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Lords Chamber

Volume 413: debated on Tuesday 21 October 1980

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House Of Lords

Tuesday, 21st October, 1980.

The House met at half-past two of the clock: The LORD CHANCELLOR On the Woolsack.

Prayers—Read by the Lord Bishop of Southwell.

Mr John Skeen: Crown Office Statement

My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.

The Question was as follows:

To ask Her Majesty's Government why the Crown Office, Edinburgh, issued on 10th September 1980 a statement concerning the resignation of Mr. John Skeen, procurator fiscal of Glasgow, narrating unsubstantiated allegations of criminal conduct by Mr. Skeen.

My Lords, the Crown Office would not normally give publicity to allegations which were not to be the subject of prosecution. However, the case referred to by the noble and learned Lord was highly exceptional. Reports had appeared both in the Glasgow press and in the national Scottish press that allegations of sexual misconduct against a procurator-fiscal had been against a procurator fiscal had been reported to the Crown Office. No name of the fiscal involved was given. A few days later these reports were followed up by a report that some 20 further allegations were being investigated and that a team of police officers had been appointed for this task.

As the noble and learned Lord is aware, there are a number of procurators fiscal in the service and many members of the public attend at their offices daily for precognition and other purposes. In these circumstances I considered it necessary to give the public a statement of the position. I felt it impossible to do this adequately without naming Mr. Skeen and, in fairness to Mr. Skeen, I thought it necessary to indicate with some precision the nature of the allegations in question. I considered the making of this statement necessary in the interest of the other procurators fiscal, in the interest of Mr. Skeen himself, but above all in the interest of the public, particularly those who have dealing with the procurators fiscal.

My Lords, in thanking the noble and learned Lord for that reply, which I fully accept, may I ask him to deal with three points which arise out of the circumstances. First, is he aware that the issuing of this statement gave rise to some disquiet in Scotland because in the statement the Lord Advocate appeared to be saying that he had received allegations and evidence of the commission by a distinguished public servant of criminal offences involving several women, and that although Mr. Skeen strongly denied the allegations the Lord Advocate was not going to put those allegations to the test, principally because the women complainers did not want publicity?

Second, does he consider that in referring to the women's expressed wish to avoid the publicity that could ensue if they were called as witnesses, the statement departed from the Crown Office's usual practice of not giving any reasons for a decision not to prosecute and failed to reveal that there might be other reasons for not prosecuting, including the difficulties in proving the allegations?

Finally, can be confirm that at a time when the complaints were supposed to be under the most confidential investigation by senior police officers, full details of the investigation by these officers and of the report to the Lord Advocate were published in two Scottish newspapers in circumstances which pointed to a deliberate leak to the press by police officers in contravention of Section 44(2) of the Police (Scotland) Act 1967? And is the Lord Advocate or the chief constable of Strathclyde conducting an inquiry into such an offence?

My Lords, the general practice of the Crown Office is not to give reasons for a decision not to prosecute. Obviously there are good reasons for that policy. This statement did not contain an expres- sion of the reasons which led me to take the decision which I did. However, as I have said, I thought that the circumstances were extremely exceptional and required a reasonably full statement of the position so as to inform the general public, and I thought it right in that statement to refer to the basic facts. One of the basic facts was that the women complainers who were referred to in relation to the possible criminal allegations did not want publicity, for personal reasons. I thought it right that that fact should be stated, but did not say that that was the reason no prosecution was being taken. I did not think it necessary, either, to deal with the question of what prospects a prosecution would have. That is certainly not the usual practice, and I thought it not right to do so.

Turning to the suggestions about the police, so far as I know the first paper to publish the allegations to which I first referred was the Daily Record, and the editor declines to name his source. There appears to have been a leak, but I have no evidence to suggest that a criminal offence was committed by anyone in that connection and in particular by any member of the police. I am confident that if any evidence comes to light that a criminal offence was committed, it will be reported by the police to the Crown Office.

My Lords, this action which was taken by the Crown Office was very exceptional. The noble and learned Lord mentioned only a leak being possible from police sources. Is he satisfied that there was no leak from the Crown Office?

My Lords, I have said that the only person who referred to a leak from the police was the noble and learned Lord, Lord McCluskey. On the information which I have I am not in a position to say from where the leak took place. All I can do is to repeat that if evidence comes to light to indicate where it took place, I would expect the matter to be reported.

My Lords, may I ask the noble and learned Lord the Lord Advocate, in view of some considerable misunderstanding of the duties of the Lord Advocate in Scotland, whether he would confirm that it is in the ultimate power of the Lord Advocate to decide whether to institute criminal proceedings in any case, and whether the occupants of that high office have always discharged their duties in the best interests of the public?

My Lords, certainly I confirm the first part of the noble Lord's question, and I certainly confirm the second part up to the present incumbent of that office. I am sure that your Lordships will accept from me that in this extremely difficult case—unprecedented so far as I know—I certainly did my level best to be fair to all the parties involved. Mr. Skeen, as the noble and learned Lord, Lord McCluskey, said, was a distinguished public servant with a long record of devoted service—I think 28 years—to the fiscal service. He had to do a lot of very difficult things and he worked hard. On the other hand, there were three women who were helping the Crown as witnesses in a very difficult case. I did my level best to hold the balance of fairness between them and all I can say is that I hope I have succeeded.

My Lords, I wonder whether the noble and learned Lord could clarify two further points. In the first place, assuming that Mr. Skeen feels that his character has been wrongfully defamed, what remedies at law has he against the Crown Office, against the Crown Agent, or indeed against the noble and learned Lord himself? In the second place, can the noble and learned Lord tell us whether anything was known within the Crown Office bearing upon the character of the three women concerned that might have made one think twice about accepting the truth of the allegations which they were making?

My Lords, so far as the first point is concerned, I do not know that it would be appropriate for me to give advice as to what remedies Mr. Skeen might have in the event of his being defamed. I would think that he would have the ordinary remedies which any person being defamed has against the parties that the noble and learned Lord, Lord Wilson of Langside, mentioned.

So far as the women are concerned, in the statement I have said that they had personal reasons for not wishing the publicity that would be involved in a criminal trial. I do not think it would be appropriate for me to go into the details of that. I consider that women who came to the procurator fiscal's office in discharge of their duty, and indeed under compulsory powers, ought not to be subject to the disclosure of their personal circumstances except in the most exceptional circumstances and in the course of some form of proceedings; so I certainly would not intend to say more upon that.

My Lords, can the noble and learned Lord say whether inquiries are being actively pursued into the source of the leak, which has clearly caused grave embarrassment to a large number of people?

My Lords, the noble Lord will appreciate the difficulty of an investigation of this sort, and obviously it would not assist the investigation to say what is being done. I can only repeat that this is a matter which obviously has caused not only considerable embarrassment but also concern to the police, to myself and to the Crown Office. Therefore, naturally, if any clue comes along as to the source from which this emanated, we shall be most anxious to follow it up.

My Lords, on that last point, if I may ask one final question, the situation in which the noble and learned Lord the Lord Advocate found himself was created by the publication in the press of information which the press should not have had. In my estimation the circumstances point absolutely plainly to a deliberate leak by police officers in Glasgow. Is the chief constable of Strathclyde investigating that matter and, if not, why not?—because it appears to me to be a plain breach of duty by the police; a violation of duty under the section of the Act to which I have referred.

My Lords, I am sorry that on the basis of the evidence which I have at the moment I cannot accept that that is so, but I know that the chief constable is very anxious about the matter, and of course he has the primary responsibility for the detection of crime. As I have said, this is a very difficult area and I have every confidence that he will do what is right in the circumstances.

My Lords, in cases of this kind, where persons make complaints which are widely publicised and which are apparently not withdrawn, but they are unwilling to give evidence and the Crown is considering a prosecution, does the prosecution in Scotland not proceed with the case?

My Lords, the question of whether or not a prosecution should proceed in Scotland is a matter ultimately for the Lord Advocate to decide, if it be a public prosecution. In the light of all the circumstances in this case, I decided that there should be no prosecution, and I intimated that in the statement.

Pulp Mills: Closure

2.49 p.m.

My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.

The Question was as follows:

To ask Her Majesty's Government what are the economic justifications for allowing the closure of the pulp mills at Fort William and Ellesmere Port, with the consequential necessity for the Forestry Commission to seek outlets for timber from the forests of Wales and the Scottish Highlands, possibly to Scandinavia, and then to import the finished paper.

My Lords, the closures result from the decisions of the companies operating those mills, decisions which are based on their commercial judgment.

My Lords, will the noble Earl appreciate that, while I thank him for his Answer, he has not really dealt with the point of the Question? Has a survey or an analysis been made of the net costs of closing these two pulp mills? If not, is one being undertaken, and should it not take into consideration not only the loss of 2,500 jobs at Ellesmere Port and Fort William but also the net cost of unemployment benefits and other benefits, and the net cost of exporting small timber and having to import finished paper? While appreciating the activities of the Forestry Commission in endeavouring to obtain markets for their small timber, is there any long-term plan by the Government to ensure that there are home-based pulp mills in this country for the proper use of our timber?

My Lords, I am sorry the noble Lord did not think that I answered his Question, but he will realise that his Question asked Her Majesty's Government what economic justifications there were for allowing the closures, and my Answer referred to the fact that the closures resulted from the judgment of the commercial enterprises concerned. Of course, we bitterly regret the fact that this has been necessary, and I accept entirely the point the noble Lord has made about the unemployment this has caused. In fact, the two pulp mills have been operating in a situation of making losses. The Government have been in consultation about both the mills, at Fort William and at Ellesmere Port, to see if there are ways in which they can help. Suggestions were made to both companies with regard to substantial financial help from the Government and in both cases it was their commercial judgment that, notwithstanding this offer, they would still have to close the plants.

With regard to the noble Lord's question about the future of forestry supplies, I can tell him that 80 per cent. of the small roundwood which used to go to Fort William has now been placed on contract abroad. We hope that the future for forestry will be a successful one. We believe that there are circumstances where pulp-making can be successful in the United Kingdom given the commercial desire and will to do it, and the Government would be happy to take part in any consultations required.

My Lords, may I ask the noble Earl whether the Government would consider taking some action to prevent the continuous dumping of paper from Brazil, Scandinavia and the United States in this country, to the very great disadvantage of the paper-making industry and the forestry industry in the United Kingdom?

My Lords, if my noble friend can give me any factual examples of where there has been dumping, then, of course, we will consider it.

My Lords, as much of the outcome of this question depends on the Government's forestry policy, can the noble Earl say how long it will be before a statement can be made?

My Lords, I thought the noble Lord said monetary policy; that is why there was a little confusion. There will be a Statement on the Government's forestry policy. It was hoped that this would have been made a little earlier than it will be; I can tell the noble Lord that it will be made some time in the future, but I cannot be precise about it.

My Lords, as the pulp mill at Ellesmere Port has been closed, can the noble Earl say where the output of the Welsh forests will now go?

My Lords, I can tell the noble Lord that 80 per cent. of that which went to Fort William has now gone on contract abroad, and I have no doubt that the Forestry Commission will be in consultations about getting rid of the wood that used to go to Ellesmere Port.

My Lords, that is not a satisfactory answer. Can the noble Earl not be more specific? Is he not aware that unemployment in Wales is very high indeed and that this is causing considerable concern in the Principality? Forestry makes an economic contribution, and if the Welsh forests are affected because there is no output the consequences can be very serious. I would be very grateful if the noble Earl could give me a more particular reply.

My Lords, I cannot tell the noble Lord exactly where the output of the Welsh forests will go. This is obviously a matter for the commercial judgment of those who sell the wood. It would be greatly to my surprise if the noble Lord found that the output of the Welsh forests stopped.

My Lords, the noble Earl really is fobbing me off. Will he be good enough, if he does not know, to find out where the output of the Welsh forests will go and let me know?

Yes, my Lords, I will certainly look into that and let the noble Lord know.

My Lords, is my noble friend aware that it is commonly understood that the difficulty is the high cost of electrical energy? Would he confirm that in fact the turning point of the decision was based on the cost of power in this country as compared with the cost of power in Scandinavia?

My Lords, I would agree with my noble friend that the high cost of energy is one significant point. Of course, the Scandinavians have cheap hydro-electric power which is not available to the United Kingdom. There are two other factors. There is the high level of sterling, which makes imports competitive, and the third factor is the fact that newsprint is internationally traded in dollars, and of course the situation is also affected by the fact that the wood from which that is made in North America is about half the price of the wood which is available in this country. When wood comes in at that price, it is very difficult to make ends meet when you have a high pound.

My Lords, will the noble Earl tell us whether proper consultation took place before the decision to close these mills was taken? Were there consultations with the trade unions concerned in that aspect of British industry, and were the trade unions in the home-grown timber trade properly consulted, the trade unions representing the forestry workers—that is, the National Union of Agricultural and Allied Workers and the Transport and General Workers' Union? And, if not, why not?

My Lords, I cannot give the noble Lord the information he requires. I do not know the details of the consultations which went on between the employers and the employees. I can tell him that the Prime Minister herself was very concerned about these closures and the effect they would have, and she has been intimately involved and intimately concerned with the results.

My Lords, does not the noble Earl realise that every word he has said illustrates the impotence that a Government bowing to doctrinaire monetary policy find themselves in when faced with the most obvious evil, the sudden closure by private decision of the means of processing a public product? The Government have to explain to us that within their doctrine there is absolutely nothing they can do about it.

My Lords, I do, with the greatest respect, disagree entirely with the noble Lord, Lord Paget. There is one fundamental flaw in what he says. He knows, as I have tried to explain, that for reasons of world recession and world competition these mills have been operating at a loss. Two things can be done. Either the commercial effects have to be taken into account and the mills closed—and that is a matter for the commercial judgment of the owners—or the Government can subsidise them and carry the losses which private industry is not prepared to carry. The noble Lord, Lord Paget, may think that that is the right thing to do. The Government have taken the view that they cannot continue to subsidise one industry after another.

My Lords, is not there a fatal flaw in the argument that the Minister himself is using? Is it not true that the Government have required the public suppliers of electrical energy in this country, quite unnecessarily, quite artificially, to raise the charges that they make to commercial enterprises far beyond anything that is necessary to run their own enterprise?

My Lords, that is a matter of strict energy policy, which I would be quite happy to debate with the noble Lord, Lord George-Brown, if he so wished. But even if that had not been so, the Government are not at the receiving end of the cheap hydro-electric power which the other countries have, and in any event the hydro-electric generation would have been cheaper.

My Lords, would not the noble Earl agree that there are times when commercial considerations are not the only factors to be taken into account, and that where there is the possibility of an important industry such as forestry not only having unemployment but not being able to use our timber, something needs to be done? When are Government plans for a permanent solution likely to be announced?

