§ 3.10 p.m.
§ Read a third time.
§ Clause 1 [Secure training orders]:
§ Lord Carr of Hadley moved Amendment No. 1:
§ Page 1, line 22, leave out from ("accommodation") to end of line 24 and insert ("; and where it does so the court shall designate the local authority by whom or on whose behalf the secure accommodation is to be provided.
( ) The local authority designated by the court under subsection (3) above shall be—
§ The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 2 to 8, 10, 12 to 23, 72 and 73. These are technical amendments made necessary by the amendments to Clause 1 which were adopted at Report stage of the Bill. So far as I am aware they are all technical amendments and therefore I do not need to explain them. Perhaps I may say how grateful I am to my noble friend the Minister and his expert drafting staff. I am quite sure that I should not have got them right on my own initiative. I beg to move.
§ Lord Renton
My Lords, I do not know whether my noble friend Lord Ferrers and the Government will advise the Members of another place to leave Clause 1 as it now stands in the Bill. Indeed, it would not be proper for me to try to press him for an answer to that. Either way, I believe that the amendments which my noble friend Lord Carr described as technical but necessary are perhaps not necessary. Frankly, I prefer the Bill and especially subsection (3) of Clause 1 as it stands in a somewhat flexible state.
If we try to tie down the court too much we may fetter the hands of the court. It is just conceivable that in the area of a particular local authority there is no secure accommodation and no other accommodation which might be suitable for the purpose intended by the clause. As subsection (3) stands at the moment it gives more flexibility. Therefore I prefer it to the alteration proposed by Amendment No. 1.
§ Lord Dixon-Smith
My Lords, I rise to support my noble friend Lord Renton in his opposition to these amendments. Certainly I believe that they are more than just technical amendments. Amendment No. 1 reads: 144the court shall designate the local authority by whom or on whose behalf the secure accommodation is to be provided".Much of the intention of amendments originally agreed at Report stage was to make it possible for the offender to be kept in accommodation close to his or her home. The amendments presume that secure accommodation is available within those authorities. As soon as it is accepted that the court may designate the local authority,by whom or on whose behalf the secure accommodation is to be provided",we go right back to the ill that the amendments are supposed to cure. In its infinite wisdom and possibly good sense—I opposed the amendments for good reason in the first instance—the local authority may decide that the secure accommodation should be at the other end of the country in order to separate the child from the problem that may have got him into difficulties in the first place. So in that sense the amendments are certainly more than technical. I do not feel that we should quite simply accept them.
I should like to make another point on Amendment No. 12. Unless I cannot understand the English language, the amendment reduces page 3, line 14 of the Bill to something which does not make sense. As amended, Clause 2(2) would read:Where accommodation for the offender at his place of detention is not immediately available".If he is already detained there, presumably the accommodation must be available. Again, it seems to me that this is more than a technicality. I cannot help but wonder whether someone will have to bring forward another series of amendments to clarify the clarification. I have some difficulty with them.
Finally, I am sorry that the noble and learned Lord, Lord Simon of Glaisdale, is not in the Chamber. Yesterday he inveighed against the wordiness of legislation, more in anger than in sorrow, I think. Taking the sum of these amendments, one can see precisely what he was talking about. On those grounds also I oppose them.
§ Lord Campbell of Alloway
My Lords, I rise briefly to oppose these amendments. It is known that I opposed the amendments at the previous stage of the Bill. Clause 1(3) as it stands is flexible and permissive. The amendments destroy to a very large degree flexibility and the exercise of judicial discretion. With respect to my noble friend Lord Carr, they are not necessary. They are not a necessity to implement. They import an element of rigidity. I may be wrong but I believe that they fetter judicial discretion.
§ Lord Harmar-Nicholls
My Lords, these changes are all very confusing. The noble Lord who proposed the original point, which was later amended, said that the amendments are technical amendments to make the clause operative in statute. Now there is a suggestion that the amendments are not technical amendments; there are vital points of fundamental importance involved in them and we ought to consider them.
We are now at Third Reading. Those kinds of differences should have been sorted out either at Committee or Report stage. I have no doubt that they 145 existed then. If we want this kind of legislation on the statute book, we shall not get very far by having Committee stage arguments at Third Reading. I hope that my noble friend, on behalf of the Government, can settle the matter of whether they are or are not technical necessities needed to implement the principle that the main clause sets out.
§ Lord Elton
My Lords, my name is on the amendments and perhaps I may attempt to put the matter into perspective. My noble friend Lord Renton objects to the amendments because they restrict the powers of the court. My noble friend Lord Dixon-Smith objects to them because they extend the powers and allow the children to be sent further away.
First of all, there is a necessity for the amendments. As it stood, the Bill referred throughout to secure training centres as the only places to which the children could be sent. Any references to that thereafter would be misleading because there are now two places to which a child may be sent. A whole chain of amendments flowed from that.
It was also necessary to define the choice of location for serving the sentence in the first instance. The choice had originally been restricted to a secure training centre. Under the amendments it would also be local authority secure accommodation. That is mentioned in the first amendment, which is the amendment to which the principal objections have been raised.
In every case the court will make the decision as to where the child will go. It is certainly the case that the areas in which the offence was committed or the child resides may or may not have accommodation available at the time. It will be for the court to decide whether that is so and whether the alternative is too far away— I remind my noble friend Lord Dixon-Smith—to satisfy its judgment on how far from home and how far from the home social work department the child should be sent to serve his sentence.
I shall be advised in all these matters by my noble friend on the Front Bench as the amendments originate from his department, and we are grateful for that. They seem to fulfil the function we intended.
With regard to the question of Amendment No. 12 to which my noble friend Lord Dixon-Smith referred, the "designated" place will be the place designated in the sentence. The "place of detention" will be the place specified in the sentence. The amendment therefore does not make a nonsense of that. My noble friend has had time to gather his wits and his forces and I leave the matter there.
§ Lord McIntosh of Haringey
My Lords, would it not be helpful when drafting amendments of this sort for the Government to inform their own pernickety Back-Benchers?
§ Lord Avebury
My Lords, it would be more helpful if, when the Government are drafting amendments, they would provide a note so that your Lordships did not need to argue about their exact interpretation but would have an explanation which would put the matter beyond 146 doubt. I certainly do not read the amendments in the sense described by the noble Lord, Lord Elton, as giving the court an unfettered discretion.
Problems may arise from the fact that the original wording in the Bill, as amended by the noble Lords, Lord Carr and Lord Elton—which I fully supported— referred to accommodation provided by "the" local authority. At that point the courts did not have an unfettered discretion. As I read the Bill as amended on Report, they had power only to send the young person designated for a local authority home to a specific authority; it was not specified which one. The new amendments clear that up by defining to which local authority the court may send the child.
As I read the Bill, the courts do not have any discretion. If the child is being looked after by a local authority, the child must be sent to a place under the control of that specific authority. In any other case the child must be sent to the local authority in whose area he resides. The courts therefore do not have the discretion of which the noble Lord spoke; that is, of separating the child from harmful parents and sending him to the other end of the country so that he is no longer under their influence.
§ Lord Elton
My Lords, perhaps the noble Lord will allow me to intervene. It is still open to the courts to send the child to a secure training centre as far away from his home as they like. That discretion has not been lost.
§ Lord Avebury
My Lords, that is perfectly true. I accept that. But if in its wisdom the court believes that it is in the child's best interests that he should be detained in a local authority centre, it does not have the additional discretion to name a local authority which is a long way away from the parental home so that the child is removed from harmful influences. That situation would arise only in the circumstances of Clause 3 where, if there is no place available in the local authority area to which the court sent the child—having no discretion in the matter under Clause 1—the Secretary of State comes into the picture. He must then designate another secure place of detention to which the child can be sent. That may be a local authority home, a secure training centre or any other such place as he may designate. The powers of the Secretary of State are virtually unlimited; but only if there is no secure place within the local authority area specified in Clause 1.
I am rather disappointed by this tidying-up amendment. While I can see the necessity for it in view of the wording of the Bill as it was left at Report stage, I had hoped that the noble Lord, Lord Carr, would persuade the Home Office to give the courts an absolute discretion to send the child offender to whatever local authority secure accommodation was best suited to the child's needs.
My Lords, it just shows the trouble one gets into when one tries to be helpful. We have a responsibility both in your Lordships' House and the Government to ensure that the Bill makes legal sense when it leaves this Chamber. The amendments of my noble friend Lord Carr are necessary for that purpose. I 147 am bound to say that I would be happy to accept them on that basis. However, when my noble friend Lord Harmar-Nicholls said that this discussion should have taken place in Committee and at Report stage, he is absolutely right. But your Lordships—ill-advisedly in the Government's view—accepted a number of amendments on Report. We looked at that position and parliamentary counsel advised us that the amendments tabled in the name of my noble friend are necessary to give the Bill some rational sense.
They are essentially technical amendments which are consequential upon changes to Clause 1 which your Lordships introduced at Report stage on 5th July. The noble Lord, Lord McIntosh, asks succinctly why the Government did not inform their pernickety—his word—Back-Benchers what the amendments were doing. All I can say to him is that, when we advised our "pernickety" Back-Benchers not to accept the amendment that they did accept, it did not make much difference. So the noble Lord can forget that argument.
I should inform your Lordships that the Government's acceptance of these amendments does not necessarily signify a change of view in regard to the substance of the policy to which they refer. Your Lordships expressed views on this matter at Report stage and it will be for another place to consider matters further.
§ On Question, amendment agreed to.
§ Lord Carr of Hadley moved Amendments Nos. 2 to 8:
§ Page 2, line 8, after second ("a") insert ("relevant").
§ Page 2, line 9, after second ("the") insert ("designated").
§ Page 2, line 13, after ("accommodation") insert ("provided by or on behalf of the designated local authority").
§ Page 2, line 18, after ("a") insert ("relevant").
§ Page 2, line 18, leave out ("relevant").
§ Page 2, line 21, leave out from ("by") to end of line 24 and insert ("or on behalf of the designated local authority;").
§ Page 2, line 26, after ("accommodation") insert ("provided by or on behalf of the designated local authority").
§ The noble Lord said: My Lords, with your Lordships' leave I wish to move Amendments Nos. 2 to 8 en bloc. I beg to move.
§ On Question, amendments agreed to.
§ Lord McIntosh of Haringey moved Amendment No. 9:
Page 2, line 34, after ("offences") insert:
("bb) that the offender has a history of failure to respond to non-custodial penalties and is unable or unwilling to respond to them").
§ The noble Lord said: My Lords, your Lordships will not be surprised to hear that Amendment No. 9 was not drafted by parliamentary counsel. Nevertheless, I commend it to the House. It has the effect of giving substance to the consistent—I might almost say persistent—statements of Ministers in this House and in another place as to the intention of secure training orders.148
§ From the first introduction of the Bill in another place, when the Home Secretary talked of a small hard core of young tearaways who commit crime after crime and said that the courts are unable to deal adequately with persistent juvenile offenders, especially those aged between 12 and 14, right up to the Second Reading of the Bill on 25th April when the Minister said that the offenders sentenced to secure training orders would have failed not once but consistently to respond to other forms of remedial help, and throughout the passage of the Bill, the Government have insisted that the secure training order will be a rare and extreme sentence. That is borne out by the fact that they are proposing to provide only 200 places nationwide in five centres.
§ When we look at Clause 1(8), which deals with the conditions under which a court should make a secure training order, the House will agree that it does not entirely add up to the statements Ministers made as the Bill proceeded. In particular, I suggest that the Bill makes certain provision for the number of convictions for imprisonable offences, and in Clause 1(8) (c) it talks about one specific form of non-custodial sentence; that is, a supervision order under the Children and Young Persons Act. But it does not talk adequately about the whole range of non-custodial penalties which are available.
§ It would be a helpful addition to the Bill if one of the conditions for making a secure training order was that the offender should have a history of failure to respond to non-custodial penalties and was unable or unwilling to respond to them, as the amendment suggests. A supervision order is a fine thing. I am not knocking it. The clause provides that the offender must at some time have breached a supervision order or committed an offence while subject to a supervision order. A first supervision order is often limited to one-to-one supervision by a social worker, but such one-to-one supervision could follow a requirement by a court to participate in an intermediate treatment or supervised activities programme. The intention of all these non-custodial sentences is to require young people to face up to the consequences of their offence both for themselves and for society as a whole.
§ Perhaps I may take intensive supervised activities schemes as an example. They were established in the 1980s with pump-priming finance from the then DHSS. They are sentences which are given to those who would otherwise receive custodial sentences, and they work. Most of the young people who are subject to intensive supervised activities schemes complete their courses and the extent of recidivism —those who reoffend—is only about 15 per cent. The House will recognise, after the discussion we have had, that the reconviction rates for these non-custodial schemes are very much better than the reconviction rates for sentences served in custody.
§ I recognise that this new subsection is introduced in a series of subsections which are joined by "and" rather than "or" and that that may cause some difficulty to the Government. But I insist that a supervision order is only part of the range of non-custodial sentences and therefore the amendment makes sense of the list of requirements for a secure training order. It does not add 149 impossibly to the list but it gives substance to the consistent or persistent claims of government about the purposes of the secure training order. I beg to move.
§ 3.30 p.m.
§ Lord Renton
My Lords, this amendment would produce a rather strange result which the noble Lord, Lord McIntosh, may or may not have anticipated. Even if the offender had been convicted of three or more imprisonable offences no secure training order could be made unless he also had,a history of failure to respond to non-custodial penalties and is unable or unwilling to respond to them".That creates a very strange position. Subject to what my noble friend Lord Ferrers may say, I should have thought that it would be very confusing indeed for the decision that the court had to make under Clause 1(8) if the amendment were to be accepted.
§ Lord Campbell of Alloway
My Lords, there is a very brief objection to the amendment apart from the one stated by my noble friend Lord Renton. This is a permissive power to make a secure training order. There is nothing mandatory about it. In making the order a court has to exercise a discretion. In exercising its discretion no court in the land could fail to take into account the matters referred to in Amendment No. 9. So it does not really go to a point of substance and, with the greatest respect, I wonder what it does go to.
§ Lord Allen of Abbeydale
My Lords, I have a good deal of sympathy with this amendment. It bears a kind of family relationship to an amendment which we unsuccessfully moved at an earlier stage designed to bring the Bill a little nearer to what the Government have always said is their intention. It has been said on more than one occasion that the Bill is designed to deal with children who have a bad record and for whom everything else has been tried. It seems to me that this amendment goes some way towards meeting the second of those objectives.
§ Lord Harmar-Nicholls
My Lords, that is what disturbs me about the comments of the noble Lord, who is very experienced in these matters. We are on Third Reading. We are in a unique position in this House in that we can have amendments at Third Reading. That has a special value when something special arises. But we should not use amendments on Third Reading as an excuse to rehearse all the arguments again. The noble Lord said that amendments were moved in Committee and on Report but that they were unsuccessful. If we are not careful we shall make it impossible for us to play any part in legislating on matters requiring legislation. It is unique that we have amendments on Third Reading as compared with another place. When one sees the size of the Marshalled List one wonders how unique that can be. I hope that in our own future interests we can desist from raising on Third Reading all the Committee and Report stage arguments which, as the noble Lord has just said, were tried out before and did not come off 150 with this being a final attempt to try to alter the Bill. I do not think it is good from the point of view of the contribution we can make to legislation.
§ Lord Avebury
My Lords, with respect to the noble Lord, Lord Harmar-Nicholls, I do not recall this paint being raised before and I think it is important enough to justify a little attention from your Lordships on Third Reading. The purpose of this part of the Bill is to ensure that the secure training order is used only as a device of last resort and that the courts employ every other strategy at their disposal for dealing with young offenders, and even with persistent young offenders, before they at last reach the conclusion that only ones of these secure training orders will meet the circumstances of the case.
This amendment forces the court to look at the additional factor, which I do not recall being discussed at an earlier stage, of whether more than one of these supervision orders has been tried. It seems to me that the arguments which have been put forward are very persuasive. The experience, as the noble Lord pointed out in moving the amendment, is that the intensive supervision orders have led to very low reconviction rates, but they they have been to some extern experimental. One hundred intensive activities schemes were established in the 1980s as part of the Government's policy then which was under the aegis of the Department of Health and Social Security. If reconviction rates from those experiments were as low as 15 per cent., whereas in the case of custodial penalties the reconviction rates were around 85 per cent., it certainly should be enjoined on the courts to use the intensive supervision orders whenever it is practicable.
The courts have interpreted a history as meaning at least two failures to respond to a non-custodial penalty. Therefore, if the amendment were carried, it would say that one supervision order is not enough—it would have to be two—and that the courts should look very carefully at the experience of supervision orders where they have been tried and use them as an alternative to the last resort of the secure training order. This will save public money. It will add an extra weapon to the armoury of the courts and prevent some young people from becoming recidivists as a result of being incarcerated in child prisons.
§ Lord Hylton
My Lords, I support what the noble Lord, Lord Avebury, has just said. The evidence in favour of the effectiveness of the supervision orders comes from areas as different as Nottinghamshire, Surrey and Newcastle upon Tyne. I would have thought that that should commend itself to the Government on grounds of both cost and effectiveness.
§ Baroness Faithfull
My Lords, some weeks ago I visited a supervised community project. There were 15 boys who had committed more than three offences for which they could have been sent to a secure training unit under the Bill as it now stands. There was a large garage. Each boy had stolen a car. They were having supervised activity with a very highly trained mechanic as to how to put a car together and to work with it. There was also a social worker who gave them counselling sessions. The parents also came to the centre 151 so that they could help their children. I believe that 13 of the boys followed the course. I telephoned yesterday and I understand that their orders are over and so far they have not committed any further offences. I spoke to the boys and they said that they never would. But there were two boys who committed further offences. They went back to court and a secure training order was made for them. This amendment would deal with the type of boy who need not be sent away but, if it is absolutely necessary, a boy who does need to be sent away can be sent away.
My Lords, the noble Lord, Lord McIntosh, made one profound observation. He said that his amendment was not drafted by the parliamentary draftsman. He was quite right. Therefore it is full of flaws and the major one is the principle of the amendment. My noble friend Lord Renton was quite right in pointing out that the amendment would add an additional hurdle before a secure training order can be made—that the offender must have a history of failure to respond to non-custodial sentences and he must have shown himself unable or unwilling to respond to them. The Bill, as it stands, already requires an offender to have failed to respond to a specific non-custodial penalty, which is the supervision order. On top of this he will have to have committed three imprisonable offences. So he would have got a fair old record already without the noble Lord's amendment suggesting that there should be more.
What the amendment says is that the person would have to have a history of failure to respond—in other words, he must have done it time and time again before he can be eligible for a secure training order. The whole point of a secure training order is to stop him from doing it time and time again in order to protect the community from the misery which results when it does happen time and time again.
The chances are that the offender may have a history of previous offences, but it is quite another thing to say that, not only must he have a history of previous offences, but he must also have a history of failing to respond to sentences on top of that. It really is going too far to limit the court's discretion in this way.
The court will not have a totally free hand. The criterion which is suggested in the amendment originally applied in Section 1 of the Criminal Justice Act 1982. But that has been replaced by new wording in the Criminal Justice Act 1991. The new criteria for sentencing, which appear in the 1991 Act, apply to all custodial sentences, including the secure training order.
Together with the specific requirements, to have been convicted of at least three imprisonable offences and to have failed on a supervision order, the Bill already provides substantial, and I would suggest, sufficient restriction on the use of the secure training order. I hope that your Lordships will agree that the formulation in the Bill is a satisfactory one and should remain.
§ 3.45 p.m.
§ Lord McIntosh of Haringey
My Lords, the Minister described our drafting as flawed. Since he has 152 not criticised the drafting, what he really means is that he does not agree with it, which is not the same thing at all The principle of the amendment is to give effect to constant, persistent references by Ministers themselves to persistent juvenile offenders committing crime after crime and many other comparable phrases. When the Minister says now that the criterion is that they should have committed crimes time and time again, he is simply adding to the argument for the amendment. Subsection (8) (a) specifies the ages Then paragraph (b) states:that the offender has been convicted of three or more impnsonable offences".The clause does not say what has happened as the result of those imprisonable offences. I suggest to your Lordships that, if the person has been convicted of three or more imprisonable offences and imprisonment has not been imposed and there have been non-custodial sentences which have been complied with, that weakens the argument for a secure training order in those cases. Paragraph (c) refers to a particular form of non-custodial sentence, namely, the supervision order, which is quite rightly referred to but which deserves and needs to be added to by the more general wording proposed in the amendment.
The noble Lord, Lord Renton, said that we were adding to the three imprisonable offences criterion. We were doing so deliberately because we believe that the criterion is not adequate to the purpose. The noble Lord, Lord Campbell of Alloway, said that these were permissive powers for the court. They are not quite permissive powers They are saying that a secure training order shall not be made unless certain criteria exist We are giving effect to the criteria which Ministers themselves have stated.
This is a rational and coherent improvement to the conditions set down in subsection (8) of the clause. I wish to take the opinion of the House on this issue.
§ 3. 47 p.m.
§ On Question, Whether the said amendment (No. 9) shall be agreed to?
