrounding community.
I know that we shall not convince the Minister by the arguments put to him this evening; that would have been done long ago with the many speeches to which he has listened from noble Lords on his own side. All I have to say is that there is such a degree of strength of feeling in the Committee on the retention of the provisions in the 1968 Act that we shall have consult between now and Report stage to find and bring forward a common formula both on the duty itself and on the definition of "gypsies" and hope that by the combined weight of our persuasion we shall then be able to convince the Minister. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 139ZA to 142 not moved.]
On Question, Whether Clause 75 shall stand part of the Bill?
Lord Irvine of Lairg: I oppose the Question that Clause 75 stand part of the Bill. Clauses 72 to 75 of this Bill represent a fundamental change in public policy towards those of a nomadic habit of life, whatever their race or origin.
For centuries there have been fears about those who have led such a life and, unfortunately, persecution in some cases. But at least in more recent times it has been recognised in this country that individuals have a right to adopt such a way of life if they choose and that their right should be respected. The practical issue has been how to ensure that the right to lead a nomadic existence

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can be reconciled with the rights of those who do not and how the practical problems which unfortunately occur may be minimised.
It is true that those having a nomadic habit of life have increased in number over the past 30 years, but it is important to bear in mind—the noble Lord, Lord Lester of Herne Hill made the point earlier—that the numbers involved are relatively small. In 1992 there were only 9,900 families estimated to be leading such a life. By any standards, it is a very small minority. I recognise that it is not a popular minority; but it is in its manner of dealing with the difficult problems which that small and unpopular minority raises that the wisdom and understanding of Parliament and our tolerance as a nation may reasonably be judged.
The public policy which has prevailed for the past quarter of a century has commanded all-party support. Its main objective has been to provide a system of legal encampments across the country in which those leading a nomadic existence can pursue their way of life without conflict with their more settled neighbours.
In recent years the achievement of what has undoubtedly been an enlightened objective has been based on five key elements. There is the duty of the local authorities to provide adequate accommodation; the provision by central government of grants toward capital expenditure on provision of sites; and the Secretary of State's power to give directions to authorities to provide sites or additional sites. The fact is that 100 per cent. capital grants and the imposition of a duty to provide sufficient sites failed to provide enough inducement to move some local authorities to act. The fourth element of the public policy toward site provision is designation. As the Secretary of State has recognised for many years, the prospect of designation for many authorities is a real incentive to site provision. That is because it gives them access to criminal remedies.
The fifth element of public policy has been a supportive approach to applications for planning permission for sites. That policy is proving successful. On this side of the Chamber we find it difficult to understand why it should be brought abruptly to an end. In 1965 there were estimated to be about 4,000 caravans, only a tiny fraction of them on authorised sites. In January 1992 local authorities counted nearly 13,500 such caravans, providing homes for an estimated 9,900 families. Nearly 9,500 of those 13,500 caravans —approximately two thirds—were on authorised sites. So the policy was succeeding.
No one should be complacent about what was achieved. It took over 20 years. In 1992 4,500 caravans were still on unauthorised sites. Many authorities had still not performed the duties laid on them. In 1992 over 60 per cent. of authorities had not achieved designation. The reason why more has not been achieved is plain. The research published by the Department of the Environment in its Gypsy Site Provision and Policy document of 1991 concluded that,
"having reviewed many of the 'technical factors' of planning, environmental health, local government procedures and
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parliamentary legislation, it remained clear that a key factor in the success or failure of a gypsy site policy was the amount of political will mobilised in its support".
In the face of local hostility there remains, as that research put it,
"the necessity for political will to achieve site provision".
The Government's new approach is to abandon the necessary political will to achieve site provision and to dismantle each element of the public policy which has hitherto enjoyed all-party support. So far as the active contributors to our discussion today go, from all quarters of the Committee that all-party support continues. The Government's new approach is to stop any significant public provision of new sites in practice and to hope that the application of discriminatory criminal provisions to those with lawfully no place to stop will cause those individuals simply to disappear off the face of the earth.
The Government's policy is to dismantle each element of the public policy which has hitherto enjoyed support by repealing the duty to provide accommodation, by repealing the power to make grants, by repealing the Secretary of State's power to give directions to authorities, by abandoning the concept of designation, and by abandoning their previously supportive approach to the granting of planning permission for gypsy sites. The practical consequences will be to curtail the supply available to meet an increasing demand and more families, without a lawful place to rest, being made criminals and ultimately imprisoned.
There is no case and no significant public support from interested bodies of which I am aware for such a reversal of public policy. When the noble Earl replies, can he at least say whether the major local authority associations and the others who were consulted actually supported this wholesale reversal of policy? I believe not. May we be informed? For reasons which I elaborated on previous amendments, we submit that the Government's proposals are mean-minded, discriminatory and will prove to be counter-productive and harmful.
The Government claim that they accept that people who wish to adopt a nomadic existence should be free to do so. But if the Government's proposals are enacted, the only people free to do so within the criminal law will be those wealthy enough to establish sites around the country between which they may wander, as medieval monarchs were able to do. Those less affluent, however, will be free only to move on provided they never stop. So I ask: why is the duty to provide sites and the power to provide grants to enable the sites to be provided properly the subject of a Criminal Justice and Public Order Bill? The only answer is that the repeal of the existing legislation, which has enjoyed for so long all-party support, makes public disorder and infringement of the Government's proposed criminal legislation more likely. The repeals create rather than remove the conditions which will cause crime. That is a strange recommendation for inclusion in a Bill promoted by a Government committed in name to greater observance of the criminal law. For those reasons, I oppose the Question that Clause 75 stand part of the Bill.
The Lord Bishop of Liverpool: I support the noble Lord, Lord Irvine, in resisting the Question that Clause 75 stand part of the Bill. I hope that the noble Earl the Minister will read the speeches that have been made today. They have been remarkably consistent on the point of not wanting in any sense to support illegal action but in wishing to ensure that proper provision is made I hope that he and Ministers in another place will think very hard indeed before resisting the calls that have come from all sides of the Chamber for the duty to remain on local authorities to make provision.
The noble Earl has repeatedly been asked to give a principled reason why the Government should want to repeal the existing provision. I have heard no attempt to give such a principled reason. I do not believe the sums of money are large in terms of the national budget: £87 million since 1978 seems a modest part of the national budget. It simply will not do to say, as the noble Earl did say, that it is entirely a matter for local authorities to provide sites. From all round the Committee we have made the point that we are talking about prejudice with regard to a very unpopular group. When it comes to local elections there are no votes to be had for making provision for travellers. This is one area where a duty should be laid nationally on local authorities so that they do not bear all the odium, as it can sometimes be, for making the proper provision.
I have tried to understand what the Government's hopes really are in the long term. I think I do not misrepresent them in presuming that assimilation, or some measure of assimilation, must be part of what they hope for. If that is so, getting traveller children to schools must be at the top of the list. I heard no answer to the questions that several of your Lordships—the noble Baroness, Lady Faithfull, the noble Viscount, Lord Brentford, and I—asked about how the Minister would expect to see more children getting to school than the 10 per cent. to 50 per cent., which is the figure given to us. Constantly moving travellers on causes some to choose that way. I do not think that the importance of transit sites should be dismissed. Wherever it is possible for there to be a more stable community, as happens, thank God, in some very good instances, more children will go to school with other children of the neighbourhood and will themselves want to be much closer to being members of that whole community.
If assimilation is in any sense part of the long-term objective, surely we want a policy which is co-operative rather than confrontational. That is not the way of this Bill. The Government say that the proposals are intended to encourage gypsies to establish their own sites. The figures given by the noble Earl earlier are not very encouraging—46 sites established by local authorities; 24 privately; 10 on gypsy land, not always lawful. Surely what has come out of the debate is that we need provision to be increased. We need a mixture —indeed, of private provision wherever that can happen —but we need a sustained duty to be laid on local authorities.
10.45 p.m.
Lord Hylton: In the course of earlier debates on this subject the question has been asked, and rightly, as to where land is to be found in this country for providing sites not only for gypsies, traditional or semi-traditional, but also for travellers who have no other home of their own. Several good suggestions have already been made. The noble Lord, Lord Stanley of Alderley, pointed to redundant army camps and barracks. The noble Baroness, Lady Faithfull, mentioned redundant airfields that she knew of. In all these military cases, water, electricity and usually drainage and sewerage are there already.
I can go on a little further to suggest a number of other categories of land. First, there is redundant Coal Board land, very likely soon to be privatised. There, again, electricity and water are almost always available. There is a large quantity of derelict industrial land in this country, very often with services already existing. In addition to those the Forestry Commission is being urged, encouraged and perhaps even forced by the; Government to sell off some of its properties—some of its woods—particularly the smaller ones. In some cases those could provide well screened sites for caravan encampments. It must be possible somewhere within the very large amount of Crown land to find some suitable sites.
As if that was not a good start, there are now many thousands of acres throughout England and Wales of agricultural set aside which may soon be allowed to be set aside on a permanent basis. Even at the present time that could provide quite a number of temporary sites, given that the land is set aside from about September to the following July of each year.
What is lacking at the present time, as the noble Lord, Lord Irvine of Lairg, correctly pointed out, is the political will. I hope very much that what has been said today will generate some political will throughout the country, and particularly in the ranks of the Government. If they wish to change the 1968 Act then perhaps they should take power to exempt those local authorities all of whose area consists of built-up land. I cannot see that they have any other cause to abandon the coherent approach to the question which has prevailed until now.
Earl Ferrers: The problem we are dealing with is a difficult one and nobody pretends that there is an easy solution to it. The right reverend Prelate the Bishop of Liverpool was quite right to draw the attention of the Committee to how important it is to try to deal with gypsies and to look after them as they tend to be the more oppressed—if that is the right word—people in society simply because, as I believe he said, nobody particularly wants a gypsy caravan site next door.
He spoke about what would help more children to get to school than the 10 per cent. to 15 per cent. which do so at present. With the greatest respect to the right reverend Prelate, that is a problem which presents itself to government, local authorities and everyone else. That matter is not properly addressed by this Bill or these clauses and, if I may say so, it is an irrelevance to the problem of this particular clause. Dealing with nomadic