My Lords, of course I absolutely take the point and I would not wish to appear not to recognise it. The Government have been so concerned about both Fort William and Ellesmere Port that they have been in consultation with the owners to see whether it is possible to construct new mills or modernise those plants. Had that been done, the Government would have been prepared to give substantial financial help in that process. We have done that, and we are quite prepared to look at any new proposals that industry can bring forward.

My Lords, I apologise for intervening, but we have been going for 22 minutes on two Questions and I think we should move on.

Union Management Agreements: Guidance

3 p.m.

My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.

The Question was as follows:

To ask Her Majesty's Government whether they will consider the inclusion in the Code of Practice on Closed Shops of guidance as to what action by employers and unions would be required to bring about the effective and certain dissolution of a union management agreement.

My Lords, the contents of the Code of Practice on the closed shop are currently under consideration in the light of comments received on the draft Code during the consultation period, and the noble and gallant Viscount's suggestion will be considered in this context.

My Lords, I thank the noble Lord for his Answer and I am grateful for the offer of consideration. When considering the question and the problem, will he and his colleagues remember that union management agreements both impose duties and confer rights on both parties? Will he remember that it is of importance, particularly to workers, to know as precisely as possible when an agreement has terminated, so that they know the implications and how their rights and duties are affected?

My Lords, I can certainly give my noble and gallant friend the assurance that we will take into account his comments today, as, indeed, we have taken into account his earlier comments which he delivered in written form.

My Lords, can the Minister arrange that the Code of Practice should include information to members, a substantial body of whom—by "substantial body" I mean at least 20 per cent.—might want to have a closed shop terminated but are frustrated, perhaps by an employer who is weak and union representatives who want to keep the closed shop going?

My Lords, I am sure the noble Lord will be aware that in the Code of Practice there is a paragraph and a section referring to periodic reviews of the practices of union membership agreement in that particular firm or industry. The Government do have it in mind, and that is the very reason we have this paragraph about reviews.

My Lords, regarding that review, can the Minister say exactly who has to think that an agreement no longer serves its purpose before the closed shop is allowed to lapse?

My Lords, will my noble friend consider examining in the Code of Practice while it is still in draft the point made by Mr. Aspinall in a letter in the business section of The Times today? Mr. Aspinall represents 500,000 people, managerial and professional staff. He draws attention to the need, with contracts of employment in the future, for union membership agreements to be attached so that everyone starting a job knows where they stand. Where there are unwritten agreements—de facto closed shop agreements—ought not some notice to be taken of this and possibly a poll taken, so that people have an opportunity of judging whether or not it has widespread support?

My Lords, I should like to thank my noble friend for those observations. The Government do take the view that clarity is of the essence in all contracts of employment. As my noble friend says, where possible any unwritten rules should be clarified. These practices should be brought out into the open and it should be made clear to prospective applicants for jobs.

My Lords, will the noble Lord give an indication of the consultations that should or will take place with the trade unions concerned? After all, that is an important matter; they are the people concerned. Has he anything to say on this?

My Lords, which unions and in which industries? In general, the Trades Union Congress have been asked to submit their recommendations, views and observations to my right honourable friend the Secretary of State. In regard to the closure date for these consultations, my right honourable friend has not had any clear or specific views. There have been roundabout views which have appeared through the press. My right honourable friend should be very grateful to receive any further observations that the Trades Union Congress might wish to make.

My Lords, he must know that inevitably this affects all unions. Apart from that, I believe the TUC should be consulted.

My Lords, I hoped I had made that point clear. Perhaps it was rather in the nature of my noble friend's contract of employment. But I am contracted to this Bench and I will make it quite clear.

Fao Emergency Meeting In Rome

3.6 p.m.

My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.

The Question was as follows:

To ask Her Majesty's Government what policy they followed at the emergency meeting of the United Nations Food and Agriculture Organisation held in Rome on 19th September.

My Lords, the meeting was held to discuss emergency food supply problems in certain African countries. Britain attended with the aim of supporting efforts to mobilise help within the existing machinery, and obtaining up-to-date assessments of need from the international agencies. Like the Community, through which most of our food aid is channelled, we are now considering what more we can do to help bilaterally to follow up the 50,000 tonnes of cereals we supplied to needy African countries in the harvest year which has recently ended.

My Lords, will the Minister confirm or deny that at this conference, which was called because 150 million Africans are facing starvation, nine countries, including not just developed countries but Algeria, promised immediately extra food aid, and that Britain did not? Will he confirm that the British Government spokesmen said that they would watch the position? What is this position they are going to watch? Is it the 150 million people starving? Is it not a disgrace that the British Government were the one that stood out, refusing to increase their food aid in face of this great disaster, and is this not the kind of policy which is giving us a reputation for meanness in the world, particularly in the Third World?

My Lords, I think "meanness" is hardly the word. In the current financial year we will have shipped about 43,000 tonnes of food from the United Kingdom. We will have paid for 80,000 tonnes of the Community programme and we will have pledged some 50,000 further tonnes to the world food programme, much of which will go to Africa. As for what the noble Lord said earlier about the conference, it is true that some of the other donors were able to pledge a certain amount of additional assistance although it is not entirely clear which of that additional assistance came from existing programmes or was new supplies. We greatly welcome what they were able to do. We, on the other hand, as the noble Lord rightly said, are going to consider the matter very carefully to see whether there is anything further that we can do.

My Lords, have we not read recently that food has been destroyed in this country in implementation of the regulations under the Common Agricultural Policy? Is it beyond the wit of man, and beyond the wit of this Government, to devise some means of avoiding the situation whereby food is destroyed in one part of the world and thousands of people die in another?

My Lords, the fact is that we in this country are net importers of grain, for example, and any grain that we agree to send overseas has to be replaced by further imports into this country.

My Lords, does the noble Lord not agree that in the last year, because of the military operations of the Ethiopian regime against the subject peoples of Eritrea, Western Somalia and Tigre, starvation in those areas has become widespread and that the United Nations' High Commissioner, as well as the authorities in the Sudan and Somalia, has made desperate appeals to the world for help? What contribution have Her Majesty's Government made towards this need, and what extra pledges were made at the meeting to which this Question refers to help those particular refugees and starving millions in the Horn of Africa?

My Lords, in the current "harvest year" as it is called, we shall be supplying 5,000 tonnes of wheat, or its equivalent in flour, to Somalia.

My Lords, the noble Lord repudiated the word "meanness" which my noble friend uttered. But, surely, is he not aware that this Government, this country, has been criticised not merely by leaders in the Commonwealth, but by Herr Willy Brandt and by South American Governments? Is he also aware that all of our forebodings, when we found that overseas aid was to be put under the Foreign Office, have been confirmed, regularly? The fact that the proportion of cuts as regards aid is so much out of proportion with the other cuts in this country really is a disgrace, and is he aware that we are bearing criticism from all over the world for doing it?

My Lords, the cuts in the aid programme are a result, if I may say so, of the totally illusory programme which our predecessors had established before we came to office. The vast programme which they had imagined they could fulfil was quite unrealistic.

My Lords, our reputation in the world has suffered enormously as a result, but it was not because we made the mistake.

My Lords, that may well be so, but if the noble Baroness and her friends had remained in office, then that programme too, would not have been sustained.

My Lords, is it not the case that the director-general of the FAO at the Rome meeting said that 550,000 tonnes of food were needed immediately to save the lives of 150 million people? Did not the British representative say that he would watch the situation? Are the Government just considering the situation when hundreds of people are dying every day from this want of food?

My Lords, we are doing our "bit" in this matter. We are, of course, not the only nation in the world which ought, and does indeed, contribute to what I accept is an appalling problem. I have already recited to your Lordships the very substantial quantities of food aid that we are providing, and it is worth adding that it will cost us some £40 million this year.

My Lords, have we any explanation as to why Africa cannot feed herself? In colonial days she produced and exported quite a considerable surplus of food. She has since received aid on a pretty generous scale and has had the advantage of a "green" revolution which has doubled agricultural production almost everywhere else. But at the end of it she is producing, in actual terms, a good deal less than she was at the time when colonialism ended. Surely there should be some examination of what Africa can do for herself?

My Lords, it is true that production in Africa generally is less than it should be and that is why our aid programme—a programme of technical support and the like—is very much aimed at improving agricultural production in Africa.

My Lords, when the noble Lord the Minister is giving a number of figures, perhaps he would compare them with those of other countries. For instance, will he answer my original Question as to why Britain stood and watched the position when a country like Algeria made an immediate pledge of additional aid along with nine other countries? Is it not the case that there has been, and there is, growing in this country what is known as a "barley mountain"? Is that not of any use to the starving 150 million people who will be facing death during the next few months?

My Lords, it is not clear that Algeria and the other countries actually promised new food aid. Some of what was promised was, indeed, reallocation of existing pledges. But we have done our bit as well.

Civil Aviation Appeals

My Lords, with the leave of the House, at a convenient moment after 4.15 p.m. my noble friend Lord Trefgarne will make a Statement on Civil Aviation Appeals.

Local Government, Planning And Land (No 2) Bill

The PARLIAMENTARY UNDERSECRETARY of STATE, DEPARTMENT of the ENVIRONMENT
(Lord Bellwin)

My Lords, I beg to move the Motion which stands in my name on the Order Paper.

Moved, That the amendments for the Report stage be marshalled and considered in the following order, viz.:—

  • Clause 1
  • Schedules 1 to 7
  • Clauses 2 to 49
  • Schedule 8
  • Clauses 50 and 51
  • Schedule 9
  • Clauses 52 to 59
  • Schedule 10
  • Clauses 60 to 67
  • Schedule 11
  • Clauses 68 to 77
  • Schedule 12
  • Clauses 78 to 85
  • Schedule 13
  • Clause 86
  • Schedule 14
  • Clauses 87 to 89
  • Schedule 15
  • Clauses 90 to 97
  • Schedule 16
  • Clause 98
  • Schedule 17
  • Clause 99
  • Schedule 18
  • Clause 100
  • Schedule 19
  • Clauses 101 and 102
  • Schedule 20
  • Clauses 103 to 106
  • Schedule 21
  • Clauses 107 to 114
  • Schedule 22
  • Clauses 115 to 117
  • Schedule 23
  • Clauses 118 to 129
  • Schedule 24
  • Clauses 130 and 131
  • Schedule 25
  • Clauses 132 to 139
  • Schedule 26
  • Clauses 140 to 143
  • Schedules 27 and 28
  • Clauses 144 to 157
  • Schedule 29
  • Clauses 158 to 172
  • Schedule 30
  • Clauses 173 to 183
  • Schedule 31
  • Clause 184
  • Schedule 32
  • Clauses 185 to 187—(Lord Bellwin).

On Question, Motion agreed to.

Criminal Justice (Scotland) Bill Hl

3.15 p.m.

My Lords, I beg to move that the Commons Amendments be now considered.

Moved, That the Commons Amendments be now considered.—( The Earl of Mansfield.)

On Question, Motion agreed to.

Commons Amendments

[ References are to Bill [179] as first printed for the Commons.]

Amendments Nos.

1 Clause 1, page 2, line 20, leave out from 'who' to end of line 27 and insert 'having been required—

  • (i) under that subsection to give his name and address; or
  • (ii) under subsection (2) above to remain with a constable,
  • fails, without reasonable excuse, to do so',

    2 Clause 1, page 2, line 30, leave out from 'who' to 'fails' in line 32 and insert 'having been required under that subsection to give his name and address'.

    3 Clause 1, page 2, line 32, leave out 'or gives a false name and address'.

    My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 1 to 3 en bloc. These are drafting amendments which delete unnecessary words. It is unnecessary to have an offence of giving a false name and address when it is an offence under the clause for a suspect or witness to fail to give "his" name and address when required to do so. I beg to move.

    Moved, That this House doth agree with the Commons in the said Amendments.—( The Earl of Mansfield.)

    On Question, Motion agreed to.

    Commons Amendments

    4 Clause 2, page 3, line 1, leave out 'take that person' and insert 'detain that person and take him as quickly as is reasonably practicable'.

    5 Clause 2, page 3, line 2, leave out 'that person may be detained' and insert 'the detention may continue'.

    6 Clause 2, page 3, line 8, at end insert ';and when a person has been detained under subsection (1) above for a period of six hours, he shall be informed immediately upon expiry of this period that his detention has been terminated'.

    7 Clause 2, page 3, line 13, leave out 'exercises the power conferred by' and insert 'detains a person under'.

    8 Clause 2, page 3, line 14, leave out 'concerned'.

    9 Clause 2, page 3, line 15, leave out 'and' and insert 'of'.

    10 Clause 2, page 3, line 16, leave out from 'and' to 'of' in line 18.

    11 Clause 2, page 3, line 20, leave out 'place of detention' and insert 'place where detention begins and the police station or other premises to which the person is taken'.

    12 Clause 2, page 3, line 22, after 'time' insert 'when detention under subsection (1) above begins and the time'.

    My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 4 to 12 en bloc. The purpose of this group of amendments, apart from Amendment No. 6, is to make quite clear that detention must be taken as beginning when the police first exercise the power contained in Clause 2(1), rather than when the detained person reaches the police station. The amendments ensure that no one is deprived of his liberty under Clause 2 for a total period of more than six hours, and represent a safeguard for the detained person not to be found in the Thomson report (which recommended that detention should only begin when a person arrived at a police station). Nor was such a safeguard to be found in the previous Government's Bill.

    Amendment No. 4 is of particular importance in that it requires transfer to a police station or other premises to be made
    "as quickly as is reasonably practicable".
    The Government consider detention should normally take place in a relatively formal setting and this amendment prevents undue delay in taking the suspect to a police station. Amendments Nos. 11 and 12 are also important; they provide for a record to be made of the time when, and the place where, detention begins; of the police station or other premises to which the suspect is taken, and his time of arrival.

    Amendment No. 6, which was proposed in another place by the honourable Member for Roxburgh, Selkirk and Peebles, deals with what happens at the conclusion of the six hours period of detention. It ensures that the detained person is told by the police that the period of detention has terminated, and he therefore will know that he is free to go, unless of course the police decide at that point that he should be arrested. I beg to move.

    Moved, That this House doth agree with the Commons in the said Amendments.—( The Earl of Mansfield.)

    My Lords, it is only right that I should acknowledge that these amendments do, in fact, improve the Bill and certainly improve the rights of persons detained under Clause 2. I hope that the House will accept the Commons amendments.