§ Their Lordships divided Contents, 90, Not-Contents, 170.154
|Ackner, L.||David, B.|
|Addington, L.||Dean of Beswick, L.|
|Airedale, L.||Diamond, L.|
|Allen of Abbeydale, L.||Donaldson of Kingsbridge, L.|
|Ampthill, L.||Donoughue, L.|
|Archer of Sandwell, L.||Dormand of Easington, L.|
|Ardwick, L.||Eatwell, L.|
|Avebury, L.||Erroll, E.|
|Barnett, L.||Falkland, V.|
|Boston of Faversham, L.||Fisher of Rednal, B.|
|Brain, L.||Gallacher, L. [Teller.]|
|Broadbridge, L.||Gould of Pottemewton, B.|
|Brooks of Tremorfa, L.||Graham of Edmonton, L.|
|Bruce of Dornington, L.||Grey, E.|
|Callaghan of Cardiff, L.||Hams of Greenwich, L.|
|Carmichael of Kelvingrove, L.||Haskel, L. [Teller.]|
|Chappie, L.||Hilton of Eggardon, B.|
|Cledwyn of Penrhos, L.||Holme of Cheltenham, L.|
|Clinton Davis, L.||Howell, L.|
|Hughes, L.||Prys-Davies, L.|
|Hunt, L.||Rea, L.,|
|Hylton, L.||Redesdale, L.|
|Ilchester, E.||Richard, L.|
|Jay of Paddington, B.||Rochester, L.|
|Jay, L.||Russell, E.|
|Jenkins of Putney, L.||Sainsbury, L.|
|Judd, L.||Seear, B.|
|Kilbracken, L.||Serota, B.|
|Kinloss, Ly.||Shannon, E.|
|Kirkhill, L.||Simon, V.|
|Llewelyn-Davies of Hastoe, B.||Stallard, L.|
|Lockwood, B.||Stedman, B.|
|Longford, E.||Stoddart of Swindon, L.|
|Mackie of Benshie, L.||Strabolgi, L.|
|Mallalieu, B.||Strafford, E.|
|McIntosh of Haringey, L.||Taylor of Blackburn, L.|
|Molloy, L.||Taylor of Gryfe, L.|
|Monkswell, L.||Tenby, V.|
|Morris of Castle Morris, L.||Tordoff, L.|
|Morris of Kenwood, L.||Varley, L.|
|Mulley, L.||Wallace of Coslany, L.|
|Murray of Epping Forest, L.||Walpole, L.|
|Nicol, B.||Warnock, B.|
|Peston, L.||White, B.|
|Plant of Highfield, L.||Williams of Elvel, L.|
|Aberdare, L.||Downshire, M.|
|Addison, V.||Eden of Winton, L.|
|Ailesbury, M.||Elibank, L.|
|Ailsa, M.||Ellenborough, L.|
|Aldington, L.||Elles, B.|
|Allenby of Megiddo, V.||Elliott of Morpeth, L.|
|Alport, L.||Elphinstone, L.|
|Annaly, L.||Elton, L.|
|Archer of Weston-Super-Mare, L.||Ferrers, E.|
|Arran, E.||Flather, B.|
|Astor, V.||Fraser of Carmyllie, L.|
|Balfour, E.||Fraser of Kilmorack, L.|
|Bancroft, L.||Gainford, L.|
|Barber of Tewkesbury, L.||Gardner of Parkes, B.|
|Belhaven and Stenton, L.||Geddes, L.|
|Beloff, L.||Goschen, V.|
|Blatch, B.||Gray of Contin, L.|
|Blyth, L.||Gray, L.|
|Boardman, L.||Greenway, L.|
|Borthwick, L.||Gridley, L.|
|Boyd-Carpenter, L.||Halsbury, E.|
|Brabazon of Tara, L.||Hampden, V.|
|Brigstocke, B.||Hanworth, V.|
|Bruntisfield, L.||Harding of Petherton, L.|
|Butterfield, L.||Harmar-Nicholls, L.|
|Caldecote, V.||Harmsworth, L.|
|Campbell of Alloway, L.||Haslam, L.|
|Campbell of Croy, L.||Hayter, L.|
|Carlisle of Bucklow, L.||Henley, L.|
|Carr of Hadley, L.||Hives, L.|
|Chalker of Wallasey, B.||Holderness, L.|
|Charteris of Amisfield, L.||Hood, V.|
|Chelmsford, V.||Hooper, B.|
|Clanwilliam, E.||Hothfield, L.|
|Clitheroe, L.||Howe, E.|
|Courtown, E.||Huntly, M.|
|Cox, B.||Hylton-Foster. B.|
|Craigavon, V.||Inchyra, L.|
|Cranborne, V.||Jenkin of Roding, L.|
|Croham, L.||Johnston of Rockport, L.|
|Cross, V.||Kenyon, L.|
|Cumberlege, B.||Keyes, L.|
|Davidson, V.||Kimball, L.|
|De Freyne, L.||Knollys, V.|
|Dean of Harptree, L.||Knutsford, V.|
|Digby, L.||Lane of Horsell, L.|
|Dixon-Smith, L.||Lauderdale, E.|
|Donegall, M.||Lindsay, E.|
|Dormer, L.||Long, V.|
|Lucas of Chilworth, L.||Rankeillour, L.|
|Lucas, L.||Rawlinson of Ewell, L.|
|Lyell, L.||Renton, L.|
|Mackay of Ardbrecknish, L.||Richardson, L.|
|Macleod of Borve, B.||Rippon of Hexham, L.|
|Mancroft, L.||Rodger of Earlsferry, L.|
|Marlesford, L.||Romney, E.|
|Marsh, L.||Saltoun of Abernethy, Ly.|
|Merrivale, L.||Savile, L.|
|Mersey, V.||Seccombe, B.|
|Middleton, L.||Sharplfes, B.|
|Miller of Hendon, B.||Simon of Glaidale, L.|
|Milverton, L.||Skelmersdale, L.|
|Monk Bretton, L.||St. Davids, V.|
|Morris, L.||Stanley of Alderley, L.|
|Mottistone, L.||Strange, B.|
|Mountgarret, V.||Strathcarron, L.|
|Mowbray and Stourton, L.||Straclyde, L.|
|Moyne, L||Strathcona and Mount Royal, L.|
|Munster. E.||Strathmore and Kinghorne,E.|
|Murton of Lindisfarne, L.||[Tellar]|
|Norfolk, D.||Sudeley, L.|
|Northesk, E.||Swinfen, L.|
|O'Brien of Lothbury, L.||Thomas of Gwydir, L.|
|Oppenheim-Barnes, B.||Trumpington, B.|
|Oxfuird, V.||Ullswater, V. [Teller.]|
|Park of Monmouth,B.||Vaux of Harrowden, L.|
|Peel, E.||Vivian, L.|
|Pender, L.||Wade of Chorlton, L.|
|Perry of Southwark, B.||Wakeham, L. [Lord Privy Seal.]|
|Peyton of Yeovil, L.||Westbury, L.|
|Pike, B.||Wharton, B.|
|Platt of Writtle, B.||Wise, L.|
|Prentice, L.||Wynford, L.|
|Quinton, L.||Zouche of Haryngworth, L.|
On Question, amendments agreed to.
§ 3.56 p.m.
§ Lord Carr of Hadley moved Amendment No. 10:
page 2, line 49, at end insert (";
local authority", "voluntary organisation" and "registered childrens' home" have the same meaning as in the Children Act 1989;
local authority accommodation" means accommodation provided by a local authority or on its behalf by voluntary organisations or persons carrying on a registered childrens' home with whom the local authority has made arrangements for its provision;
relevant court" means—
secure accommodation" means local authority accommodation which is provided in a community home, a voluntary home or a registered childrens' home for the purpose of restricting liberty, and is approved for that purpose by the Secretary of State.").
§ Lord McIntosh of Haringey moved Amendment No. 11:
After Clause 1, insert the following new Clause
§ ("Defrayment of costs
- (a) defray such costs to such extent as he considers appropriate in any particular case;
- (b) defray a proportion to be determined by him from time to time of such costs; and
- (c) defray or contribute to such costs in accordance with a tariff to be determined by him from time to time.
§ (2) The Secretary of State may require any person providing secure accommodation to transmit to him, at such times and in such form as he may direct, such particulars as he may require with respect to any costs to which this section applies.
§ (3) Payments under this section shall be made out of money provided by Parliament.").
§ The noble Lord said: My Lords, I see that the noble Lord, Lord Harmar-Nicholls, is not in his place so I shall not attempt to justify this amendment. Indeed, I do not need to do so. Although it was not tabled on Report and is perhaps not strictly consequential, it is, in my view, necessary because of the amendments that were carried on Report. Your Lordships will recall that we agreed on Report that in making a secure training order the courts should have the option of saying that the order should be served in local authority secure accommodation.
§ In Clause 21 the Secretary of State is given powers to reimburse local authorities for the costs of holding young people who are remanded to local authority secure accommodation. Our amendments to Clause 1 and the amendments of the noble Lord, Lord Carr of Hadley, which were carried on Report, now make it possible for a sentence in local authority secure accommodation to follow a secure training order. It seems logical, therefore, that the same power which is given to the Secretary of State to contribute to the cost of holding young people on remand should also be given to him to contribute to the cost of holding young people upon sentence.
§ There is already capital funding from central government for the capital costs of local authority secure accommodation. The increase in local authority secure accommodation, which has been announced by the Government is, of course, welcome. It seems rational for the funding to extend also to the running costs on sentence as it does to meeting the costs of such accommodation at remand stage.
§ I hope that the Minister will feel that, like the amendments we debated earlier of the noble Lords, Lord Carr and Lord Elton, this amendment follows logically from the position which was taken by the House on Report and that he will be able to recommend it to your Lordships. I beg to move.
§ 4 p.m.
My Lords, the noble Lord's words take me back to Report where I seem to remember that he said that each amendment put forward was almost consequential upon the previous one or purely drafting. The noble Lord suggests that this amendment is almost consequential. I am bound to say that it is not. Unlike the previous amendments tabled by my noble friends Lord Carr and Lord Elton, this amendment is not required to make the Bill make legal sense. It is a matter of policy. It is a policy which I am bound to tell the noble Lord the Government do not favour.
156 The amendment would give central government the power to reimburse local authorities, in whole or in part, for the costs that they will incur in accommodating juveniles who are subject to a secure training order if the sentence were to be carried out in local authority secure accommodation. As your Lordships are aware, the Government have consistently taken the view that juveniles subject to a secure training order should serve the secure part of the order in the special secure training centres which will be dedicated to tackling offending behaviour and not in local authority secure accommodation.
Your Lordships agreed to amendments on Report which would allow the courts to specify that the secure part of the sentence can be served in local authority secure accommodation. If a type of scheme which involved local authority secure accommodation were to be introduced, the question of the best way of financing such a scheme would have to be investigated carefully. Your Lordships may take the view that the amendment is similar to the essentially technical amendments tabled by my noble friend Lord Carr and think, as did the noble Lord, Lord McIntosh, that the Government should accept it. I could not advise your Lordships to accept the amendment because the Government do not agree with the policy that lies behind it.
§ Lord McIntosh of Haringey
My Lords, the Minister is left in a curious situation. The Government have inserted into the Bill Clause 21 which provides for a contribution to or reimbursement of the costs of holding young people remanded into local authority secure accommodation, but the Minister is now refusing to allow it to happen to those sentenced to secure accommodation. I did not expect anything different. I expected the Minister to resist such an amendment. That is why I did not say that it was strictly consequential. I disagree with the Government, not for drafting reasons but because they are failing to accept the full implications of the policy which the House supported on Report. With regret, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ The Deputy Speaker (Viscount Allenby of Megiddo)
My Lords, Clause 2, Amendment No. 12. I call the noble Lord, Lord Carr of Hadley. Is it the noble Lord's intention to move Amendments Nos. 12 to 23 formally?
§ Lord Carr of Hadley
My Lords, if it is in order, as it clearly is, I should like to move formally Amendments Nos. 12 to 23.
§ Clause 2 [Secure training orders: supplementary provisions as to detention]:
§ Lord Carr of Hadley moved Amendment Nos. 12 to 19:
§ Page 3, line 14, leave out ("a secure training centre") and insert ("his place of detention").
§ Page 3, line 22, leave out ("a secure training centre") and insert ("the place of detention").
§ Page 3, line 27, leave out ("in the secure training centre").
§ Page 3, line 29, leave out ("such a place") and insert ("the place to which he is committed under paragraph (a) above").157
§ Page 3, line 38, leave out ("a secure training centre") and insert ("his place of detention").
§ Page 3, line 43, leave out ("in the secure training centre").
§ Page 4, line 3, leave out ("the secure training centre") and insert ("his place of detention").
Page 4, line 10, at end insert (";
place of detention" means the secure training centre, secure accommodation or other local authority accommodation in which a court has ordered the offender to be detained for the time being; and
secure accommodation" and "local authority accommodation" have the same meaning as in section 1 above.").
§ Clause 3 [Supervision under secure training order]:
§ Lord Carr of Hadley moved Amendment No. 20:
§ Page 4, line 11, leave out second ("the") and insert ("any").
§ Clause 4 [Breaches of requirements of supervision of persons subject to secure training orders]:
§ Lord Carr of Hadley moved Amendments Nos. 21 and 22:
§ Page 5, line 14, leave out ("secure training centre") and insert ("place of detention").
Page 5, line 33, at end insert:
("( ) In this section, "place of detention" has the same meaning as in section 2 above.").
§ Clause 8 [Officers of contracted out secure training centres]:
§ Lord Carr of Hadley moved Amendment No. 23:
Page 7, line 23, after ("by") insert ("section 1 of this Act,").
§ Clause 24 [Detention of arrested juveniles after charge]:
§ Lord Elton moved Amendment No. 24:
Page 15, line 33, leave out ("in paragraph (b), for the words "age of 15 years" there shall be substituted the words "age of 12 years".") and insert:
("after paragraph (b) there shall be inserted—
or (c) in the case of an arrested juvenile who is not less than 12 but under 15 years of age, that—
and (in either case) no secure accommodation is available and keeping him in other local authority accommodation would not be adequate to protect the public from serious harm from him."").
§ The noble Lord said: My Lords, on Report my noble friend and I had an exchange of views on the subject of this amendment which relates to the incarceration by the police of juveniles overnight under certain circumstances. I shall not recapitulate the reasons why your Lordships should deal with great care with the treatment of children in that way because I believe that that point was well taken at the last stage.
§ At that stage my noble friend referred to the power as though it would be used in a somewhat routine manner. I was greatly disturbed by that and said that I would give him an opportunity on Third Reading to 158 reconsider the circumstances under which the power might be used. The amendment provides that opportunity. I do not intend to press it, and so it is not necessary to decide whether it would work. I can save my noble friend the labour of saying that. I want my noble friend to cast his mind back to the occasion in 1991 when we changed Section 38(6) of the Police and Criminal Evidence Act 1984, which is the passage at which we are now looking, which gave these powers originally to the police in respect of older and tougher children.
The response to that was to issue Home Office Circular No. 78/1992 called Criminal Justice Act 1991: Detention Etc of Juveniles. Perhaps I can extract from it a relevant phrase or two:
The circumstances in which a transfer would be impracticable are those, and only those, in which it is physically impossible to place the juvenile in local authority accommodation. These might include extreme weather conditions (eg floods or blizzards), or the impossibility, despite repeated efforts, of contacting the local authority. The Codes of Practice issued under the 1984 Act make clear that neither a juvenile's behaviour nor the nature of the offence with which he is charged provides grounds for the custody officer to retain him in police custody rather than seek to arrange for his transfer to local authority accommodation on the ground of impracticability".
§ I take it that that advice will have to be changed because the nature of the offence is now clearly germane to the decision whether to hold a child in custody because of the passage of this Act, as it will be. I am asking my noble friend whether he will be kind enough to give some indication of the advice to which the police will be subject and about which they will be circulated when it comes to implementing this important and sensitive piece of legislation. The people to whom it will apply are also important and sensitive. They are children of 12 to 14. I hope that my noble friend will be able to give suitable assurances. I beg to move.
My Lords, I understand my noble friend's concern about children who are being detained in police cells. It is only right that the need to protect the public should be considered, whatever the nature of the offence with which the young person has been charged. In practice, the kinds of cases in which the police will want to detain juveniles are likely to meet the criteria set out in the amendment. I am not convinced that restricting the discretion of the police to the extent that the amendment suggests is desirable or necessary. The criteria in the amendment are those which apply when a court is deciding whether to remand a juvenile in security. However, the decision of the police to detain a juvenile overnight, or at most over a weekend, before a first court appearance is very different from that taken by a court when it remands a juvenile.
When deciding whether to remand a juvenile into security a wide range of options is available to the court, and more information about the juvenile will usually have to be obtained. In reaching a decision on whether to detain a juvenile in police cells, where there is no secure accommodation available, the police must be concerned primarily with the immediate risk to the public. The police carry the responsibility for protecting the public and for ensuring that arrested youngsters appear before the court. It is only right, if the 159 responsibility rests with the police, that they should have the necessary powers to detain an arrested juvenile where they think that there is a risk of serious harm to the public. That power should be available whatever the nature of the offence or whatever the nature of his past history of offending. But I do understand and agree with the concern which lies behind this amendment, which is that arrested juveniles should be kept in police cells after charge only where it is absolutely necessary.
I should like to assure my noble friend that that will be the case, and I would draw his attention to the existing Home Office guidance to chief officers of police on the detention of juveniles (Home Office circular 78/1992), to which he referred.
This guidance makes clear that, when a custody officer is considering whether to detain a 15 or 16 year-old who has been charged with a violent or sexual offence and where there is no local authority secure accommodation available, the definition for serious harm which is given in the Criminal Justice Act 1991 must be met before the juvenile can be detained.
The Act defines serious harm as:where there is death or serious personal injury whether physical or psychological".The guidance also makes clear that, where an arrested juvenile has been charged with an offence which is not violent or sexual, and where there is no local authority secure accommodation available, the definition of serious harm in the 1991 Act should be used as a bench-mark for the gravity of the harm to which the public must be exposed before the officer can be satisfied that the serious harm test has been met.
I hope that my noble friend will agree that the criteria for detaining arrested juveniles already provide an appropriate amount of restriction. The Home Office guidance, to which I have referred, will be extended to cover 12, 13 and 14 year-olds. In addition, we will be considering whether the police should be given supplementary guidance in relation to this younger age group in particular.
I hope that I have given my noble friend the assurance that he requires and that he will be content with that.
§ Lord Elton
My Lords, I am genuinely grateful to my noble friend for that reassuring advice, in particular that paragraph 10 of circular No. 78/92 will be maintained in force. Particular advice may be added to that for the treatment of children of the new and younger age groups who are brought into the scope of this power by the legislation. No doubt, in due course we shall see that circular and discuss it. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 30 [Reconsideration of decisions granting bail]:
Earl Ferrers moved Amendment No. 25:
Page 20, line 7, after ("for") insert ("such").
§ The noble Earl said: My Lords, this amendment is grouped with Amendment No. 76. They are both drafting amendments. I beg to move.160
§ 4.15 p.m.
§ Clause 32 [Abolition of corroboration rules]:
§ Baroness Mallalieu moved Amendment No. 26:
Page 21, line 41, at end insert:
("(5) Nothing in this section shall prevent the court from warning the jury of a special need for caution in relation to a witness where the court considers such a warning to be desirable in the interests of justice.").
§ The noble Baroness said: My Lords, I am conscious that this is the Third Reading of the Bill and therefore the amendment does not raise again the issues in relation to corroboration, which were fully debated in this House at earlier stages of the Bill. The two clauses which relate to the changes in the law in relation to corroboration are, for various reasons which have been aired, unhappy to a number of Members on all sides of the House. But the purpose of Amendment No. 26 is to clarify an uncertainty that remains in relation to the effects in practice of the two new clauses, Nos. 32 and 33.
§ Perhaps I may briefly remind the House that those two clauses come about as a result of the 1991 Law Commission Report, Corroboration of Evidence in Criminal Trials. Under this Bill, the package of recommendations made by the Law Commission in this respect is incomplete. The Law Commission made five recommendations, of which four are incorporated in those two clauses. They relate to the repeal of the provisions of the Sexual Offences Act 1956, which required statutory corroboration in relation to certain offences. That is now Clause 33. Clause 32 removes the automatic requirement for a judge to warn a jury about uncorroborated evidence in a case involving either an accomplice or a complainant in a sexual case. Clause 32 also extends that abolition to summary trials and extends the provisions to deal with children's evidence in summary trials.
§ What is missing from the package is the fifth recommendation of the Law Commission: that there should be a practice direction whereby in a case involving issues that might need special treatment by the judge when summing up, before closing speeches the judge and counsel should discuss those issues with counsel in the absence of the jury. It was clear from the report that it was envisaged that the need for warnings in certain cases was one of the issues which would be discussed and determined in that way.
On Report the Minister indicated that the noble and learned Lord the Lord Chief Justice had expressed a reluctance to give such a practice direction. Indeed, subsequently and prior to today's hearing he has expressed that reluctance to me. Therefore, my concern is that an important safeguard which was part of the reform package is currently missing from these provisions. The Bill takes no account of the conclusion of the Law Commission, which was set out clearly following those recommendations in these terms:
The judge should not be prohibited from giving the jury a warning, or a warning in any particular terms, about the evidence of any particular type or category of witness".
§ As it stands, there is nothing on the face of the Bill, other than an indication that a warning need not be given, to indicate to a judge that he may, if he believes it appropriate, give such a warning in whatever way he thinks fit. It may be said that that will be obvious to any judge; but it is apparent that a judge must sum up as he thinks right, put the matters before the jury as he thinks fit and give warnings where he thinks that to be appropriate.
§ But I am concerned that that may not be the interpretation which is generally put upon these clauses and that, as a result, judges who must sum up in some of these sensitive cases may find themselves in some difficulty. Perhaps I may explain briefly what I mean. When these provisions were foreshadowed in the Home Secretary's speech at the Blackpool Conference he indicated that one of the reasons for removing the corroboration rule was that it was insulting for a woman judge to have to give a warning in a sex case. When in Committee I introduced the first amendment to this matter there was a certain amount of publicity, in particular from a group of women barristers who indicated their determination that the Government should stand firm in their position on this matter because warnings in relation to cases involving sexual complaint must go.
§ That was not what the Law Commission had in mind. Certainly, there was the abolition of the compulsory warning in every case but it was abundantly clear both from the Law Commission's Report and from what the noble and learned Lord the Lord Chief Justice said in the Tom Sargant Memorial Lecture earlier this year; that it was envisaged that judges should feel free to give a warning where they felt it necessary. Many of the cases, where a sexual complaint is involved or where an accomplice is involved and where the case rests on only that evidence, are surely those in which a warning may be required.
§ I am also particularly concerned that once these provisions are enacted a judge trying what may be, for example, a sensitive sex case in which there is a great deal of media attention, and who in the past would have had to give a warning to the jury about the dangers of convicting on that evidence because he was required by law to do so, will have no such legal requirement to draw to its attention. He may well feel intimidated from giving a warning in a case where he believes it to be appropriate because he knows that the end result will be a great deal of adverse publicity for the remarks that he has made in court.
I am anxious that it needs spelling out somewhere to judges and to others that where there are dangers in a case a judge should not be inhibited from giving such a warning. For that reason I have drafted the amendment in terms which I hope cover what the Law Commission had in mind:
Nothing in this section shall prevent the court from warning the jury of a special need for caution in relation to a witness where the court considers such a warning to be desirable in the interests of justice".
§ I beg to move.
§ Lord Campbell of Alloway
My Lords, it is a privilege to support the amendment. As was said by the 162 noble Baroness, Lady Mallalieu, there is cause for concern and this amendment is designed for clarification. No one who cares to read Hansard for all stages of the Bill—not even my noble friend Lord Harmar-Nicholls, who is not in his place—would believe that this is an attempt to abuse Third Reading procedure.
The Law Commission's proposals require no repetition because they have been explained succinctly by the noble Baroness. The gap, the lacuna, is that Clause 32 as it stands means that without a practice direction an integral part of the Law Commission's proposals is excluded.
On Report the noble Baroness, Lady Mallalieu, moved an amendment, which I supported, which required a modified form of warning to fill the gap in an accomplice case or in a sex case depending solely on a witness but for whose evidence there would be no case to answer. I supported that amendment but I accept with reluctance that, as it relates to only two types of cases, the Government considered that to be too restrictive.
But whatever one accepts and says, the fact is that the courts have a problem and we must ask how they will face it. Perhaps I may describe the problem as expressed by the noble and learned Lord the Lord Chief Justice in his Tom Sargant Memorial Lecture. He said:The problem the courts will now have to face is what approach should be adopted in future where corroboration would in the past have been required There will be cases in which some warning of a special need for care may be needed That will be for the discretion of the judge No doubt there will be appeals complaining of the absence or inadequacy of such warning. It will not be easy for the Court of Appeal to give guidance to judges as to when and how strong a warning is required without introducing a new form of corroboration as rigid as the last".That is the problem. That is the problem as it is seen by the noble and learned Lord the Lord Chief Justice. That is the problem with which this amendment, tabled and devised by the noble Baroness, seeks to grapple.
Having regard to the absence of the corroboration warning, it is surely requisite to put on the face of the statute some discretionary power of the judge to warn in any appropriate case and to affirm that power pending the giving of guidance, albeit by the Court of Appeal and albeit by practice direction, to fill the gap.
I do not know whether your Lordships know, but in Canada where a similar situation arose—the mandatory warning was abolished—a judge gave a warning in a rape case and he was most severely criticised. Indeed the case was taken to appeal and I believe that the appellate court upheld the decision of the judge.
That is the kind of territory into which one moves, pending practice directions and guidance from the Court of Appeal. I am not being technical and I am trying to be straightforward. I entreat the Minister to recognise that this is a problem which requires attention.
§ Lord Carlisle of Bucklow
My Lords, perhaps I may support the amendment in the name of the noble Baroness, Lady Mallalieu. I am afraid that I was unable to be present in Committee to take part in your Lordships' debates at that time. But there is a world of difference between removing the obligation in all cases on a judge to give a corroboration warning as against 163 the continuing need that such a warning should be given in many, many of those cases. I hope that the fact that we are removing the obligation in all cases to give a corroboration warning will not mean that judges will feel that the interests of justice do not require that in many cases such a warning should nevertheless be given, particularly in cases where there is little or no corroboration at all.
I was sorry to hear the noble Baroness say that apparently the noble and learned Lord the Lord Chief Justice does not feel that this is an appropriate matter on which to give a practice direction. I doubt whether it is an appropriate matter for statute. I should have thought that it would be more appropriate for a practice direction. I hope that the Court of Appeal will feel able to give guidance on this matter.
Perhaps I may leave the sexual side and deal with the matter of accomplices. I hope that judges will be reminded of their duty to point out to juries in their summing-up speeches the many motives which accomplices may have for giving the evidence which they have given which requires that it should be treated with great care. I hope that we have done nothing in this Bill to diminish the belief of judges that in the course of summing up they should, in the interests of justice and of the defendant, give, where appropriate, a warning on the need to look with caution at the evidence of such witnesses.
§ Lord Renton
My Lords, I too support the amendment for the reasons given by my noble friends and by the noble Baroness, Lady Mallalieu. I believe that she has performed a most valuable public duty in drawing the attention of your Lordships to the problem which arises. To those who are not lawyers it may seem to be a somewhat technical problem but, believe me, in the interests of justice this amendment is necessary.