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people, whether from the point of view of getting them to school or giving them medical attention, is bound to be difficult, but there are arrangements in place for local authorities to do that.
The noble Lord, Lord Hylton, said that there must be lots of spare land floating about the place somewhere which is Ministry of Defence land and so forth. It is always easy to believe that there are places where we can find homes for gypsies. But these are matters which have to be dealt with in the locality. When we have inquired whether there is spare Ministry of Defence land and so forth, it is not easy to find that there is any. The noble Lord suggested that gypsies or New Age travellers should settle on set aside farmland. I thought that that was one of the most extraordinary suggestions I have heard for a long while. I do not believe that that is a reasonable solution to the problem.
The Caravan Sites Act was introduced some 24 years ago with, as the noble Lord, Lord Irvine, said, all-party support. But as I explained earlier, it was intended that it should operate for five years and in fact it has operated for 15 years. It has had attached to it a 100 per cent. grant which is a unique form of grant in almost any sphere of local authority or public life. It is not surprising that if that legislation is to be repealed everyone will say that they wished that it was not and that the funds were still going to be there. That is a perfectly natural reaction.
That Bill was introduced by the noble Lord, Lord Avebury, when he was in another place. He has been a staunch supporter of it ever since, and that I can understand. His Bill proposed that each local authority should make fair provision of gypsy sites to reflect the number of gypsies who were residing in or resorting to the area concerned. An authority which made that provision could be designated, and it would then have access to powers which it could then use to evict gypsies in order to control unauthorised camping by them.
We come back to the problem that this is all about. We are trying to deal with and to control unauthorised camping. The Secretary of State would have a power of last resort to direct an authority to make additional sites available if necessary. This carrot-and-stick approach to public site provision has been in operation since the provisions came into force in April 1970.
The approach of that Act was based on three important premises. First, it was assumed that the gypsy population had then been accurately assessed and would not grow. That proved to be wrong.
The second premise was that local authorities would be keen to provide sites in order to be rewarded with designation which would give them powers to control unauthorised camping. In fact, after 24 years of operation only 37 per cent. of local authorities in England and Wales have these powers.
The third premise was that it was assumed in 1968 that the modest level of site provision which was envisaged as necessary could be achieved in a cost-neutral way with the costs of site provision financed from rents and rates. That has been found not to be the case.
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So when the right reverend Prelate says that he has heard no reason why we are making this change, I can only tell him that the reason is that those three premises which, at the time that that Act was brought into operation, were considered good and worthy, have not proved to be so. That is why we think that we must have a change. It is to see whether we can deliver either of the principal objectives; namely, reducing unauthorised camping and providing adequate sites for gypsies, in another way.
Our proposals are designed to achieve the original objectives of the 1968 Act by other means. Local authorities will continue to have the power to make further provision if they so wish, but we do not intend to set aside funds specifically for this purpose. We consider that the right approach now is to encourage more gypsies to provide their own sites through the existing planning system. Private site provision has increased at twice the rate of council site provision since 1981. The Department of the Environment issued a circular in January which makes it clear that local planning authorities should include in their development plans policies which meet gypsies' accommodation needs.
The planning system is transparently fair. Some 80 per cent. of all planning applications are granted. The system caters for a wide range of developers with specific land use requirements. We believe that the circular will ensure that gypsies' planning applications are treated fairly and will encourage more gypsies to establish their own sites.
The 1968 Act regime has been helpful, but it has not been wholly successful. We think that Parliament has to find an alternative, realistic solution to this long-standing problem where local communities have been plagued by the nuisance of unauthorised camping and where many gypsy families are still without proper accommodation.
Clause 75 is an important part of the Bill. I do not say —and I do not think that for one minute the right reverend Prelate would say—that even if the 1968 Act had continued in existence, the problem would have gone away or been overcome. I do not believe that it would have been overcome. It has not been overcome in the past 15 years and, as I have said, the provisions of the Act have lasted three times as long as intended. We have to address the problem of unauthorised camping and at the same time try to find ways of making provision for gypsies who are nomads and who do not always want to be in one place but who like to move around. We have to make that provision for them in an alternative way.
11 p.m.
Lord Avebury: I have been tempted to intervene by the references of the noble Earl to the assumptions that he says were made in 1968. I was there, but I do not know where he was at the time. I took part in the discussions which led to the presentation of the Bill for which, as the noble Earl said, I was responsible in 1968. I had detailed conversations with the then Minister of Housing and Local Government, Dick Crossman, with Arthur Skeffington, who was the Parliamentary