    My Lords, may I venture to draw attention to what seems to me to be a minor mistake in Amendment No. 9. I do not think that it should be there at all. Perhaps my noble friend will kindly look at the amendment, because otherwise there will be two 'of's together. The point is that it says:

    "At the time when a constable exercises the power conferred by subsection (1) above, he shall inform the person concerned of his suspicion and"—
    and that is to be changed to "of"—
    "of the reason for the detention".
    The words,
    "his suspicion of the reason for the detention".
    do not make sense.

    On Question, Motion agreed to.

    Commons Amendments

    13 Clause 2, page 3, line 25, after 'below' insert 'and of subsection (1) ( b) of section 3 of this Act'.

    14 Clause 2, page 3, line 26, after 'him' insert—

    '(dd) where the person requests such intimation to be sent as is specified in section 3(1)(b) of this Act, the time when such request is—
  • (i) made;
  • (ii) complied with;'.
  • My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 13 and 14. Perhaps I may also speak to Amendments Nos. 16, 17, 18 and 19. This group of amendments provides additional safeguards for detained and arrested persons. Amendments Nos. 13 and 14, 17 and 19 provide for a detained person to be told of his right to have intimation sent to his solicitor and another person; and require that a record should be kept of when he is informed, when he asks for intimation to be sent, and when his request is complied with. The amendments which achieve this purpose were made in another place in fulfilment of an undertaking which I gave on Report in this House to the noble Lord, Lord Monson.

    Amendment No. 16 specifies that a constable's duty to inform a suspect that he need answer no questions except to give his name and address must be carried out both on detaining him and on arrival at the police station or other premises.

    Amendments Nos. 18 and 19 impose a new statutory duty on the police, in cases where they detain or arrest a child who appears to be under 16 years of age, to inform the parent or guardian immediately and to allow them access to the child. However, there will be no absolute right of access where there is reasonable cause to suspect that the parent or guardian is involved in the alleged offence. For example, occasionally children are involved by their parents in shoplifting expeditions, and it seems reasonable to allow the police the right to deny the parents access to the child during investigations into cases of that kind. However, in the vast majority of cases it is the existing practice of the police to allow access to the parents, including during any questioning. These amendments give a first statutory basis to existing good practice.

    Moved, That this House doth agree with the Commons in the said amendments.—( The Earl of Mansfield.)

    My Lords, the noble Earl spoke to Amendment No. 19 at the same time, and that is the only one on which I have a point. It is this. I welcome Amendment No. 19 as being an improvement to the Bill. It is the amendment giving the child's parent, or the apparent child's parent, the right of access. But what is not clear from the Bill, as I read it, is who it is who exercises the discretion and makes the judgment which requires to be made in the case where there is reasonable cause to suspect that the parent has been or may have been involved in the alleged offence. Is that judgment one which falls to be made by the constable who arrests or detains, or is it a judgment that falls to be made by the officer in charge of the police station?

    My Lords, the statutory duty is placed on the police and, therefore, one would assume—I think rightly—that the duty is on what I would call the officer in charge of the case.

    On Question, Motion agreed to.

    Commons Amendment

    15 Clause 2, page 3, line 41, after 'offence,' insert reasonably'.

    My Lords, I beg to move that this House doth agree with the Commons in the said amendment. The purpose of this amendment, which was moved in another place by the honourable Member for the Western Isles, is to provide that the power to take fingerprints or other prints from a detained person is exercised only where a constable reasonably considers this appropriate. It thus imports the test of reasonableness into the sub-paragraph.

    Moved, That this House doth agree with the Commons in the said amendment. —( The Earl of Mansfield.)

    On Question, Motion agreed to.

    Commons Amendments

    16 Clause 2, page 4, line 10, at end insert 'both on so detaining him and on arrival at the police station or other premises'.

    17 Clause 3, page 4, line 11, after '3.' insert —'(1)'

    18 Clause 3, page 4, line 12, after 'who' insert', not being a person in respect of whose custody or detention subsection (3) below applies'.

    19 Clause 3, page 4, line 24, at end insert 'and the person shall be informed of such entitlement—

  • (i) on arrival at the police station or other premises; or
  • (ii) where he is not arrested, or as the case may be detained, until after such arrival, on such arrest or detention.
  • (2) Where the person mentioned in paragraph ( a) of subsection (1) above requests such intimation to be sent as is specified in that paragraph there shall be recorded the time when such request is—

  • (i) made;
  • (ii) complied with.
  • (3) Without prejudice to the said section 19 or 305, a constable shall, where a person who has been arrested and is in such custody as is mentioned in paragraph ( a) of subsection (1) above or who is being detained as is mentioned in paragraph ( b) of that subsection appears to him to be a child, send without delay such intimation as is mentioned in the said paragraph ( a), or as the case may be paragraph ( b), to that peron's parent if known; and the parent—

  • (a) in a case where there is reasonable cause to suspect that he has been involved in the alleged offence in respect of which the person has been arrested or detained, may; and
  • (b) in any other case shall, be permitted access to the person.
  • (4) The nature and extent of any access permitted under subsection (3) above shall be subject to any restriction essential for the furtherance of the investigation or the well-being of the person.

    (5) In subsection (3) above—

  • (a) 'child' means a person under 16 years of age; and
  • (b) 'parent' includes guardian'.
  • My Lords, I have already spoken to Amendment No. 16 and I beg to move Amendments Nos. 16 to 19 en bloc.

    Moved, That this House doth agree with the Commons in the said amendments. —( The Earl of Mansfield.)

    On Question, Motion agreed to.

    Commons Amendment

    20 Clause 6, page 5, line 41, at end insert 'and outwith the presence of any co-accused '.

    My Lords, I beg to move that this House doth agree with the Commons in the said amendment. Perhaps I could also speak to Amendments No. 29 and 37. The purpose of these amendments is to deal with the situation that at present all co-accused are judicially examined together. This does not matter when the procedure is purely formal, as it is now. However where, as in future, judicial examination is to have a real function, it is necessary to ensure that each accused may give his account of events without the pressure of other accused being present and without the temptation to construct a joint, false story. It also emphasises the individual nature of judicial examination—as opposed to treating all co-accused as a group without separate individual identities and interests. I beg to move.

    Moved, That this House doth agree with the Commons in the said amendment.—( Lord Mackay of Clashfern).

    On Question, Motion agreed to.

    Commons Amendments

    21 Clause 6, page 6, line 2, leave out 'section' and insert 'sections'.

    22 Clause 6, Page 7, line 23, leave out subsection (6).

    23 Clause 6, Page 7, line 28, at end insert—

    Record to be made of proceedings at examination.

    "20B—(1) The prosecutor shall provide for a verbatim record to be made by a shorthand writer of all questions to, and answers and declarations by, the accused in examination, or further examination, under sections 20 and 20A of this Act.

    (2) The shorthand writer shall sign the transcript of the notes taken by him and shall certify that it is a complete and accurate record of the said questions, answers and declarations; and, subject to subsection (4) below, it shall for all purposes be so deemed.

    (3) Subject to subsections (5) and (6) below, within 14 days of the date of examination, or further examination, the prosecutor shall—

  • (a) serve a copy of the transcript on the accused examined; and
  • (b) serve a further such copy on the solicitor (if any) for that accused.
  • (4) Subject to subsections (5) and (6) below, where notwithstanding the certification mentioned in subsection (2) above the said accused or the prosecutor is of the opinion that a transcript served under paragraph ( a) of subsection (3) above contains an error or is incomplete he may—

  • (a) within 10 days of service under the said paragraph (a), serve notice of such opinion on the prosecutor or as the case may be the said accused; and
  • (b) within 14 days of service under paragraph (a) of this subsection, apply to the sheriff for the error or incompleteness to be rectified;
  • and the sheriff shall within seven days of the application hear the prosecutor and the said accused in chambers and may authorise rectification:

    Provided that where—

  • (i) the person on whom the notice is served under paragraph (a) of this subsection agrees with the opinion to which that notice relates the sheriff may dispense with such hearing;
  • (ii) the said accused neither attends, nor secures that he is represented at, such hearing it shall, subject to paragraph (i) above, nevertheless proceed.
  • (5) Where at the time of a further examination a trial diet is already fixed and the interval between the further examination and that diet is not sufficient to allow of the time limits specified in subsections (3) and (4) above, the sheriff shall (either or both)—

  • (a) direct that those subsections shall apply in the case with such modifications as to time limits as he shall specify;
  • (b) postpone the trial diet:
  • Provided that postponement under paragraph ( b) above alone shall only be competent where the sheriff considers that to proceed under paragraph ( a) above alone, or paragraphs ( a) and ( b) above together, would not be practicable.

    (6) Any time limit mentioned in subsections (3) and (4) above (including any such limit as modified by a direction under subsection (5) above) may be extended, in respect of the case, by the High Court.

    (7) In so far as it is reasonably practicable so to arrange, the sheriff who deals with any application made under subsection (4) above shall be the sheriff before whom the examination (or further examination) to which the application relates was conducted.

    (8) Any decision of the sheriff, as regards rectification under subsection (4) above, shall be final.

    (9) A copy of—

  • (a) a transcript required by paragraph (a) of subsection (3) above to be served on an accused or by paragraph (b) of that subsection to be served on his solicitor; or
  • (b) a notice required by paragraph (a) of subsection (4) above to be served on an accused or on the prosecutor,
  • may either be personally served on the accused, solicitor or prosecutor (as the case may be) or sent to him by registered post or by the recorded delivery service; and a written execution purporting to be signed by the person who served such

    transcript or notice, together with, where appropriate, a post office receipt for the relative registered or recorded delivery letter shall be sufficient evidence of service of such a copy.'.

    24 Clause 6, Page 7, leave out line 29 and insert—

    '(3) For section 151 of the 1975 Act (accused's declaration in solemn proceedings to be received in evidence without being sworn to by witnesses), there shall be substituted'.

    25 Clause 6, Page 7, line 31, leave out 151A' and insert '151'.

    26 Clause 6, Page 7, leave out subsections (2) and (3)' and insert 'subsection (2)'.

    27 Clause 6, Page 7, line 32, leave out '20A(3)' and insert '20B'.

    28 Clause 6, Page 7, line 33, after 'Act,' insert '(with any rectification, authorised under subsection (4) of that section, incorporated).'.

    3.27 p.m.

    My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 21 to 28 en bloc. The purpose of these amendments is to deal with what we regard as important in connection with judicial examination; namely, to ensure that a record of the examination shall be made which is accepted as accurate by both parties, with the sheriff arbitrating in any disputes. The procedure set out in the amendment would ensure this and is in accordance with the Thomson Committee recommendations, subject to the fact that the First Diet recommendations have been modified.

    It is intended that there shall be provision for tape recording of proceedings at judicial examination so that the sheriff will be able to check the record in the event of dispute. As Thomson recommended, only questions and answers are to be recorded. The cost of transcribing a full examination would be high, and unjustified when a question and answer record would allow greater freedom to the accused. We envisage a situation where the prosecutor will frame a question which will then be subject to comment by the sheriff, possibly at the prompting of the defence solicitor. The accused, before answering, may consult his solicitor. It is thus only approved questions and carefully considered replies which will be recorded. This is unlikely to be to the disadvantage of the accused, whereas a record which showed to the jury, for example, the question the accused felt unable to answer without legal advice, might prejudice him This is the basic explanation for these amendments. I beg to move Amendments Nos 21 to 28 en bloc.

    Moved, That this House doth agree with the Commons in the said amendments.—( Lord Mackay of Clashfern.)

    My Lords, the noble and learned Lord the Lord Advocate has spoken to eight amendments at the same time, and certainly I would acknowledge that they improve the situation which is covered by Clause 6. But, as your Lordships will see, this document before us contains no fewer than 21 amendments to Clause 6, and there were amendments made to that clause before it left this House.

    If one now looks at the length and complexity of what is proposed to be added—for example, in Amendment No. 23— one sees that one has provision here for all kinds of bureaucratic nonsenses. One has notices; one has shorthand notes; one has service of notices within certain periods of time; applications for extension; application to the High Court; service by registered post, and so on. One is building here an enormously clumsy apparatus and introducing into the criminal system rigidities which we could simply well do without.

    The clause has no friends. Its constant amendment, both in this place and in another place, have shown the need for substantial changes in the Government's original thinking. It is not too late for the Government to think again, although I would not ask your Lordships to reject the amendments. I accept that they improve the clause. However, I ask the Government, before they exercise their power under Section 81(2) of the Act, as it will be—namely, the commencing powers—to think long and hard before they bring the clause into force.

    It is an unlovely and unloved clause. It is a procedure that has no friends. I cannot believe that it will simplify trials or make justice more easy to attain in Scotland. I ask the Government to take that into account before they bring this part of the Act, as it will be, into operation.

    My Lords, I cannot help thinking that the noble and learned Lord, Lord McCluskey, was a little ungenerous to the Government. I recognise that there has been long and anxious consideration about the clause. However, it should be recognised that the clause, which was introduced originally by the Government in this House, was closely examined, and that during the course of the debates the Govenment gave way on a number of matters and incorporated various things for which we on these Benches and on the Opposition Benches had asked.

    The Bill then went to the Commons. Those in another place introduced a number of amendments, including the ones that we are discussing now, all of which amend the clause and all of which are in favour of the accused person, and for the protection of civil rights. Whatever objections there may have been to the clause in the first place—I hesitate to speak about that because this is a matter of intricate Scottish procedural law—it seems that many of them have been cleared away in the course of the passage of the Bill in this House and in another place.

    I use this opportunity to say—I do not think that I shall have occasion to intervene again in these debates this afternoon because everything that is under discussion, except possibly one matter, is likely to be agreed by the House—that on any showing what is being done in Clauses 1, 2, 3, 5 and 6, which are the clauses with which I and my noble friends were mainly concerned when the Bill was in this House, is of considerable importance. The clauses introduce a new pattern of procedure for dealing with suspects and the process of interrogation of suspects.

    Whatever one may think about it, this will be an important experiment in criminal law in Scotland. I suggest that it will be an important experiment for the purposes of English law. A committee is now discussing whether the system of the Judges' Rules and the rest need to be amended, and I understand that it will come up with fairly considerable proposals.

    It would be churlish of myself and my noble friends who have taken some part in the discussion on this Bill if we were not to acknowledge, as I am glad to do, that the Government in this House and, I believe, in another place, from what I read of the debates that took place there, have shown an extremely accommodating attitude. Some reform of this kind is essential. At the end of the day this House and the other House may well be able to congratulate themselves upon passing a measure of major importance in criminal law. With all respect, I add my congratulations to the Lord Advocate and the noble Lord.

    My Lords, I think that we should like to express our appreciation to the noble Lord, Lord Foot, for his comments. We have endeavoured to improve the clause. We are grateful to all those who have participated in that process, both here and in another place. This is the sort of development of the law which requires as much help as it can get from everyone who has anything to contribute. We gratefully acknowledge the help that we have received.