Also, in view of what my noble friend Lord Carlisle said just now about the doubt as to whether this matter would be covered by the rules of court or whether it would be the subject eventually of a direction by the Court of Appeal, I suggest that, if we remove the doubt now by accepting the amendment and covering the matter by statute, we should save the time of the courts and save expense. We would remove uncertainty and we would achieve justice.
My noble friend Lord Ferrers has been extremely patient. He has listened to us not only on the Floor of the House but also when we went to see him. I hope that at this last stage, on Third Reading, he will agree that this point should be covered and I believe that it will best be covered in the way proposed by the noble Baroness.
My Lords, the noble Baroness has returned to this subject about which I know she feels strongly because she has seen me about it and is now raising it for the third time. I am sorry that the noble Baroness and my noble friend Lord Campbell of Alloway were not reassured sufficiently by what I said on corroboration evidence on Report. Of course, it is their prerogative not to be satisfied.
164 I had hoped that the unusual sight of a united front between the Government and the noble and learned Lord, Lord Ackner, on Report might have had a rather greater effect. I had hoped that the noble Baroness would be persuaded by the noble and learned Lord the Lord Chief Justice, who said that he was not keen on issuing practice directions.
The arguments have been well rehearsed. At present a judge must warn a jury of the dangers of convicting a person solely on the basis of the uncorroborated evidence of a victim of a sexual offence or of an accomplice. Clause 32 abolishes the requirement to give a mandatory corroboration warning, leaving the judge free to exercise his discretion and to decide whether to issue a warning. He should do that only when it is necessary to do so.
The noble Baroness's amendment seeks to underline the point that a judge still has a discretion to issue a warning of some sort. At Report stage the noble and learned Lord, Lord Ackner, lucidly described that the law required a judge to sum up fairly and in a way which assisted the jury. I shall not repeat what he said and I restrain myself from reading out the relevant parts of the Law Commission's excellent report, which is the justification for this part of the Bill. However, I am not persuaded that what the noble Baroness, Lady Mallalieu, and my noble friend propose in their amendment is necessary in the context of a clause which specifically abolishes warnings that are tied to certain categories of witness. It may even serve to confuse matters if a statement is added that refers to all types of cases and all types of witnesses. It is feared that judges may feel pressurised into not giving warnings by the possible reaction of the press if they do so. I believe that that is to under-estimate the capacity of judges to see such reaction for what it is. It also over-estimates the nature of the pressure.
The effects of the clause will benefit both male and female victims of sexual offences. If there were some kind of politically correct lobby waiting to criticise judges who give warnings, those judges have a great deal of law and a wealth of precedents on which to defend summings-up that put the defence case squarely before the jury. A judge would certainly need a purely declaratory statement tucked into what is at present Clause 32 of the Bill.
I believe that there is no room for doubt about practice directions. The judge in these, as in any other cases, may give warnings to the jury about any witness as he sees fit. No judge needs a declaratory statement that he has a duty to put the defence case to the jury. Whether or not a practice direction is needed is a matter for the noble and learned Lord the Lord Chief Justice. As the noble Baroness said, the noble and learned Lord did not consider that to be necessary. Whether or not the law needs restatement at any time in future will be a matter for the Court of Appeal. I am confident that the law remains clear.
Although it may be a vain hope, I hope that I have been able to reassure the noble Baroness sufficiently. Reassurance has been given by wiser heads than mine. Virtually the whole response to the Law Commission amounts to a reassurance that Clause 32 does not 165 undermine the defendant's rights. We believe that that is so, and we hope that the noble Baroness will conclude likewise.
§ 4.30 p.m.
§ Baroness Mallalieu
My Lords, before the noble Earl sits down perhaps I may ask him whether, for the sake of the record, he will endorse the recommendation made by the Law Commission that a judge should not be prohibited from giving a warning in any particular terms about the evidence of any type or category of witness. Perhaps he can give the House that assurance.
My Lords, I can give the noble Baroness that assurance. There is nothing to prevent the judge from giving that warning, whether or not he wants to, on any occasion. We believe that it is wrong specifically to put that matter in the Bill.
§ Baroness Mallalieu
My Lords, I am grateful to the noble Earl for that assurance. I am also grateful to the noble Lords, Lord Carlisle, Lord Renton and Lord Campbell of Alloway, for their support in this matter. I am particularly indebted to the noble Lord, Lord Campbell of Alloway, for his use of the word "lacuna". There remains a lacuna in the legislation as it passes from this House to the other place. A safeguard was advised by the Law Commission. It is not there, because there will not be a practice direction. There has not been a successful attempt to put something in its place. It seems to me that the noble Earl's acceptance of the final recommendation of the Law Commission goes some way at least to enable counsel, when trying to persuade a judge as to whether he should or should not give a warning in a particular case, to have recourse to Hansard for a clear expression of what: the Government intend in enacting these clauses. I am very grateful to the noble Earl for that and for the trouble and care he has taken to consider the representations of those of us concerned about the matter.
It appears that it will not be possible to persuade the Government to make a change on the face of the Bill and that there will be a lacuna in this area at least until the Court of Appeal has an opportunity to fill it, which I suspect may not be very far away. In those circumstances, I beg to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 35 [Effect of accused's silence at trial]:
Earl Ferrers moved Amendment No. 27:
Page 23, line 21, leave out ("(other than a child)") and insert ("who has attained the age of fourteen years").
§ The noble Earl said: My Lords, I beg to move Amendment No. 27 and speak also to Amendment No. 28. These technical amendments are necessary to clarify the definition of "child" in the clauses of the Bill that deal with inferences from silence.
§ Clause 38 [Interpretation and savings for sections 34, 35, 36 and 37]:
Earl Ferrers moved Amendment No. 28:
Page 28, leave out line 25.
§ Clause 68 [Offence of aggravated trespass]:
Lord Mancroft moved Amendment No. 29:
Page 50, line 13, leave out ("or adjoining land in the open air") and insert ("land or on any land in the open air within 5 miles of the boundary of that land").
§ The noble Lord said: My Lords, in moving Amendment No. 29 I wish to speak also to the other amendments in my name. In Amendment No. 29 we return to an issue discussed in Committee and on Report in your Lordships' House. To refresh your Lordships' minds, the offence of aggravated trespass as laid down in the Bill can be committed only if the trespasser seeks to disrupt a lawful activity that is taking place on that land or on adjoining land. The problem we still face today is what "adjoining" means? It is suspected that unless one makes very clear what "adjoining" means, there will be a degree of confusion.
§ First and foremost, police officers and others at the scene of where crimes may or may not be taking place will not be aware of where one piece of land begins and another ends. Secondly, if people come before courts charged with these offences they may well use the loophole that they have not been on the adjoining land, because it will not be clear to the courts what that adjoining land is.
§ At an earlier stage in the Bill my noble friend made clear that by the words "adjoining land" "the Government did not mean that the land should be contiguous, that is, touching, but that it could be a little further away than that. However, it seems to some of your Lordships that that is exactly what "adjoining" means. That was why we suggested the use of the word "neighbouring" as a better description of what was intended. I emphasise that there is no intention in these amendments either to broaden or narrow the scope of the offence. They leave the offence exactly the same. The intention is merely to clarify the precise geographical spot where the offence may take place.
§ Following the very full answer of my noble friend at Report stage, I said that I felt that he had confused me further. That was slightly unfair. Upon reading his answer the following morning in Hansard, I was not confused. I was, however, absolutely convinced that there was a very serious problem. My noble friend said that it would be for the courts to sort out exactly what was meant. I would have thought that it would be far better for Parliament to sort it out before it goes to the courts so that the courts have no difficulty knowing what Parliament meant in creating the offence. For that reason, I have brought forward five different options so that the Government can decide which one they like.
§ I have brought back again the word which I used on Report, "neighbouring". But in case it is loo precise I have suggested the word "nearby". In the first two amendments I have borrowed a principle which we used earlier in the Bill —on the New Age travellers part of the Bill—of setting up a boundary or a radius in terms of miles. I would emphasise to your Lordships that the major difference is that the other part of the Bill referred to an exclusion zone for want of a better phrase. In this case it is not an exclusion zone: it is an inclusion zone, 167 and the act of being in that inclusion zone does not in itself mean that the offence is committed. There must still be trespass and there must still be an intention to disrupt.
§ I accept that that may be a furtherance of the idea, but at least it fulfils my noble friend's requirement in that it is precise. In the earlier part of the Bill it is a five-mile exclusion zone: in this part of the Bill I have put that in. I have also suggested that your Lordships may prefer a 10-mile exclusion zone for two reasons: first, that is the approximate area outside of which no hunt is likely very often to move within the course of one day; and, secondly, because of the extensive area over which grouse shooting takes place, where one of the most serious problems has existed. I accept that neither of those measures may be perfect but at least they are precise.
§ As I said when I first stood up, this is a confusing area. I can see confusion arising in the courts over what exactly "adjoining land" means and whether it means on the next piece of land or one piece over. We must bear in mind that sometimes one piece of land may be only the width of a few yards or one field. Clearly there is concern about this provision being too wide and I know that the noble Lord, Lord McIntosh, has voiced this seriously at an earlier stage. I say to him and to others who are worried about the geographical breadth over which this offence could be committed that it would be virtually impossible to intend to disrupt, or for it to be proven that someone was intending to disrupt, if he was out of sight or earshot as it would be impossible to disrupt an activity at that length. Therefore it is unlikely that anyone would be charged over that considerable distance. I hope that that is clear to your Lordships and that your Lordships and my noble friend will look with favour on this amendment. I beg to move.
§ 4.45 p.m.
§ Earl Peel
My Lords, at Report stage I think it would be fair for me to say that I had the distinct impression that my noble friend the Minister showed some degree of sympathy for the amendment moved by my noble friend Lord Mancroft and myself in which we took out, or attempted to take out, the word "adjoining". I think he perhaps accepted that "adjoining" may not have been necessarily the most appropriate word to have used in the circumstances. But my noble friend made it quite clear that some description of the land was necessary so that the new offences of aggravated trespass should be tied to land of a specific geographical nature.
However, as my noble friend has said, I think that the word "adjoining" would prove too restrictive. We may well indeed find cases where the police could end up not prosecuting individuals clearly involved in aggravated trespass simply because the legal activity which they, the saboteurs, sought to prevent was to take place on land which was some distance away and not actually on adjoining land. I do not believe that this is the intention behind the two clauses in the Bill relating to aggravated trespass.
168 As my noble friend said, at the previous stage your Lordships discussed a whole range of possibilities. That is why this wide range of measures is in front of us for discussion this afternoon, as my noble friend said. But from my own point of view I am bound to say that, having reflected carefully on the options open to us, I believe that "neighbouring" would be the most appropriate word to use. I think my noble friend Lord Mancroft said that my noble friend the Minister indicated that "adjoining" did not necessarily mean contiguous but the interpretation would be a matter for the courts. I agreed with him when he said that surely it would be more appropriate if we could get this matter cleared up now and put on the face of the Bill.
Before I entered the Chamber I had a look at the Oxford English Dictionary to look up various interpretations. "Adjoining" certainly means contiguous. That was clearly mentioned, as indeed was the word "neighbouring". However, the definition of "neighbouring" does not mention contiguous. Lying or living near were the expressions that were most used but contiguous was not mentioned. I think that that clearly indicates that "adjoining" will prove too restrictive in this case and that "neighbouring" would be a more appropriate word. I hope that your Lordships will support this proposal, and particularly of course my noble friend on the Front Bench.
§ Lord McIntosh of Haringey
My Lords, this is a most extraordinary procedure. We are playing Russian roulette with the Bill now. The proposers of this amendment cannot decide what words they want to propose so they suggest five different alternatives. I suggest to the House that there is only one word which is unambiguous and has a clear meaning and that is the word "adjoining". "Adjoining" means contiguous. I do not have the benefit of the full Oxford Dictionary but I have the concise form which, through the courtesy of the Table, is in front of me. The dictionary states that "adjoining" means contiguous. It means having a common boundary presumably—what the French call mitoyen. It is absolutely clear what it means and if there is any doubt about it the clause also states that land does not include,the highways and roads excluded from the application of section 61".Therefore we have two proposers who are proposing a range of different amendments for the House presumably to choose among. However, it is much worse than that because they do not agree as regards what their intention is in moving these amendments. The noble Lord, Lord Mancroft, says it is not his intention to widen the definition of what land should be covered. The noble Earl, Lord Peel, was quite clear about this. He said twice that "adjoining" was too restrictive. I think that they should make up their minds what their intention is, as well as what words they wish to use, before they bring amendments before this House.
It is no secret that we are bitterly opposed to the provisions of Clauses 68 and 69 which introduce the offence of aggravated trespass. It is no secret that in our view the use of the phrase "intimidation, obstruction and disruption" combined with the phrase "lawful activity" means that what on the face of it appears to be quite 169 inoffensive protection against, for example, hunt saboteurs can, and unfortunately probably will, be used on a much wider basis to stop people from peaceful protest against such lawful activities as driving roads through sites of special scientific interest. There are profound political implications and profound civil liberties implications in Clauses 68 and 69 which we have expressed in amendments at earlier stages of the Bill. But to extend the measure in the way that the proposers suggest in these amendments would be to make matters much worse.
As regards the preferred option of "neighbouring" of the noble Earl, Lord Peel, my Concise Oxford Dictionary gives examples of the use of "neighbouring", for example, "his nearest neighbour is 12 miles away", or "our neighbours across the Channel". It clearly means nothing precise which could be implemented in law. The provision is bad enough as it is but the only thing which makes any sense at all is to use the word "adjoining" and to reject all of these amendments.
§ Lord Renton
My Lords, perhaps my noble friend Lord Mancroft can help us. I shall give way to him if he cares to explain the matter. Amendments Nos. 29 and 30 appear to overlap.
§ Lord McIntosh of Haringey
My Lords, all of the amendments overlap. They are all different ways of doing the same thing.
§ Lord Renton
My Lords, that is not quite the point that I am making. Each of the amendments proposes to replace the words on line 13 of page 50:or adjoining land in the open air".Amendment No. 29 proposes that they should be replaced with the words:land or on any land in the open air within 5 miles of the boundary of that land".Amendment No. 30, which could not be an alternative but overlaps, proposes 10 miles instead of 5 miles. We must have the matter clarified, otherwise we do not know what we are being asked to do.
Perhaps I may say in passing that although I was sympathetic to amendments of a similar kind which were moved at Report stage I think that 10 miles is going too far.
§ The Earl of Onslow
My Lords, I thoroughly enjoy chasing foxes and I quite enjoy shooting pheasants. I believe that the Government have gone an immensely long way to assuage the fears of those of us who carry out such lawful activity. I believe that they have got the wording right. I hate agreeing with the noble Lord, Lord McIntosh, but he summed it up rightly. "Adjoining" seems to me to be perfectly reasonable. I do not think that we should go any further than that.
§ Viscount Mountgarret
My Lords, I think that my noble friends have been treated rather unfairly. The whole object of putting forward their amendments— which one might call a pot-pourri—is in order to have some indication from my noble friend the Minister as to which, if any, of the suggestions might be acceptable to the Government. I agree that it is difficult for your Lordships to come to a decision on the matter.
170 I feel that it is almost as if one were at an ice skating tournament where one might award "nul point" or "six points" to the six choices. Starting at the bottom, which I believe is the order in which they take these things: at such competitions, my sixth choice is "adjoining". It is ambiguous. I do not think that it is clear. It would be a lawyer's paradise. My fifth option would be "nearby". It is equally ambiguous and there is not much difference between choices five and six. My fourth choice would be "neighbouring", which is the favourite option of my noble friend. I hope that that will find some merit with my noble friend the Minister. The remaining choices include the definitive areas of "5 miles" and "10 miles". Those are definitive and distinct. I would prefer to see something which is clear and distinct. In my view "10 miles" would be the best option. I am sure that the noble Lord, Lord McIntosh, will not begin to agree, but his arguments were probably slightly biased because he and his supporters do not like the principle anyway, and I accept that. Therefore, his arguments must be somewhat biased in that way.
I hope that my noble friend will be kind enough to give some indication as to whether he can do something or can suggest to his colleagues in another place that the word "adjoining" is not particularly attractive and that we should try to find another way around the problem.
§ Baroness Mallalieu
My Lords, whatever views are taken by your Lordships on the merits.or demerits of Clauses 68 and 69—and there are differing views throughout the House—it would be a great pity if this clause were to leave this House in a form which makes it, in effect, a lawyer's benefit.
The word "adjoining" seems to me to be one which is likely to occupy a great deal of time in magistrates' courts throughout the country if the Bill goes through in its present form. I think I know who my neighbours are, but I would have great difficulty in determining who lived in an area contiguous to where I live. I speak only for myself, but the word "neighbouring" seems to be clear and readily understandable. I give rny support to Amendment No. 33 which substitutes that word for "adjoining".
My Lords, so we come back to the word "adjoining". We have had this discussion before. My noble friends have suggested five different words to "adjoining". They have been given short shrift by the noble Lord, Lord McIntosh, for not being able to make up their minds. However, I realise that they were trying to be helpful to the Government so that the Government could pick and choose.
My noble friend Lord Mancroft said that he did not want to extend the effect of the Bill but merely to clarify it. He hoped that I would look with favour on all of the amendments. I have looked at the matter a great deal. Of all the words of this compendious Bill not one has received more of my personal attention than the wretched word "adjoining", because I have understood my noble friends' concern and had a certain amount of sympathy with them.
My noble friend Lord Mountgarret said that he thought that the word "adjoining" was not clear and was too vague. It seems to me to be crystal clear. In Latin 171 "at" means "to" and "join" is the English, so you join something to something else. That seems to me to be pretty clear. It seems to me to mean contiguous, abutting, bordering and so forth. If my noble friends were confused by what I said at the earlier stage of the Bill I apologise. The only exception which I mentioned was where a piece of land was separated by a small river or track, which might nevertheless be said to be adjoining.
My noble friends have suggested other words such as "other", "nearby" or "neighbouring". I have looked very hard at those words but I am bound to tell them that my advice is that they are, believe it or not, too imprecise and too vague for the criminal law. They would also make the offence too wide. We have to keep the idea of proximity in mind. It would be wrong to draw the offence so widely that all land or any land in the same locality would necessarily be included.
My noble friend Lord Mountgarret said stoutly that he would like something which is perfectly clear and precise and that 10 miles is precise and you know where you are. I should think that you do. But that conflicts with my noble friend Lord Mancroft, who said that he did not want to extend the area of the Bill. If the provision is extended from land which is adjoining to land which is 10 miles away my noble friends will realise that the Bill will be extended substantially by the use of those words.
I do not think that it can be right that behaviour five or 10 miles away from the activity which is intended to be disrupted, however unacceptable the behaviour may be, should automatically render the person concerned liable to arrest for a criminal offence or to a direction to leave land. There may be cases where activity on a corner of a moor may be intended to disrupt activity which may be some miles away and which may be on the same moor on adjoining land. However, the clause allows for that. I do not think that we could make it a general rule of this sort, which would apply on anyone's land.
The whole idea was that it should be an offence to create trouble when you are on the same land as a person carrying out a lawful activity and that it should not be permissible for someone to jump over a fence and say "I am now on someone else's land and so I can continue to be disruptive". That is why the word "adjoining" was incorporated into the Bill.
I do not think that it would be reasonable to extend the provision to such lengths as my noble friend's amendment might allow. It will be for the courts to determine the matter. However, in practice any behaviour which is capable of disrupting or obstructing lawful activity, or intimidating those engaging or about to engage in it, is likely to be caught by the new provision, provided that behaviour involves trespass. The offence could be committed by trespassers who did something in the morning which affected the use of land for a lawful activity in the afternoon.
I can only say that I have considered, unbelievably carefully, the points that my noble friend raised—almost I would say ad nauseam, at least to myself. However, I do not believe that the clause as drafted will cause the 172 problems that my noble friends suggest If we were to make the changes which my noble friends propose— they are not quite certain which changes they wish to make—I believe that we would be widening the provisions of the Bill too far. I only hope that my noble friends will realise that I have gone into the matter in as much detail as I possibly could. I really believe that I have given them the best advice.
§ Lord Mancroft
My Lords, I am certain of one matter: that my noble friend has indeed given his very closest attention to the word. I agree with him on one factor: it is a wretched word. Nevertheless, he has considered the matter carefully and I thank him for that and for the care of his answer today.
The noble Lord, Lord McIntosh, argued well, as he always does, on the case about which I worry: that "adjoining" means contiguous. We were worried that where the land was separated by a small area of other land it would not be contiguous. During the early stages of the Bill my noble friend told us that it was not his intention that the offence should take place only on contiguous land. It has been well demonstrated this afternoon that my noble friends and I were right to be concerned about the issue.
Nevertheless, it is a late stage of the Bill and my noble friend has considered the matter carefully. Reluctantly, I shall not push the matter any further. Therefore I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 30 to 33 not moved.]
§ Clause 80 [Repeal of certain conditions relating to gipsy sites]:
Lord McIntosh of Haringey moved Amendment No. 34:
Page 63, line 20, leave out ("170") and insert ("171").
§ The noble Lord said: My Lords, I am delighted to have Amendment No. 34 grouped with Amendments Nos. 52, 57 to 60, and 78 to 80, which stand in the name of the noble Lord, Lord Stanley of Alderley. That at least brings the business forward and may enable the noble Lord to catch a train before the trains stop running tonight.
§ We need waste no time on Amendment No. 34. It is a drafting amendment to correct a rather simple error in the numbering of clauses.
§ As to the merits of the other amendments, I shall not make the general case which I am sure the noble Lord, Lord Stanley, will wish to make himself. However, I make one point relating to the interests of children. I know that the noble Lord, Lord Stanley, believes that it is improper for us to make special legislation for children. Yet one of the reasons why we supported his amendments at Report stage was to provide so far as possible for the protection of the children of travellers, whether gypsies or other travellers.
§ I make a point that the noble Lord might not feel compelled to make in defending the subsequent amendments. It might help the noble Lord, Lord Renton, and others if I say straight away that the amendments 173 have been drafted by parliamentary counsel and have been offered to us by the Minister. That might prevent some otherwise unnecessary interventions in the debate.
§ Despite the tidying up which is proposed in the amendments, concern still exists in regard to the provisions of the Caravan Sites Act that the general powers introduced for all authorities under Clause 77 (it used to be Clause 72) enables authorities not using the powers of the Caravan Sites Act—they have been removed by the amendment agreed at Report—to use more general powers to remove unauthorised campers. At Report stage on 7th June, at col. 1169 of the Official Report, the Minister stated that local authorities would have to take into account a number of factors including the needs of the travellers themselves.
§ On a number of occasions Ministers have said that the powers under what is now Clause 77 ought to be used responsibly. Ministers have spoken of the duties of local authorities under the Housing Act 1985 and the Children Act 1989.
§ All I seek from the Minister's response to the amendment is his renewed assurance that he expects local authorities to exercise the powers under Clause 77 reasonably and with toleration—not removing unauthorised campers just because they are there, but taking into account the needs of the travellers.
§ When the noble Lord, Lord Stanley, and other noble Lords carried the amendment against the Government we believed that we were protecting absolutely the gypsies. We did not fully realise the implications of the powers of removal under Clause 77. Carrying the amendment was worthwhile, and will be shown to be worthwhile. It is a pity that we did not have a consequential amendment to restrict the more general powers in Clause 77 to those cases which would have been covered if the Caravan Sites Act had been retained in its entirety. The measure was worth doing. We have not done everything that we wished to do. Without suggesting that there should be further amendments, I hope that the Minister will give some indication that he agrees that local authorities exercising those powers should do so with proper concern for the interests of the children of the travellers. I beg to move.
§ Lord Stanley of Alderley
My Lords, perhaps it is correct for me to make a brief contribution. At Report stage, and indeed before, I made my position clear so far as concerns illegal campers. I believe sincerely that we have the balance right. I hope that the noble Lord, Lord McIntosh, thinks so too.
As the noble Lord said, these are drafting amendments suggested by the government draftsmen, for which I am grateful. They achieve the objective of the amendment to Clause 75 on which your Lordships voted in favour at Report stage.
§ Lord Avebury
My Lords, perhaps I may say a few words and congratulate my noble kinsman on the success of the amendments, with the improvements that have now been made in the drafting. The duplication which existed at Report stage between the powers of Sections 10 to 12 of the Caravan Sites Act 1968 and those of Clause 72 of the Bill has now been eliminated. I am glad that that untidiness has been removed. We 174 now have only one set of powers for removing gypsies from unauthorised land. I agree with the anxieties that the noble Lord, Lord McIntosh, expressed about the way in which those powers have been used.