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Secretary who dealt with the Bill in Committee and with my late friend John Silkin who was instrumental in saving the Bill when, as I was number six in the Ballot, it looked as though I would not have sufficient time in Committee. He created a second committee so that we could get the matter through, for which I was extremely grateful at the time.
The assumptions that the noble Earl says were made were simply never raised. For a start, it was feared at the time that the number of gypsies enumerated in the census was substantially underestimated. That fact was recognised by everyone at the time, especially by the officials in the department, and caution was expressed during the proceedings on the Bill that one should not rely too heavily on those figures.
Therefore, when the Minister keeps reiterating— indeed, he has sounded rather like a gramophone record all the way through our proceedings—that the number of unauthorised caravans has increased more rapidly than the provision for them, he is ignoring the fact that, if we started off with a much higher base than was then supposed, there may not have been that much of a difference between the rate of provision and the rate of increase of the population. Of course we did not assume that there was no growth in the gypsy population; indeed, that would have been a wholly unreasonable thing to have imagined when everyone knew that the size of gypsy families was greater than that of families in the settled population. If the noble Earl will refer back to the Ministry of Housing and Local Government document concerning gypsies and other travellers, on which much of the argument for the 1968 Act rested, he will see that there was an analysis of family size which could not have led anyone to the conclusion that there would be no future growth in the gypsy population.
The noble Earl also said that we assumed that local authorities would be keen to provide sites. Why then did we give the Secretary of State a power of direction and why did we reinforce that with the power of mandamus? Further, why does the Minister consistently refuse to answer the question that I have put to him several times? I do not want to sound like a gramophone record. I am very disappointed that the noble Earl constantly ignores my question. In fact, he ignored every single question that I put to him during the last debate; indeed, he did not reply to a single one of them. However, I put the following question again. Why has no attempt ever been made to use the power of mandamus in the Bill and why do the Government not issue directions to more than the three local authorities that the noble Earl mentioned earlier? Why does the Minister keep telling us that public provision is a failure and that we now have to rely on the private sector, when no real attempt has ever been made to compel local authorities to carry out their duties under the 1968 Act?
I am sorry that it is so late in the evening that we cannot have a much longer debate on the matter and that we shall have to return to it on Report. I am also sorry that the Minister, whose heart is clearly not in it— indeed, he is sitting there looking very dejected, and I am not surprised —does not agree with the points that he is having to make on behalf of the Government. He has been given his brief, he has to read it out and not
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listen to anything that is said from either side of the Committee. It would be unfair of me to keep Members of the Committee here any longer. However, I give a warning that we shall have to return to the matter and spend a great deal of time on it when we reach the Report stage.
Lord Irvine of Lairg: The arguments throughout the debate, and, indeed, throughout our many debates today on the issues concerning the gypsies raised by a. range of amendments have been compelling and all one way. If I may say so, the recent contribution of the noble Lord, Lord Avebury, was quite devastating and his question remain unanswered.
The noble Earl has many voters at his beck and call but he has had scarcely a supporter in this debate. Were I him I would not take comfort from the fact that no one on his side has provided the principal justification for the reversal of public policy which, as the right reverend Prelate the Bishop of Liverpool reminded the Committee, he has failed to provide himself. But this is not the hour to test the opinion of the Committee on this Question. I will not therefore press it to a vote tonight
Clause 75 agreed to.
Clause 76 [Powers to stop and search vehicles, etc. and persons]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 142ZA:
Page 60, line 30, leave out ("it appears to").
The noble Lord said: In moving Amendment No 142ZA I wish to speak also to Amendments. Nos. 142ZB to 142AD inclusive. I am most pleased that the noble Earl is remaining here. He has plainly been champing at the bit all evening to agree with some amendments and now I am offering him the opportunity to do so with these moderate, reasonable, well-crafted and useful amendments.
It is very late and we are turning from the problems of gypsies to the prevention of terrorism, which is self-contained as a problem. The amendments deal with Clause 76, which provides for the introduction of draconian powers into the Prevention of Terrorism (Temporary Provisions) Act 1989. No one on this side of the Committee —I know that the noble and learned Lord the Lord Advocate will accept this—who speaks on questions of terrorism and related matters, as I do, is ever going to pretend that the balance is an easy one. The balance that I specify—I am obliged for his agreement—is trying to draw a reasoned, acceptable balance between state powers and individual liberties. Our approach is to seek to be helpful and to point out the difficulties and the pitfalls of what is a draconian proposal. If this section of the Bill becomes law, new Section 13A of the Prevention of Terrorism Act of 1989 will read:
"Where it appears to [a senior officer] … that it is expedient to do so"—
those are important provisions—
"he may give an authorisation that the powers to stop and search vehicles and persons … shall be exercisable at any place within his area or a specified locality in his area for a specified period not exceeding twenty eight days".
Therefore, it gives a totally unlimited discretion to any senior police officer to whom it appears expedient, for

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a period of 28 days, that powers to stop and search vehicles and pedestrians can be given. The first proposal by way of amendment that we suggest —I readily recognise that the wording may not be perfect—is that the words "it appears to" should be deleted and the words in Amendment No. 142ZB included to make the relevant phrase read:
"is convinced that it is necessary in order to prevent acts of terrorism"
The onus, therefore, upon a senior officer—the seniority is specified in the proposal as presently in the Bill— would be a graver one and one more susceptible of judicial review. I use that in a general sense. I reiterate that the wording may not be perfect but I believe, respectfully, that the sentiment behind the change of wording is extremely important. For example, one has only to look at the metropolitan district. The power which the senior police officer may have is to order that the power to stop and search vehicles and persons shall be exercised at any place within the metropolitan district or any specified locality. If I construe that correctly, that could mean a locality as wide as, for instance, Westminster, Camden, or Islington.
Not only is that power extremely wide in terms of area, it is far too wide in terms of time. I must apologise to the noble and learned Lord the Lord Advocate if the amendment as printed has misled him. The amendment as printed mentions a reduction from 28 days to 11. I hope that he has not been wondering and worrying about whether some arcane proposition was to come forward from me. It is simply a printer's glitch. The figure should have been seven, which I hope will come as no surprise to him.
The serious point is that these powers are extremely wide and draconian. In certain circumstances they may be necessary, but if we are not exceptionally careful we shall have given the powers of terrorism their own victory, namely, the interference with civil life in a civilised community. Whereas we recognise that as a matter of principle some widening of powers may be necessary, it ought to be done on a very limited basis. In due time I will ask the noble and learned Lord Advocate to consider whether or not a degree of judicial intervention ought not to be present if these powers are to be exercised at all; that is to say, that where at all possible judicial authority should be obtained before any of these powers can be used.
I turn to Clause 76(2) (b) of the Bill as presently drafted. Clause 76(2) (a) is perfectly understandable because it refers to acts of terrorism connected with the affairs of Northern Ireland. It is a commonplace that it is the affairs of Northern Ireland and terrorism relating to them that really provide the motive for these alterations in the law. However, it appears to us that paragraph (b) is wholly unnecessary. It refers to
"acts of terrorism of any other description except acts connected solely with the affairs of the United Kingdom or any part of the United Kingdom other than Northern Ireland".
Therefore, there is an exclusion of acts concerned solely with the affairs of the United Kingdom. If I read it correctly, it means that these powers can, for instance, be concerned with international terrorism relating to the affairs of Russia, Kurdistan and the United States of
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America, but not any part of the United Kingdom other than Northern Ireland. On a reading which I believe not to be flawed, subsection (2) (b) would appear to be quite unnecessary.
One needs to bear in mind the powers that are given. Powers are given to a constable to stop and
"search any vehicle, its driver or any passenger for articles of a kind which could be used for a purpose connected with the commission, preparation or instigation of acts of terrorism…"
There are also powers to stop any pedestrian. By virtue of Clause 76(4)—it is difficult to be happy with its wording—a constable may stop and make a search of any vehicle or person whether or not he has grounds for suspecting that the vehicle or person is carrying articles of that kind. By means of a degree of compliment of the Government, they have been absolutely candid about their purpose. No reasonable suspicion is required. These are stated to be random, blunt powers of search. It is rare indeed that one can contemplate an extension of state powers to that degree.
I submit to the Committee that 28 days is far too long a period, that the absence of any judicial involvement is a defect, and that the reference to any place or specified locality within a police area is far too widely drawn. I suggest that the Committee needs to bear in mind that a person is automatically guilty of an offence if he fails to stop, or to stop his vehicle, or wilfully obstructs a constable in the exercise of those powers. I see no saver of the usual formula "without reasonable excuse". I would be grateful to be corrected by the noble and learned Lord Advocate if I am wrong, but it appears to create an absolute offence; in other words, if a constable, for example, in the London metropolitan area vested with the powers of the commissioner, requires a vehicle to stop and it does not stop, an absolute offence is committed. There is no saver by way of reasonable excuse.
Again I stress that these points are put forward in order to improve the legislation and not simply in order to be difficult, as sometimes occurs and as I have witnessed in this Chamber and on occasion in Committee. Those are some of the problems which immediately leap out from Clause 76 as presently drafted.
Another important question is to be found in subsection (9), which reads:
"Where a vehicle is stopped by a constable under this section, the driver shall be entitled to obtain a written statement that the vehicle was stopped under the powers conferred by this section if he applies for such a statement".
The amendment which we suggest, and which I respectfully submit constitutes a distinct improvement, proposes that within subsection (9), after the words:
"a written statement that the vehicle was stopped under the powers conferred by this section",
should be added:
"and setting out the reasons why this provision was used on this
occasion".
The purpose is at least twofold, and is prudent in legislation of this kind, as a matter first of principle and secondly of practice. The matter of principle, upon which our law is based, is that the ordinary citizen should be entitled to know as of right the reasons for stop, search and detention. That is well recognised in our law. The noble and learned Lord the Lord Advocate