    The noble and learned Lord, Lord McCluskey, criticises the clause for being bureaucratic. The difficulty is that one has to provide for a number of eventualities. One hopes that in most cases the eventualities will not arise and that the record will be approved simply. I believe that it is a clause that may gather friends as it goes along. We shall attend to what the noble and learned Lord said, but we are confident that the noble Lord, Lord Thomson, was right in recommending a procedure of this sort, and we are glad that it has met with some acceptance up to date.

    Moved, That this House doth agree with the Commons in the said amendments.—( Lord Mackay of Clashfern.)

    On Question, Motion agreed to.

    3.35 p.m.

    Commons Amendment

    29 Clause 6, page 7, line 33 leave out second 'the' and insert 'an'.

    My Lords, I beg to move that the House doth agree with the Commons in their Amendment No. 29. I have already spoken to the amendment.

    Moved, That this House doth agree with the Commons in the said amendment. —( Lord Mackay of Clashfern.)

    On Question, Motion agreed to.

    Commons Amendments

    30 Clause 6, page 7, line 39, leave Out 'It' and insert 'Subject to sections 20B(2) and 76(1)( b) of this Act, on the application of either an accused or the prosecutor, the court may refuse to allow the record or sonic part of the record to be read to the jury; and at the hearing of such application it'.

    31 Clause 6, page 7, line 45, leave out subsection (3) and insert—

    '(3) "Record" in subsection (2) above comprises, as regards any trial, each record included, under section 78(2) of this Act, in the list of productions.'

    32 Page 8, leave out line 3 and insert—

    (4) For section 352 of the 1975 Act (accused's declaration in summary proceedings to be received in evidence without being sworn to by witnesses), there shall be substituted'.

    33 Page 8, line 5, leave out '352A' and insert '352'.

    34 Page 8, line 5, leave out 'subsections (2) and (3)' and insert 'subsection (2)'.

    35 Page 8, line 6, leave out '20A(3)' and insert '20B'.

    36 Page 8, line 7, after 'Act' insert '(with any rectification, authorised under subsection (4) of that section, incorporation),'.

    37 Page 8, line 7, leave out second 'the' and insert 'an'.

    38 Page 8, line 10, leave out 'It' and insert 'Subject to section 20B(2) of this Act and to subsection (4) below, on the application of either an accused or the prosecutor, the court may refuse to admit the record or some part of the record as evidence; and at the hearing of such application it'.

    39 Page 8, line 16, leave out subsection (3) and insert—

    '(3) "Record" in subsection (2) above comprises, as regards any trial, each record which it is sought to have received in evidence under subsection (1) above.'.

    40 Page 8, line 21, leave out '(3)' and insert '(2)'.

    My Lords, I beg to move that the House doth agree with the Commons in their Amendments Nos. 30 to 40 en bloc.

    My Lords, before we leave the clause, I say one word in reply to the noble Lord, Lord Foot. acknowledge that I have never disputed that the amendments made both in this House and in the other place improve the rights of the accused person, to which Clause 6 relates. However, all these changes and all these new and complicated procedures have become necessary only because the most basic right of all—namely, the right of silence—is being substantially impaired by the clause.

    It may be that in the fullness of time the clause will gather friends, though I doubt it. I think that it will merely cause delay and substantial expense. It may gather a few friends among practitioners with the benefit of legal aid behind them. The clause needs friends because it has none at the moment.

    Moved, That this House doth agree with the Commons in the said amendments.—( Lord Mackay of Clashfern.)

    On Question, Motion agreed to.

    Commons Amendment

    41 Clause 11, page 11, line 32, at end insert—

    '(aa) in subsection (2), after the word "subsection" there shall be inserted the words—
    "of a judge—
  • (a) to pronounce an order of court assigning a diet for the disposal of the case may be exercised on his behalf by the clerk of court;
  • (b)";'.
  • My Lords, I beg to move that the House doth agree with the Commons in their Amendment No. 41.

    The amendment is designed to remove a procedural difficulty which emerged in the interpretation of Section 314 of the 1975 Act and which has substantial implications for the application of the six months' time limit that is referred to in the section. There is no reason to expect that it will work in any way to the disadvantage of an accused person. The purpose is to provide that the judge's power in Section 314 to assign a diet, instead of it having to be exercised by the judge personally, may be, but does not have to be, exercised by a clerk of court.

    Moved, That this House doth agree with the Commons in the said amendment. —( Lord Mackay of Clash fern.)

    On Question, Motion agreed to.

    Commons Amendment

    42 Clause 17, page 16, line 3, leave out from '(2)' to 'an' in line 4.

    My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 42. The amendment was made in another place in response to an Opposition proposal. Some honourable Members in another place were concerned that as drafted the clause might create the possibility of double jeopardy. They wished to ensure that we accepted the amendment. I hope that it meets with your Lordships' acceptance.

    Moved, That this House doth agree with the Commons in the said amendment.—( Lord Mackay of Clashfern.)

    On Question, Motion agreed to.

    Commons Amendment

    43 Clause 21, page 19, line 29, leave out subsection (2).

    My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 43. This is a more important amendment than those with which we have been dealing recently. It was moved in another place by the honourable Member for Glasgow, Garscadden. It limits the power for a court to allow a trial to proceed in the accused's absence if he misconducts himself to solemn procedure. That is a suggestion that was made by some noble Lords in this House. I remember particularly that the noble Earl, Lord Selkirk, made the suggestion. It was supported in various parts of the House. The noble Lord, Lord Ross of Marnock, supported the suggestion and we agreed to consider it.

    Having considered the matter carefully, we have come to the conclusion that as long as the power remains in solemn procedure it is adequate for our purpose. Accordingly, we have restricted it to that.

    Moved, That this House doth agree with the Commons in the said amendment.—( Lord Mackay of Clashfern.)

    My Lords, we are very glad that the Lord Advocate has looked at this. It is rather intriguing that on an earlier amendment I heard a Minister say that he would look at some- thing. If he looked at it, it puzzled me what he was going to do after we had passed the Lords' amendments. I did not think that we would have another opportunity to do anything after we had looked at it. But the Lord Advocate had ample opportunity, he used the opportunity well, and we are grateful for the change that has been made.

    My Lords, may I thank the noble and learned Lord. I am sure that that is the right course, and I am glad that the Government agreed to it.

    On Question, Motion agreed to.

    Commons Amendments

    44 Clause 22, page 19, line 46, leave out second 'the' and insert 'a'.

    45 Page 20, line 8, after '(i)', insert 'where the person is concerned in the proceedings as a witness only and no one against whom the proceedings are taken is under the age of 16 years, the foregoing provisions of this subsection shall not apply unless the court so directs;

    (ii)'.

    46 Page 20, line 11, after 'section' insert '(including such requirements as applied by a direction under paragraph (i) above)'.

    47 Page 20, line 16, leave out requirements of this section' and insert 'said requirements'.

    3.41 p.m.

    My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 44 to 47 en bloc. These amendments were made in the light of representations from the press. Their effect is to remove from the scope of the restrictions on the identification of children involved in criminal proceedings children who are witnesses only—that is to say, not also victims, or alleged victims—of the matter in issue, in cases where adults only are accused. The court will however retain the discretion to apply the restriction in such cases in appropriate circumstances.

    The Government recognise the deep feelings sincerely held on both sides of the argument about the extent to which children should be protected from publicity. The paramount consideration is in our view the welfare of the child and the possibility of his rehabilitation as a useful member of society. We are satisfied that Clause 22, as amended, will achieve the best balance between the legitimate concern of the press to publish court proceedings and the need to protect children from unnecessary and damaging publicity.

    I should emphasise that Clause 22 does not place an absolute ban on publication. It gives the judge discretion to decide whether or not a child should be identified, and I undertook that the court would remind judges of their power when a child is convicted, not for the purpose (as I think was suggested in another place) of telling the judges their job—I should not like to undertake that responsibility—but for the purpose of reminding them that they have this power. Amendment No. 44 is a minor drafting amendment to allow for cases where there is more than one accused. I beg to move.

    Moved, That this House doth agree with the Commons in the said amendments.—( Lord Mackay of Clashfern.)

    On Question, Motion agreed to.

    Commons Amendments

    48 Clause 23, page 20, line 33, leave out 'one' and insert 'three'.

    49 Clause 23, page 20, line 36, leave out 'one juror' and insert 'three jurors'.

    My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 48 and 49 en bloc. This amendment was made in another place in the light of concern, expressed in both Houses, that the Government's proposal to reduce the number of peremptory challenges of jurors from five to one might lead to an increase in the number of challenges on cause shown. It seems a reasonable compromise to allow three peremptory challenges; five is certainly too many, since it allows the jury to be sifted by counsel's superficial view of their likely prejudice for or against his client; and, on reconsideration, we agree that one challenge may be too few. I hope that this amendment will be acceptable to the House, and to those noble Lords among whom was numbered the noble Lord, Lord Mishcon, who proposed such an amendment when the Bill was considered before your Lordships in Committee. I beg to move.

    Moved, That this House doth agree with the Commons in the said amendments.—( The Earl of Mansfield.)

    My Lords, as early as January I suggested that this provision in the Bill was wrong. In my absence my noble friend Lord Mishcon moved an amendment to the effect of the present amendment and the noble Earl persuaded those behind him to troop through the Lobby in substantial numbers to defeat the proposal which is now recommended by him to the House. I am glad that he belatedly acknowledges the reasonableness of what we then proposed, and I hope that the House will accept this amendment.

    On Question, Motion agreed to.

    Commons Amendments

    50 Clause 24, page 21, line 8, leave out from 'judge' to 'shall' in line 10 and insert—

  • '(i) in giving a direction, whether or not sought under paragraph (b) below; or
  • (ii) in response to a request made under that paragraph)'.
  • 51 Clause 24, page 21, line 15, after 'to' insert 'receive or'.

    My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 50 and 51. May I take these two amendments together. The purpose of this amendment is really to make sure that the power that a judge has to recall a jury after they have retired to give them a direction which he should have given them during his summing up is not destroyed by the new arrangement. The intention is to preserve that power, and it looked possible that the way that the clause had been drafted to make arrangements for the jury might have given rise to the idea that the power was excluded. I beg to move.

    Moved, That this House doth agree with the Commons in the said amendments—( Lord Mackay of Clashfern.)

    On Question, Motion agreed to.

    Commons Amendments

    52 Clause 26, page 22, line 30, at end insert—

    '(1A) For the purposes of any summary criminal proceedings, a report purporting to be signed by two authorised forensic scientists shall, subject to subsection (2) below, be sufficient evidence of any fact (or conclusion as to fact) contained in the report and of the authority of the signatories.
    In the foregoing provisions of this subsection, "authorised" means authorised by the Secretary of State to make a report to which this subsection shall apply.'.

    53 Clause 26, page 22, leave out line 31 and insert—

    '(2) Subsections (1) and (1A) above shall not apply to a certificate, or as the case may be, report'.

    My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 52 and 53. I also wish to speak to Amendments Nos. 54 to 56 and 60 to 66. The purpose of these amendments is to extend the provisions for routine evidence in Clause 26 to reports provided by forensic scientists. Under these amendments such evidence could be received by certificate in summary cases, and could be spoken to in court by one scientist only (without the need for corroboration) in indictment cases. I beg to move.

    Moved, That this House doth agree with the Commons in the said amendments—( Lord Mackay of Clashfern.)

    On Question, Motion agreed to.

    Commons Amendment

    54 Clause 26, page 22, line 36, leave out 'date' and insert 'time'.

    My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 54. The purpose of Amendments Nos. 54, 59 and 64 is to make clear that the right for the accused to challenge routine evidence remains available, if there are special circumstances, right up to the moment when the trial starts. I hope that the House will welcome these amendments as extending slightly the opportunity for challenge. I beg to move.

    Moved, That this House doth agree with the Commons in the said amendment—( Lord Mackay of Clashfern.)

    On Question, Motion agreed to.

    Commons Amendments

    55 Clause 26, page 22, line 40, at end insert 'or as the case may be the fact, conclusion or authority mentioned in subsection (1A) above'.

    56 Clause 26, page 22, line 41, after certificate 'insert, 'or as the case may be report,'.

    My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 55 and 56. I have already spoken to these amendments. I beg to move.

    Moved, That this House doth agree with the Commons in the said amendments.—( Lord Mackay of Clashfern).

    On Question, Motion agreed to.

    Commons Amendments

    57 Clause 26, page 22, line 41, after 'above' insert', or of a conviction or extract conviction required by subsection (7) below,'.

    58 Clause 26, page 22, line 42, leave out 'this subsection' and insert 'either of those subsections or by subsection (5) or (6) below'.

    My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 57 and 58. These are required in order to tidy up the provisions for service of documents in relation to Clause 26. Subsection (3) contains detailed provisions as to the manner of service on the prosecutor. Subsections (5), (6) and (7) contain provisions with regard to notice to the prosecutor, and Amendments Nos. 57 and 58 attract to them subsection (3) provisions with regard to the manner of service. They are basically drafting amendments. I beg to move.

    Moved, That this House doth agree with the Commons in the said amendments.—( Lord Mackay of Clashfern.)

    On Question, Motion agreed to.

    Commons Amendments

    59 Clause 26, page 23, line 16, leave out 'date' and insert 'time'.

    60 Clause 26, page 23, line 21, after 'pathologists' insert 'or forensic scientists'.

    62 Clause 26, page 23, line 25, after 'pathologist' insert 'or forensic scientist'.

    My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 59 to 62. I have spoken to these amendments. I beg to move.

    Moved, That this House doth agree with the Commons in the said amendments.—( Lord Mackay of Clashfern).

    On Question, Motion agreed to.

    Commons Amendment

    63 Clause 26, page 23, line 24, after 'fact' insert ('or conclusion as to fact)'.

    My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 63. Amendment No. 63 is essentially a drafting point. The intention of the clause is that the evidence of an autopsy report, for example, should be able to be taken by certificate. However, such a report includes not only fact (such as body temperature at a certain time) but also conclusions drawn from these facts (for example, that therefore death probably occurred at some particular time). Amendment No. 63 secures that both facts and conclusions on facts may be entered in evidence with the new procedure. I beg to move.

    Moved, That this House doth agree with the Commons in the said amendment.—( Lord Mackay of Clashfern.)

    On Question, Motion agreed to.

    Commons Amendments

    64 Clause 26, page 23, line 27, leave out 'date' and insert 'time'.

    65 Clause 26, page 23, line 28, leave out 'gives notice' and insert 'serves notice on the prosecutor'.

    66 Clause 26, page 23, line 29, after pathologist' insert 'or forensic scientist'.

    67 Clause 26, page 23, line 32, leave out '( a)'.

    68 Clause 26, page 23, line 42, leave out from 'application' to end of line 9 on page 24.

    My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 64 to 68. I have already spoken to these amendments. I beg to move.