At Report stage there was somewhat of a compromise between those who would have liked to see the Caravan Sites Act retained in its entirety and those noble Lords who, like my noble kinsman, wanted the stronger powers contained in Clause 72 and who now have them in the Bill. However, that redoubles the necessity to watch vigilantly to ensure that the guidelines reflect the assurances that the noble Earl, Lord Ferrers, has given at a number of stages during the course of our proceedings.
I echo warmly what the noble Lord, Lord McIntosh, said about children. I add to that the situation of pregnant women. Recently I sent a letter to the Minister with representations from an organisation which looks after their interests.
I know that, as the Minister said, local authorities or the police, as the case may be, if we are talking about Clauses 61 and 62, will not evict from unauthorised sites women who are about to give birth. But the way that this is expressed in the guidelines is of some importance. It may influence the conduct of local authorities and the police when they come to exercise the powers. Therefore it is a pity that we have not had sight of the guidelines which are to be issued by the department before we take leave of the Bill. I hope that there is some way in which there can be full consultation between the department and the organisations that represent the interests of women and children before the guidelines are finally agreed. It would be useful to have the Minister's assurances on that point.
The other important question that occurs to me—and I put this to the Minister—is: how are we. going to tell local authorities of the remarkable change in direction that has been secured by noble Lords during the course of our proceedings on this Bill? So far as they were concerned, the chopper had come down on all stage 1 applications as from 1st March, and stage 2 applications would have had to be completed by the time of the Bill's passage, which all had assumed meant the: end of July. Not every local authority will immediately be seized of the fact that they now have a reprieve of five years during which time your Lordships have expressed the hope that they will complete the task of providing adequate accommodation for gypsies residing in or resorting to their areas.
I therefore ask the Minister: does he intend to write to local authorities setting out the changes that have been inserted in the Bill by this House and informing them that, as of now, they can resume putting in stage 1 applications, which are applications in principle, instead of having to rush to complete stage 2 applications, as they would need to do if they intended to put down any more schemes for consideration by the department if the former timetable had continued? Now, of course, they have another five years. They should not be compelled or persuaded to spend a great deal of scarce officers' time and other resources in putting in stage 2 applications between now and Royal Assent when that will not be necessary if the Bill remains in its present form. They would have another five years in which to 175 formulate applications in principle and to proceed at their leisure to clothe them in the detail that is required before the department finally approves them. It would be very useful if the Minister would agree to notify the local authorities of the changes that have been effected so that they can organise their work in an effective manner for completion of the task within the next five years.
I warmly congratulate my noble kinsman on the success of his amendment, and I congratulate the department on its good sense in accepting it and proceeding along the lines of another five years of effort by the local authorities in conjunction with the private sector. At the end of that time, if we have not completed the task we shall at least be in sight of the point where all the gypsies at present on unauthorised sites are accommodated in places where they can lawfully remain forever; and we shall have eliminated the bane of the gypsies for the settled population in whose neighbourhood they have to exist and of the unauthorised camps which have caused so much trouble for the past 20 years.
§ 5.15 p.m.
My Lords, here we come to an amendment in the name of the noble Lord, Lord McIntosh, which is of course of impeccable drafting, and I congratulate the noble Lord on that. He says that the amendments were drafted by the parliamentary draftsman and that they are technical amendments necessary as a result of the amendments your Lordships made to the Bill on Report.
§ Lord McIntosh of Haringey
Perhaps the Minister will allow me to intervene. My amendment was not drafted by anyone else; it was drafted by me.
Good gracious. Goodness me. Well then, I withdraw the compliment. The noble Lord really should not look a gift-horse in the mouth. It was probably a rotten amendment, I dare say—yes, it was a bad one!
The amendments were necessary following upon what your Lordships did at Report stage. I made the Government's views on the amendments clear at that time: those views remain the same. The only difference is Amendment No. 52, which is not strictly a drafting amendment. The amendment would repeal Sections 10 to 12 of the Caravan Sites Act 1968 on Royal Assent. The reason for that is that Clauses 77 and 78 of the Bill would give all local authorities in England and Wales new powers to tackle unauthorised camping. Unless Sections 10 to 12 of the 1968 Act are repealed, there will be two parallel enforcement regimes operating against unauthorised camping in areas which are designated by the Secretary of State under the 1968 Act once the Bill receives Royal Assent. That would obviously be wrong.
We accept these amendments because we do not believe that it is sensible or necessary to expect local authorities to administer concurrent and different regimes for the control of unauthorised camping in their areas.
176 The noble Lord, Lord McIntosh, asked me to give some reassurance that the local authorities would exercise their powers under Clause 77 reasonably and with tolerance. I am happy to do so. I said at previous stages of the Bill that the local authorities will be expected to use good sense and understanding when they exercise the powers. The Department of the Environment will be issuing advice to that effect in a circular to local authorities.
The noble Lord, Lord Avebury, asked how we can tell the local authorities about the changes in the Bill that your Lordships have made. I do not think that we propose at the moment to tell the local authorities about the changes. The right moment at which to do so is when the Bill becomes an Act and when we know exactly what are the changes about which they should be notified.
§ Lord Mcintosh of Haringey
My Lords, I am grateful to the Minister for the assurances he has given. I do not need to repeat the arguments on the more general issues, but I am grateful immediately for his acceptance of my Amendment No. 34.
Earl Ferrers moved Amendment No. 35:
After Clause 88, insert the following new clause:
§ Video recordings restriction of exemptions
§ (2) In subsection (1), after the words "subsection (2)" there shall be inserted the words "or (3)"
§ (3) In subsection (2)—
- (a) after paragraph (c), there shall be inserted the following paragraph—
- "(d) techniques likely to be useful in the commission of offences;" and
§ (4) After subsection (2), there shall be inserted the following subsection—
§ "(3) A video work is not an exempted work for those purposes if, to any significant extent, it depicts criminal activity which is likely to any significant extent to stimulate or encourage the commission of offences. " ").
§ The noble Earl said: My Lords, in moving Amendment No. 35, perhaps I may also speak to Amendments Nos. 36 and 66. Noble Lords will recall that on Report the noble Lord, Lord Birkett, tabled two amendments which sought, first, to protect children from unsuitable or harmful material by removing some works from the category of exempt videos, and, secondly, to enable the British Board of Film Classification to draw attention to those videos which are particularly suitable for young children.
§ I explained at the time that the Government had considerable sympathy with those objectives, but that we had misgivings about the new legal tests which the noble Lord had proposed for the loss of exemption from classification. I undertook to take the amendments away with a view to tabling some amendments at Third Reading. That is what I have done, and these are the amendments. The House will owe a debt of gratitude to 177 the noble Lord, Lord Birkett, for having raised this very important matter, and I am grateful to him personally for having done so.
§ The first, and perhaps most important, point is that the intention of these amendments is not to ban anything. Their effect is simply that certain videos which previously escaped examination will now have to be submitted for classification before they can be supplied. The aim is to address the situation whereby a cartoon film such as "Bambi" requires classification, whereas a film which teaches assassination techniques does not.
§ The first of the amendments will strengthen the Video Recordings Act 1984 by narrowing the categories of video works which are exempt from classification by the British Board of Film Classification. At present pop music videos, for example, may include references to and depictions of the illegal use of drugs or other matters which are blatantly unsuitable for children; but because they are music videos they remain exempt from our video controls, provided that they do not depict human genitalia or depict or encourage sexual activity or gross violence. Similarly, so called "educational" videos may include instructions in martial arts or they may explain ways in which to manufacture explosives. Again, these are at present exempt provided that they are designed to inform and they do not actually depict gross violence and cannot be shown to be designed to encourage it.
Our amendment will therefore add,
techniques likely to be useful in the commission of criminal offences",
§ to the list of matters which cannot be depicted to any significant extent in an exempted work. This will mean that in the future video works containing instructions on bomb-making, on violent unarmed combat or methods of breaking into cars or houses will no longer be exempt and will require classification by the British Board of Film Classification.
§ The amendment will also exclude from the exempt status those videos which do not actually illustrate criminal "techniques" but which depict criminal activity which is likely to encourage the commission of criminal offences. For example, pop videos or those dealing with car chases which portray the commission of crimes in a way which makes the idea of crime attractive and which are likely to lead to emulation, possibly by young people, will no longer be exempt from classification.
§ When we last discussed this subject some of your Lordships were concerned that we should not end the exemption of serious works which provide factual accounts of Nazi atrocities during the last war, for example. I do not think that such works will be covered by these amendments, as they could not be held to encourage the commission of crime to a significant degree. In fact, the opposite will be the case. Also they do not depict criminal techniques as such, although of course they may illustrate the appalling consequences of crimes. But if a documentary were to provide detailed instructions on how to murder people, or if it really were likely to encourage viewers to emulate Nazi war crimes, 178 there is a real social danger and I see no reason why it should be exempt from controls and I think that there is every reason why it should not be exempt.
§ The amendments do not include any specific reference to drug taking, but that is subsumed within the general category of crime. A video which illustrated how to make crack cocaine, for example, would be caught as showing a criminal technique, while a video which depicted drug abuse less specifically but in a way which was likely to encourage the young, or indeed the old, to adopt that lifestyle would be caught as being likely to encourage the commission of offences.
§ The amendment will also change the current objective test of whether a work is designed to stimulate or to encourage certain activities, for instance, human sexual activity or the infliction of gross violence, which may not be shown to a new objective test of whether the video work was likely to do so.
§ The second of the amendments will make a minor change to Section 7 of the Video Recordings Act 1984, which is the section that describes the broad categories of video classification certificate which the British Board of Film Classification may issue. The clause is designed to enable additional guidance to be given to parents on the tape itself that a work is particularly suitable for young children.
§ The third amendment simply ensures that the first of the amendments applies throughout the United Kingdom. I beg to move.
§ Lord Birkett
My Lords, I am immensely obliged to the noble Earl for bringing back the amendments in this form. I have to admit that they are more cogently and tightly drafted than were my own. I noticed, as did the noble Earl, that the noble Lords, Lord Merlyn-Rees and Lord McIntosh, thought that the phrasing that I had adopted was wide and vague enough to have caught by mistake perhaps certain entirely innocent documentaries which it was never intended to catch. This drafting clears up the possibility of an anomaly there. I have nothing but welcome for the amendments and recommend them unreservedly to the House.
§ Lord Elton
My Lords, will my noble friend use this opportunity to tell the House whether this or any other of our amendments to the Video Recordings Act has the additional benefit of allowing the other place to introduce further amendments? I believe that the rules of another place allow its Members to address only those parts of the Bill that we have altered in this House when the Bill returns to them.
I ask that question in the context of the discussion that we had at the last stage of a proposal which I made and which was dismissed somewhat lightly by some noble Lords; namely, that it should be possible to apply the new criteria in the Bill not only to the classification of new video recordings but also retrospectively to video recordings of a truly disturbing or upsetting nature such as those which gave rise to the current batch of amendments and which would not be caught by them.
At that stage I said that, notwithstanding your Lordships' cool welcome for what I proposed, I believed that the matter was under review by the Home Affairs 179 Committee in another place and that that committee might have it in mind to have such a provision. The committee report published on Wednesday last week states on page x:We recognise that to re-assess all 25,000 titles would be impossible, but we recommend that a transitional period of perhaps six months could be used to collect complaints from the public about specific videos. Those which attracted a significant number of complaints could then be re-assessed by the BBFC and, if necessary, reclassified. This proposal was not regarded as impractical by Mr. Ferman. We therefore recommend that the Government should re-consider its decision not to put in place a transitional scheme whereby a small number of videos which cause great public anxiety could be reclassified under the new criteria".When I brought my proposal to the House last week, my noble friend mentioned the sympathy with which his right honourable friend had looked at the principle of retrospection and the reluctance with which he concluded that it was not practicable to pursue it. We now have the advice of a Select Committee of another place, based on the evidence of those who would have to do the work, to the effect that it is practicable. Can my noble friend say whether what we have done to the Bill will give the other place an opportunity to take that advice?
§ Lord McIntosh of Haringey
My Lords, the noble Lord, Lord Birkett, was right to say that I regarded his previous amendments as much too wide and that the drafting of the current amendments is very much narrower. But I am still very unhappy about them. We are removing the exemption from videos which show how to commit a crime. If that principle is applied not just to videos but to books, which are much more effective for many of us who prefer hot media to cool media, it would outlaw the entire crime fiction profession. Are we seriously to say to the noble Baroness, Lady James of Holland Park, that because she can show how to commit a crime her books should be regulated by a regulatory authority comparable to the British Board of Film Classification?
The fundamental objection to all these amendments and to the whole principle is that one is telling people what to do in their own homes. I do not like it.
My Lords, with regard to the point made by my noble friend Lord Elton on whether anything can be done retrospectively about classification, I indicated at Report stage that there were considerable practical problems as well as other difficulties which lie in the way of any review of past video classifications, which in practice could relate to any of the 25,000 titles at present in circulation.
My noble friend referred to the report of the Home Affairs Committee. He will realise that it appeared only in the past week and we must have time to consider it. However, I can say to my noble friend that the report does not address the practical difficulties that will arise, even with the limited review exercise to which it refers. A six-month period was suggested during which those works which cause particular public concern could be the subject of a classification review. Of course we shall consider the report. But I am not aware that anything in the Bill will prevent any alteration in another place in 180 the way my noble friend had in mind should that be considered the right thing to do. But that will be a matter for another place.
§ Clause 89 [Video recordings: criteria for suitability to which special regard is to be had]:
§ 5.30 p.m.
§ Earl Ferrers moved Amendment No. 36:
Page 75, line 14 at end insert:
("(2) In section 7(2) of the Video Recordings Act 1984 (contents of classification certificates), in paragraph (a), after the words "viewing by children", there shall be inserted the words "or young children".").
§ Clause 100 [Minor and consequential amendments]:
Earl Ferrers moved Amendment No. 37:
Page 83, line 12, after ("84") insert ("(4)")
§ The noble Earl said: My Lords, Amendment No. 37 is a technical amendment and merely alters a reference in the Criminal Justice Act 1991 to the numbering of one of its sections. It is consequential upon changes which arise from other provisions in the Bill. I beg to move.
§ Lord McIntosh of Haringey moved Amendment No. 38.
§ After Clause 141, insert the following new clause:
§ ("Sexual offences revised penalties
§ ("Sexual offences revised penalties
§ (2) In paragraph 3—
- (a) in sub-paragraph (a) (buggery), for the entry in the third column there shall be substituted "If with a person under the age of sixteen or with an animal, life; otherwise two years ", and
- (b) in sub-paragraph (b) (attempted buggery), for the entry in the third column there shall be substituted "If with a person under the age of sixteen or with an animal, life; otherwise two years "
§ (3) In paragraph 16—
- (a) In sub-paragraph (a) (indecency between men), for the entry in the third column there shall be substituted "Two years "; and
- (b) in sub-paragraph (b) (attempted procurement of commission by a man of an act of gross indecency with another man), for the entry in the third column there shall be substituted "Two years. ". ").
§ The noble Lord said: My Lords, on behalf of my noble friend Lord Ponsonby of Shulbrede, who was sent at short notice to Siberia—not by us but by his job—I rise to move Amendment No. 38. I welcome the suggestion that it should be taken together with government Amendments Nos. 39, 54 and 57, of which the important one is No. 39.
The purpose of these amendments, which I make no apology for moving at Third Reading, is to give effect to the changes which are now necessary to the penalties for gross indecency through the change in the age of
consent from 21 to 18 which was agreed by both Houses. The difference between Amendment No. 38 and government Amendment No. 39 is that in three cases the government amendment adds the phrase,
if the accused is of or over the age of twenty-one and the other person is under the age of eighteen, five years".
§ That happens, first, for buggery, secondly, for attempted buggery and, thirdly, for indecency between men. Our proposal is much simpler. It retains the proposal that if the offence is with a person under 16 or with an animal, the penalty shall be life imprisonment; otherwise it imposes a penalty of two years.
§ There are a number of reasons why this is not only necessary and desirable but also consistent with other legislation. The first obvious reason is the comparison to be made with an offence committed with a girl aged 13 to 16, which in view of the difference in age one may think is more serious than an offence committed with somebody aged 16 to 18. In that case the penalty is two years. What we are proposing is consistent with that.
§ The second consideration is that the government amendment proposes a watershed at 21 in terms of the penalties, whereas the law will have been changed when the wishes of both Houses have been brought into effect so that the threshold age for homosexual activity is no longer 21 but 18. It is difficult to see why the shadow of the age of 21 should appear in this regard when dealing with penalties, when it does not exist anywhere else in dealing with what is and what is not permitted under the law. In both respects both the existing law and the government amendments are defective.
The argument used against our amendment at an earlier stage was the concept of "tainted consent". Ministers and other noble Lords talked of the possibility of undue influence and abuse of a position of authority; for example, in an institution of some kind. The Minister was kind enough to write to my noble friend Lord Ponsonby last Friday and I hope that he will not object if I quote some of the remarks made in the letter; it was clearly not a private letter. He recognised the need for legislative action and said,
One answer might be to create some kind of statutory reference to the abuse of authority—in effect, to create a new offence. But we think that that would be too bold and too difficult an undertaking for this stage of the Bill. There would be real difficulties of definition and we suspect that there would be pressure to extend the scope of such an offence to other types of activity".
That has not been proposed by the Government and is nor. proposed by us. To that extent what is recognised as being a rational approach is not available to the House this afternoon. The Minister goes on to say:
Another answer might be to remove the liability of the younger man—something which I know you would support".
§ That is the subject of Amendment No. 40, to which I shall return later.
§ In the absence of any intention by government or anybody else to deal with the question of abuse of authority or undue influence, we are left in an unsatisfactory situation if we allow the penalty to be different if the offence is between, as the Government suggest, a person over the age of 21 with a person under the age of 18.182
§ The common and unpleasant conclusion drawn by the courts and by the press in cases of rape is that when a woman says no she really means yes. That is an extremely offensive comment to make about women and something which I hope we reject. However, by dint of having higher penalties, the government amendment is saying that when a young man says yes he really means no. I suggest that that is perhaps not equally offensive but a misinterpretation of the real situation and something which should not be encouraged by unreasonably high penalties which are out of line with the other provisions of the legislation.
§ The Bill has been substantially improved, notably in the past few weeks, by the bringing together of the sexual offences aspects of the Bill into a single part which can now been seen as a whole and as a major advance in legislation concerning sexual offences. Then; are many good things about it. I suggest that Amendment No. 38 would make further progress and help to rationalise not only what is and what is not criminal but also what the offences should be for what is and what is not criminal behaviour. I beg to move.
§ Lord Monson
My Lords, I certainly endorse the proposal that life imprisonment should remain the maximum sentence for committing these offences with somebody under the age of 16. But bearing in mind the liberalisation of the law relating to heterosexual buggery proposed by the Labour Benches last week and agreed to by the Government, "life" is perhaps a rather draconian maximum when this offence is committed with animals. Of course the offence is distasteful to think about, though it must be conceded that it forms the basis of hundreds of jokes of varying degrees of wit not only in this country but also in Europe and, as far as I know, in North America and Australasia. But the point that needs emphasising is that, as one might expect, this offence tends to be committed by lonely men living in remote parts of the country. Reluctant though many may be to acknowledge it, behaving in the way that they do may very well deflect them from committing the far more harmful crimes of incest or child abuse.
I am not suggesting for a single moment that this offence be decriminalised but merely that we—and in particular the Government—keep a sense of proportion about it. Would not a maximum of five or seven years be more appropriate?
The Earl of Clanwilliam
My Lords, I support the government amendment on this clause, especially as that would keep the age at 21, which was the subject of the amendment put down by the noble Lord, Lord Mayhew, and myself earlier on. To that extent it concurs with our views. I am horrified by the amendment of the noble Lord, Lord Ponsonby. It can fairly be described as a blatant attempt to put 16 on to the face of the Bill so that there may be future opportunities to reduce the age to 16. If that amendment were passed, 16 would be on the face of the Bill. That is most reprehensible.
The noble Lord, Lord McIntosh of Haringey, referred to the comparison between girls and boys We must once again refute that suggestion completely. They are different people with different metabolisms. Their 183 sexual activities should not be compared in any way. Therefore, I ask your Lordships to support Amendment No. 39 and to reject Amendment No. 38.
§ Lord Milverton
My Lords, I would also ask noble Lords to support the Government's amendment. Whatever may be said about trying to define different degrees of what is gross indecency or beastliness, the suggestion that it is okay to bring down the age of buggery is wholly unwholesome. As far as I am concerned, buggery and all those other things are wholly unwholesome. Nothing will change my mind that it is against what is natural and what is God given in us. The sooner that somehow or other minds can be brought to understand that, the better. We are doing a gross indecency to the human dignity of both man and woman by these different wretched things.
§ Lord Orr-Ewing
My Lords, I was not able to speak when we were discussing the age of consent at 16, 18 or 21 under the amendment of my noble friend Lord Clanwilliam but I have a message which will offset to some extent what the most reverend Primate himself advocated. It comes from the right reverend Prelate the Bishop of Chester. He was not able to attend but he gave me authority to quote him. He said:The decisions on the age of consent will have such far-reaching effects on our society that it seemed right for them to be debated in your Lordships' House. A substantial body of opinion in the church and the country believes, without homophobia, that the lowering of the age of consent from 21 will result in moral damage to teenagers who are still developing to adult maturity. The argument of justice is flawed. It assumes equivalence between heterosexual and homosexual physical relationships. This is not so—either physically or Biblically".Therefore there should be no suggestion that we come down to 16. I felt it was wrong to move away from 21 because 21 would in effect mean 18 and 18 would in effect mean 15½. I have now had assurances—
§ Lord McIntosh of Haringey
My Lords, the noble Lord is clearly going to quote at length, but does he realise that neither my amendment nor the government amendment has any relationship to the age of consent? The amendments are concerned only with penalties and with nothing else. The same comment applies to the noble Lord, Lord Milverton, and to the noble Earl, Lord Clanwilliam.
§ Lord Orr-Ewing
My Lords, I accept that. I was slightly wrong and I have now been assured by the letter of the Solicitor-General to the noble and learned Lord, Lord Simon, that 18 means 16 or 17, but not lower. I believed that 21 meant 18 in practice. I hope that I was wrong.
The Earl of Clanwilliam
My Lords, with the leave of the House, the noble Lord, Lord McIntosh, referred to me a moment ago and said that his reference to 16 was with regard to the age of consent. If this amendment 184 is accepted, the age of 16 in connection with the homosexual act will be on the face of the Bill. We should reject that at all costs.
§ 5.45 p.m.
My Lords, I am sorry that the noble Lord, Lord Ponsonby of Shulbrede, is not in his place to move his amendment. He is, as the noble Lord, Lord McIntosh, said, out in Siberia. I hope he enjoys it and that we shall see him back here again soon.
In speaking to the noble Lord's amendment, the noble Lord, Lord McIntosh, said quite correctly that we should consider government Amendment No. 39 as well as Amendments Nos. 54 and 77, which stand in my name and are consequential. I explained at the Report stage why the Government had reservations about the amendment of the noble Lord, Lord Ponsonby. In particular we were reluctant to remove the maximum penalty of five years' imprisonment for cases where an older man abuses a position of authority or trust in order to obtain sexual favours from a young man who is aged 16 or 17.I also said that I would be willing to consider, the matter further in the hope of producing some further proposals. I have done that. Indeed, we have considered the matter very carefully.
I accept what the noble Lord, Lord McIntosh, and others have said about the differences between the law's protection of young women and young men. There is though a genuine concern about the sort of cases which I described at Report where people who are in authority can abuse their authority by taking advantage of young men. There is a feeling that the abuse of young men is more prevalent in those circumstances than is the abuse of young women. It is clear that the courts regard the abuse of authority or trust as a substantial aggravating factor. We would be worried about reducing their scope for dealing with the worst of those cases.
We have considered, as the noble Lord, Lord Kilmarnock, urged us to do on Report, whether it might be possible to create some kind of statutory reference to the abuse of authority. In effect, that would create a new offence. But we think that that would be too bold and too difficult an undertaking at least for this stage of the Bill. I accept that there are models from other jurisdictions, although as a general rule they tend to operate across a range of sexual offences and to be geared to the abuse of children rather than adolescents. But in any event my concern is not whether that might not be an avenue worth exploring in the long term but only that it is not something which we can undertake now.