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and I were both brought up on Christie v. Leachinsky. In any event, as my noble friend Lord Lester of Herne Hill observed earlier in the preceding discussion in your Lordships' Committee, we have obligations under the European convention and it is a distinct question whether we should not be in breach of our obligations as a high contracting party under Article 5 if persons are able to be stopped without being given proper reasons for their stop, seizure and search.
That is the question of principle, which is extremely important and which, I repeat, gives terrorism the victory which it is not entitled to have. The question of practice is this. Again, I hope that the noble and learned Lord the Lord Advocate finds it a helpful approach. If a constable knows that he may subsequently have to give reasons for his behaviour, that is a salutary discipline upon anyone exercising those powers. Therefore, in principle and in practice, I commend the amendments to the Committee.
The final amendment relates to page 62, line 12, of the Bill as printed. Evidence to be obtained as a result of these draconian powers ought not to be admissible in any criminal trial except in a charge relating to an offence involving terrorism or serious violence. That is simply a safeguard which it is hoped would provide a degree of control over random searches which might be carried out for less than pure motives.
I am conscious that it is extremely late and I am reluctant to trespass on the Committee's patience, but these are matters of fundamental importance. That phrase "of fundamental importance" is one which is trotted out too often. I have lost count of it this evening. However, these amendments warrant and justify that description. I beg to move.
11.15 p.m.
Lord Harris of Greenwich: This is a classic way not to legislate. There are a dozen people in this Chamber. The hour is almost 11.20. We are talking about major changes in the criminal law of this country. It is irresponsible to conduct public business in this fashion.
The Government Chief Whip is here. I must make it absolutely clear that if this continues with this Bill those of us on these Benches will move Motions at around this time to ensure that we have a properly full Chamber when we discuss matters of this degree of significance. I make that quite clear, and I am sure that the Government Chief Whip hears what I say.
On the substance of the matter, I tend to agree with the Government. I believe that these powers should be used on an extremely limited basis. I believe that it is right that an officer of at least the rank of assistant chief constable outside London and commander in the Metropolitan Police should give his authority before procedures of this kind are introduced. But they will have to be implemented on an extremely limited basis. If they were to be used irresponsibly there would be very adverse consequences so far as public opinion was concerned. I think that would be accepted in the police service, quite apart from anywhere else.
It would be wrong for me to comment on the many points made by the noble Lord, Lord Williams of Mostyn, because I would want to examine with
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considerable care the various arguments he has put forward. The only one with which I found myself not in agreement was his belief that there should be an opportunity for judicial intervention. I do not believe that it is possible for a judge to make a determination on a matter of this sort. I do not see the basis upon which he would be able to ignore such evidence as would be put before him by the police. He would be taking on an immense personal responsibility were he to refuse his authority and there then followed a series of terrorist incidents which it could be argued would not have taken place had he in fact confirmed the application of the police. It would be putting members of the judiciary in an extremely difficult and dangerous position were they to do that. Therefore on that point I am bound to say I am reluctant to agree with what the noble Lord, Lord Williams of Mostyn, said. But so far as the rest of it is concerned I was extremely interested in the many points he put forward. I should like to look at them and certainly we may come back to this at Report stage. I think it may then be desirable to go into this matter in greater detail rather than to do so at this time of the evening.
The Lord Advocate (Lord Rodger of Earlsferry): I accept of course that in an ideal world we would not have a clause like this. I also accept that there must be a balance in these matters, and it is the question of striking a balance which is difficult and which we must always be striving to achieve. Nonetheless, I believe that the clause as formulated strikes the correct balance. I have noted with care the points which have been made and I have taken them to be probing points, designed to show up matters which the noble Lord, Lord Williams, thought were important to raise. Of course I have listened with great care to what he said. As to whether the words "it appears to" should be converted to "is convinced", that appears to me to be not a very important matter because at the end of the day if it appears to somebody then he is likely to be convinced of it.
On the other hand, when he substitutes for the words "expedient to do so" the words "convinced that it is necessary" at that point we do part company. It is of course not just expedient to do so but expedient in what sense?—expedient to do so in order to prevent acts of terrorism to which this section applies. There is already a limitation built in there. I accept of course that the noble Lord was not particularly wedded to those particular words, but the words which he chose nonetheless seemed to me to indicate the kind of difficulty involved, because he chose the word "necessary", but on the other hand there may often be a situation where there would be two possible routes open to prevent an act of terrorism. One would be to institute some scheme under Section 13(a) to stop and search vehicles, and the other might be, for example, to cancel an event, to close a building or something like that, where the terrorism was expected to take place.
In that situation, if one had to choose, it could not be said that it was necessary to exercise these powers because one might be able to prevent it in another way, by closing the particular building, or by some other