    Moved, That this House doth agree with the Commons in the said amendments.—( Lord Mackay of Clashfern.)

    On Question, Motion agreed to.

    Commons Amendment

    69 Clause 30, page 27, line 14, leave out 'such' and insert 'the'.

    My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 69. This is a purely drafting amendment designed to bring the wording of the provision into line with the three other new provisions in Clause 30. I beg to move.

    Moved, That this House doth agree with the Commons in the said amendment.—( Lord Mackay of Clashfern.)

    On Question, Motion agreed to.

    Commons Amendment

    70 After Clause 31 insert the following new clause:

    " Evidence by letter of request or on commission

    (1) In any criminal proceedings in the High Court or the sheriff court the prosecutor or the defence may, at an appropriate time, apply to a judge of the court in which the trial is to take place (or, if that is not yet known, to a judge of the High Court) for—

  • (a) the issue of a letter of request to a court, or tribunal, exercising jurisdiction in a country or territory outside the United Kingdom, Channel Islands, and Isle of Man for the examination of a witness resident in the said country or territory; or
  • (b) the appointment of a commissioner to examine, at any place in the United Kingdom, Channel Islands, or Isle of Man, a witness who by reason of being ill or infirm is unable to attend the trail diet.
  • (2) A hearing, as regards any application under subsection (1) above by a party, shall be conducted in chambers but may be dispensed with if the application is not opposed. The application may be granted only if the judge is satisfied that—

    (a) the evidence which it is averred the witness is able to give is necessary for the proper adjudication of the trial;
    and
    (b) there would be no unfairness to the other party were such evidence to be received in the form of the record of an examination conducted by virtue of that subsection.

    (3) Any such record as is mentioned in paragraph ( b) of subsection (2) above shall, without being sworn to by witnesses, be received in evidence in so far as it either accords with the averment mentioned in paragraph ( a) of that subsection or can be so received without unfairness to either party.

    (4) The procedure as regards the foregoing provisions of this section shall he prescribed by Act of Adjournal under the 1975 Act.

    (5) In subsection (1) above, "appropriate time" means as regards—

  • (a) solemn proceedings, any time before the oath is administered to the jury;
  • (b) summary proceedings, any time before the first witness is sworn,
  • or (but only in relation to an application under paragraph ( b) of that subsection) any time during the course of the trial if the circumstances on which the application is based had not arisen, or would not have merited such application, within the period mentioned in paragraph ( a), or as the case may be ( b), of this subsection.

    (6) This section is without prejudice to any existing power at common law to adjourn a trial diet to the place where a witness is.".

    My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 70. Amendment No. 70 is for the purpose of introducing a new clause implementing the recommendation of the Thomson Committee that criminal courts should be given power to receive the evidence of witnesses who are unable to be present at a trial, provided that the court is satisfied that the evidence is necessary and that no unfairness to either party would result. Your Lordships will note a misprint on the Marshalled List. It is the break in the new clause where "trail" appears instead of "trial". These stringent requirements mean that the evidence will only be so received when it is of a formal nature; for example, the evidence of an expert witness whose testimony is not disputed, and there will thus in practice not be a great number of cases where the new procedure can be resorted to.

    I would emphasise that the right to apply to the court to exercise these powers will be available to both the prosecution and the defence, and each will have the right to oppose any application made by the other. The power will be available only to the sheriff court and the High Court but not in the district court. I think the clause sufficiently explains its method for me not to require to go into any further detail. I beg to move.

    Moved, That this House cloth agree with the Commons in the said amendment.—( Lord Mackay of Clashfern.)

    My Lords, without asking the noble and learned Lord to go into all the details, I wonder whether he can assist me to understand one part of it. I refer in particular to the use of the word "or" in the 29th line of the new clause. As I understand it, the new clause, subsection (2), requires the judge to be satisfied about certain matters; that is, first, the necessity for the evidence which is required to be taken in this fashion and, secondly, as to the absence of unfairness. Both these judgments require to be made by him, of course, at the time the application is made, and, therefore, before the evidence is recorded. Subsection (3) then deals with the situation after the evidence has been obtained and the record is available, and that requires that that record shall be received. But it goes on to say:

    "shall … be received in evidence in so far as it either accords with the averment mentioned in paragraph (a) 'the one relating to the necessity of that subsection' or can be so received without unfairness to either party".
    Does that mean that if the evidence is judged to satisfy the test of necessity then the court has no discretion to refuse to allow the evidence to be received, even if the court could be persuaded that it was unfair that the evidence be received?

    My Lords, I am obliged to the noble and learned Lord for raising this point. It gives me the opportunity to explain a little further what is behind this subsection (3). Subsection (2) describes the initial procedure on the application for this method of taking evidence, and your Lordships will see that it provides, about halfway down the first part of subsection (2), that

    "The application may be granted only if the judge is satisfied that—
    (a) the evidence which it is averred the witness is able to give is necessary for the proper adjudication of the trial;"
    If I may pause there for a minute, that refers to evidence which it is averred the witness is able to give and the judge is told that at that stage and, having been told that, he is then to judge, in the light of that, whether it would be unfair to either party that this application should be granted. Assuming he decides that the application should be granted, the matter of fairness, so far as evidence covered by that averment is concerned, is settled, and evidence which comes in the report or in the record which accords with that averment is already covered by the judge's decision. But, of course, it often happens that, even with the best prepared cases, when you actually go to see the witness and hear what he has to say he may say something else, which is not covered by what the judge was told the witness was going to say. When that happens, it is obviously a question whether the record on that part should be admitted. What we are saying is, where the evidence goes beyond what was originally forecast to the judge when he granted the application, it is only to be received where it may be so received without unfairness to either party. I hope that explains the point which the noble and learned Lord has raised.

    On Question, Motion agreed to.

    Commons Amendment

    71 Clause 39, page 30, line 14, after ' insert ' in a case'.

    My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 71. This is a very minor drafting amendment, the purpose of which is to clarify the meaning of the words "any other case", as referred to in subparagraph 2 in Clause 39. I beg to move.

    Moved, That this House doth agree with the Commons in the said amendment.—( The Earl of Mansfield.)

    On Question, Motion agreed to.

    Commons Amendment

    72 Clause 40, page 31, line 6, leave out borstal training or'.

    My Lords, I beg to move that this House cloth agree with the Commons in their Amendment No. 72. Perhaps I could speak to Amendments Nos. 148 to 154, which are to Schedule 7, when moving this amendment.

    These are drafting amendments, necessary to take account of the abolition of borstal training in Northern Ireland by Orders in Council, which took effect on 1st October this year. Amendment No. 72 deletes the reference to borstal training in Clause 40(2)(b)(iii). Amendments Nos. 148 to 154 make the necessary changes to paragraphs 7 and 10 of Schedule 7 to reflect the amendments to the Criminal Justice Act 1961 made by one of the Northern Ireland Orders.

    Moved, That this House doth agree with the Commons in the said amendment.—( The Earl of Mansfield.)

    On Question, Motion agreed to.

    Commons Amendment

    73 Clause 42, page 32, leave out line 28 to 34.

    My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 73. This amendment is basically consequential on the decision made by this House and confirmed on a free vote in Committee in another place, that in murder cases the making of minimum recommendations as to sentence should remain at the judge's discretion. The amendment deletes Clause 42(4), which was drafted on the assumption that such recommendations would become mandatory, except in exceptional cases. Its purpose is to assist the Appeal Court in maintaining the maximum degree of consistency in the making of minimum recommendations, but the subsection is inappropriate now that Clause 42 has been amended, as indeed the noble and learned Lord, Lord McCluskey, pointed out in this House on Report.

    Moved, That this House doth agree with the Commons in the said amendment.—( The Earl of Mansfield.)

    On Question, Motion agreed to.

    Commons Amendment

    74 Clause 44, page 35, line 9, after ' above,' insert 'on a male person'.

    My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 73. The new Section 207(5) to the 1975 Act as contained in Clause 44 provides, in relation to the detention of young offenders, that where detention is imposed by way of sentence for a period of between 28 days and 4 months the court shall order that the detention be in a detention centre, except in specified circumstances. It has never been the Government's intention that girls should be sent to detention centres. No detention centre provision has ever been made for girls in Scotland. The Home Office once introduced a female detention centre, but it was closed after a study by the Advisory Council on the Penal System found the brisk régime unsuitable for girls. However it was brought to our attention that as drafted new Section 207(5) would apply to both female and male offenders; and this amendment is therefore necessary to restrict that provision to male offenders only. All female young offenders sentenced to detention will serve their sentences in young offenders' institutions (under new Section 207(5)(b)).

    Moved, That this House doth agree with the Commons in the said amendment.—( The Earl of Mansfield.)

    On Question, Motion agreed to.

    Commons Amendment

    75 Clause 44, page 35, line 19, leave out at 'and insert in'.

    My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 75. This a trivial drafting amendment I beg to move.

    Moved, That this House doth agree with the Commons in the said amendment.—( The Earl of Mansfield.)

    On Question, Motion agreed to.

    Commons Amendments

    76 Clause 44, page 35, line 42, leave out from 'Where' to end of line 2 on page 36 and insert a person is serving a period of detention in a detention centre when a period is ordered which is—

  • (a) consecutive to the period being served and the periods together total more than 5 months; or
  • (b) concurrent with the period being served and is for more than 5 months, the convicted person shall,".
  • 77 Clause 44, Page 36, line 6, at end insert or as the case may be of those concurrent periods '.

    My Lords, I beg to move that the House doth agree with the Commons in their Amendments Nos. 76 and 77 en bloc. New Section 207(9) to the 1975 Act, as contained in Clause 44, deals with the situation of an offender who is sentenced to detention in a detention centre whilst already serving such a sentence. Its intention is to ensure that no one serves a total sentence of more than five months in a detention centre, since the régime is not designed to suit longer terms. However, it has been pointed out to us by Professor G. H. Gordon that the meaning of the phrase "the total period to be served" in new Section 207(9) is not quite clear. It might be taken as meaning the total period of sentence outstanding, rather that (as was intended) the aggregation of the periods actually imposed by the courts. These two amendments remove the ambiguity and thus ensure that no one will serve a total sentence of more than five months in a detention centre.

    Moved, That this House doth agree with the Commons in the said amendments. —(The Earl of Mansfield.)

    On Question, Motion agreed to.

    Commons Amendments

    78 Clause 47, page 38, line 20, after 'enforcement' insert to, and shall be enforceable as if it had been imposed by'.

    79 Clause 47, page 38, line 22, leave out to'.

    80 Clause 47, page 38, line 24, leave out 'to'.

    My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 78, 79 and 80 en bloc. The purpose of these drafting amendments is to make clear that a sheriff court enforcing a High Court fine has the same powers as it would have if it had imposed the fine itself, which includes the discretion to transfer the fine to another court under Section 196(1) of the 1975 Act.

    Moved, That this House doth agree with the Commons in the said amendments.—( The Earl of Mansfield.)

    On Question, Motion agreed to.

    Commons Amendment

    81 Clause 49, page 40, line 14, after 'a' insert 'maximum'.

    My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 81. The purpose of this amendment is to clarify the drafting of Clause 49. It makes clear that where an offender pays part of his fine and defaults in the remainder, and no period of imprisonment in default has been specified, the offender is liable to a maximum period of imprisonment determined by reference to the table in new Section 407(1A). As drafted, subsection (1D) could be read as implying that this maximum period was to be imposed in every case.

    Moved, That this House doth, agree with the Commons in the said amendment.— ( The Earl of Mansfield.)

    On Question, Motion agreed to.

    Commons Amendment

    82 After Clause 49, insert the following new clause:

    " Execution in different parts of United Kingdom of warrants for imprisonment for non-payment of fine.

    "After section 38 of the Criminal Law Act 1977 there shall be inserted the following section—

    "Execution in different parts of United Kingdom of warrants for imprisonment for nonpayment of fine.

    38A.—(1) Subject to subsection (6) below, a person against whom an extract conviction is issued in Scotland for imprisonment in default of payment of a fine may be arrested—

  • (a) in England and Wales, by any constable acting within his police area;
  • (b) in Northern Ireland, by any member of the Royal Ulster Constabulary or the Royal Ulster Constabulary Reserve;
  • and subsections (4) and (5) of section 159 of the Magistrates' Courts Act (Northern Ireland) 1964 (execution without possession of the warrant and execution on Sunday) shall apply to the execution in Northern Ireland of any such extract conviction as those subsections apply in relation to the execution of a warrant for arrest.

    (2) Subject to subsection (6) below, a person against whom there has been issued in England, Wales or Northern Ireland a warrant committing him to prison in default of payment of a sum adjudged to be paid by a conviction may be arrested in Scotland, by any constable appointed for a police area, in like manner as if the warrant were an extract conviction for imprisonment issued in Scotland in default of payment of a fine.

    (3) A person arrested by virtue of subsection (1) above under an extract conviction or by virtue of subsection (2) above under a warrant of commitment may be detained under it in any prison in the part of the United Kingdom in which he was arrested; and while so detained he shall be treated for all purposes as if he were detained under a warrant of commitment or extract conviction issued in that part of the United Kingdom.

    (4) An extract conviction or a warrant of commitment may be executed by virtue of this section whether or not it has been endorsed under section 4 of the Summary Jurisdiction (Process) Act 1981 or under section 27 of the Petty Sessions (Ireland) Act Act 1851.

    (5) In this section—

    • 'fine' includes any sum treated by any enactment as a fine for the purposes of its enforcement and any sum to be found as caution;
    • 'imprisonment' includes, in the case of a person who is under the age of 21 years, detention;
    • 'part of the United Kingdom' means England and Wales, Scotland or Northern Ireland;

    'prison' means—

  • (i) in the case of a person who is under the age of 21 years arrested in Scotland, a young offenders institution; and
  • (ii) in the case of a person under that age arrested in Northern Ireland, a young offenders centre; and
  • 'sum adjudged to be paid by a conviction' has the meaning given by section 150(3) of the Magistrate's Courts Act 1980 or, in Northern Ireland, section 169(2) of the Magistrates' Courts (Northern Ireland) Act 1964.

    (6) This section shall not apply to the arrest of persons under the age of 17 years.".".

    My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 82. I will, with permission, speak at the same time to Amendments Nos. 102 to 105 inclusive. This new clause and the associated amendments make reciprocal provision between Scotland and England and Wales, and between Scotland and Northern Ireland to secure first that warrants of apprehension and imprisonment in respect of fine defaulters may be executed in the other jurisdiction without the necessity of "backing", and secondly that imprisonment following thereon should be served locally in a prison of the jurisdiction in which the defaulter is apprehended.