What we therefore propose is to leave the current maximum penalty of five years in place but to restrict it to acts which are committed by a man who is over 21 with a man who is under 18. That will allow the worst cases to be dealt with appropriately where there has been an abuse of trust or authority. By the same token we believe that such a penalty will not be appropriate, as the courts will well understand, for genuinely consensual acts where such aggravating features were not present.
185 I would not pretend that we have arrived at a perfect solution but our proposal remains true to the original intention of the Sexual Offences Act 1967 which created these penalties. I do not think that we would be right to embark on a more ambitious reform of the kind suggested by the amendment of the noble Lord, Lord Ponsonby, to which the noble Lord, Lord McIntosh, addressed himself. That amendment goes too far. I hope that your Lordships will approve the government amendment which is before the House today.
§ Lord Kilmarnock
My Lords, since the noble.Earl kindly referred to me, perhaps I may say that he has decided not to try to import any formula about positions of authority or trust into his amendment. I appreciate that there might be considerable difficulties in drafting that. I believe he indicated that, in the long term and possibly in any future sexual offences Bill, the Government might have another look: at this. The effect of his amendment is that, from the tenor of his remarks, he has cast the net wider than he really intended. When the noble Earl winds up in the debate, perhaps he will be able to say that the Government will have another look at this matter if and when we next come to a sexual offences Bill.
§ Lord Annaly
My Lords, I hope noble Lords will not mind if I remind them that this is Third Reading and normally noble Lords should not speak after the Minister.
§ Lord McIntosh of Haringey
My Lords, the Minister has wound up in the debate and indicated that he is not satisfied with the state of the law. I find it helpful that there are attractions to a statutory reference to the abuse of authority argument. That is the only argument left for insisting on the government amendment as opposed to mine. In every other way my amendment is preferable.
Noble Lords who have spoken in favour of the government amendment are speaking because they regret the thrust of what has happened to the Bill. They regret the change to the age of consent. The noble Lord, Lord Orr-Ewing, was quite explicit about it. They regret the change to the age of consent from 21 years to 18 years. They have spoken about the age of consent rather than about the penalties.
I shall try to represent the noble Earl, Lord Clanwilliam, more accurately than I did before. He feels that to change the penalties, as our amendment suggests, would be to open the door to a subsequent change in the age of consent to 16. I believe that that represents correctly what he said. I am pleased to see that he indicates consent. I believe that is what appears in Hansard. On the contrary, what is actually proposed by the government amendment is the reverse of that. The government amendment preserves the age of 21, which has no other legal significance in legislation about sexual offences. It is preserved in this one respect in that it increases the penalties. I find that very regrettable in that we are almost reintroducing the age of 21 by the back door.
186 I do not believe that we shall ever go back to 21 years as the age of consent because I do not believe that Parliament would permit it. I have no fears on that score. But it is very sad that the Government should feel unable to take what the Minister himself recognised to be the right course, which is to deal with the issue of tainted consent head on but to shelter behind changes in the penalties. If there are any real examples of what the Minister said; namely, that young men of the ages of 16 and 17 are more vulnerable than girls of 13 to 15 years of age—I shall gladly give way if the Minister wishes to tell me about any evidence—I would feel more constrained in my assertion that the penalties should not be different. The maximum penalty for any sexual offence against a girl between the ages of 13 and 15 is two years. It should be the same for a young man of the age of 16 or 17 years who is under the age of consent for homosexual activity.
I am not going to convince the House. This is a matter which even the Government recognise will have to be dealt with at some later stage. I am sorry that I have not succeeded in persuading them, although I had no expectation of persuading some of the Government's supporters in this matter. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Earl Ferrers moved Amendment No. 39:
§ After Clause 142, insert the following new clause:
§ ("Revised penalties for certain sexual offences
§ Revised penalties for buggery and indecency between men
§ .—(1) The following paragraphs of the Second Schedule to the Sexual Offences Act 1956 (which prescribe the punishments for offences of buggery and of indecency between men) shall be amended as follows.
§ (2) In paragraph 3—
- (a) in sub-paragraph (a) (buggery), for the entry in the third column there shall be substituted "If with a person under the age of sixteen or with an animal, life; if the accused is of or over the age of twenty-one and the other person is under the age of eighteen, five years, but otherwise two years."; and
- (b)in sub-paragraph (b) (attempted buggery), for the entry in the third column there shall be substituted "If with a person under the age of sixteen or with an animal, life; if the accused is of or over the age of twenty-one and the other person is under the age of eighteen, five years, but otherwise two years.".
§ (3) In paragraph 16—
- (a) in sub-paragraph (a) (indecency between men), for the entry in the third column there shall be substituted "If by a man of or over the age of twenty-one with a man under the age of eighteen, five years; otherwise two years."; and
- (b) in sub-paragraph (b) (attempted procurement of commission by a man of an act of gross indecency with another man), for the entry in the third column there shall be substituted "If the attempt is by a man of or over the age of twenty-one to procure a man under the age of eighteen to commit an act of gross indecency with another man, five years; otherwise two years.".").
§ The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 38. I beg to move.187
§ Lord McIntosh of Haringey moved Amendment No. 40:
§ After Clause 143, insert the following new clause:
§ ("Amendment of law relating to homosexual acts
§ .—(1) In section 1(1) of the Sexual Offences Act 1967 (amendment of law relating to homosexual acts in private), the words after "and" shall be paragraph (a) of that subsection, and at the end there is inserted—
(b) have attained the age of sixteen years and the period between their dates of birth is not more than two years beginning with the first of those dates;
§ or, where paragraph (b) does not apply, on the part of a party who has not attained the age of eighteen years, provided that the parties consent thereto and have attained the age of sixteen years.".
§ (2) This section shall come into force on the date this Act is passed.").
§ The noble Lord said: My Lords, this amendment deals with the other matter to which the Minister referred in his letter to my noble friend Lord Ponsonby as regards the liability of the younger man in an offence between an older man and a younger man. I suggest—perhaps not with very great hope of progress with some noble Lords on the Government Benches—that not just common humanity, but a concern for health should say that when such an offence takes place the younger man should not be criminalised. In this amendment we are reflecting what happens with heterosexual offences where an offence with a girl under the age of consent is a criminal offence for the older person who commits the offence, but it is not for the younger girl.
§ I make it clear again in case there is any confusion about what I am saying, that nothing in this amendment changes, or seeks to change, the age of consent. It says that when a criminal act takes place only the older person should be criminalised by it. I say that not only because of the interests of common humanity. The argument about tainted consent and undue influence supports what I am saying now. This amendment is also tabled in the interests of health reasons because one of the fears which has been very clearly expressed to your Lordships and why many people argued for a lower age of consent was that a higher age of consent inhibits young people, because of the fear of either blackmail or of having committed a criminal offence, in going for help for either counselling or advice on health matters and in particular on HIV and AIDS.
§ If this minor amendment, which is consistent with the law on heterosexual behaviour, were carried, the inhibition on young men of 16 or 17 years of age from seeking help would be removed to some extent. They would still be taking part in a criminal act but they would not themselves be committing a crime. In common humanity, I ask your Lordships at least to consider that argument. I beg to move.
§ Lord Annan
My Lords, I very much hope that the amendment of the noble Lord, Lord McIntosh, might be considered more favourably by the House than his former amendment. I did not feel that I could speak in favour of that, but I certainly feel that this amendment 188 should be regarded most seriously by the House. It is simply saying that we do not intend to make criminals of people of 16 years of age who are engaged in this activity. Do not let us forget what that could mean to a young man at school. I beg the House to think carefully about this matter.
The Earl of Clanwilliam
My Lords, perhaps I may take up a point made by the noble Lord, Lord Annan. He said that we must be careful about a child of the age of 16 years being involved in these activities at all. The fact that we put the age of 16 on the face of the Bill once again raises the matter to show that it has been considered by your Lordships and approved. The noble Lord, Lord McIntosh, said that it is not a question of the age of consent. If a child is 16 years of age and is involved and has consented, that is involving the age of consent in this Bill.
I suggest that all your Lordships agree with me that the age of consent should not be reduced from 18 to 16 and that this amendment is a somewhat back-door method of introducing the age of 16 on to the face of the Bill in exactly the same way as was proposed in the previous amendment on this matter. I beg your Lordships not to accept the amendment.
§ 6 p.m.
My Lords, the amendment which the noble Lord, Lord McIntosh, has moved deals essentially with the criminal liability of young men who commit consensual homosexual acts in private. The Government have always made clear that this is a matter which should be determined by the individual conscience of Members of both Houses of Parliament.
The amendments would provide effectively for an age of consent of 16 where there was a gap of two years or less between the ages of the two men. It would also provide that no one who is aged between 16 and 18 would be liable to prosecution for a consensual homosexual act in private with another person who is over 16. However, men over 18 who have sex with men under 18 would still be liable to prosecution if they were more than two years older than the younger man.
I realise that the noble Lord's amendment does not seek to go the whole way towards an age of consent of 16, but it would mean that no one who is aged between 16 and 18 could ever be liable to prosecution for a consensual homosexual act unless it were performed in public.
The law would provide a deterrent to homosexual activity by a young man under 18 only if the other man were significantly older—and then only if the younger man cared whether the older man were to be prosecuted. That is why I said in Committee that the proposal of the noble Lord, Lord Ponsonby, seems to come closer to an age of homosexual consent of 16 rather than of 18.
It may often be the case that the younger man is the less culpable. There may often be a good case for not prosecuting the younger man. But whether the law should intervene to decide that the younger man under 18 should never be held to have committed a criminal offence in the circumstances which are proposed by the 189 noble Lord, Lord McIntosh, is something for your Lordships to judge. Speaking personally, I would not be in favour of it.
§ Lord McIntosh of Haringey
My Lords, the Minister has done well to remind the House that this is an issue of conscience involving a free vote. I culpably neglected to say so. I should have said right at the beginning of our consideration of this part of the Bill that I speak for myself and not for my noble friends who have the freedom to speak and vote as they wish on this matter.
I am still taken aback by the suggestion of both the noble Earl, Lord Clanwilliam, and the Minister that what we are doing here is to influence the age of consent, if not actually to change it. After all, there are different provisions on sexual relations with girls who are under the age of consent but between the ages of 13 and 16. That does not mean that the age of 13 becomes, by implication or explicitly, the new age of consent. What we are proposing here is what happens already in cases involving girls aged 13 to 15—that is to say, that those who have sexual relations with young girls are guilty of criminal offences but the girls are not. It still seems entirely rational to say that the same provisions should apply to young men who are just under the age of consent—in other words, aged 16 or 17. They will still be engaged in what is a criminal offence for the older man but should not be for themselves.
The Minister made no attempt to answer the arguments about the health or sexual counselling issues which I raised and which have been of concern to a number of noble Lords.
I understand that in 1992 there were only 12 convictions for homosexual age of consent offences in private. It could therefore be argued that this is a relatively small issue affecting very few people. On that basis, I do not think that I shall ask your Lordships to go through the Lobbies on this issue—quite apart from the fact that it is obvious that I would lose. However, I hope that the point has been made. Indeed, the time will come—unfortunately, not in this Bill—when these matters will have to be cleared up. I hope that they will be cleared up in well considered legislation and that Parliament will consider all of the effects of what it is legislating for. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 144 [Extension of Sexual Offences Act 1967 to the armed forces and merchant navy]:
Viscount Cranborne moved Amendment No. 41:
Page 114, leave out lines 11 and 12.
§ The noble Viscount said: My Lords, in moving Amendment No. 41, I should like to speak also to Amendments Nos. 42 and 43.
§ In Committee your Lordships supported the amendment tabled by my noble friend Lord Boardman to what has now become Clause 144. Your Lordships will remember that the purpose of that amendment was to put on the face of the Bill a statement to the effect 190 that the decriminalisation of homosexuality in the services and the Merchant Navy would not affect their ability to discharge homosexuals.
§ Your Lordships may also remember that I argued in Committee that we did not need such an amendment: since the clause as it then stood did not affect our rights as employers to carry out such discharges and it would remain our clear policy that the Armed Forces would discharge homosexuals. However, my noble friend's amendment was accepted by the Committee. The Committee therefore sent a clear signal that it saw a need for our policy to be underpinned by a statement in the Bill, and, as I said in Committee, we had no difficulty—indeed, very much the reverse—with my noble friend's underlying purpose.
§ We have therefore had another look at Clause 144 in the light of the incorporation of my noble friend's amendment. We have also looked at Clause 145, which effectively extends the provisions of Clause 144 to Northern Ireland. My noble friend did not offer an amendment to Clause 145 in Committee —although I believe that he stated an intention to do so in due course. But clearly the two clauses should be consistent with each other.
§ As a result, the Government are now proposing further amendments to Clauses 144 and 145. We judge that the amendments have three principal effects. First, they seek to reflect faithfully the intentions of the amendment carried in Committee. I am delighted to note that my noble friend is indicating assent to that.
§ Secondly, the amendments seek to tidy up that amendment in order to remove what seemed to us to be an inexact terminology. My noble friend's amendment dealt with discharge from the Armed Forces and discharge from the Merchant Navy as if these were the same processes. They are not, as your Lordships will readily understand, and the new wording incorporates the terminology appropriate to each case. I understand that in the Merchant Navy the most suitable sanction corresponding to discharge from the services is "dismissal from the ship".
§ Thirdly, the amendments seek to make explicit the continuing ability of the services to prosecute in those cases where the circumstances surrounding the otherwise legal homosexual act are such that the behaviour undermines good order and discipline. Such circumstances would include an abuse of rank or sexual activity aboard one of Her Majesty's ships. These are cases where we would prosecute whether the activity was homosexual or heterosexual. Our policy on this has been as clear and consistent as it has been on the discharge of homosexuals.
§ The basic arguments underpinning both our policy and my noble friend's amendment were articulated clearly in Committee and, unless your Lordships particularly wish me to do so, I do not propose to rehearse them now. However, I should like to emphasise that we believe that it is critical in a disciplined hierarchical environment such as the services to embody safeguards in service law and service practice to ensure that the junior in rank, who are often the younger members of the forces, are not pressured into participating in sex by their superiors. Nor is it 191 acceptable from the point of view of maintaining discipline for sexual activity to occur on warships or in other essentially operational settings. Those prohibitions apply to all sex between women and men as much as between members of the same sex, and they need to be backed up by the services' disciplinary framework.
§ Amendment No. 43 extends to Clause 145 the effect of the amendment to Clause 144, thus ensuring that the legal position throughout the UK is consistent. I hope therefore that my noble friend Lord Boardman will agree that the amendments fulfil the aims that he set out in Committee. I therefore commend them to the House. I beg to move.
§ Lord Boardman
My Lords, I am grateful to my noble friend for tabling the amendments which carry out, more effectively than did my amendment, the intention of the House. They put clearly on the face of the Bill the powers that the services and the Merchant Navy have to dismiss or discharge, as may be appropriate, those who commit an act which, although decriminalised, remains an offence under military order and discipline, and similarly in the other services. I am most grateful to my noble friend for the consideration that he has given to the points and for the amendments which fully carry out the intention which was contained in my amendment but do so in a much better form. I support the amendments.
§ Lord Renton
My Lords, I, too, am grateful to my noble friend, but as the matter is from the legislative point of view complicated and with a great deal of cross-reference to previous legislation, I wonder whether I may presume to try to summarise its effect, as I understand it. Of course, if I do not get it right, I shall be open to correction, and then it will have been of general benefit to have been corrected.
As I understand it, homosexual practices will no longer in themselves be illegal in the Armed Forces or on board ships, but if they occur, although they will not give rise to criminal offences, they can be a ground for discharge from the Armed Forces or the ship. However, they can also be regarded, so long as there are other facts which make them contrary to military or naval discipline, as disciplinary offences. That seems to summarise the position. I only hope that I have it right. The position is complicated, but if my noble friend or my noble and learned friend Lord Fraser of Carmyllie, the former Lord Advocate, were prepared to confirm that, it could be of advantage.
My Lords, with permission, I may be able to help my noble friend. As I understand it, the position is wholly as he describes it. I should like to emphasise that in the Armed Forces the fact of homosexuality and homosexual activity would make the homosexual subject to administrative discharge which would imply that the individual's services would no longer be required. Administrative discharge is a general reason which describes unsuitability for the Armed Forces but carries with it no sense of obloquy in that there is no stain on the character of the person discharged. That has particular practical and beneficial 192 effects for the individual because it should not interfere with his ability to obtain a job in civilian life. I hope that that is some help to my noble friend.
§ Viscount Cranborne moved Amendment No. 42:
§ Page 114, line 27, leave out from ("shall") to end of line 30 and insert ("prevent a homosexual act (with or without other acts or circumstances) from constituting a ground for discharging a member of Her Majesty's armed forces from the service or dismissing a member of the crew of a United Kingdom merchant ship from his ship or, in the case of a member of Her Majesty's armed forces, where the act occurs in conjunction with other acts or circumstances, from constituting an offence under the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957.
§ Expressions used in this subsection and any enactment repealed by this section have the same meaning in this subsection as in that enactment.").
§ Clause 145 [Homosexuality on merchant ships and in the armed forces: Northern Ireland]:
§ Viscount Cranborne moved Amendment No. 43:
§ Page 114, line 37, at end insert:
§ ("(3) Nothing in this section shall prevent a homosexual act (with or without other acts or circumstances) from constituting a ground for discharging a member of Her Majesty's armed forces from the service or dismissing a member of the crew of a United Kingdom merchant ship from his ship or, in the case of a member of Her Majesty's armed forces, where the act occurs in conjunction with other acts or circumstances, from constituting an offence under the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957.
§ Expressions used in this subsection and any enactment repealed by this section have the same meaning in this subsection as in that enactment.").
§ 6.15 p.m.
§ Lord McIntosh of Haringey moved Amendment No. 44:
§ After Clause 145, insert the following new clause:
§ ("Amendment of law relating to homosexual acts in Scotland
§ .—In section 80(6) of the Criminal Justice (Scotland) Act 1980 (which defines "homosexual act" for the purposes of section 80), after "gross indecency" there is inserted "or shameless indecency".").
§ The noble Lord said: My Lords, I should like to speak also to Amendments Nos. 56 and 69. The amendments are technical. They correct drafting faults in Section 80 of the Criminal Justice (Scotland) Act 1980. Section 80 decriminalised consenting homosexual acts in private over the age of 21 and brought Scottish law into line with the Sexual Offences Act 1967. But because of a defect in Section 80 of the 1980 Act prosecutions were still possible for the common law offence of shameless indecency.
§ It has been recognised that that was inconsistent and there have been a number of academic papers on the subject. The Lord Advocate issued prosecution guidelines two years ago which recognised the problem of the inconsistency of the law. It seems sensible to deal with the matter by an amendment, even at this late stage, which removes the inconsistency between Scottish 193 common law and Scottish legislation. I am grateful for the intimation I have had that the amendment is acceptable to the Government. I beg to move.
§ The Minister of State, Scottish Office (Lord Fraser of Carmyllie)
My Lords, as the noble Lord said, the need for the amendment has been postulated for some time by various academic texts on Scots law. The fear is that because acts of shameless indecency are not referred to explicitly in the definition of homosexual acts, the provisions of Section 80 that decriminalise homosexual acts may not apply to acts of shameless indecency. If that were true it would be possible to prosecute two adult men engaging in consensual homosexual activity in private, despite the existing provisions of Section 80.
While we are not wholly persuaded that those concerns are as well-founded as some believe, and the current provisions do not appear to have given rise to any real practical problems, we recognise that there is anxiety on the part of some people. We believe, as always in the criminal law, that it should be as clear as possible and that those anxieties should be allayed. Therefore, for the avoidance of future doubt, as the noble Lord has said, I am happy to recommend that the amendments be agreed to. They will confirm what we believe to be the existing position rather than in any sense extend it.
§ Lord McIntosh of Haringey
My Lords, I am grateful to the Minister for that confirmation. It cannot be often that gay and lesbian rights organisations in Scotland can draft amendments which go on to the statute book, but Outright Scotland which did draft the amendment will be as grateful as I am for what the Minister has said.
§ Clause 146 [Criminal Injuries Compensation]:
§ Lord Ackner moved Amendment No. 45:
§ Page 114, line 41, leave out from ("1988") to end of line 3 on page 115 and insert:
- (a) in subsection (2), for the words after "any provision" there shall be substituted the words "brought into force under subsection (1) above,"; and
- (b) after subsection (2), there shall be inserted the following subsection—
(2A) Sections 108 to 117 above and Schedules 6 and 7 to this Act shall come into force at the end of the period of six months beginning with the date on which the Criminal Justice and Public Order Act 1994 is passed.".").
§ The noble and learned Lord said: My Lords, perhaps I may speak also to Amendment No. 64. Both amendments relate to Clause 146 which concerns criminal injuries compensation. Your Lordships will recall that this clause resulted from an amendment whose purpose was to require the Government to bring into force within six months after the date upon which the Bill receives Royal Assent the provisions of the Criminal Justice Act 1988 which related to putting the current compensation scheme for those injured by violent crime on a statutory basis, that scheme providing for what is known as common law damages.194
§ I rise to speak to these two amendments as the somewhat inadequate alter ego of the noble Earl, Lord Ferrers, who did not wish to be too associated with the merits of this excellent amendment. He has pointed out to me in the following terms the technicalities with which both amendments seek to deal. The measure is to provide for the replacing of Section 171(2) of the Criminal Justice Act 1988 but the old Section 171(2) is not yet spent. Old subsection (2) extends the commencement order which makes powers under subsection (1) to enable transitional provisions to be made in relation to provisions to be brought into force which do not include those concerning the Criminal Injuries Compensation Scheme.
§ There are still a few such provisions of the 1988 Act which have not been brought into force: for example, Section 32(1) (a) and (3) which is in force in respect of some offences only; Sections 150 and 151(1) to (4), and some provisions in Schedules 15 and 16. The possibility of transitional provisions for at least some of these provisions, I am told, cannot be ruled out. Thus, Section 171 (2) ought not simply to be replaced.
§ It was accordingly the view of the noble Earl that it would be better to amend Section 171(2) and to add a new subsection (2) (a). He was good enough to enclose a draft, which I have followed. While leaving the underlying aim of the clause unaltered, that would clarify the point at which the statutory scheme should come into force.
§ Amendment No. 64 arises as a result of concern north of the Border. While Section 171 as originally enacted, so I am told, extended to Scotland as well as to England and Wales (by virtue of Section 172(2)) it does not follow that all subsequent amendments to that section will necessarily so extend. Indeed, I am told by the Scottish Office that it is not at all uncommon for amendments to sections of Acts to have a more limited territorial extent than the section as originally enacted. One example of that with close parallels to our present situation is Section 119(1) of the Police and Criminal Evidence Act 1984. That substituted for England and Wales only a new subsection (2) in Section 8 of the Betting, Gaming and Lotteries Act 1963, which as originally enacted applied throughout Great Britain. Accordingly, if the amendment to Section 171 of the 1988 Act to be made by Clause 146 is to extend to Scotland as well as to England and Wales, the extent clause of the Bill should expressly provide that Clause 146 so extends. I have followed the terms of the amendment so provided. I beg to move.
My Lords, I am grateful to the noble and learned Lord, Lord Ackner, for tabling these amendments. They overcome the small technical difficulty that exists in his Clause 146, which was added to the Bill following debates in Committee on 16th June. I am entirely content with those correcting amendments.
Your Lordships will recall that the Government were not greatly enamoured of the inclusion of the new clause. Our position on its merits remains the same but it is important that the Bill should leave here for another place in a correct state. On that basis, I am content with the amendment.
§ Clause 162 [Local authority powers to provide closed-circuit television]:
Earl Ferrers moved Amendment No. 46:
Page 127, line 21, leave out ("and Wales").
§ The noble Earl said: My Lords, I shall speak also to Amendments Nos. 47 and 48. These are tidying up amendments to Clause 162, which gives local authorities in England, Wales and Scotland specific powers to spend money on the installation of closed-circuit television systems in their areas for the purpose of crime prevention. I beg to move.
§ Earl Ferrers moved Amendments Nos. 47 and 48:
Page 127, line 22, after ("council;") insert:
("( ) in Wales, a county council or county borough council;").