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means. So in that situation one would not be able to meet the test; and yet I would have thought that it would be appropriate, rather than give way to terrorism by perhaps closing a building or cancelling an event, to use the kinds of powers envisaged here. Therefore, if it appeared to the senior officer to be expedient to do that, it seems to me to be the kind of situation where it would be appropriate for the powers to be used.
I adopt what the noble Lord, Lord Harris, said about the intervention of the judicial authority. I recognise a theme which we have come across in connection with these matters before. I can understand why in some senses it would be a comfort, even to a Metropolitan Police officer or whoever it may be, to have such backing. But at the end of the day it is an operational matter and not one where it would be desirable to draw in the judiciary. It might lay them open to the criticism which the noble Lord, Lord Harris, mentioned if, at the end of the day, something went wrong.
The definition in subsection (2) (b) to which the noble Lord drew attention is designed to refer to two kinds of act of terrorism relating to matters outside the United Kingdom. I wondered why that formulation had been chosen, but it is designed to limit the scope of the section. The experience of those who have to deal with such matters is that, even though there may be people who are involved, for example, in Welsh nationalist terrorism, Scottish nationalist terrorism or other acts of terrorism within or relating to the United Kingdom, so far they have not acted in a way in which the powers envisaged by the clause would be thought to be necessary. The provision was designed to deal with acts of terrorism connected with Northern Ireland, where experience has shown that that can happen, and acts of terrorism connected with states overseas where the judgment is that it might be required. That is why the formulation was chosen.
The noble Lord, Lord Williams, is right. The powers are deliberately random and I accept that that goes further than normal. But the judgment is made that in that area we should have a random power of search. It is again a question of how long the powers should be for; the noble Lord said that he thought seven days. We are talking about maxima here and responsible senior officers who have to choose what they think is appropriate in the circumstances. Rather than have to renew powers for an operation every seven days, for example, it seems to us that a maximum period requiring to be renewed and capable of renewal for 28 days is appropriate. It is a matter of balance.
The noble Lord, Lord Williams, drew attention to a point in connection with subsection (3) and I wish to reflect on it because it does not seem that the subsection provides a reasonable excuse provision. I should like to consider further whether that provision should be built in. He then drew attention to subsection (9) and to the written statement which he would like to contain the reasons why the provision was used on that occasion. One could have it, but only in the sense that it might be in some ways a sham. One could say it was to stop a vehicle in an operation designed to frustrate terrorism or whatever it might be, a general reference to the use of
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the power. If one went further than that, it might lead to the police officer being required to specify the reason —namely, the operation which was under way at the time. That seems to me to be objectionable in the context. Therefore, although I have taken careful account of what was said, nonetheless I believe that the balance is correctly struck. In the light of these comments, therefore, I ask the noble Lord to withdraw his amendment.
11.30 p.m.
Lord Monson: Before the Minister sits down, will he elaborate upon one point? He explained why the clause excludes terrorism within the UK other than that relating to Northern Ireland; namely, that to date Scottish nationalist terrorism and Welsh nationalist terrorism have not been as intense—if that is the right word—as Northern Irish terrorism, and of course he is right as regards the present situation. But it may not remain that way. Animal Liberation Front terrorism has already led to injury and destruction. I wonder whether it is wise to limit the powers of the police in this way. If we agree with the principles in the clause as a whole, is it right to tie the hands of the police in that way when we do not know how intense other forms of terrorism might become in future?
Lord Rodger of Earlsferry: I can appreciate that point of view fully. The Government have approached the matter by taking on board the fact that these are exceptional powers, and should therefore be framed in circumstances where it appears that they are necessary. If what the noble Lord described came about and such things came to pass, then I have no doubt that the Government would come forward with a proposal to amend, and thereby extend, the legislation, should that seem appropriate. No doubt Parliament would take a view in the light of the circumstances obtaining at the time. Random search powers are exceptional and so it seemed proper to define the circumstances and to go no further than what experience has shown to be necessary.
Lord Williams of Mostyn: I am grateful, as always, to the noble and learned Lord for the way in which he has responded and, I hope, reciprocated our approach. I am especially obliged to him for his indication and undertaking to reconsider subsection (6). That is particularly generous because that did not form a substantive part of my amendment, and I am bound to confess, although he has not cautioned me, that it occurred to me fairly late on that one was creating an absolute offence where one did not really want an absolute offence.
I should like to return briefly to the acts of terrorism described in subsection (2) (b), as affirmed by the noble Lord, Lord Monson. It seems to me we have had no basis—I realise the delicacy of these matters—of experience in fact to justify an extension to Russian, Kurdish, or any other form of terrorism, as opposed to animal rights terrorism or internal domestic terrorism for political purposes. That remains of deep concern. The noble and learned Lord said that the matter was an operational one. Of course it is. It is an operational decision, but it should not allow what are, in some ways,

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siege powers for 28 days on the basis of a conclusion reached by a police officer in an area which could be the whole of the Metropolitan Police area or, in the case of a force outside London—I avoid the word "provincial", since it offends me —for instance, Dyfed Powys, which has an enormous geographical area and which could be the subject of one of these orders.
I take the point about the involvement of the judiciary, but I am sufficiently old fashioned to believe that the judges are the safeguard of our liberties; they are fully involved at the moment, as should be well known, in questions of terrorism because document production orders have to be made on the authority of a judge with seniority no lower than that of a circuit judge.
Because the noble and learned Lord was so careful in dealing with the questions that I raised, perhaps I may just indicate to him that the only matter with which he did not deal was the admissibility of evidence. I realise that I raised a number of distinct questions, and I should be grateful if he would indicate that he will consider it, without binding the Government in any way, or doing anything other than say that he will at least consider my point on admissibility.
Lord Rodger of Earlsferry: It would be ungenerous not to say that I will consider it. On the other hand, I have to say that it does not seem to the Government that there is any reason why—assuming that one has a disciplined police force, in which case one would expect that, if these powers were misused, disciplinary sanctions would be taken against the officers involved —this sanction of rendering inadmissible evidence which would otherwise be totally admissible, and therefore good against a person, should be accepted. After all, if, in the course of one of these operations, one found a large quantity of drugs, it seems odd that that evidence should not be made available for a prosecution on drugs. If, of course, the powers were misused—in order to find evidence of drugs in some way, supposing that that could be done—then that would be a matter for discipline and the question of the admissibility of that evidence would be a matter for the courts.
As the noble Lord knows, the general principle is that admissibility of evidence is a matter for the courts, rather than starting from a rule which makes it inadmissible. I do not see any reason why that sanction should be written into the Act. If the powers are properly used but in the course of the exercise of those powers evidence of some other crime rather than the act of terrorism comes to light, then that evidence should be available to the court.
Lord Williams of Mostyn: I am grateful to the noble and learned Lord the Lord Advocate. But, with great respect to him, it does not solve the problem. A disciplinary sanction against a police officer is valueless. These powers are draconian—there are no two ways about it; all who have spoken agree. The question is whether they are necessary in certain circumstances. They may be, but one needs some sanction with regard to admissibility to be carefully considered.
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The situation is not without precedent, of course. Take the Criminal Justice Act and the powers given to the Serious Fraud Office under the authority of the Director of Public Prosecutions: the statute specifically rules inadmissible in criminal proceedings the material provided in a Section 2 interview. It is therefore not a beast suddenly sprung fully formed from my fertile imaginings. It is based on a precedent: which I believe was introduced by the present Government.
Be that as it may, I am obliged for the constructive approach from the Lord Advocate and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 142ZB to 142AD not moved.)
Clause 77 [Offences relating to terrorism]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 142AE:
Page 62, line 29, leave out from ("possession") to ("the") in line 31 and insert ("with the intention of it being used for").
The noble Lord said: Amendment No. 142AE relates to Clause 77 in its present form, which again needs improvement. It is not the principle to which one objects, but the precise wording. If one looks at new Section 16A, as the Prevention of Terrorism (Temporary Provisions) Act 1989 would incorporate, one sees the rubric at the side—and this is not without significance—
"Possession of articles intended for terrorist purposes".
Intention, therefore is in the side rubric. Unfortunately, in the substance of the clause, one finds that a person is guilty of an offence,
"if he has any article in his possession in circumstances giving rise to a reasonable suspicion that the article is in his possession for a purpose connected with the commission, preparation or instigation of acts of terrorism".
The rubric therefore is not reflected in the substance of the intended offence. Amendment No. 142AE proposes that one should substitute,
"with the intention of it being used for",
for the words,
"for a purpose connected with".
That is no derogation from the power of the section, but it is an improvement in terms of the structure of a criminal act. As regards subsection (2) (b), I have made my observation and I take it no further.
However, one looks with some alarm at the way in which the present clause is structured. A person is guilty of an offence if he possesses an article or articles in circumstances of reasonable suspicion. Therefore, reasonable suspicion will of itself constitute the basis of a criminal activity which, one finds in subsection (5), has a maximum penalty on indictment of 10 years imprisonment. If we condemn our citizens to the possibility of 10 years imprisonment on the, basis of reasonable suspicion, I repeat that we are in serious danger of giving terrorism a victory that it would not otherwise achieve. That point is affirmed in particular in new Section 16A(3), which states:
"It is a defence for a person charged with an offence… to prove that at the time of the alleged offence the article in question was not in his possession for such a purpose as is mentioned in subsection (1) above".
The casting and the structure of this clause is out of kilter with what can be accepted. I simply ask the noble