    The Thomson Committee in their second report expressed concern about the present procedure, under which a defaulter on a Scottish fine who is arrested in England has to be brought by the Scottish police to Scotland to serve his sentence. They noted that this is a source of much complaint, particularly by the police, because it creates needless difficulties and expense for them; and that it can also be abused by defaulters. For example, a Scotsman living in London who is anxious to return home to Scotland may give himself up to the police for non-payment of a small fine in the knowledge that he will be conveyed to a Scottish prison. On arrival he immediately pays his fine at the prison door and thus gets a free journey home. They therefore recommended that it should be competent for a sentence of imprisonment imposed in default of a payment of a fine by a Scottish court to be served in an English prison and vice versa: and that the extract conviction issued by the clerk of the court for nonpayment of the fine should be sufficient authority for the apprehension and imprisonment of the accused. At present in such circumstances the cumbersome procedure of obtaining "backing" from an English court has to be adopted. I beg to move.

    Moved, That this House doth agree with the Commons in the said amendment.—( The Earl of Mansfield.)

    My Lords, the House will have noticed that this swingeing cut in public expenditure is directed exclusively at Scots. The noble Earl may take some comfort in the fact that there is no member of the Scottish National Party in this House to criticise him for it.

    My Lords, does this also mean that any application by a prisoner to be transferred to a Scottish prison will automatically be turned down?

    We used to have a Scottish Nationalist, my Lords, but it could have been that the conduct of the ill-fated Scotland Act by the noble and learned Lord, Lord McCluskey, frightened him off.

    On Question, Motion agreed to.

    Commons Amendment

    83 Clause 54, page 41, line 43, leave out £25 ' and insert ' £50 '.

    4.5 p.m.

    My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 83. Clause 54 increases certain maximum fines for offences of drunkenness to take into account the change in the value of money since the penalties were last fixed, and also slightly increases the penalties in real terms so as to make available to the courts a higher fining power to replace imprisonment. The fines were last fixed, by the Penalties for Drunkenness Act 1962, at £5 and £10 respectively, for offences in this section. On reconsideration, we take the view that the implied distinction in gravity is somewhat arbitrary, and the Government therefore accepted this amendment in Committee in another place. The effect of this amendment will be that the three maximum fines specified in Section 70 of the 1903 Act will all be set at £50, which is the first step on the scale—rising from £50 to £1,000—to which all summary maximum fines are gradually being assimilated. The offences under Section 70 cannot readily be distinguished in gravity and it is notable that all three maxima were the same (40 shillings) when they were first set in 1903.

    Moved, That this House doth agree with the Commons in the said amendment.—( The Earl of Mansfield.)

    On Question, Motion agreed to.

    Commons Amendments

    84 Clause 56 page 42, line 32, leave out 'or'.

    85 Clause 56 page 42, line 34, at end insert '; or

    (c) at the same time as, under section 219 or 432 of that Act, it defers sentence.'

    My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 84 and 85 en bloc. The purpose of these amendments is to make clear that a compensation order cannot be imposed at the same time as sentence is deferred. A compensation order, as it affects the offender, is to all intents and purposes a sentence, and it is illogical to defer sentence to take account of the offender's compliance with an order with which he is obliged to comply. Voluntary reparation will still be possible and courts may defer sentence so that offenders' voluntary efforts to make restitution can be taken account of in determining sentence where appropriate. If no restitution has by then been made, courts may impose a compensation order.

    Moved, That this House doth agree with the Commons in the said amendments.—( The Earl of Mansfield.)

    On Question, Motion agreed to.

    Commons Amendment

    86 Clause 56, page 42, line 36, after appropriation ' insert ', or the unlawful taking and using.'.

    My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 86. Where there has been an offence involving either dishonest appropriation of property or the unlawful taking and using of a motor vehicle, Section 56(2) as it stands provides that any damage to the property taken shall be treated for the purposes of making a compensation order as if it had been a direct result of the offence regardless of how in fact the damage occurred. The statutory offence of "unlawful taking and using of a motor vehicle" is however only one example of the common law crime of unlawful taking and using, and this amendment is designed to extend the application of the section to cover also offences of this type at common law. This, for example, would enable compensation to be paid if a boat was taken without the owner's permission and abandoned and subsequently damaged.

    Moved, That this House doth agree with the Commons in the said amendment.—( The Earl of Mansfield.)

    On Question, Motion agreed to.

    Commons Amendment

    87 Clause 57, page 43, line 11, at end insert: Provided that where the person is serving, or is to serve, a period of imprisonment or detention no account shall be taken, in assessing such means, of earnings contingent upon his obtaining employment after release.'.

    My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 87. This amendment is aimed at cases where an offender is already serving or about to serve some form of custodial sentence. Its purpose is to make clear that when making a compensation order in such cases, courts should not include in an assessment of the means of the offender earnings which he might have if he obtains employment upon his release. The Government agree with the arguments of the Dunpark Committee that to include such hypothetical earnings would be wrong and that the courts in Scotland should not follow the decision in an English case, Regina v Kneeshaw, where an assessment made on this basis by an inferior court was upheld on appeal. This amendment makes clear therefore that the courts should not take into account earnings which depend on an offender obtaining employment on leaving custody.

    Moved, That this House doth agree with the Commons in the said amendment.—( The Earl of Mansfield.)

    My Lords, we should congratulate the Government on their good sense in facing facts. With 250,000 unemployed in Scotland, it would not be wise to count on the earnings of a person who is in prison on the basis that he might find employment. There is little chance of that.

    On Question, Motion agreed to.

    Commons Amendments

    88 Clause 64, page 44, line 39, leave out ' 72B of The Magistrates' Courts Act 1952 ' and insert ' 91 of the Magistrates' Courts Act 1980'.

    89 Clause 64, page 45, line 17, leave out from orders)' to end of line 25.

    My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 88 and 89 en bloc. These are both minor drafting amendments.

    Moved, That this House doth agree with the Commons in the said amendments.—( The Earl of Mansfield.)

    On Question, Motion agreed to.

    Commons Amendment

    90 Clause 67, page 47, line 1, leave out from ' Where ' to ' passengers ' in line 3 and insert a public service vehicle is being operated for the principal purpose of conveyancing'.

    4.10 p.m.

    My Lords, I beg to move Amendment No. 90, and perhaps I could speak to Amendment No. 96 at the same time. These amend- ments will make all public service vehicles, not just contract carriages, subject to the controls on the carriage of alcohol providing they are being operated principally for the purpose of conveying passengers to or from a designated sporting event. It would be quite wrong if an operator using a coach to take supporters to or from a match was exempted from control merely because he employed some simple procedural device to avoid falling within the legal definition of "contract carriage", such as collecting fares separately from those travelling. It is more satisfactory to rely on the purpose for which the coach is being operated as the criterion of whether controls should apply, rather than the category into which it happens to fall under the provisions of the Transport Act.

    In asking this House to agree with the Commons in these amendments, I should point out that there is a minor error in Amendment No. 90 as it appears in the printed list. The amendment refers to a public service vehicle
    "being operated for the principal purpose of conveyancing".
    Whatever the merits of the argument that solicitors should cease to have a monopoly of conveyancing, I am sure it is not a function which this House would wish to see carried out literally on the Clapham omnibus. The word "conveyancing" should of course read "conveying". I beg to move.

    Moved, That this House doth agree with the Commons in the said amendment.—( The Earl of Mansfield.)

    On Question, Motion agreed to.

    Commons Amendments

    91 Clause 68, page 47 line 19, leave out 'holder' and insert 'operator'.

    92 Clause 68, page 47 leave out 'licence in respect of a vehicle used and engaged' and insert 'which is being operated'.

    93 Clause 68, page 47 line 22, leave out holder 'and insert operator'.

    My Lords, I beg to move Amendments Nos. 91 to 93 en bloc, and to speak to Amendment No. 97. These are minor drafting amendments which do not affect the intended application of Clause 68. They are consequential upon the Transport Act 1980, which was passed this Session. I beg to move.

    Moved, That this House doth agree with the Commons in the said amendments.—( The Earl of Mansfield.)

    My Lords, does changing "holder" of a public service vehicle licence to "operator of a PSV licence lighten the onus at all upon the driver?

    My Lords, these amendments have no effect upon the application.

    On Question, Motion agreed to.

    Commons Amendments

    94 Clause 70, page 48, line 2, leave out 'use' and insert 'purpose'.

    95 Clause 70, page 48, line 4, leave out 'use' and insert 'purpose'.

    My Lords, I beg to move Amendments Nos. 94 and 95 en bloc. These are minor drafting amendments. As drafted, Clause 70 refers to "medical use" as defined in the Medicines Act 1968, but the term actually used in that Act is "medical purpose". These amendments bring the wording of the clause into line with the 1968 Act. I beg to move.

    Moved, That this House doth agree with the Commons in the said amendments.—( The Earl of Mansfield.)

    On Question, Motion agreed to.

    Commons Amendments

    96 Clause 75, page 49, leave out lines 16 and 17.

    97 Clause 75, page 49, line 29, leave out from and' to end of line 31 and insert—

    '"operator" in relation to such a vehicle means—
  • (a) the driver if he owns the vehicle; and
  • (b) in any other case the person for whom the driver works (whether under a contract of employment or any other description of contract personally to do work);'.
  • My Lords, I have spoken to these two amendments, Nos. 96 and 97. I beg to move.

    Moved, That this House doth agree with the Commons in the said amendments.—( The Earl of Mansfield.)

    On Question, Motion agreed to.

    Commons Amendments

    98 Clause 76, page 50, line 18, after 'court' insert '—(i) for a first such offence'.

    99 Clause 76, page 50, line 21, at end insert', or to both; and

    (ii) for any subsequent such offence to imprisonment for a term not exceeding 6 months, or to the fine mentioned in sub-paragraph (i) above, or to both'.

    My Lords, I beg to move Amendments Nos. 98 and 99. At present, Clause 76 provides for a maximum sentence of imprisonment of three months on conviction for vandalism in the sheriff summary court. The purpose of these amendments is to provide for a maximum sentence of six months in the case of a second or subsequent offence of vandalism. They thus reinforce the basic purpose of Clause 76, which is, by creating a statutory offence of vandalism, to enable courts to identify persistent offenders and to impose appropriate deterrent penalties upon them. They were made in another place in fulfilment of an undertaking which I gave to the noble and learned Lord, Lord Wilson of Langside, when the Bill was before your Lordships' House on Report. I beg to move.

    Moved, That this House doth agree with the Commons in the said amendments.—( The Earl of Mansfield.)

    On Question, Motion agreed to.

    Commons Amendment

    100 Clause 77, page 50, line 28, leave out ' providing residential' and insert'—

  • '(a) providing; or
  • (b) contributing by way of grant under section 10(3) of this Act to the provision by a voluntary organisation of, residential
  • My Lords, this amendment is designed to enable local authorities to use the specific grants which will be provided by the Secretary of State under Clause 77 to grant-aid the provision of hostel accommodation by voluntary organisations, so that they will not necessarily have to undertake the provision themselves. I beg to move.

    Moved, That this House doth agree with the Commons in the said amendment.—( The Earl of Mansfield.)

    On Question, Motion agreed to.

    Commons Amendment

    101 After Clause 77, insert the following new clause:

    ( "Homosexual offences.

    .—(1) Subject to the provisions of this section, a homosexual act in private shall not be an offence provided that the parties consent thereto and have attained the age of twenty-one years.

    (2) A male person who is suffering from mental deficiency which is of such a nature or degree that he is incapable of living an independent life or of guarding himself against serious exploitation cannot in law give any consent which, by virtue of subsection (1) above, would prevent a homosexual act from being an offence, but a person shall not be convicted on account of the incapacity of such a male person to consent, of an offence consisting of such an act if he proves that he did not know and had no reason to suspect that male person to be suffering from such mental deficiency.

    (3) Section 97 of the Mental Health (Scotland) Act 1960 (prohibition on men on the staff of a hospital, or otherwise having responsibility for mental patients, having sexual intercourse with women patients) shall have effect as if any reference therein to having unlawful sexual intercourse with a woman included a reference to committing a homosexual act.

    (4) Subsection (1) above shall not prevent a homosexual act from being an offence under any provision of the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957.

    (5) In this section, "a homosexual act" means sodomy or an act of gross indecency by one male person with another male person.

    (6) Subject to the provisions of subsection (2) above, it shall be an offence to commit or to be party to the commission of, or to procure or attempt to procure the commission of a homosexual act—

  • (a) in public;
  • (b) without the consent of any party to the act;
  • (c) with a person under the age of twenty-one years; or
  • (d) where the act is committed on board a United Kingdom merchant ship wherever it may be, by a male person who is a member of the crew of that ship with another male person who is a member of the crew of that ship or any other United Kingdom merchant ship.
  • (7) In this section, "member of the crew" in relation to a ship, includes the master of the ship; "United Kingdom merchant ship" means a ship registered in the United Kingdom habitually used or used at the time of the alleged offence for the purposes of carrying passengers or goods for reward.

    (8) It shall be an offence to procure or attempt to procure the commission of a homosexual act between two other male persons.

    (9) From the commencement of this section a person who commits or is party to the commission of an offence under subsection (6) or subsection (8) above shall be liable on conviction on indictment to imprisonment for a term not exceeding two years or to a fine or to both and on summary conviction to imprisonment for a term not exceeding 3 months, or to a fine not exceeding the prescribed sum (within the meaning of section 289B of the 1975 Act).

    (10) It shall be a defence to a charge of committing a homosexual act under subsection (6)( c) above that the person so charged being under the age of 24 years who had not previously been charged with like offence, had reasonable cause to believe that the other person was of or above the age of twenty-one years.

    (11) A person who knowingly lives wholly or in part on the earnings of another from male prostitution or who solicits or importunes any male person for the purpose of procuring the commission of a homosexual act within the meaning of subsection (5) above shall be liable:

  • (a) on summary conviction to imprisonment for a term not exceeding six months, or
  • (b) on conviction on indictment to imprisonment for a term not exceeding two years.
  • (12) Premises shall be treated for the purposes of sections 13 and 14 of the Sexual Offences (Scotland) Act 1976 as a brothel if people resort to it for the purpose of homosexual acts within the meaning of subsection (5) above in circumstances in which resort thereto for heterosexual practices would have led to its being treated as a brothel for the purposes of those sections.

    (13) No proceedings for an offence to which this subsection applies shall be commenced after the expiration of twelve months from the date on which that offence was committed. This subsection applies to:

  • (a)the offences mentioned in subsections (6) and (8) above; and
  • (b)any offence under subsection (11) above which consists of soliciting or importuning any male person for the purpose of procuring the commission of a homosexual act.".).
  • As an amendment to Commons Amendment No. 101, I call Amendment No. 101A.