Page 127, line 27, at end insert:
("(5) Until 1st April 1996, in this section "local authority" means, in Wales, a county council or district council.").
§ 6.30 p.m.
§ Clause 165 [Sale of tickets for designated football matches by unauthorised persons]:
§ Lord Donoughue moved Amendment No. 49:
Page 131, line 43, at end insert:
("(6) The Secretary of State may by order made by statutory instrument amend the provisions of this section so that they apply to any sporting event for which 6,000 or more tickets are issued for sale.").
§ The noble Lord said: My Lords, perhaps I may say for the record that the name of the noble Lord, Lord Aberdare, has been omitted from the amendment. I shall speak also to Amendment No. 61.
§ At various stages of the Bill the amendment has been supported by noble Lords on all sides. It is also supported by those involved in the major sports which suffer the problem of ticket touting, with which we are here concerned. Representatives of tennis, cricket, rugby and professional golf have expressed their support for this amendment.
§ At an earlier stage, and in the middle of the night, we had an opening skirmish. It was clear then, as now, that the difference between the Minister and myself did not relate to the Bill's existing proposals to stop ticket touting at football matches. I support the Bill's proposals relating to football. In Committee, I considered that our arguments failed ever to meet because the Minister was dealing with other important points which on the whole were not the points that I was making. However, we differ in that the Government refuse to recognise that there is a law and order problem in respect of sports other than football.
§ It is not the same problem as in relation to football. There is not what at an earlier stage the Minister called the mayhem which arises when ticket touts sell to football supporters of opposing teams tickets for adjacent seats and so prevent the separation that is 196 necessary for a peaceful game. The Taylor Report addressed that problem and the Government have followed the recommendation and proposed a remedy.
The fact that that particular problem does not exist in other sports does not mean that there is not a serious ticket touting problem. There is a serious problem but it is different. It is described in a letter that I received from the chairman of the National Arenas Association. The association represents all the venues which host sporting events in the 8,000 to 13,000-spectator category. He stated:
We have all been plagued for years by the growing boldness of the ticket tout in exploiting particularly our concert clientele",
but the problem also relates to sports,
and, unless their activities lead to a breach of the peace the police are powerless to intervene".
The chairman states that the national venues,
have all seen at first hand the harassment, exploitation and confusion of the consumer in these circumstances and believe that the legislation should be applied to all forms of entertainment involving audiences over 6,000".
I propose to be practical, and the amendment applies only to sport.
§ The problem exists in vivid form at Wimbledon. Officials of the All England Lawn Tennis Club have made public their concern. They describe the various criminal activities in which the ticket touts at Wimbledon are involved, including intimidation, theft and fraud. Wimbledon officials have been threatened with violence. One official was visited at home by the touts in the middle of the night and was warned to lay off attempting to interfere with the touts' activities.
Some of the hospitality businesses which link with the touts are organised:
upon criminal lines with people hiding behind nominee directors, accommodation addresses and anonymous addresses".
The Minister will have seen, because I showed it to him—and I recommend it to all noble Lords, although I do not normally recommend the gutter press—the News of the World of 26th June. There is a full-page article about this year's Wimbledon which describes in very exciting fashion touts offering packages of tickets, illegal drugs and prostitutes. Ministers should be aware of that and the problems which arise from touts intimidating young people. The touts snatch tickets from their young hands and threaten them.
§ Ministers should be aware of the unsavoury situation which arose around Southfields Station or in the car parks. According to an official witness, there was persistent harassment of spectators as they left the station. They had to run the gauntlet of that vicious group of runners who were determined to frighten as many of the general public as possible into parting with their tickets.
§ I know that some noble Lords from a previous better age have in their minds a romantic picture of individual entrepreneurs who are sufficiently clever and bold to buy a ticket for £10 and to sell it on for £15. They believe that that is a good market operation which should not be deterred. I wholly sympathise with that approach but that is a romantic view from a better past.
§ The Wimbledon club has received countless complaints from members of the public who have been insulted, threatened and spat upon when they refused to part with tickets to those vicious touts. Threatening behaviour is rife.
§ Many of the customers are foreign tourists who do not realise and cannot be expected to realise that the tickets for which they pay large sums of money become worthless when transferred to them. They are forbidden entry to the event and have been defrauded. This year, club security men who tried to warn visitors were subjected to insults and threats of violence by the touts. A club official who attempted to photograph the touts in operation was attacked physically and his camera was grabbed and smashed. I plead with the Minister not to say in his reply that there is no problem and that it is merely the market operating. That is a very nasty market and we do not want it to operate.
§ I have many more examples with which I shall not detain your Lordships. I was tempted to say that it defies belief that the Home Office should still insist that there is no problem except with regard to football. But anyone who knows the tower bunker where the Home Office hides opposite St. James's Park—I know it well—will not be in any way surprised to learn that the Home Office may be a trifle ignorant of what is happening in the murky real world outside.
§ At an earlier stage the Minister argued that those offences are covered under existing law—that is one of the main approaches—and therefore, there is no need for any action to be taken. Although that is strictly true, in reality and in practice it is irrelevant. The reality in the real world is that those technical offences are not pursued by the police because they believe that there is no opportunity to secure convictions under existing law. The police have made that clear. The police at Wimbledon have made it clear that they would like the amendment to be passed because it would enable them to control those disreputable activities.
§ The existing law does not protect the public. Nor can the clubs provide sufficient private security to protect the public. The clubs know that and they have said it. The police know that and the public know that. Apparently, only the Home Office does not know it.
Wimbledon has stated that it is:
faced with an ongoing problem and it is being forced to expend many tens of thousands of pounds on security and back-up every year in order to protect its customers from the touts' operations. It goes without saying that all that money would go straight into the development of lawn tennis in this country if the touting problem and their harassment of the general public could be avoided".
The club goes on to say:
This would be simply achieved by making it an offence under the new section of the Criminal Justice and Public Order Bill".
That is precisely what I propose.
§ The amendment on the Marshalled List has been changed since the Committee stage in one significant way; we now merely ask the Government to take the powers to deal with this problem by statutory instrument should they wish to. If they continue to believe that 198 there is no problem, then they need not activate it. But, if the touting problem continues to grow worse as it has done in recent years, then this Government or a future government will have the power to deal with it and there will be no need to take up the time of Parliament with primary legislation to secure that.
§ The change is very reasonable. I cannot see on what basis the Government could refuse to accept the amendment. It simply gives the Government the power to take action if they wish to do so. Should the; amendment be rejected and the rest of the Bill go through, the ludicrous situation will arise that in early September a Mafia tout will quite legally have a ticket for the NatWest cup final at Lord's in his left hand while he can be arrested for touting the Arsenal tickets which he has in his right hand. To me, that typifies how illogical and almost ludicrous the situation will be without our amendment.
§ I believe that the amendment is modest, constructive and helpful and is supported by the sports concerned. It makes a logical, reasonable and practical improvement to the Bill and as such, I beg to move.
§ Lord Aberdare
My Lords, I warmly support the amendment. The noble Lord, Lord Donoughue, has moved it so lucidly and convincingly that there is little for me to add.
First, I should explain that by an unfortunate oversight, my name does not appear at the top of the amendment together with that of the noble Lord, Lord Donoughue, and two other noble Lords. However, my name does appear on Amendment No. (51. Therefore, I repeat that I warmly support the amendment. I should also perhaps declare an interest, as I am a member of the All England Lawn Tennis Club. Like the noble Lord, I have heard a great deal about the difficulties from which it suffers in relation to the touts.
I appreciate that Clause 165 was introduced originally to implement the recommendations of the Taylor Report. As chairman of the Football Trust, I am only too well aware of the difficulties of controlling hooligans and the importance of segregating fans inside football grounds. The whole of that is brought to nothing if touts are allowed to sell tickets regardless of the segregation of people in the grounds. I fully accept the necessity for the clause and applaud the Government for having introduced it.
Unfortunately, it is also true that other sports, especially tennis at Wimbledon, suffer from the activities of touts, much of it of a criminal nature. The All England Lawn Tennis Club has for many years had the settled policy of selling tickets at reasonable prices; so that the average member of a tennis club, or indeed the many fans who queue outside the club every year, should be able to afford them. But when that is combined with the fact that other people are prepared to pay very large sums for these tickets it provides an ideal hunting ground for touts. The club has had long experience of their disgraceful activities. There are countless complaints from the public of being threatened and insulted when they refuse to sell their tickets to touts who will stick at nothing to get them. They work in gangs, and the more difficult it becomes to buy or sell 199 tickets around the stadium the further afield they go. For example, they are present all round Southfields station where people arrive by underground or bus to go to the stadium. The scene there has been likened to the back streets of Calcutta where every visitor is harassed unmercifully by beggars. Those are the conditions from which the club suffers. There are complaints from people who pay touts large amounts for tickets but find that the tickets are invalid and worthless.
At Committee stage my noble friend Lord Ferrers said that these were criminal offences. Unfortunately, in such cases the law is impossible to enforce. However, my noble friend showed no inclination at previous stages to be willing to enlarge the clause to include other sporting venues, and so the amendment was put down by the noble Lord, Lord Donoughue. That seems to me to be eminently sensible. It simply allows a future Secretary of State to apply the clause in other cases by statutory instrument should the situation so warrant. In the opinion of many, there are already enough complaints for it to be brought in now. Regardless of that, all we ask is that the Secretary of State be given the power, should it be necessary and the situation deteriorates further, to bring in other sports as well as football. It simply provides flexibility in future to deal with criminal behaviour without the need to go through the whole rigmarole of primary legislation.
§ Viscount Mountgarret
My Lords, like my noble friend Lord Aberdare, I strongly support the amendment moved by the noble Lord, Lord Donoughue. Unlike the noble Lord, Lord Donoughue, my press cutting does not come from what may be termed the gutter press, but from the Evening Standard. The item in question happened to be printed the day after Report stage. In almost capital letters it said "Punish the touts". It went on to say that the chief executive and the chief inspector, who was head of policing at Wimbledon, both wanted the anti-tout law to be changed.
I gave the impression at Report stage that I felt it wrong to buy a ticket at face value and then for it to be sold on at a highly inflated value. Although that might be helpful to a ticket tout and encourage him to make a lot of money, I agree with my noble friend Lord Ferrers that it is really a matter of private enterprise and it would be improper to deny somebody the opportunity to make something extra where there is a buyer prepared to pay that much more. But I should have thought that if, quite rightly, touting were to be banned from football events there would be no logical argument for a ban not to be applied to other sporting events.
At Report stage my noble friend Lord Ferrers said:In all the instances which have been given—whether it is tickets for … Wimbledon or any of these other places … there has been no evidence of public riot, public trouble or public mayhem, and therefore there is no point in introducing controls".—[Official Report, 20/6/94; col. 150.]From that it appears that my noble friend is suggesting—I cannot believe that this is so—that we must wait until there is trouble, mayhem or riots before controls are brought in. I should have thought that prevention was better than cure, not only in this matter but in all others. I agree that from my noble friend's 200 point of view the amendment tabled at Report stage possibly went too far. He did not like the idea of having the Government's hands necessarily tied to a firm piece of legislation.
I believe that the amendment now tabled by the noble Lord, Lord Donoughue, is sensible. In effect, it is primary legislation that gives the Government power, if they foresee trouble or if trouble emerges, to extend the law on football touting. Obviously, the Government recognise that there is a problem in regard to touting in one area, so what is sauce for the goose may well be sauce for the gander. I hope that my noble friend will feel able to take this on board.
§ 6.45 p.m.
§ Lord Monson
The noble Lord, Lord Donoughue, claimed that those of us who believed in the free operation of the law of supply and demand were romantics. He may or may not be right, but what cannot be denied is that if tickets for Wimbledon and similar events are priced at the market rate in the first place none of the unsavoury touting activities that he describes will take place at all, because there will be no profit in it.
The noble Lord, Lord Aberdare, has conceded that Wimbledon tickets are underpriced compared with what people are prepared to pay. One cannot buck the law of supply and demand in the long term. It will always win out in the end. Therefore, I cannot show any enthusiasm for the amendment.
§ Lord Orr-Ewing
My Lords, I should like to support the amendment. I have been a member of Wimbledon for some years. When I first played in junior Wimbledon in the 1930s the standards were much lower than they are today. I believe that I have been there every year since, but I have never seen such a change in scenario. It was a very respectable, patient and enthusiastic crowd. It has now become an event that is televised all over the world. Everyone wants to win Wimbledon. Whatever one is paid, it is Wimbledon that is the top. I believe that the way the event is televised does this country great honour. I happened to be in charge of the televising of it for the first time in 1938. I am glad that that has been built upon.
Two 13 year-old boys queued all night. As one leaves Wimbledon at seven or eight o'clock at night the queues extend all the way along the upper and lower roads. People are prepared to stay there to get tickets and, when there are Britons in the event, to cheer them on. They are now besieged by touts—and pretty tough touts they are—who prepared to knock the chaps about if they do not sell. Out of sheer fright they will pass on the tickets. Admittedly, sometimes the figure involved is near to £100 but people involved in hospitality packages are prepared to pay up to £2,500 for two tickets. It is no good saying one can deal with these people because once one has taken the tickets away the tout disappears into the crowd. He has done his business for the day and disappears. No one knows his name or address. Generally, touts would give a phoney address and it would not be possible to trace them. The present situation is not good enough.
201 Last year, I believe, £14 million was handed over from the profits at Wimbledon to help young people to learn to play tennis. That money was passed to the Lawn Tennis Association. Therefore the LTA wants order and discipline to be introduced into the matter. The staff at Wimbledon are desperately anxious to get rid of the touts, as are the police. At the moment tens of thousands of pounds are spent on police and other protection. For all the reasons I have mentioned, I ask my noble friend to accept the amendment. I do not want to go home and hear on the radio that the Government have been defeated yet again in the House of Lords. This is a good measure and it has been modified just to give the Minister the power in the future to extend the provision we are discussing beyond football to other sporting events where there is a need to impose law and order in this regard. I very much hope that my noble friend will support the amendment.
§ Lord Carr of Hadley
My Lords, I wish briefly to support the amendment. I must declare an interest and therefore experience of this matter. I am currently a mere vice-president of Wimbledon which is a great honour but it does not involve much experience. However, for many years I was a member of the committee. Therefore I have had to cope with this matter and I know that it has become worse.
This is much more than a free market operation. We may not be discussing the mayhem that can be experienced at a football match; nevertheless the situation is becoming pretty serious. Spectators have been mentioned. Would-be spectators are subject to intimidation and harassment as, sadly, are club officials and staff. Many more residents in and around Wimbledon are beginning to suffer from touts invading their gardens, hiding in their gardens or springing out from their gardens. We receive many complaints from local residents asking why touts cannot be dealt with. I beg the Government to realise that this is an incipient law and order problem, if not on the scale of Hillsborough, at least on a scale which amounts to disruption of good public order and the provision of decent amenity.
While I can understand the Government saying in Committee that they did not want to act now, I beg them to think again about the present amendment which does not force them to act now but gives them the power to act if the situation—as those of us who know about it, fear—becomes worse, as it has rapidly been doing year by year. To put it aside now and then to be told later that we need more primary legislation to contain a situation which has become obviously a local law and order problem on a substantial scale, would, I believe, be foolish.
My Lords, when the noble Lord, Lord Donoughue, did not move his amendments to this clause at Report stage I thought, in the way one sometimes does, that he might have been persuaded by the speech I delivered in Committee during which I explained why the offence of ticket touting for football matches, which Clause 165 creates, should not be extended beyond football. I then had second thoughts. I realised that the noble Lord might have preferred to be in his bed rather 202 than at the House moving amendments because had he moved his amendments that would have occurred at about 2 o'clock in the morning. I have no doubt that that is probably the reason he did not move the amendments.
The Government are put in some difficulty. I realise how strongly the noble Lord, Lord Donoughue, feels about the matter. He has expressed those feelings both in public and in private, as indeed have your Lordships. However, it makes it difficult when at the very last stage of the Bill a new proposal of a different kind is produced. My noble friend Lord Orr-Ewing says he hopes he will not switch on his radio and hear that the Government have been defeated in the House of Lords again. I agree with that, but I remind your Lordships that we are at the very last stage of the Bill. I must address your Lordships to the thoughts behind the Bill.
I listened carefully to what was said in support of the amendments, but before I deal with the points which have been made it may be of help if I first explain why the Government decided to take action against ticket touts in relation to football. Clause 165 is intended to implement the specific recommendations of the Taylor Report—that is why we took action—namely, that the touting of tickets for and on the day of a designated football match should be made illegal. The noble and learned Lord, Lord Taylor, identified two evils brought about by ticket touts. The first was that touts did not discriminate as to whom they sold tickets The result among other things, was that their activities undermined the segregation arrangements which most if not all, clubs operate. This has been designed for the good reason of keeping rival supporters at opposite ends of the stadium so that they do not fight. The second reason was that the very presence of ticket touts outside, or in the vicinity of, a ground can act as a catalyse for disorder as it encourages those who are without tickets to travel to the ground in the hope that they may obtain one. That can sometimes result in unruly behaviour. In other words action was necessary as regards football for reasons of public order and public safety.
The noble Lord, Lord Donoughue, wants the provision to be extended to tennis, cricket, rugby and golf. I can understand why there is anxiety. I think he said that at Wimbledon people were threatened with violence in the middle of the night. My noble friend Lord Aberdare also referred to that. Of course those are themselves criminal offences. My noble friend Lord Aberdare said that even though they are criminal offences they cannot be enforced. I wonder whether that is a bad reason for making yet another criminal offence.
Your Lordships have referred to the activity of ticket touts who operate at sporting events such as Wimbledon. But many of the activities described, such as touts deceiving their customers as to the type of tickets they are selling or touts who obtain tickets by theft, fraud or intimidation, can already be dealt with under the criminal law. I know that many people are deeply offended when they see tickets being sold outside an event at grossly inflated prices. However, one wonders whether it is appropriate that government should take action in this regard or whether such activity should be made a criminal offence.
203 The noble Lord, Lord Monson, said that one cannot buck the law of supply and demand. We have always taken the view that if an organisation is selling its tickets below the price which the market will absorb, that is a matter which the organisation might reasonably wish to address. As my noble friend Lord Aberdare said, if staff are selling tickets at a relatively low price at Wimbledon they are doing that so that people can watch tennis at a reasonable price. Equally, touts would not sell their tickets at grossly inflated prices if people were not prepared to pay for them. In other words, if people are content to pay exorbitant prices for a ticket, one wonders why it should be necessarily a criminal offence to sell the ticket. Those are the reasons why the Government have felt that the correct course is for ticket touting to be an offence where it creates public disorder. I recognise that your Lordships have been anxious about this matter, and in particular about Wimbledon, golf tournaments, Ascot, Henley and other events.
The noble Lord, Lord Donoughue, has been fairly crafty with his amendment. He said that if your Lordships accept the amendment it does not oblige the Government to bring the provision into effect straightaway. It may be brought into operation only if circumstances become so bad that it is considered appropriate, and that would have to be done by order. I have to tell the noble Lord, Lord Donoughue, that I find that an attractive argument. In fact, it is so attractive that I find it quite hard to resist. If we were to accept the amendment that would not be contrary to the Government's reasonable principle that prevention of ticket touting should be undertaken only where public disorder would result.
However, I can see the argument which was put forward by my noble friend behind me—who asked why we should wait until there was a riot or other problem before taking action—that there would be no provision on the statute book to allow such action to be taken. I find that a persuasive argument. I shall be content to accept the amendment if that is the wish of the House.
§ 7 p.m.
§ Lord Donoughue
My Lords, I do not have anything prepared to say. I have to turn to older hands beside me for advice as to what one says. I asked whether I should say "Thank you" to the Minister. I was advised to say "Thank you very much". That is indeed what I say. It is very good that the Minister has listened to the arguments. We changed the amendment. I see how the earlier amendment presented the Minister with difficulties. I am very grateful. In those circumstances I beg leave to withdraw the amendment.
§ Clause 171 [Short title, commencement and extent]:
Lord Ackner moved Amendment No. 50:
Page 133, line 34, after ("instrument") insert ("not later than twelve months after the day on which this Act is passed").
§ The noble and learned Lord said: My Lords, the amendment arises in these circumstances. In the Criminal Justice Act 1988, which provided for the criminal injury compensation scheme to be made statutory, it was provided that that should be brought into effect on such date as the Minister should decide. When the Minister not only refused to bring the scheme into force but decided to repudiate Parliament's will by deciding on an executive scheme which required no parliamentary discussion or consent, judicial review proceedings were taken to test whether the Minister was acting lawfully, intra vires, within his powers. As I mentioned to the House in Committee, the Divisional Court held that the Minister had acted lawfully but that decision is now pending appeal.
§ It was argued on behalf of the Minister in the Divisional Court proceedings that a provision which enables a Minister to bring into force sections on such date as he may decide not only gives the Minister discretion, as it clearly does, as to when to do so but also as to whether to bring it into force at all; and, in addition, not only to decide not to bring it in despite Parliament having decided that it should be brought in but, off his own bat and of his own volition, to produce in that particular case a scheme which is totally contrary to what Parliament had decreed.
§ In those circumstances it appeared to a number of us to be essential in future in order to avoid judicial review proceedings—which I am sure will be welcomed by the Government—that provision should be made in terms for a time limit to be placed upon when the appropriate provision should be brought in. Referring to a particular provision in a statute, the Divisional Court said that, if Parliament decreed a specific time, there would be no entitlement on the Minister, other than by coming back to Parliament for its concurrence, to do other than obey the time limit.
Accordingly we have suggested that there should be inserted after the word "instrument" in Clause 171, on line 34 of page 133, the words:
not later than twelve months after the day on which this Act is passed".
§ I beg to move.
§ Lord Simon of Glaisdale
My Lords, normally your Lordships leave to the Minister at his discretion when to bring an Act or a provision of an Act into force. That is convenient because he knows when administrative arrangements permit that. Therefore, normally such a provision is not subject to any parliamentary control these days, although formerly it was. My noble and learned friend has explained why it is no longer safe to leave that kind of decision to the Minister.
For a number of years there was a scheme of criminal injury compensation which was non-statutory. Parliament then decided to translate that into a statutory scheme and provided in detail for that scheme in the schedules to the 1988 Act. That Act gave the Minister the power to bring the scheme into force at his discretion. He chose to use that discretion as to the time of bringing the scheme into force not to bring it into force at all but instead to substitute a quite different scheme, again a non-statutory scheme, of his own 205 devising. That was completely at variance with what Parliament had decided, both as to the content of the scheme and as to whether the scheme should be brought into force.
As my noble and learned friend said, whether that was legal is awaiting a decision by the Court of Appeal. Whether or not it was legal, it was undoubtedly unconstitutional because in effect the Minister was cocking a snook at Parliament, doing exactly what Parliament had shown that it did not want done and not doing what Parliament had clearly enacted and obviously desired should be brought into effect.
That being so, it is no longer safe to leave to a Minister, at any rate without a general disclaimer, the former power which your Lordships and the other place always conceded; namely, when to bring an Act into force. It is now necessary to ensure that he does in fact bring the Act into force within a reasonable time and thus vindicates Parliament's intention. Without such a provision, your Lordships will be left indefinitely as regards every Act in a situation in which a Minister acts, as did the present Minister, to disregard entirely the wishes of Parliament and, instead of bringing a provision into force, uses his discretion as to the time at which it shall be brought into force not to bring the measure into force at all—in fact to ensure that it is not operative. I strongly support the amendment.
My Lords, the amendment in the name of the noble and learned Lord, Lord Ackner, will perhaps give me the opportunity of explaining to your Lordships the Government's intentions regarding the implementation of the Bill. I realise that the reason why the noble and learned Lord put the amendment down— the noble and learned Lord, Lord Simon of Glaisdale confirmed it—is because of a certain problem which we had about the Criminal Injuries Compensation Board. The noble and learned Lord, Lord Simon—rather unfairly, I thought —said that the Government were cocking a snook at Parliament because they had not brought into effect by order that which had been provided for in a previous Criminal Justice Act.
I do not believe that we want to go over the ground very much again. There were reasons why that provision was not introduced: first, because for various reasons there was a request not to bring the provision in straight away; and, secondly, after that it was realised and determined that the scheme needed to be changed significantly. That was what was done. I therefore hope that your Lordships will not regard that as cocking a snook at Parliament; or indeed that because that happened, every Act must in future contain this kind of amendment ensuring that all parts of the Bill are brought into effect at the same time.