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and learned Lord the Lord Advocate to think again as to whether there is not at least some validity in my respectful proposal that at present this measure is far too harsh and draconian and will bring the law—I use the words carefully—into disrepute rather than into public support.
I make similar observations in respect of new Section 16B to the 1989 Act. The proposal to which my amendment gives flesh is that that section should not read:
"No person shall, without lawful authority or reasonable excuse (the proof of which lies on him)… collect or record any information… or have in his possession any record or document".
Both of those are qualified as set out in the Bill. Instead, one should have in new Section 16B the words:
"No person shall, with the purpose of furthering the commission, preparation or instigation of acts of terrorism to which this section applies",
and one continues as set out.
Again, one has the vice which, I suggest with great respect, will bring us into serious conflict with the European Convention on Human Rights. One has a crime capable of being proved simply on the basis of collecting or recording any information or possessing any record or document containing any information,
"which is of such a nature as is likely to be useful to terrorists in planning or carrying out any act of terrorism to which this section applies".
One does not want to take extreme examples unnecessarily, but at the lowest a simple map or a simple list of addresses and telephone numbers would fall into this category.
The real danger will be that persons who have information recorded or collected or possessed by them will be charged and harassed unnecessarily. Journalists carrying out their proper function in a society as obsessed with secrecy for no sensible purpose as ours are liable to be in serious difficulties. Any investigative journalist, any investigative television programme and the compilers of it, will be in serious difficulty if new Section 16B stands as at present. One simply cannot fall back on the basis that the burden of proof—in other words, the burden of disproof of criminal activity— must lie on a journalist, an ordinary citizen or someone carrying out investigative work.
Those are extremely serious matters. I repeat, without excuse or sorrow, that the noble and learned Lord the Lord Advocate might usefully ponder whether this new section ought not properly to be recast to meet the mischief that it is intended to meet. I say that with great respect and regard for him.
New Section 16B is an extraordinary basis for criminal liability, in particular as it carries a maximum of 10 years imprisonment. The history of this country in the past 25 years, in its approach to journalism and free investigation by private individuals or by employed persons in the media, has not been one of such glory that it gives me any confidence that the section is properly drafted. I beg to move.
11.45 p.m.
Lord Hylton: It seems to me that we have been over some of this ground on previous occasions in dealing with emergency legislation. When we come to
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"articles", I have in mind such items as torches, insulating tape, alarm clocks, screwdrivers and other tools and even, perhaps, gloves. Those items could, in certain circumstances, be used for terrorist purposes, but they are also used extensively for perfectly normal, legal purposes. Therefore, under new Section 16A(3), it may be extremely difficult for the ordinary citizen going about his ordinary business to prove that he had those items innocently. I hope that the Government will give the matter very serious thought, and I am glad that the noble Lord, Lord Williams of Mostyn, has raised the issue.
Lord Rodger of Earlsferry: Of course, I have listened with care to what has been said. These offences are replicating, in effect, offences which have been present in the legislation in Northern Ireland and which have been found to be useful and serviceable there. I accept that they are, in some ways, wide offences. It is for that reason that provision is made in paragraph 43 of Schedule 10 for the prosecution of those offences to require the consent of the Director of Public Prosecutions. Therefore, it is recognised that that is one of a fairly narrow group of offences and that safeguard has been built in.
I take the point about the apparent inconsistency between the side-note and the text of the section. But, of course, we use the text of the section. That makes it an offence if the person has any article in his possession in circumstances giving rise to a reasonable suspicion that it is in his possession for a purpose connected with the commission of an offence of terrorism.
The noble Lord, Lord Williams, wishes to substitute the test of intention. I accept that in some cases it would be possible for the prosecution to expect to meet that test, as formulated by the noble Lord. But equally, there would be cases where it would not be possible to meet that test; for example, where a suspicion arises that an article was in the person's possession in order to commit another crime of violence. In that situation, it may be very difficult, at the end of the day, for the Crown to go all the way to proving the intent which the noble Lord seeks.
That is why it is accepted that this provision does not go that far but applies a lesser test, namely, that a person has an article in his possession in circumstances that give rise to a reasonable suspicion. But it is of course made clear—in some ways only for the avoidance of doubt, because it might be thought to be inherent in the provision itself anyway—that it is a defence for the person to show that at the time of the alleged offence the article was not in his possession for such a purpose. If he proves that and the jury and the judge are satisfied, then he would not be guilty of this particular offence. I accept that it is an unusual offence. But, again, against the background of the kind of matter with which we are dealing, it seems to the Government that it is an appropriate offence to have in our law.
Section 16B does apply. I accept that the noble Lord, Lord Williams, gave examples which he said are in some ways trivial. But they are not. They are the kind of examples that one could have in mind where one found a list of addresses, of car registration numbers, of