    Lords Amendment To Commons Amendment No 101

    101A After subsection (1) insert—

    ("( ) An Act which would otherwise he treated for the purposes of this Act as being done in private shall not be so treated if done—
  • (a) when more than two persons take part or are present; or
  • (b) in a lavatory to which the public have, or are permitted to have, access whether on payment or otherwise.").
  • My Lords, Commons Amendment No. 101 introduced a new clause to the Bill, having the effect that a homosexual act committed in private shall not be an offence in Scotland provided both parties consent and are over 21. I am not disputing the principle of this new clause at all. My amendment is to introduce a clarifying provision to help clear up what is meant by "in private". Your Lordships will see that subsection (1) provides that a homosexual act in private shall not be an offence, but subsection 6(a) provides that it shall continue to be an offence if committed in public. The purpose of my amendment is to make clear just what is meant by "in private" in two respects,.

    The amendment which I propose is in fact derived entirely from the corresponding section in the English Act, which is the Sexual Offences Act 1967, which is in terms very similar to this clause and which contains a provision such as I am proposing. The amendment proposed, to insert the words printed, is to show that when more than two persons are present it shall not be treated as being in private, or when committed in a lavatory to which the public have access it shall not be in private. I think there is quite a real difficulty as to what is "in private". One could imagine acts taking place in a private house. They could not be said to be in public, but if there were a number of people present it is obviously desirable that they should not be treated as being in private. The purpose of my amendment is to clear up that doubt.

    At the same time, perhaps I should say that the next Amendment, No. 101B, is simply to alter subsection (6)(a), which provides that it shall be an offence to commit the act "in public". If the first amendment is carried, I think it would be better to have, in subsection (6)(a), that it shall be an offence if not committed in private, because they might not mean quite the same thing. I beg to move.

    Moved, That Amendment No. 101A as an amendment to the Commons Amendment No. 101 be agreed to. —( Lord Fraser of Tullybelton.)

    My Lords, I feel grateful to my noble and learned friend Lord Fraser for introducing these amendments. This clause was inserted in the other place on the last day this Bill was there in circumstances which prevented a Committee stage being held at all. The result is that this clause has never been examined closely in Committee; and I believe that in the minds of many Members of the other place it was passed in the belief that it was virtually the same as the provision in the English Act, in 1967. This was not true, and if anyone takes in Gay News they will find it is described as "a licence for orgy". I do not think for a moment that those who supported this clause in the other place had that in mind for one minute. I do not think they did. They misunderstood this clause as being something which was closely in line with the provision in the English Act. This is not the case.

    I think we could refuse to put this amendment in, and I think there are reasons why we really could reasonably do so. Indeed, I do not think this House should allow itself to become a sort of dirty clothes basket, in which any clothes are put into it, they are washed, cleaned and ironed, and are handed back in a neat pile. But there are two considerations which I have in mind in supporting my noble and learned friend in his amendment. First, I do not think that many Members here or in the other place want this controversy to go on. They want it finished as soon as they possibly can. That is to say, the general rules for this form of activity should be as near as may be in the two countries. I think that that is what is required.

    Secondly, I think that we want to avoid leap-frogging; that is to say, one country does one thing and then there is a demand for the other country to do the same. In this case, the English are demanding that the Scots should bring their law into line. If we went too far, then the Scots would demand that the English law be brought into line. This is undesirable in every way.

    One thing which my noble friend did not mention is the question of sentences. The level of sentencing in this draft is very much less than in the English Act of 1967. That introduces also the element of the possibility of fining. I would not want to change that. I have no desire to see any more people going to prison than is absolutely necessary. I should not be one for changing sentencing policy. On these grounds, I hope that the House will accept both amendments, send the Bill back and get what amounts to an arrangement in both countries which is very substantially the same.

    My Lords, I hope that the House will reject this amendment to the Commons amendment. I do not want to be immodest in any way but, in fact, the Commons amendment is in substance and in detail the Bill which I introduced into this House three years ago and which was passed by a substantial majority. That was admitted by Mr. Cook in the House of Commons and by the Secretary of State for Scotland. It was exhaustively discussed on Second Reading, in Committee, and on Third Reading and your Lordships passed it with a very large majority.

    I should like to say to your Lordships that in drafting that Bill I went to a great deal of trouble. I had the help of the Scottish Office, I had the help of the parliamentary draftsmen, I had the full support of the Law Officers both in Scotland and England and of the Lord Chancellor, then the noble and learned Lord, Lord Elwyn-Jones. We drafted a Bill which we thought carried out the main intentions of the Wolfenden Committee's Report which was to remove from the statute book for ever the fatal words "in private", which have done such damage and caused such misery to so many people for so many years.

    I think this amendment to the amendment is not necessary because there is no need in Scots law for an English definition of privacy. Nor can I agree with the noble Earl, Lord Selkirk, that either orgies or sex in places open to the public are made lawful in this Bill.

    My Lords, I introduced my Bill for two reasons. First of all, I thought that it would be ridiculous to make a distinction on this subject between England and Wales, on the one hand, and Scotland, on the other; but, secondly and far more seriously, because the Lord Advocate of the day felt that he had publicly to announce that he did not intend to enforce a particular clause in a statute. That, I felt, as did many others, was bound sooner or later to bring the law itself into disrepute—and those who listened to the speech on that occasion of the noble and learned Lord, Lord Wilson of Langside, in his day a great Lord Advocate, are not likely to forget it.

    My sole motive in the whole of this business which started many years ago—for it was I who persuaded the late Lord Kilmuir, then Home Secretary, to set up the Wolfenden Committee—was to remove from many of our most gifted citizens the constant fear of blackmail but, much more, of a criminal charge, for doing something which, although people may hold strong views about it and are entitled to do so, cannot be regarded, in my submission, by any stretch of the imagination as a crime against the state. Many of your Lordships may or may not agree with me, but I think that what consenting adults do in private is not a matter for Parliament unless they constitute a danger to the state of some kind.

    The Commons, not for the first time in the last 20 years, have merely accepted the leadership of your Lordships in an important matter greatly to the benefit of the country. I ask your Lordships to accept the Commons amendment as it stands and to send the Bill back unamended to the other place. And in so doing I am only asking your Lordships to endorse the decision which you yourselves took by a very large majority three years ago.

    My Lords, in rising to support the amendment of the noble and learned Lord, Lord Fraser of Tullybelton, and the noble Earl, Lord Selkirk, I think this is a subject where it is of the greatest importance that the law of England and Wales and the law of Scotland should be one and the same. We heard the noble Earl, Lord Selkirk, say that if this new clause is passed without the amendment to the amendment then there is more latitude in Scotland than in England on this subject; and this seems to me to be a highly unsatisfactory state of affairs. I hope that even the noble Lord, Lord Boothby, when he thinks further and realises that what we are trying to do is to bring the law into line in both countries, will not perhaps pursue the line he has been taking to date.

    I have one other thing to say. There is not much one can say on this subject other than what has been said. But if Amendments Nos. 101A and 101B are passed, I intend, as a consequential amendment to the amendment to the Commons amendment, to move a manuscript amendment which is really a drafting amendment. In subsection (6)(b) of the new clause, we have at the moment:
    "without the consent of any party to the act".
    Undoubtedly, those words were used when it was visualised that there may be two or more people taking part. My manuscript amendment would read:
    "without the consent of either party to the act"—
    because what we are talking about at the moment is only two people being allowed as consenting adults. It is only a drafting and minor amendment and perhaps, if the Government are prepared to accept the amendments to the amendment, they would allow this also to pass without any difficulty.

    4.29 p.m.

    It seems to me that the sole justification for dealing with this matter in this way—that is to say, drafting as a clause into this Bill virtually the whole Act of 1967—can be that there is no difference between the two Acts. Otherwise, surely, it would be necessary to have this fully debated in this House whether or not it was debated three or four years ago. It would be most unusual for it not to be so.

    My noble friends Lord Selkirk and Lord Perth have drawn attention to one point in the Bill where it may be that the Bill is going to be more permissive than the Act of 1967. I should have thought that in a case like this, when an English Act has been in force for some time, it would be appropriate to examine in detail the effects of that Act before proceeding to extend it to another part of this country. But if it is shown that there are no such adverse effects, and if the Bill can be brought as closely as possible into line with what is contained in the English statute, then, if that is the will of the House, we should have to be content.

    However, I would ask my noble friend to tell us in his reply exactly what the position is, not only so far as the Bill is concerned by the addition of these amendments, but also what is the state in England at the present time, and whether we are satisfied with the working of the Bill in England at the present time. It is only right that we should know how that has gone in relation to what it was intended to do before we adopt it in Scotland.

    4.32 p.m.

    My Lords, what we have here is the incorporating into Scottish law of what is virtually a complete Act. This Bill started in this House a long time ago. It went through every stage in this House and I think that we can fairly say that we made a good job of it. We went through it very fully: Second Reading, Committee, Report and Third Reading. There were amendments all along the line. But this subject was never raised by any Member in this House, nor was a clause put down.

    The Bill went to another place and had a Second Reading. It had a very lengthy Committee stage, but this subject was never raised. It was only on 22nd July—not all that long ago—that a new clause was put down which purported to incorporate the 1967 Act into Scottish law—a whole Act of Parliament. It was debated for two hours. I do not think that this is the right way to legislate in respect of an important piece of social legislation. Had there been a great public discussion in Scotland about it, I could have understood it. But, quite frankly, there has not and there has been no great demand for it.

    There is something to be said for having the law in Scotland the same as the law in England. I have been a great defender in the past for Scotland dealing with its own affairs in its own Scottish Grand Committee and guiding the House of Commons, but that did not happen on this occasion. The result is that there has been almost an evasion of the close public scrutiny that is given in Committee stages here and in another place.

    I was not a supporter of the 1967 Act. It may well be that the practice is something that is not so rife in Scotland, where our school system is very different and where there is no segregation of the sexes. From the age of five they are taught in the same schools and the same classes. So there is justification for a difference. We ask people why we must have this clause and they say: "We must bring the law into line—Scotland and England". I would be prepared to do that; but when I look at the clause it is not the same as the 1967 Act.

    For that reason, I strongly support the noble and learned Lord, Lord Fraser of Tullybelton, in the amendments put forward. It is no good the noble Lord, Lord Boothby, saying that it should not be a crime. Let him read the clause. He will find it is still a crime in relation to the armed forces and in relation to certain circumstances in the merchant navy. He will also find that this Bill does not apply to Northern Ireland.

    I have not heard any voice—either in this or the other House—suggesting that it should apply to Northern Ireland. There are far too many glib statements being made. I have even heard it said that the Church of Scotland is for it. The Church of Scotland, so far as I know, has never demanded any such change. The first thing we should do, if the argument is that the law of Scotland and of England should be the same, is to accept this amendment. That is the least action we can take.

    Hitherto, this subject has been dealt by a Private Member's Bill and the Government have stood apart. But now it is being incorporated into a public measure, and the Government must accept some responsibility and give us some guidance in respect of it. I know that the Secretary of State for Scotland in another place regretted very much that this had been put forward. I think that he voted against it, as did other Scottish Ministers. I should like to hear the Government at least giving us a suggestion that we are not going to leap ahead in this gay mood with—

    My Lords, before the noble Lord sits down, may I put one question to him? He contends that this matter has not been adequately debated, apart from two hours in the House of Commons. Is he aware that my noble friend Lord Boothby's Sexual Offences (Scotland) Bill was given a Second Reading on 10th May 1977 in this House by a majority of 125 to 27? That was a majority of almost five to one. That Bill was debated very fully and subsequently went through Committee and Report stages. I do not think it can be said that the matter has not been debated before.

    My Lords, it has certainly not been debated in this Parliament. I do not know how many people here today were one of the 150 who were present two years ago. I would not call that very representative.

    4.38 p.m.

    My Lords, perhaps from this side I may follow the noble Lord who has just spoken. I took part in the debate three years ago on Lord Boothby's Bill. I was asked to do it from the Opposition Front Bench and therefore I recollect that Bill going through. I must point out to the noble Lord, Lord Boothby, that it was said at the time that there was no hope of his Bill going through Parliament and passing into law because it was a Private Member's Bill originating in this House, and of course it was not going to be taken on a controversial subject by a private Member in the other place first, which would have had to have happened, and he would have had to be in the first six in the annual ballot for Private Member's Bills.

    The noble Lord, Lord Boothby, enabled us to have a discussion three years ago on this subject. My own feeling was that the vote that ended that discussion was a vote in principle for Scottish law being brought into the same situation as the law in England and Wales. But it was perfectly clear that that Private Member's Bill of the noble Lord, Lord Boothby, was never going to see the statute book at that time. It could not possibly have passed through the House of Commons as no time was going to be given for it.

    Even if time had been given for it, it had no chance of getting through unless, as I say, it had been sponsored there first. That was the case of the Bill of the honourable Member, Mr. Abse. He was successful in the ballot and originated the Bill which became the 1967 Act for England and Wales. There was no question of that happening with the Bill in this House three years ago. It was more a question of time being available for discussion of the subject, rather than discussing the particular legislation that was likely to become law in Scotland. I share the views of the noble Lord, Lord Ross of Marnock, in that respect.

    I would go further and say that this amendment appeared at the final stage in another place after the Bill had been all the way through this House, as the noble Lord, Lord Ross, and others have said. Then it had escaped the Scottish procedure in another place. The subject was not mentioned and therefore it was not brought up in the Scottish Grand Committee, where the Second Reading debate effectively took place. It did not get discussed in the Scottish Standing Committee on the Bill, which is where it would have been discussed in a Scottish context with Scottish Members of Parliament taking part. It finally appeared at the Report stage and then had that two hours' debate, so I do agree that it has not had full examination.

    Until we hear what the Government have to say we cannot be certain—at least I certainly cannot, having had legal training—that what the noble and learned Lord, Lord Fraser of Tullybelton, is hoping for will be achieved by the amendments. I think that if what he is pressing for is achieved, and if this clause is brought into line with what is now the law in England and Wales, that would be an improvement. But I have sympathy with those who feel that this is the wrong way for a very important subject such as this—which has always been dealt with in Private Members' legislation—to be brought into the law of Scotland; namely, by way of a public Bill.

    My Lords, I had not intended to rise at this point, but I must complain about the procedure that we are following at the moment. We are discussing a limited amendment and we are now on to the substantive question. What some of us would like to know is whether this amendment actually is viable and improves the Bill. We look to the Minister to reply on that, and since these arguments have taken place and are in danger of creating prejudice, I am bound to say that some of them should be answered.