As your Lordships know, some of the Bill's measures will come into force immediately upon Royal Assent. These are set out in Clause 171(4), and they relate primarily to the provision by contractors of secure training centres and private contracts in the prison service; to the measures on trespass and public order; to the prohibition on ticket touting at football matches and to the homosexual age of consent. In addition, the Bill specifies that Clause 82—which refers to offences 206 relating to terrorism—is to come into force exactly two months after Royal Assent. The commencement of Clause 80—which refers to the repeal of certain provisions relating to gypsy sites—is now subject to the requirements which were inserted by the amendment in the name of my noble friend Lord Stanley, and which are set out in Clause 171.
It is intended that the remaining provisions—the majority of the Bill—will be brought into force on appointed days by means of commencement orders which will be made by my right honourable friend the Home Secretary or my noble and learned friend the Lord Chancellor.
§ Lord Simon of Glaisdale
My Lords, perhaps the noble Earl will allow me to intervene. Can he give me any assurance that those provisions will be brought into effect; and, if so, within what measurable time?
My Lords, the noble and learned Lord, Lord Simon of Glaisdale, stretches me a little too far on that. There are about 170 clauses in the Bill. I cannot tell him exactly when each one will be brought in and the circumstances required in order for them to be brought in. But it is certainly the intention to bring those clauses into effect. Otherwise we should not have put them in the Bill and incurred the wrath of the noble and learned Lord, Lord Simon of Glaisdale, for having made the Bill as long as it is.
The provisions will be brought into operation by my right honourable friend the Home Secretary or my noble and learned friend the Lord Chancellor by means of commencement orders. We have to have a degree of flexibility over the precise timing of those different orders because some of the Bill's provisions will require a good deal of preparatory work before they can be implemented. Others are much simpler and can be brought into force more quickly.
Some of the Bill's measures, for example, will require changes to the codes of practice under the Police and Criminal Evidence Act; and that is not necessarily a quick thing to do. Others will necessitate changing rules of court. Those changes in turn cannot be completed without careful and considered consultation including several procedures which may be required by statute. I think that we should be ill advised to lay down a rigid timetable for implementation of the measures.
It is the Government's intention that all the measures in the Bill shall be implemented as soon as practicable. But a wide range of factors affects the exact timing at which we can bring each one of them into force. A degree of flexibility is essential. I am quite sure that the noble and learned Lord, Lord Ackner, realises that. That being so, I hope that he will agree to withdraw his amendment.
§ Lord Ackner
My Lords, I welcome the assurance that the noble Earl has given us that the Government intend to bring in all the provisions. If they fail to do so, as they did with the Criminal Justice Act of six years earlier, we shall have their own stick with which to beat them.
207 The reason for the amendment has been explained by myself and my noble and learned friend Lord Simon. It is an indication of justifiable indignation as to the way in which the Government behaved in regard to the criminal compensation situation. I do not propose to go over that ground at this stage. However, I shall have something short and relatively succinct to say a little later in the course of today's proceedings. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 7.15 p.m.
Earl Ferrers moved Amendment No. 51:
Page 133, line 40, leave out ("and repeals") and insert (", repeals and revocations").
§ The noble Earl said: My Lords, in moving the amendment, I speak also to Amendments Nos. 63, 70 and 71. Those are all technical amendments. They ensure that subsections (4), (7) and (17) of Clause 171 cover not only repeals but also revocations. I beg to move.
Baroness Mallalieu moved Amendment No. 53:
Page 133, line 43, after ("141") insert ("142").
§ The noble Baroness said: My Lords, it might have been of assistance if Amendment No. 53 had been grouped with Amendment No. 54. The amendments display a startling similarity. If the noble Earl tells me that his amendment makes the same provision, and does so in a better way, I shall willingly withdraw my amendment.
§ At Report stage of the Bill, your Lordships inserted a new Clause 142 into the Bill which decriminalises heterosexual buggery between adults where both consent. It was one of a number of provisions in the Bill relating to sexual offences. All the other parts come into effect on Royal Assent. Amendment No. 53 merely adds this clause to the list.
§ It must be a strong argument that, where an activity is to be decriminalised, it should be done as soon as possible after Parliament has made its decision. There seem to be no administrative difficulties in doing that. I beg to move.
My Lords, the noble Baroness, Lady Mallalieu, very kindly said that, if I thought that my Amendment No. 54 achieved the same thing better than her amendment did, she would withdraw her amendment. If I may say so with some modesty, I think it does, and I should be grateful if she would take that course of action.
§ Baroness Mallalieu
My Lords, I shall do so with pleasure. I beg the leave of the House to withdraw Amendment No. 53.
§ Amendment, by leave, withdrawn.
Earl Ferrers moved Amendment No. 54:
Page 133, line 43, leave out from ("141,") to ("143") and insert ("142, (Revised penalties for buggery and indecency between men),").
§ [Amendment No. 55 not moved.]
Lord McIntosh of Haringey moved Amendment No. 56:
Page 133, line 44, after ("145,") insert ("(Amendment of law relating to homosexual acts in Scotland).").
§ The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 44.I beg to move.
§ Lord Stanley of Alderley moved Amendments Nos. 57 to 60:
§ Page 134, line 1, at beginning insert ("Subject to subsection (4) above,").
§ Page 134, line 4, at end insert ("; and the last such order may bring into force the repeals of sections 6 to 9 and the definition in section 16 of the Caravan Sites Act 1968 and of section 70 of the Local Government, Planning and Land Act 1980.").
§ Page 134, line 5, after ("unless") insert ("a draft of).
§ Page 134, line 6, after ("by") insert ("resolution of,").
§ Lord McIntosh of Haringey moved Amendment No. 61:
§ Page 134, line 6, at end insert:
§ ("(7) No order shall be made under subsection (6) of section 165 above unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.").
§ The noble Lord said: My Lords, my noble friend spoke to this amendment with Amendment No. 49.I beg to move.
Earl Ferrers moved Amendment No. 62:
Page 134, line 9, after ("paragraphs") insert ("26, 35, 36, 58,").
§ The noble Earl said: My Lords, this amendment simply provides that the consequential provisions in Schedule 10 on male rape come into effect on the passing of the Act. I beg to move.
Earl Ferrers moved Amendment No. 63:
Page 134, line 11, after ("repeals") insert (" and revocations").
§ The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 51.I beg to move.
Lord Ackner moved Amendment No. 64:
Page 134, line 16, after ("144(5),") insert ("146,").
§ The noble and learned Lord said: My Lords, I spoke to this amendment when I spoke in regard to Amendment No. 45. Accordingly, I beg to move.
Earl Ferrers moved Amendment No. 65:
Page 134, line 16, leave out ("(3) and 5),").
§ The noble Earl said: My Lords, in moving Amendment No. 65, perhaps I may speak to Amendment No. 67 as well. These are technical amendments. They simply ensure that the various subsections of Clause 156 are given, in Clause 171, a proper territorial application. I beg to move.
Earl Ferrers moved Amendment No. 66:
Page 134, line 20, after ("88,") insert ("Video recordings: restriction of exemptions").
§ The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 35.I beg to move.
Earl Ferrers moved Amendment No. 67:
Page 134, line 21, leave out ("and (7)") and insert (", (4), (5) and (9)").
Earl Ferrers moved Amendment No. 68:
Page 134, line 21, after ("158,") insert ("160,").
§ The noble Earl said: My Lords, this amendment is consequential upon the addition to the Bill at Report stage of what is now Clause 160. I beg to move.
Lord McIntosh of Haringey moved Amendment No. 69:
Page 134, line 32, after 144(3) insert ("(Amendment of law relating to homosexual acts in Scotland),").
§ The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 44. I beg to move.
§ Earl Ferrers moved Amendments Nos. 70 and 71:
§ Page 134, line 39, leave out ("or repealed") and insert (, repealed or revoked").
§ Page 134, line 40, leave out ("or repeal") and insert (", repeal or revocation").
§ The noble Earl said: My Lords, I beg to move these amendments en bloc. These were spoken to with Amendment No. 51.
§ Schedule 1 [Escort Arrangements: England and Wales]:
§ Lord Carr of Hadley moved Amendments Nos. 72 and 73:
§ Page 135, line 18, after ("centre,") insert ("secure accommodation,").
Page 136, line 38, at end insert (";
secure accommodation" has the same meaning as in section 1 of this Act, and includes any other place to which an offender may have been committed or transferred under section 2 of this Act;").
§ Schedule 9 [Minor Amendments]:
§ Earl Ferrers moved Amendment No. 74:
§ Page 173, line 20, at end insert:210
§ ("Sexual offences: procurement of women
§ The noble Earl said : My Lords, in speaking to Amendment No. 74, I shall speak to Amendment No. 75 at the same time. These amendments simply ensure the survival, following the acceptance of the amendment of the noble Lord, Lord Ponsonby, on male rape at Report stage, of all of the amendments on rape in marriage which were tabled by the noble Lord, Lord Lester of Herne Hill, in Committee and which were accepted by the House. I beg to move.
Earl Ferrers moved Amendment No. 75:
Page 177, line 10, leave out ("woman") and insert ("person").
§ Schedule 10 [Consequential Amendments]:
§ Earl Ferrers moved Amendment No. 76:
§ Page 197, line 26, at end insert:
§ ("Searches of persons detained at police stations
§ . In section 54(1) (b) of the Police and Criminal Evidence Act 1984 (searches of persons detained at police stations), for the words "under section 47(5) above" there shall be substituted the words ", as a person falling within section 34(7), under section 37 above".").
§ The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 25. I beg to move.
§ Schedule 11 [Repeals]:
§ Earl Ferrers moved Amendment No. 77:
§ Page 207, line 44, column 3, at end insert:
§ Section 3.").
§ The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 38.I beg to move
§ Lord Stanley of Alderley moved Amendments Nos. 78 to 80:
§ Page 208, line 5, column 3, leave out ("12") and insert ("9").
§ Page 208, line 5, column 3, at end insert ("Sections 10 to 12,").
§ Page 211, line 24, after ("1968") insert ("except sections 6 to 9 and in section 16, in").
§ 7.25 p.m.
My Lords, I beg to move that the Bill do now pass.
Your Lordships' consideration of this Bill has already been a lengthy one and at times—certainly for some of us—a taxing one. I would not wish, therefore, to prolong the proceedings for a minute longer than is essential— commensurate, of course, with the dignity and propriety of the House.
I doubt whether I am the only one who has been looking forward to the sense of achievement at finally having completed our consideration of this formidable document. I always remember in what one likes to call the olden days, when the corn at harvest time was cut with a binder, the sigh of exultant relief which occurred 211 when the last sheaf of corn was tossed onto the wagon and somebody exclaimed: "That was the one that we were looking for". All I can say over this Bill is that this is the speech that I have been looking for.
when the Bill started its life in another place it consisted of a modest 117 clauses and 10 schedules. By the time another place had dealt with it, it had grown to 152 clauses and 11 schedules. And now, after the gentle—but prolific —treatment which your Lordships have seen fit to accord to it, it has grown to 171 clauses and 11 schedules. I doubt whether any inflation during the past 30 years or so could hold a candle to that.
At times it has seemed to me—and I am sure that over this at least it may have occurred to your Lordships too—that there is scarcely an aspect of our national life which does not seem to have been touched upon in some way by the Bill. And that was not always, I might add, at the Government's instigation, even though the Government get the blame when they say that it will not work, or when the noble and learned Lord, Lord Simon of Glaisdale, says that there is too much verbosity in legislation.
I could not hope to produce now—nor would I be so cruel as to inflict upon your Lordships—a speech which attempted to encapsulate all that the Bill contains and all that has occurred during our consideration of it. That would be too much for your Lordships as well as for me. What I would like to do though is to express my gratitude to all noble Lords who have taken part in our consideration of this Bill over the past weeks. I am even more grateful to those whose contributions have been what the Whips might call "constructive".
All of your Lordships' speeches are always—or at least nearly always—"constructive", but some are from the Government's point of view more constructive than others. And it is to those noble Lords who have contributed in that particular manner that I would offer the Government's especial gratitude. But, whatever the views that have been expressed, I am glad to say that, without exception, your Lordships' scrutiny of the Bill has been genuine and courteous as well as thorough and at times uncomfortably penetrating.
The noble Lord, Lord McIntosh, has, as always, kept the Government alert with his lucid speeches, usually without a note. That is a matter of considerable envy.
The noble Lord, Lord Irvine of Lairg, brought his diagnostic legal mind to bear on many subjects and when he had had enough the noble Baroness, Lady Mallalieu, took over with equal force. And I must confess that there have been times when I have wished that I, too, had been a lawyer. They always make the most unconvincing case seem convincing. But I had no such luck. I merely listened with admiration to others.
The noble Lord, Lord Ponsonby—and when he was not here, the noble Lord, Lord McIntosh—has taken us down avenues which some of us might have preferred not to have explored so thoroughly, but the result has been some significant contributions to the Bill.
The noble Lord, Lord Harris of Greenwich, could not be left out of the sport. He is always a formidable debater and sometimes, as is his wont, he just made the 212 best of some of his weaker points. It seemed to me that not one jot or comma of the Bill was able to escape his hawk-like scrutiny.
I am also grateful for the contributions of the noble Lords, Lord Wigoder, Lord Avebury and Lord Lester of Herne Hill. The noble Lord, Lord Lester, said at one point that he thought that he could be the subject of an H.E. Bateman cartoon as:the Peer who has had an amendment accepted by the Government".As your Lordships will have discovered this evening, that is not such a rare occurrence. I can only hope that the warm glow of achievement felt by the noble Lord, Lord Lester, will sustain him for some time to come. Who knows? It may be the last time that it happens to him for quite a while. No consideration of a criminal justice Bill would be complete without contributions from the noble and learned Lords who sit on the Cross Benches, including the noble and learned Lord the Lord Chief Justice. As usual, their contributions were penetrating and made even more interesting by their characteristic lack of uniformity of view.
I should also like to express my considerable gratitude to those noble Lords on our side of the House whose support, for most of the time, has been invaluable. My noble and learned friend Lord Hailsham placed a lifetime of both legal and political experience at the disposal of your Lordships. My noble friend Lord Renton also gave your Lordships wise counsel which was based both on his previous ministerial experience in the Home Office and as an expert on drafting. My noble friends Lady Miller of Hendon, Lady Seccombe and Lord Stewartby also came stoutly to our support. That was greatly appreciated.
For other of my noble friends, the natural desire to support the Government in all circumstances has occasionally been just too much for them. They could not control the urge to put their views forcefully and sometimes even to push them against the advice of the Government Front Bench. Naturally, I respected their independence of thought, although I wished that it did not have such a penetrating effect on their conscience.
I should like to thank my noble and learned friends Lord Fraser of Carmyllie and Lord Rodger of Earlsferry, who have borne much of the burden and heat of the day on this Bill. Their industry and intellect have certainly helped sustain me through the Committee and Report stages as well as bringing the advantage of structured legal minds to the benefit of the Government's case. My noble friends Lady Cumberlege and Lord Cranborne found themselves unexpectedly propelled into the vortex of the Bill on some matters of extraordinary controversy on which your Lordships may not necessarily be experts but on which most of you held some strong and personal views.
A multitude of your Lordships—rather like the multitude of the heavenly host: too great to number— have participated in the Bill from all quarters of the House. They have brought to bear their wisdom and experience for the benefit of your Lordships and the future laws of the country. For that we are all grateful.
213 The Bill has been like a book of very distinct and different chapters, each of which has attracted its own readers and—in this case—its own participants. No one can say therefore that the Bill has lacked either interest or variety.
I am truly grateful to noble Lords who have participated in the debates on the Bill for the courteous, generous and good humoured way in which our discussions have been conducted. I hope that your Lordships will have found both the effort and experience to have been worth while.
§ Moved, That the Bill do now pass.—(Earl Ferrers.)
§ 7.35 p.m.
§ Lord McIntosh of Haringey
My Lords, the Minister used two very interesting words when he moved the Motion that the Bill do now pass— "achievement" and "constructive". It seems to me that achievement is in the eye of the beholder. When I look at the Bills which have come from the Home Office this Session, I conclude that, with the possible exception of the Sunday Trading Bill which passed through relatively unscathed, the headline in this morning's Guardian,Howard package left limping by Lords onslaught",is not a bad description. There follow two half-columns of very detailed description of the ways in which the Home Secretary's original intentions in introducing this legislation to Parliament have been frustrated.
The Minister also used the word "constructive". Admittedly he qualified it by saying that some of us have been more constructive than others. The spirit of Animal Farm lives on. I suppose that, as one who perhaps is less constructive than others, I shall allow myself to be at the tail end of that compliment.
As the Minister rightly said, this has been a very complicated and diverse Bill. Indeed, it is not a single Bill; it is a whole series of packages. It is important to remember that the original intention of the criminal justice Bill—perhaps partly foreshadowed by the Home Secretary's speech at the Conservative Party Conference—was that it should be a Bill to improve the conduct, efficiency and equity of criminal justice. The Bill has not done that at all. It has been a ragbag of measures, some introduced by the Government and some by other people, both in this House and in another place, which took advantage of the very lax Long Title (as it turned out to be) or the ability of individual Members to add to the Long Title as it was earlier to make relatively unconnected changes to our criminal justice system.
In my view, some of those measures have been almost entirely benign. The updating and reform of sexual offences legislation which is now in the new Part XI of the Bill have been almost wholly benign. Some of the other new offences which have been created—it is generally new offences to which I object rather than the revision of existing offences —in particular those related to aggravated trespass and other such matters, seemed to me to be almost wholly malign in the sense that they have been presented as being necessary to remedy very specific abuses—whether they are abuses of rave parties, the activities of hunt saboteurs or 214 whatever—but in fact they have extended police powers to deal with what they perceive to be public order offences in a way that is much wider than I wish to see.
I have a great fear of the effect on the liberty of the subject to protest peacefully or with minimal disruption—they are often very difficult to distinguish— against things which they profoundly believe to be wrong. In other words, they are people who do not believe that they are doing anything wrong. Their ability to protest will be severely restricted by the legislation that we have now passed. To that extent I very much regret both the original intentions of the Bill and some of the additions which have been made to it.
If I look back over the passage of the Bill only through your Lordships' House, in addition to the many welcome concessions that have been made by the Government (I shall not weary the House by spelling them out), I note the defeats that have been imposed on the Government in the Division Lobbies. First, there was the amendment of the noble and learned Lord, Lord Ackner, to make statutory the non-tariff based scheme for criminal injuries compensation. There was the amendment of the noble Lord, Lord Carr of Hadley, to make local authority secure accommodation an option for the courts when imposing secure training orders. There was the amendment of the noble Lord, Lord Stanley of Alderley, to delay for five years the repeal of the Caravan Sites Act. Finally, I add with some reluctance the amendment of the noble and learned Lord, Lord Brightman, to outlaw the advertising of the sale of confidential financial information. That proved to me that the Government cannot even win a Division when I vote for them, which is carrying defeatism a little far.
All those amendments were ably moved by Members on other Benches, but most of them had the active support of my noble friends on the Front Bench and the Back Benches. I am grateful to all my noble friends for that. Let me express, first, my gratitude to my noble friends on the Front Bench, in particular my noble friends Lord Irvine of Lairg, Lord Williams of Mostyn and Lady Mallalieu who played an active and enormously welcome part in remedying the deficiencies of a non-lawyer in leading on this Bill from the Front Bench. Many more of my noble friends took an active part in the Bill and I am grateful for that.
I enjoyed the comradeship of the shifting team on the Liberal Democrat Front Benches—the noble Lord, Lord Wigoder, the noble Lord, Lord Harris of Greenwich, and the noble Lord, Lord Avebury, who was sometimes on the Front Bench and sometimes not, and also the noble Lord, Lord Lester of Herne Hill. It was particularly agreeable to work with them on the more difficult issues in the Bill.
I express my appreciation too for the work of the Government Front Bench and the way in which they listened to the arguments and gave way sometimes when the arguments were strong and sometimes when the force of numbers against them was strong, as perhaps this afternoon evidenced. The noble Earl, Lord Ferrers, the noble and learned Lords, Lord Rodger of Earlsferry and Lord Fraser of Carmyllie, not forgetting the noble 215 Lord, Lord Annaly, who has been backwards and forwards to the Box a number of times, deserve the thanks of the House for their work.
I pay tribute also to those who advised us and others on various parts of the Bill. We had assistance on youth offenders from the All-Party Penal Affairs Group. Though it serves both Houses as a whole, some of those working for the group provided valuable advice on the issues concerned with youth offenders. Justice and other organisations were concerned with the right to silence and other related issues; Liberty and many other organisations were concerned with civil liberties and advised us on Part V of the Bill. Many gypsy defence organisations were enormously helpful in our consideration of that part of the Bill. Stonewall and individual advisers gave help on the sexual offences sections.
There are far too many outside organisations for me to list, but noble Lords will get the gist of the fact that there was a high degree of public anxiety in regard to many of the provisions in the Bill. I pay tribute to Katherine Quarmby from the Opposition Researchers' Office, who kept admirable control of the business with which we have had to deal and maintained the liaison with outside advisers.
This is not the Bill it should have been. It should have been a Bill to improve our criminal justice system, in particular by dealing with the provisions of the Runciman Royal Commission. It should have been a Bill which dealt with miscarriages of justice in the wider sense. In so far as it moved gently in that direction, there are aspects on which it actually moved backwards—the curtailment of the effectiveness of the right to silence is a good example of where Runciman recommended one way, and even the minority report was rejected by government, so we have legislation which is in fact worse than it was before.
The Bill is a ragbag; it has been a mixture of things, some good and some bad—mostly bad I fear. We must now hope that in the next Session we bring forward an effective Criminal Justice Bill which deals with the profound issue of the efficacy of our system of justice and which will restore the faith of the British people in their judicial and justice system.
§ 7.45 p.m.
§ Lord Harris of Greenwich
My Lords, we are now coming to the end of our debates on this extraordinary Bill, consisting, as the noble Earl, Lord Ferrers, reminded us a few moments ago, of 171 clauses and 11 schedules. Quite apart from the Second Reading debate, we had nine days in Committee, four on Report and a further day today, making 15 parliamentary days in all. Having said that, it is right that I too thank my own colleagues—my noble friends Lord Wigoder, Lord Avebury, Lord Lester of Herne Hill and Lady Seear— for their assistance during the debates on the Bill. I thank the noble Earl, Lord Ferrers, for responding so graciously on most occasions to the debates on a number of highly controversial amendments. If he will allow me 216 to say so, he has done his job extraordinarily well given the fact that on some occasions the strength of his arguments were not too obvious—to some of us at least.
All Oppositions tend to describe their opponents' criminal justice Bills as a "ragbag" of ill-co-ordinated proposals; indeed, the noble Lord, Lord McIntosh, did just that. I have often heard those words used by Conservative Opposition Members in the Commons when discussing Labour criminal justice Bills. Often there is a degree of truth in the charge. By their very nature they are miscellaneous provisions Bills, incorporating as they do a number of issues of central significance to the government of the day, but also many others which the Home Office has been waiting to place before Parliament. This Bill is no exception.
What makes the Bill so different from its predecessors is its vast scope, ranging from the treatment of young offenders and the law of bail to collective trespass or nuisance on land; from squatters and sexual offences to the prohibition on the use of cells from embryos or foetuses. Rarely, if ever, has such legislation been placed before Parliament in a single Bill. Inevitably our debates have been prolonged; indeed, quite unacceptably so. As I have indicated before, it does the reputation of Parliament as a whole no good when issues of importance in our criminal law are debated at one or two in the morning with only eight or nine Members of the House present. As I have indicated before also, many of us are not prepared to accept legislating in the early hours of the morning. I hope that the Government will listen to what is being said. If they continue with this kind of conduct in the next Session of Parliament, they will be inviting serious trouble.
It is only right to say that the Bill, deeply objectionable though it remains in many important respects, has been improved significantly. I agree with what the noble Lord, Lord McIntosh, said on this matter a few moments ago. The House was right to look critically at the Government's proposal to create secure training centres. As many know, the failure of these centres is highly probable, just as their predecessors— borstals and short sharp shocks—failed. The House was right when it defeated the Government on the issue by giving the courts the power to decide whether to send an offender to local authority secure accommodation instead.