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movements of cars or whatever it might be that might very well be the kind of record or collection of information which would indeed be of such a nature as to be likely to be useful to terrorists in planning an attack.
That raises the question: supposing someone has such a list; he may have it for reasons of journalism, and so on. But the section says:
"No person shall, without lawful authority or reasonable excuse". If he is able to show that he had the items in his possession and is gathering the information for the purposes of journalism and so on, then no offence would be committed.
Where that kind of defence is not available, it seems to the Government that that is a significant act, and one which should therefore in these exceptional circumstances constitute an offence. For those reasons I cannot accept the amendments that have been proposed.
Lord Monson: The more I look at this amendment, the more reasonable it seems. Admittedly, I first looked at it only five minutes ago. Everybody knows that no sensible person carries a suitcase belonging to somebody else on a flight bound for Tel Aviv, or indeed any other destination, unless he knows precisely what is in that suitcase. On the other hand, it is not considered in any way reckless or rash to carry a suitcase for somebody in your car going between London and Bristol or Manchester and Birmingham without inquiring closely as to what is in it. However, under the clause as it stands he could be carrying some such innocuous item as was described by my noble friend Lord Hylton and yet be caught by the clause and be subject to a lengthy term of imprisonment. That seems to me quite wrong.
Lord Harris of Greenwich: I wonder whether the noble and learned Lord can help me on one matter. He referred to the Northern Ireland experience so far as these particular provisions are concerned. Can he tell me now—and if not now, will he write to me—how many cases have there been in Northern Ireland since these provisions were enacted?
Lord Rodger of Earlsferry: I shall have to write to the noble Lord on that matter. I do not have anything further to add to what I have said in relation to what the noble Lord, Lord Monson, said. We are satisfied that the provisions have within them the kind of safeguards that would make it not really likely that somebody would be wrongly convicted in the kind of circumstances which the noble Lord envisaged.
Lord Williams of Mostyn: I am most grateful for the support that I received from the noble Lords, Lord Hylton and Lord Monson. The proposed Part IVA of the 1989 Act, as one sees from the Bill that we are presently considering, is headed: "Offences against public security". Public security depends on public confidence, and it depends irresistibly on the protection of the citizen from arbitrary arrest or arbitrary charge so far as is humanly possible.
If the Bill in its present form becomes an Act, public security will in fact be diminished. Nothing that the noble and learned Lord the Lord Advocate said has
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raised any doubt in my mind as to the validity of the criticisms that we have made. New Section 16A states that:
"A person is guilty of an offence"
punishable by 10 years' imprisonment—and that is a greater sentence than most people get for manslaughter and almost as much as most people serve for murder—
"if he has any article in his possession in circumstances giving rise to a reasonable suspicion that the article is in his possession for a purpose connected with the commission, preparation or instigation of acts of terrorism".
In other words, to take up the useful example given by the noble Lord, Lord Monson, the friend who entrusted the suitcase might have the unlawful intention or purpose; nevertheless, the carrier would be liable certainly to arrest, undoubtedly to charge and possibly to conviction.
Our simple amendment—I ask the noble and learned Lord to reflect further on it—should safeguard every legitimate interest; the state, the police, the prosecution and, above all, public security in the way that I described. One has to bear in mind, particularly in view of our recent discussions on the right of silence, that the onus is specifically laid upon the person charged. The burden is put on him to prove that at the time of the alleged offence the article in question was not in his possession for such a purpose. But whose purpose is it? My amendment takes away that ambiguity, which is exceptionally dangerous, not from the point of view of the prosecution but from the point of view of the defendant.
The noble and learned Lord the Lord Advocate rightly said that Schedule 10 requires the approval of the Director of Public Prosecutions before a prosecution can be launched. From my own experience at the Bar, perhaps I may add to the catalogue cited by the noble Lord, Lord Hylton. I prosecuted a very long series of terrorist cases in South Wales. They required the authority of the Director of Public Prosecutions. Among the items on which we relied as being deeply suspicious were clothes pegs because they can be used for making crude detonating devices, as everyone knows. One has to be exceptionally careful in going along that route. The authority of the Director of Public Prosecutions is a protection. But far better is a protection in the structure and the wording of the Act itself.
It troubles me deeply when the noble and learned Lord the Lord Advocate refers to the experience of Northern Ireland. Northern Ireland is in an extraordinaiy stage and state not experienced on the mainland. The people of Northern Ireland are burdened, because of terrorism, with significant restrictions which may be necessary there. Terrorist offences are not tried by jurors; they would be in this country. The judges in the Diplock courts have to give reasoned judgments for their conclusions. That does not obtain with a jury. One does not want to go to the state of affairs in Northern Ireland, with trials without jurors, unless one is driven to it. Nothing that the noble and learned Lord indicates has caused us to be driven to that.
New Sections 16A and 16B mean that possession and suspicion will be enough to convict our citizens unless they can prove their innocence. We do not wish to set foot on that journey. It will do public security no good.

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I am obliged for the response and in particular the attitude of the noble and learned Lord the Lord Advocate. On that basis, but with a promise to return in the future when we have a little more time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 142AF to 142AH not moved.]
Clause 77 agreed to.
Clause 78 agreed to.
Midnight
Lady Saltoun of Abernethy Lady Saltoun of Abernethy moved Amendment No. 142B:
Before Clause 79, insert the following new clause:
("Definition of obscenity
. For section 1 of the Obscene Publications Act 1959, there shall be substituted—
"Definition of obscenity.

1.—(1) For the purposes of this Act, any publication, whether written, printed, audible or visual, shall be deemed to be obscene if in the opinion of a jury it—

(a)

(i) contains any material of a sexual nature which, is grossly indecent or lewd or degrading, or

(ii) portrays degrading violence or cruelty, sadomasochism or bestiality or nauseating obscenity, or

(iii) contains any material concerning any
controlled drug; and

(b) is so presented or depicted that it could encourage similar acts or conduct or drug experimentation or abuse, provided that it shall not be necessary for the prosecution to satisfy the requirements of this paragraph in any prosecution arising from bestiality or nauseating obscenity.

(2) Without prejudice to the generality of subsection (1) (a) above, where it is apparent that the publication is intended for or sold to children or young persons under the age of 18 years, it shall be deemed to be obscene if it contains any material of the nature set out in subsection (1) above without the necessity of satisfying the requirements of paragraph (b)".").

The noble Lady said: The object of this amendment is to give the poor, toothless Obscene Publications Act 1959 some teeth. The government Amendments Nos. 142C and 142D, which I am sorry we are not going to discuss immediately after this debate as I had hoped, deal with pornographic or violent videos but will not touch books, pictures, photographs and plays. It seems a pity to deal with one and not with the rest.
The Obscene Publications Act has been in force for nearly 35 years during which time standards have steadily declined. Until 1960 the books and magazines available on, say, a station bookstall would not have been such that most parents would have been distressed at their children buying them; nor would they have contained material of an inflammatory nature likely to affect the behaviour of suggestible individuals. Since 1960 that has ceased to be the case. Now, every corner shop and supermarket sells books which I should certainly be horrified to find my grandchildren buying and which I should not care to read myself. Worse, authors whose books do not contain explicit enough sex scenes are apt to go unpublished. A novelist of my acquaintance was told by his publisher that his sex scenes were not steamy enough and that unless he
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pepped them up the book would not sell. And so, gradually, the supply of decent, non-pornographic literature is drying up.
During this period child abuse, which we almost never heard of before, has become commonplace if we are to believe the press and the reports of social workers. I see no reason not to do so. Illegitimate births have increased from 51,000 in 1961 to 235,000 in 1991 and the number of divorces has risen from 27,000 in 1961 to 167,000 in 1991. The incidence of rape has increased to the point where women cannot safely go out at night even in the most respectable areas and in some areas not even elderly widows alone in their own homes are safe.
If your house is burgled you are advised not to interfere with the burglars and not to try to tackle the thieves because they will probably beat you up. People of both sexes are liable to be mugged in the streets at night. Not long ago someone was attacked at a cash point opposite South Kensington station, a few yards from my flat, in the middle of the day.
Exponents of the permissive society like to tell us that there is no scientific proof—they are awfully keen on scientific proof—that there is any connection between the proliferation of violence and pornographic material and the rise in violence and sexual crime. I believe that just as the food we eat affects our physical health, what we read, listen to and watch affects our mental and spiritual health. If our characters and opinions are unformed, as in the case of children, or weak, as in the case of some adults, it is very likely to affect our behaviour. Having no definite code of conduct we model ourselves on the characters in what we read, watch and listen to. That is how children learn how to behave—by copying others, real or fictitious.
That is why responsible parents in my youth were very careful what their children read and we were encouraged to read improving books because it was held that what you read would affect your character. After 30 years of the permissive brigade telling us that that was all nonsense and all that mattered was self-expression, a few weeks ago I read in a newspaper that a child psychiatrist had made the revolutionary discovery that our parents had been right all along and that children's behaviour was affected by what they watched and what they read. If what you read and watch does not affect you, why do companies spend thousands of pounds on a few seconds of advertising time on television or radio or a few inches of space in the press? Why do the opponents of smoking want to ban tobacco advertising, as do those noble Lords who propose to move Amendment No. 164D—the noble Lords, Lord McColl of Dulwich, Lord Rea, Lord Walton of Detchant and the noble Baroness, Lady Seear?
We have legislation to ban publications calculated to incite racial hatred. If reading matter calculated to incite racial hatred does not incite racial hatred, why do we have that legislation? And, if reading matter calculated to incite racial hatred does incite racial hatred, why does reading matter or whatever is calculated to incite other forms of unacceptable behaviour not incite those forms of behaviour? You cannot have it both ways. The time has come to tighten up the legislation not only on videos, as the Government are doing in their very