The House was right too—again I agree with the noble Lord, Lord McIntosh—when it adopted the view of the noble and learned Lord, Lord Ackner, in relation to the criminal injuries compensation scheme. I also welcome with rather greater enthusiasm than the noble Lord, Lord McIntosh—I think it was the only occasion on which we found ourselves in different Lobbies during the 15 days of the debate—the amendment of the noble and learned Lord, Lord Brightman, dealing with the advertising and sale of confidential and personal information. The House was right to insist on that amendment despite the objections of the Government.
Finally, there was the defeat of the Government on the Caravan Sites Act 1968. Of all the proposals we have debated, those dealing with gypsies were the nastiest. This was the work not of the Home Office but of Mr. Gummer. One of the tests of a civilised society 217 is the manner in which it treats powerless minorities. The gypsies are just such a minority. Given their proposals in the Bill, the Government have, in my view, signally failed that test. Although much that is deeply damaging remains in the Bill, the House at least has insisted that the statutory obligation contained in Section 2 of the Act should remain on the statute book for up to five years. By then, I hope that we shall have a very different person as Environment Secretary in this country.
After each defeat there have been immediate statements by Ministers that they would reverse the decisions of the House when the Bill returns to the House of Commons. Indeed, that was often done before Ministers had the slightest opportunity of studying anything that had been said during debates in this House, not least speeches made by their noble friends, many of whom have distinguished ministerial careers behind them. More recently, we have been told by many newspapers that the Government's supporters in the House of Commons are saying that these defeats have been caused by the deficiencies of the Leader of the House and the Government Chief Whip. It has not apparently occurred to any of the gentlemen making statements of this kind that the defeats were caused not by any deficiencies in the Leader of the House or the Government Chief Whip, still less by any deficiencies in the speeches of the noble Earl, Lord Ferrers. The Government were defeated because a clear majority in this House thought that their views were profoundly mistaken. This House has performed its function, and has performed it well, as a revising Chamber.
My only complaint is that we did not go a great deal further in amending the Bill. Some of its proposals are both sensible and desirable, not least those—I agree with the noble Lord, Lord McIntosh—relating to sexual offences. It is only right at a moment like this to pay some tribute to Mrs. Currie, who raised some of these issues initially in the House of Commons. She is not a person whose activities I normally find it necessary to applaud but on this occasion I most certainly do so. It required a high degree of political courage to raise these issues and it is only right to acknowledge that on an occasion such as this.
Although a significant number of the Government's proposals in the Bill are both sensible and desirable, others owe their existence to the need for Ministers to secure standing ovations at their party conference. All that is certain is that a future parliament will be compelled to return to many of the issues dealt with in this Bill. And to deal with them in a civilised and rational manner, a style which is unhappily absent from many of the provisions of the Bill.
§ 7.53 p.m.
§ Lord Carr of Hadley
My Lords, I should like very briefly, and above everything else, to pay a tribute to my noble friend Lord Ferrers for the way in which he has dealt with the Bill. If we were awarding a man of the match award he would not only outstandingly win the award but, if I look back over the whole of 1994 in your Lordships' House, he would land the man of the year award as well.
218 I believe that we should pay tribute to the way in which throughout this mammoth Bill, on top of other Bills—the Police and Magistrates' Courts Bill, the Sunday Trading Bill, and I do not think that they were the end of the story —my noble friend has produced day after day, week after week, the sustained quality of reply which he has done, never lacking the touch of good humour which makes him such a welcome contributor to this House. I feel that all those present, and large numbers of my colleagues in your Lordships' House who cannot be present, would wish to paas a hearty and very warm vote of thanks and appreciation to him. So far as I am concerned he really did become my pin-up boy when late in the day he made a concession about ticket touts at Wimbledon. It is very difficult after he has done that to say anything controversial to him. But I had better quickly and very briefly pass from his good deeds to what, anyhow in his view, are my misdeeds.
This is an omnibus Bill and I do not wish to review it in any great detail. However, I wish to express the view that, perhaps potentially at least, one of the most important parts of the Bill is Clause 1. We have never before attempted to deal with the problem of those children who are below the age at which previously we thought we ought to bring the law to bear. I am certainly among those who think that we must deal with them and that dealing with them must involve some measure of physical restraint, containment and secure imprisonment—yes, one must use the word—for limited periods; associated, of course, with constructive training.
I genuinely welcome the secure training order as a new sentence. I hope I made clear in moving my amendment last week that I support the secure training order. I also welcome the concept of secure training units, however doubtful I may be about their success. All I ask the Government to do in that respect—and I wish to leave this plea on the table with them—is to consider very carefully whether it is right to give secure training units a monopoly of treatment so far as concerns the containing part of the secure training order sentence. I beg of them to start thinking deeply from scratch about that.
I believe that we are only at the beginning of how we are going to contain the problem of severe criminality among children—not among young people but among children. I believe deeply that this will have to focus more and more on local action: local containment and local treatment within the community in which the children exist. I am not saying that there should not be national units as well, but I believe that in the coming years the emphasis will increasingly be found to be on local action. Therefore, whether within the context of the sentence of the secure training order or some broader context, it is a severe weakness if we continue to deny our courts the right to order containment in secure local authority places, something which they cannot do at the moment.
Between now and the autumn, when the Commons will be asked to reply to this amendment, I strongly urge the Government to think very deeply about this. I can assure my noble friend and all colleagues in government that it was no part of our intention in moving the 219 amendment to wreck what is being attempted through this new sentence or to wreck the new units. We simply believe deeply that a greater local power should be added to it. I hope that will be carefully thought about and not just dismissed on some grounds of prestige or fear about having second thoughts.
I must not go on any longer. I believe that the Bill will add to the security of this country. On balance, although there are things in it which some of us will never like, it is a Bill that we ought to wish well and send on its way with those wishes from this House.
§ 8 p.m.
§ Lord Ackner
My Lords, I should like to pay my tribute to the Minister. Even when seated, his presence is commanding; when speaking at the Dispatch Box he positively towers over us and it may therefore seem a little superfluous to say that his conduct of this "Christmas tree" Bill, as it has been called, has added enormously to his stature.
He has consistently shown good humour, great understanding and sensitivity and a willingness to listen to the points that have been made so frequently. I have found it a great pleasure not only occasionally to support him, but also to oppose him. I would like to make only one reference to criminal compensation. That is merely because, as has been pointed out on behalf of the Government, they propose to reverse this matter in another place.
We are entitled to expect that the issue of compensation of the victims of violent crime should be non-political and non-contentious. So it has been for the past 30 years. In the debate on this very subject on 2nd March arising out of the Unstarred Question which I put down, all who spoke, apart from the Minister, were strongly critical of the Government's conduct. Those who spoke consisted of four law Lords. In addition there was the noble and learned Lord, Lord Morton of Shuna, who is a distinguished member of the Court of Session. From the Government Benches there were the noble Lords, Lord Carlisle, Lord Alexander of Weedon, and Lord Colnbrook. From the Liberal Benches there was Lord Lester of Herne Hill and from the Labour Benches the noble Lords, Lord Irvine of Lairg and Lord Mishcon and the noble Baroness, Lady Dean. In addition there was the noble Earl, Lord Longford, and the noble Lords, Lord Macaulay of Bragar and Lord Ewing of Kirkford.
On 16th June, when the House divided a significant number of government supporters either voted for the amendment or abstained, hence the majority. Perhaps it is noteworthy that no fewer than 10 law Lords voted for the amendment. I hope that the Government will prove to be a good loser on this issue. If not, they will earn deep resentment for what will be characterised as mean and shabby treatment, particularly of those who have suffered and who will suffer the most from injuries by 220 criminals. The Government's protestations of concern for the victims of crime will ring out in a mocking and hollow way.
§ 8.4 p.m.
§ The Earl of Longford
My Lords, I should like to offer a few reflections on this Bill which appear to me to be fundamental. The excuse must be that I opened the first debate in this House in 1965 on some of these issues and therefore I am in a position to put some of them in a longer perspective. I join wholeheartedly in the tributes paid to the noble Earl, Lord Ferrers. His stamina is one of those things which astonish me. I do not know how he does it. It is not only his stamina, but his good humour, wit and charm which are all wonderful qualities. Those are the last nice things that I shall be able to say about the Government. I join him in the generous words which he used about my noble leader, Lord McIntosh of Haringey, who rivalled him in general acuteness, wit and all the other desirable human qualities.
Sir Winston Churchill once said that the last war was an unnecessary war. In my view, this is an unnecessary Bill. We all know its origins. There was a new Minister in Mr. Howard, who arrived on the scene last summer knowing nothing about prisons. There was an argument as to whether he had once been into Brixton Prison. Taking a charitable view, I believe that he once visited Brixton. He knew nothing about prisons and almost overnight he produced a 27-point programme for dealing with law and order. In a sense this Bill is the result of that well-intentioned but ludicrous initiative. He undoubtedly had considerable success at the Conservative conference and that might have been expected. The only time I went to the Conservative conference in recent years was when Mr. Clarke was Home Secretary. It was very disappointing. There was no talk about hanging and flogging at all or anything of that sort. It was all very mild. However, last year it was different because Mr. Howard stirred them up with the help of the Prime Minister. We were told that prisons were going to be much more unpleasant places, as though they were not unpleasant enough already.
No one can doubt that Mr. Howard was introducing a new approach. He was defended with great eloquence by the noble Earl, who defended exactly opposite policies with equal eloquence for some years before. Mr. Faulkner, a leading official in the Home Office concerned with these matters, indicated that it was astonishing the change which was produced by this eminent QC, Mr. Howard.
Be that as it may. He was successful at the time, but he cannot be said to have been very successful since. He is interested in public opinion and all the polls show that this is the most unpopular government within recorded memory. As far as law and order is concerned, for the first time the Labour Party is ahead of the Conservative Party in the polls.
Let us deal with the matter on its merits. I am not going to suggest for a moment that all Conservatives are reactionary on penal matters. There have been great Conservative penal reformers. Winston Churchill was perhaps the greatest, although he was not a Conservative 221 at the time but a Liberal. He introduced drastic penal reforms before the First World War. Sir Samuel Hoare, later Lord Templewood, is revered in this House. He became a dedicated president of the Howard League. The noble Lord, Lord Carr, has shown in these debates and before that he is a genuine penal reformer. The noble Lord, Lord Windlesham, has written the two best books on modern penal history that I know. The noble Lord, Lord Elton, has asked us to look at these matters in a Christian light. There have been plenty of penal reformers from the Conservative side at certain moments, but always the shadow of the Conservative conference has hung over them. The noble Viscount, Lord Whitelaw, was esteemed by everybody, but he found that out to his cost when he set out on the course of penal reform.
However, we must take matters as they are today and ask: where lies the difference between the philosophy of Mr. Howard—and the present Government must be held responsible for it—and the philosophy of anybody who can loosely be called a penal reformer? I remind noble Lords of the Christian approach. We must hate the sin and love the sinner. I am certainly not saying that all penal reformers are Christians. My dear lamented friend, Lady Wootton, whom I had the honour to introduce into this House, probably did as much for penal reform as anybody in this country and she was a passionate humanist. Nevertheless, whatever the language used, on the whole penal reformers have thought in those terms; namely, hating the sin but loving the sinner.
What can we make of the Government's approach now that Mr. Howard is their champion? Perhaps we can gain some inkling about it by reference to a major article in the Mail on Sunday which appeared nine days ago, written by Mr. David Mellor, a former Home Office Minister. Mr. Mellor announced that the cries of the children should outweigh the do-gooders. Incidentally, he mentioned me as the most obnoxious of that tribe, but there is nothing personal in that. He said that the cries of the child should outweigh the do-gooders.
I am not going to go into the question of victims tonight. Mr. Mellor was an imaginative, knowledgeable and a successful Minister for the Arts. He certainly would not seek my advice on matters artistic and I am not likely to seek his guidance concerning victims. I had the pleasure of introducing the first debate on victims in this House 30 years ago and 15 years ago I introduced the first Private Member's Bill for victims. So let us leave victims out of it for the moment.
Let us just see what was being said in that article. In the immediate context, Mr. Mellor was dealing with Myra Hindley, who has been in prison for 28 years. It has a wider application. He had to face the fact that on television the Catholic priest who sees Myra Hindley twice a week testified to her being a reformed character and a religious woman. But Mr. Mellor brushes these things aside. Other testimony was given about her character and Mr. Mellor said, "So what?" That is the crux of the matter. Whatever the character of the prisoner today after 30 years' imprisonment, he has said 222 that certain crimes cannot be forgiven. I cannot imagine anything more utterly opposed to Christian morality or to any morality of significant ethics.
What was Mr. Mellor aiming at in that article? He was writing a kind of trailer so that Mr. Howard could introduce a long foreshadowed and still long-feared announcement that a life sentence will mean life imprisonment. If "life imprisonment" were to mean "life", that would be a novelty introduced into this country by Mr. Howard and this Government. It is based on the idea that some crimes cannot be forgiven. I would say that that is an iniquitous doctrine. I hope that Mr. Howard, who, as we know, is a very intelligent man—I am sure that he is of a highly estimable private character—will never be associated with such an evil policy.
§ 8.10 p.m.
§ Lord Renton
My Lords, I shall resist the temptation to answer the arguments that were put forward by the noble Lord who attempted to demolish the Bill because, in my opinion, the Bill is a great achievement. Indeed, I wish that Members of both Houses had followed the Government's advice more often than has been the case.
Like the noble Earl, I happen to have a long parliamentary memory. I have taken part in the proceedings on nearly every major Home Office Bill since 1945. I have to tell your Lordships that this is the longest, the most valid, the most far-reaching and, in parts, the most controversial of all those Bills. We have taken 15 days to consider it—and parts of some nights. I think that the Bill is a considerable achievement.
The Bill has been a tremendous challenge to my noble friend Lord Ferrers. As has been said, following as it does the Police and Magistrates' Courts Bill and the Sunday Trading Bill, the Bill has meant that my noble friend has had to master a vast amount of criminal law and some laws of evidence. He has never failed to respond, even to the most abstruse arguments—and has done so with marvellous good humour, surprising patience and not by reading out pages of brief offered to him by the Home Office, but by forming his own views on the advice that has been given to him and by giving us his reasons for responding in one way or another to our arguments.
Speaking for myself, I have been glad to accept the Government's views on nearly everything. I most warmly congratulate my noble friend Lord Ferrers.
§ 8.12 p.m.
§ Lord Houghton of Sowerby
My Lords, I ask forgiveness for this late entry into the debates on this Bill. As your Lordships know, I have been away for a certain amount of what is called "restructuring". I have received surgical attention in various ways. I must pay tribute to the National Health Service and to two hospitals for the skill and treatment that I received. To have a hip replacement at nearly 96 years of age is a bit of a record, and to have had it done successfully is a great comfort to me although I still have weaknesses to overcome.
223 While I was away I tried to keep in touch with the debates on this Bill in your Lordships' House. How I admire the patience and urbanity of the noble Earl who leads for the Government in Home Office affairs. He is a great asset to our debates and adds to our opportunities for full and frank debate on matters of this kind.
I wish to express my grateful thanks for the many messages that I received from colleagues from all sides of the House and for the welcome that I received on my return. It has been a very moving experience and I appreciate it very much.
That rather tempers my state of mind on this Bill— not only about what it does, but as regards some of the things —and one in particular—that it leaves out. However, I cannot agree with the general philosophy behind the Bill, which is that the only way to deal with and to eradicate crime is to have more and stiffer punishment. Of course, that is the natural response of a great many people in the country—probably of the great majority. Although we have listened to the calm and reflective comments of the noble Earl, we have to remember that the voice that we hear in this Bill came straight from the Conservative Party conference when the Home Secretary was challenged to "stand and deliver", which he has certainly tried to do.
I think that we shall have to be bolder and more understanding of the problem before we shall see any reduction in the level of crime. When the Labour Government came into office in 1964 a document awaited us entitled Crime—A Challenge to us all. It was the work of my noble and courageous friend Lord Longford who had established a committee to study this matter from a different angle. It might be worthwhile having another look at that document. We did so little about it in that Labour Government. We did so little about many things because we did not have the time — probably we did not have the experience—and we had more pressing national problems with which to deal, such as our economic difficulties. I hope that another government will be bolder in their approach to this and will try to deal with the problem from a different angle.
In all debates on crime and punishment there is a general under-estimation of the extent of original sin. Children do not start life good. They start life full of original sin. Their potential for good or evil will depend a great deal on the influence, training and education that they receive. I feel that there is a strong case for schooling to start earlier if only to give the children in smaller families, which are now pretty common in the land, a better opportunity of rubbing their rough edges against those of somebody else because they do not get that opportunity within the family as they used to. My grandfather had five children under the age of 11 when his wife died aged 31. He then married another woman who took on those children and then had seven more. That was the sort of family that prevailed in Victorian times. Children learned something about morals from the response that they received to mischief, stealing, assault and other offences as between one child and another. A single child does not stand much of a chance 224 of knowing what the world is about. He will be self-centred, doted on by his parents and will probably be quite unfitted for the evil that awaits him outside.
We must catch them young. But that does not mean more religious indoctrination. There is a secular approach and a pre-religious approach to the basic elements of crime in terms of personal relationships and one's outlook on the world in general. They should be looked at at source. It will probably take time for a new standard of instruction to bear fruit in a more peaceful and less criminal society. But it should be tried. I do not say that it is the complete answer, but a good deal of crime starts with children who are not properly trained and guided in their youth.
Teachers complain that they are asked to do a great deal of the instruction that parents should be doing. Parents should be doing more, but look at them! They are all busy. Mothers are working, and so on. The state must take some responsibility for replacing that with a system of nursery and early education. I started school at three years of age. I learnt a great deal before I reached the age of school entry. I hope that a new Home Secretary in a new government will make a bold start. I know that there is an idea that the community might absorb a good deal of that criminal disposition; that it might gather together a strong community spirit which would discourage those who wish to go their own way.
Some crime is the result of nonconformity. The general public is impatient with nonconformity. I know that because I was a nonconformist child brought up in a nonconformist as well as a rationalist household. To have a mother a devoted nonconformist, and a father who was a rationalist and a great admirer of Charles Bradlaugh and others who stuck out against the imposition of religious doctrine in general walks of life, gave me an insight into both points of view. That is at least one way to deal with crime.
I must finish with what struck me so deeply on Sunday and Monday that I felt I must be here to say it. It is a great shame that we have gone through the Bill without attending to the excesses of the Dangerous Dogs Act 1991. How can we be said to be dealing with crime and punishment while we retain the restriction upon the jurisdiction of magistrates and have tied up everything in the Act in a spirit of hostility and extermination?
I have been concerned for a year now with a situation that has resulted in complete deadlock. The law cannot help. A man's dog has been held in police custody since November 1991. Nothing has been proved against the dog or the owner. But the police will not release the dog because they have not had a clearance from the courts to say that it is not of the pit bull terrier type. I want to know what the Government will do to end a situation in which knowledgable people predict confidently that that dog will remain in police custody for the rest of its life. It is only five years of age, so it has still a few years to go. That is a monstrous situation to be in at the conclusion of lengthy debates on crime and punishment. I am very sad that nothing has been done.
After all, your Lordships passed without dissent the Bill to amend the Dangerous Dogs Act 1991 which I introduced. It was introduced into the other place by Mr. Andrew Bowden MP, but it has made no progress there.
225 We should have attended to the matter. It is still on the agenda. The Act came into force three years ago. We have had a report only about how it operated during its first year. We have another year to come, and we shall still be one year in arrears. The statistics are hiding some dreadful discoveries in the operation of that near-police state in the area of dog ownership. That is what we have, and it is unforgiveable. I regain a certain amount of confidence from re-entering the debates in your Lordships' House. I am sure that, whether your Lordships like it or not, you will hear from me again.
§ 8.25 p.m.
§ Lord Elton
My Lords, I must resist the temptation to follow the noble Lord, Lord Houghton of Sowerby, in a discussion of the philosophy of dealing with crime, but I cannot resist welcoming him back to your Lordships' House. It is a great pleasure to see him on both his legs and in such good form. It is reassuring to hear him again on the subject of dogs, which suggests that not much has been changed by the surgeon, except that it is a relief to hear that he now believes in original sin, which goes half way towards correcting the theological error in which he has lived his life. I hope that the rest of it may be recovered. I hope also that he noticed that the names on the cards that he has been receiving were not all from one side of the House.
For the rest, I have only two things to add. First, I should like to add to what my noble friend Lord Can-said about the principal amendment that he moved in which I supported him. Like him, I accept, reluctantly but firmly, that there are children of 12 and up to 14 who must be incarcerated. I believe also that the effect of what we proposed will be that more of them will be retained in secure accommodation, because I believe that more magistrates will be prepared to use the sentence if the children do not have to be sent so far away from home. But we have debated all that.
My principal purpose in rising to my feet is that some years ago I occupied the same position at the Home Office as my noble friend and was also faced with a heavy legislative load. I offer him not just congratulations but admiration for the way he has carried out his task. I understand the stress he has been under. Not one of your Lordships has mentioned the other two Bills he has taken through the House. In fact, the Sunday Trading Bill, which was the middle one of the three, overlapped the Police and Magistrates' Courts Bill and the Criminal Justice and Public Order Bill. That imposes an enormous strain on the Minister and on his officials because there is no time to catch one's breath and one is commissioning advice on one thing even as one is answering questions on another. To maintain his poise, courtesy and lucidity under those circumstances is a great achievement. I join with everyone else in offering my congratulations.
§ 8.28 p.m.
My Lords, perhaps I may thank my noble friend for those kind remarks and other noble Lords for theirs. I appreciate them. As in all things, one is propelled from behind by, as it were, things to do, and one takes them as best one can. My noble friend 226 Lord Renton is right when he says that the Bill is a great achievement. It is a great achievement. Of course it is a controversial Bill. Anything to do with criminal justice and crime is bound to be controversial. When a Bill covers so many areas, as this Bill does, all parts cannot be attractive to all people. But one cannot get away from the fact that there is crime and that the Government have a responsibility to deal with the fact of crime. In all the measures contained in the Bill, the Government's reaction to crime is to endeavour to make the country a better place. Your Lordships may say that that will not happen as the result of an Act of Parliament. Of course it will not. One does not alter people by passing Acts of Parliament; one addresses the malefaction and deals with that.
I agree with my noble friend Lord Elton. I too am pleased to see the noble Lord, Lord Houghton, back in the Chamber. The noble Lord made a pertinent observation while talking about the old days when people had large families. He said that his grandfather had five children all under the age of 11. In those days the children learnt from each other and there was a discipline that went with the family. Perhaps that does not happen so much today. In that we are all responsible. People talk about crime as though one cannot do anything about it; as though it is a large cloud under which one will get soaking wet and one can do nothing about it. Of course, everyone can do something about crime. I refer to the way in which parents deal with their children, expose them to television and videos, conduct themselves at home and at school and the way in which teachers conduct themselves at school. All that reflects and reacts on children and on people. It is something for which we all have a responsibility.
That does not mean that the Government do not have their own responsibility in trying to deal with crime and to prevent it. Acts of Parliament do not alter the way people think; they address the things they do wrong.
I did not believe that the noble Lord, Lord Houghton of Sowerby, would be able to bring into the debate almost the only aspect of our lives which is not covered by the Bill; namely, the Dangerous Dugs Act. He succeeded, which shows how broad and wide your Lordships' procedures are. The noble Lord, Lord Houghton, introduced, and made a long speech about, a matter that is not dealt with in the Bill. He castigated the Government—he always does—for the Dangerous Dogs Act as though the Government had done something terrible to poor darling little dogs, maintaining that we must not be horrible to them. I remind the noble Lord that the Dangerous Dogs Act was introduced because people were being mauled by dangerous dogs and were having the most terrible things done to them. It is unreasonable for the noble Lord to suggest that the Government should sit back and say, "We can do nothing about it", and allow people to be mauled by such dogs. Of course the Government had to react to that problem and introduce that Act.
The noble Lord then produced one example from among all those dealt with by the Act and asked what the Government proposed to do about that little doggie?
227 It is not the Government's job to deal with the dog; the dog must be dealt with under the normal processes of the courts and that is happening.
We have probably had sufficient on this Bill and I cannot think why the noble Lord, Lord McIntosh, is leaping up and down. I know that he wants to have his dinner and so do I. I commend the Bill to the House.
§ On Question, Bill passed, and returned to the Commons with amendments.