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welcome amendments—Amendments Nos. 142C and 142D—but on books, pictures, photographs and the theatre too. It is not a great deal of use to do one without the other.
Before I sit down, I must take this opportunity—I am sorry that the Chamber is so empty because I would like more people to hear this—to pay tribute to Mrs. Mary Whitehouse, who has recently retired from the chairmanship of the National Viewers and Listeners Association. For many years she has devoted a large part of her time to watching and listening to programmes which I certainly would have given quite a lot not to have to watch, in order to put pressure to clean up their act on those responsible for much of the filth pouring into our living rooms. I can think of few greater acts of self-sacrifice and I wish her a happy retirement watching, if she wishes to watch at all, nothing but Ealing comedies and other happy and light-hearted programmes. I beg to move.
The Earl of Halsbury: I wish to associate myself with everything my noble friend has said. Possibly I would go a little further at Report stage by resurrecting an archaic piece of procedure known as the appointment of a jury of matrons. Pornography is written by men for men and one must assume that a male jury is prejudiced in the first place in favour of pornography. Therefore, a jury of matrons, now a practice that has fallen into desuetude would probably give us a very much more objective decision on whether something was corrupting, depraving, disgusting, nauseating or whatever terms one likes to introduce. I had this idea only at tea-time today and I have not had time to work up what is involved in rescuing an archaic piece of procedure and putting it to work in this day and age. I support my noble friend.
Lord McIntosh of Haringey: If it were not for the crowded Benches behind me I would have to say that this is an issue on which my party does not impose a whip. Indeed, since my only colleague here tonight is the Chief Whip, I shall say it to him. Anything I say from this Dispatch Box I say for myself and not for any of my colleagues. Indeed I am sure that if my noble friend Lord Stallard were here he would violently disagree with what I am about to say.
I was one of the three who opposed the video recordings Bill through all its stages in 1984, with my noble friends Lord Houghton of Sowerby and Lord Jenkins of Putney. I have not in any way changed my view that it is utterly wrong in principle for the law to seek to determine what should be on private bookshelves or anywhere else in a person's own home, whether it is pornographic or not. I disagreed with it when it applied to videos and I disagree with it as it applies to videos in the amendments which we shall now be dealing with on Tuesday. I profoundly disagree with it when it is proposed in the amendment of the noble Lady, Lady Saltoun, and her colleagues.
It is no defence to say that the amendment itself is a farrago. It just does not hold water in any sense. The amendment states that the material is obscene if it,
"contains any material of a sexual nature which is grossly indecent or lewd or degrading".
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Let us forget the other matters. But "sexual nature which is lewd" would rule out the Kama Sutra, the Mahabharata, the plays of Aristophanes and of Plautus, the works of Chaucer including, for example, the Miller's Tale and the Wife of Bath's Tale and I have not yet got to the year 1500. The vast bulk of literature in all languages would be declared obscene. The great virtue of the Obscene Publications Act 1959 which, I remind the Committee, was made necessary because juries would not convict under the existing legislation, was that it forced the law to take account of the artistic content of books or works of art, whatever they may be:, and to take those matters as a whole rather than the incidents they depicted.
If we pass this legislation we would not only be going backwards in a very real sense in terms of censorship but we would be inviting a conflict between the law and juries. We would be inviting the law into our own homes where, I suggest to the Committee, it has no place whatever. I hope that the Government will resist this amendment.
Lord Monson: My noble friend has presented her case extremely well, but as a libertarian my sentiments are closer to those of the noble Lord, Lord McIntosh. However, I refer the Committee's attention to the subsection referring to,
"any material concerning any controlled drug".
That would seem to imply that any novel set in the 1960s or perhaps later, which depicts the hero or heroine —or anybody else who is to be admired—smoking what used to be known as "a joint" and which, for all I know, still is, would be deemed to be obscene. I suggest that that goes a little too far and shows the kind of difficulties one is up against.
Lord Rodger of Earlsferry: I shall not go in detail into the drafting of the amendment, but it appears to the Government to be unacceptable. It contains elements which seem to be circuitous and so on. Therefore, without going into detail, it would not be acceptable. Having said that, the Government are not in any way particularly wedded to the formulation of Section 1(1) of the Obscene Publications Act 1959,
Although people have from time to time over the years come forward with various formulations—and earlier on this year others were put forward— nonetheless the Government have not yet seen any formulation which seems to better that in the first section of the Act. For that reason we do not believe that the proposed amendment would be an improvement of what is in the Act. There is obviously a balance in the 1959 Act. It seems to the Government that, in so far as it can be, the law has to be in keeping with the views of ordinary men and women. That is how it is expressed by juries. It would be wrong to suggest that the 1959 Act does not work. In any year, there are quite a large number of convictions and quite a lot of material is seized under the provisions of Section 3 of the 1959 Act. So the legislation works.
The noble Lady, Lady Saltoun, has drawn attention to what she sees as a decline in standards since 1960. I am sure that many people would agree with that. However, it is difficult to accept that all that has been caused by

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this piece of legislation. Having said that, however, it would be wrong to think that the Act, as framed in 1959, does not envisage that material may have an effect on people, because the test is that the effect of such material is that it tends to deprave and corrupt persons. Provisions relating to the effect on persons are therefore already contained in legislation. The generality of that -the words are general - seems to the Government to have advantages over, for example, the list formulation that the noble Lady envisages in her amendment.
The position therefore is that the Government believe that the 1959 Act, as it stands, contains a formulation which has not so far been bettered, and we do not believe that this amendment would improve upon it.
Lady Saltoun of Abernethy: I have listened to the various noble Lords who have spoken and I have to say that the only one with whom I agreed was my noble friend Lord Halsbury. I cannot share the noble and learned Lord's starry-eyed view of the effectiveness of Section 1 of the Obscene Publications Act 1959. I am sorry that the Government do not seem inclined to
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consider ways and means by which that Act could be improved and made more effective. I still believe that it is not nearly as effective as the noble and learned Lord believes. I am disappointed that, in view of the fact that the Government are prepared to strengthen the legislation against pornographic and obscene videos, they are not prepared to do a little bit more about other forms of pornography.
However, it is very late and I do not propose to detain the Committee any further at the moment. Therefore, while reserving the right to come back with possibly a different amendment at Report stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 79 to 82 agreed to.
Lord Annaly: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at twenty minutes after midnight.

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