    The Bill of the noble Lord, Lord Boothby, went through this House and was discussed in immense detail. It was discussed in Committee, and it has been the practice in your Lordships' House to take any Bill that comes through and make it as complete as possible in the hope that in due course it may be picked up in another place. I really cannot accept the argument that this is something which has just been slipped in at the last moment. When the amendment was moved by the honourable Member for Edinburgh Central, he made it clear that he was doing so on Report stage because it raised important issues and therefore was not appropriate for a Committee Stage discussion. He put the arguments very strongly and I am bound to say that your Lordships, who have shown great initiative in these matters, ought not to allow a situation to continue in which the law exists in one way and is not enforced by the courts in Scotland.

    If this is imperfect there may be a possibility of amending it later, but the other place, which had every opportunity of hearing the arguments of Law Officers and others, chose to accept it. The fact that it did not go through the Scottish procedure was a matter for the other place, and not for us. Therefore I would hope that we shall get a clear indication as to whether the amendment moved by the noble and learned Lord, Lord Fraser, improves the Bill and makes the clause more acceptable. I hope therefore that some of these arguments, which in my opinion have been advanced at the wrong time, will not be advanced when we come to the main amendment.

    My Lords, may I from this Bench endorse what my noble friend has just said. We are dealing with a very limited amendment at the moment. I want to make certain remarks on the main argument, and I was hoping to do that on Amendment No. 101C, on the question of principle.

    May I invite the noble Earl to rise at this stage and, by answering the points, bring to an end the debate on this limited matter? May I also ask him, when doing so, to take account of the fact that his right honourable friend the Secretary of State for Scotland, when asked about the form of this clause, said in another place on 22nd July 1980, at column 309 of the Official Report:
    "I make no criticism of the clause."
    When further asked about that, he said:
    "I did not say and I do not say that it is defective. I do not believe that it is defective."
    He said that it had received the attention of the draftsmen.

    I should like to hear from the noble Earl what he conceives to be the effect of the amendment proposed by the noble and learned Lord, Lord Fraser of Tullybelton. I would remind the House that that amendment does not provide any defintion of the words "in private". It merely prevents those words applying to the situation covered by paragraphs (a) and (b).

    My Lords, in spite of what the noble and learned Lord, Lord McCluskey, has said, perhaps I might be permitted to make one short point. I am sure that all that can sensibly be said in support of these amendments has been said this afternoon, and I should not wish to presume to add to the wisdom which your Lordships have on this matter. However, in view of a passing reference by the noble Lord, Lord Boothby, to something that I said in the past, I felt it prudent to put on record that I would support this amendment. I agree with what has been said by the noble Earls, Lord Selkirk and Lord Perth, and by the noble Lord, Lord Ross.

    My Lords, I would hasten to say that I never suggested that. What I did say was that the noble and learned Lord made an admirable case for changing the law, in the light of the Lord Advocate's pronouncement that he did not intend to enforce it. I never suggested that the noble and learned Lord was in favour of this amendment; at least, if I did so, I certainly withdraw it.

    My Lords, I was not complaining, but I thought that I should just put my view of the matter.

    My Lords, at this juncture I shall confine my remarks—few that they are going to be—to the amendment of the noble and learned Lord, Lord Fraser of Tullybelton, because it is really his amendment that the House is discussing, although we have gone down a number of byways as to the generality of the Commons amendment and as to an amendment which the noble Earl, Lord Perth, thinks would improve the sense of the amendment, but which I am advised would not.

    As has already been said, the Government of the day—and indeed this Government already, in another place—do not express a view on the merits of the issue that is sought to be dealt with in the form of the amendment. Such matters are traditionally left to a free vote and, notwithstanding the somewhat unfortunate manner in which this clause was added to the Bill at a very late stage so as certainly to preclude consultation and certainly to preclude reasoned debate, the Government feel that they must abide by this tradition in this case.

    On the amendment of the noble and learned Lord, Lord Fraser of Tullybelton, I think that there are perhaps two or three things which should be said. If one reads the Official Report of the other place, there is no doubt that what Mr. Cook was seeking to do was to bring the law of Scotland into line with that of England. Certainly, nothing that he said, nor indeed anything that his supporters said, in those proceedings sought to extend the law of Scotland beyond that of England. That is the first point.

    The second matter is that the noble and learned Lord, Lord McCluskey, pointed out a couple of passages in the Official Report in which he claimed that my right honourable friend the Secretary of State did not say in effect that the amendment was defective. In a formal sense, it is not defective; but that is not quite the end of the story, which led to the reason for the noble and learned Lord, Lord Fraser, tabling his amendment. I am not going to say anything at this stage about the generally adverse reaction that there has been in Scotland to the inclusion of this measure, although when the Motion of my noble friend Lord Lauderdale falls to be debated, if it is, then I shall have something to say. However, in the context of the amendment that we are now discussing, it is fair to point out that there was very considerable concern in Scotland at the failure in effect of the amendment to define the words "in private".

    The amendment which has now been moved by the noble and learned Lord highlights the worry felt by many people, who, while they were not totally opposed to the clause, nevertheless felt apprehensive about the omission of the safeguards which, as at least some of your Lordships are aware, are in the corresponding section of the Sexual Offences Act 1967, applying to England; that is, Section 1(2) of that Act. So, in the limited sphere of this debate, it is the Government's view, therefore, that this amendment would do something to allay the concern about this point as it concerns privacy, and, so far as the Government are concerned on this point, we would be content if the noble and learned Lord's amendment were to commend itself to your Lordships' House.

    My Lords, may I reply very briefly? I understand that nearly everybody who has spoken seems to approve of my amendment as being an improvement of the clause, if the clause is approved at all. A good deal of discussion has ranged rather more widely than I had originally expected. The only criticism, as I understood it, of my amendment came from the noble Lord, Lord Boothby, who said that it was not necessary in Scotland. I really cannot understand that argument, because it seems to me that it is easy to imagine circumstances in which it might be doubtful whether a particular act was in private or not.

    The obvious one that occurs to me is a bedroom shared by three or four men, one of them asleep in one corner of the the room and the other two engaging in a homosexual act. It is obviously open to debate whether that would be in private or not, and this amendment would dispose of that argument which seems to me clearly a desirable thing to do. For that very modest kind of reason, and also because it brings the law of Scotland on this point exactly into line with the law of England—which on this point, I think, is desirable—I commend my amendment.

    My Lords, the noble Lord has spoken. The Question is that the said amendment be agreed to.

    On Question, amendment agreed to.

    Civil Aviation Appeals

    4.53 p.m.

    My Lords, I hope that it is to your Lordships' convenience that I intervene now, with your Lordships approval, to make a Statement concerning air transport licensing appeals. My right honourable friend the Secretary of State for Trade has just taken decisions on four appeals from airlines against licensing decisions of the Civil Aviation Authority. The first was a request from British Caledonian to give them exclusive licences to operate out of Gatwick to several destinations which they, but not British Airways, already served. In responding to British Caledonian's appeal submission to the Secretary of State, the Civil Aviation Authority accepted that it had acted inconsistently and agreed with the appellant that its own decision should be reversed. British Airways made no representation on the appeal and, accordingly, my right honourable friend has decided to allow it.

    The second case concerned British Caledonian's application for 20 routes from Gatwick to the continent—their "miniprix" services. The CAA granted licences for six destinations but felt unable to grant the rest. The airline appealed in respect of five routes. Under the statute my right honourable friend has to pay regard to the likely outcome of the negotiations which would need to take place with the foreign countries concerned. The authority came to their assessment of the likely outcome of the negotiations with the other European Governments, in terms of the anticipated effect on the United Kingdom's aviation interests as a whole. Having carefully considered the evidence, my right honourable friend decided there were no grounds for disagreeing with the authority's assessment.

    The third case is Laker Airways' appeal against the CAA's decision on their application for routes to Miami. The CAA granted a licence to operate from Gatwick, but not from Manchester or Prestwick. The bilateral Agreement with the United States allows us to designate two United Kingdom airlines for London-Miami and one each for Prestwick and Manchester to Miami, so there is no need for further international negotiations.

    The CAA thought that to allow Laker to fly from Manchester and Prestwick would harm the development of services from London. My right honourable friend considered this point very carefully. He appreciates the authority's reluctance on this score, but does not believe that in this case the overall balance of advantage lies in denying Laker, and his potential passengers, the benefits of operating from Manchester and Prestwick. He also considered that the authority paid insufficient attention to the important airports policy implications; in particular, the advantages of developing services outside the London area. Accordingly, the Secretary of State decided to allow Laker's appeal in this case. My right honourable friend attaches considerable importance to developing regional services and he hopes and expects that the Laker services will benefit the North of England and Scotland.

    The fourth case concerns Laker's appeal in respect of 600 or so European routes. The key issues in this case were: whether our domestic licensing system and the series of bilateral agreements with foreign governments are incompatible with the provisions of the Treaty of Rome—rendering the whole of the regulatory machine redundant; and whether the applicant provided sufficient evidence to satisfy the economic requirements of the legislation.

    On the first point, Laker argued strongly that the whole system is incompatible with the Treaty of Rome. The Government's legal opinion is that there is no provision of Community law which overrides the regulatory systems of member Governments, though if Sir Freddie wants to test his interpretation of the Treaty of Rome in the European Court he is free to do so. Under the Civil Aviation Act 1971, my right honourable friend also had to examine whether a proper economic assessment has been made for each of the many routes involved. In the light of these considerations, he has decided that he cannot allow the present appeal, but he agreed with the CAA's suggestion that, if Sir Freddie Laker wishes to reapply for those of the European routes which are of particular interest to him, the Authority will consider them with care.

    Formal letters giving the Secretary of State's decisions on these four cases are being sent to the Civil Aviation Authority today, with copies to the appellants and the parties to each appeal.

    My Lords, that concludes the Statement.

    4.57 p.m.

    My Lords, may I thank the noble Lord for making that Statement, which records decisions taken by the Secretary of State on four appeals by airlines against decisions of the Civil Aviation Authority. One of those appeals was allowed with the consent of the Civil Aviation Authority, one was allowed against the judgment of the Civil Aviation Authority, and in the other two cases the Secretary of State agreed with the decisions of the Civil Aviation Authority.

    The effect of these decisions by the Secretary of State is further to undermine the authority of the Civil Aviation Authority and to strengthen the hands of the noble Lord, Lord Boyd-Carpenter, who I am sorry not to see in his place this afternoon, and my noble friend Lord Beswick, who so eloquently spoke to an amendment to the Civil Aviation Bill last Thursday, seeking to have a proper appeal procedure established, with reconsideration by the Civil Aviation Authority and with the Secretary of State intervening only in really exceptional cases.

    As I see it, these are not really exceptional cases. They are cases where it is a matter of professional judgment whether the decision should go one way or the other. The professionals at the Civil Aviation Authority have taken a considered decision and no exceptional reasons should arise to reverse those decisions. There is a danger, if the decisions of the Civil Aviation Authority are overruled like this, that the Civil Aviation Authority will lose authority and airlines will regard the most important part of the application procedure as the appeal, so the whole procedure, as it operates at present, will tend to fall into disrepute. This should not be so. There should not be two bites at the same cherry. No doubt we shall return to this on Thursday during the Report stage of the Civil Aviation Bill.

    My Lords, from these Benches I should also like to thank the noble Lord for making this statement. It would be difficult to the point of impossibility to speak intelligently about the decisions of the Secretary of State without having studied the arguments which were placed before the Civil Aviation Authority in the first place and the Secretary of State on appeal.

    I have only three rather general comments to make. I agree with the noble Lord, Lord Ponsonby of Shulbrede, that this indicates the undesirability of having an appeal to the Secretary of State instead of having an appeal procedure to a more independent body. But that, as he says, is a matter which can be discussed further when the Civil Aviation Bill comes back to the House on Report.

    I was interested to see in the first case that the Secretary of State called attention to some inconsistency in the decisions of the Civil Aviation Authority, with which they agreed. I have been informed—I do not know whether this is right—that the practice has been for the Civil Aviation Authority to share applications, very often with a tribunal of only one member, sometimes two. It occurs to me that the possibility of inconsistency would be reduced if there were always a tribunal of three members so that almost certainly one of them would be able to recall a comparable decision that had been made before, and so tend to avoid these inconsistencies.

    My last point is that I was very pleased to see the decision of the Secretary of State in regard to Laker flying from Manchester and Prestwick. I am sure that any effort to spread the load of the overseas services among the other airports is to be commended.

    My Lords, I am grateful to the noble Lords for their reception of this statement. I am sorry that it was not all that the noble Lord, Lord Ponsonby of Shulbrede, would have wished. He was particularly critical of what he suggested was the undermining of the authority of the Civil Aviation Authority. I can assure the noble Lord that decisions of the authority are never lightly overturned. However, the appeal system has been set up under the 1971 Act and the subsequent regulations and it is there to be used. There is no point in having an appeals system if appeals are never ever to be granted.

    The fact is that any authority can make a mistake. It is also possible for reasonable people to reach different judgments on matters of policy—for example, over the importance of developing regional airports. It is entirely proper, I would suggest, for the Secertary of State, carrying out his quasi-judicial role in these matters when reviewing decisions in response to an appeal, to take a different view from the authority.

    In one of these cases—British Caledonian's application for exclusive licences from Gatwick for several destinations—the Civil Aviation Authority themselves admitted that their original decision was inconsistent with some of their earlier decisions and accepted that the appeal should be granted. In another case—aker's routes from Manchester and Prestwick to Miami, to which the noble Viscount, Lord Simon, referred—my right honourable friend took a different view from the Civil Aviation Authority on two issues: first about the preference to be given to operators with services from London to Miami and, second, about the importance of the development of regional airports.

    The noble Viscount, Lord Simon, also raised the question of the numbers of Civil Aviation Authority members who hear these original applications. The fact is that under the present law a minimum of one member of the authority is required. We have no evidence to suggest that this is not working satisfactorily. We do not detect any inconsistencies flowing from that particular situation. On the other hand, it is fair to tell the noble Viscount that this is a matter which we are considering. The Commission on Tribunals, I think it is called, has also made some observations upon the position at the Civil Aviation Authority.

    My Lords, may I thank the noble Lord for making this Statement this afternoon, especially since he told me on 16th October during the Committee stage that it was unnecessary to make such statements. He turned down my amendment which would have provided for such a statement to be made.

    The noble Lord also said to me on 16th October that the Secretary of State would not vary decisions lightly, but I understand from what he has just said that one of the decisions taken was on a balance of advantages. May I ask him whether this is an exceptional case? Would he say that this decision was taken lightly or whether it was taken just on a balance of advantages? When the noble Lord was answering my amendment he also said that only on a few occasions within nine years has the Secretary of State reversed decisions of the Civil Aviation Authority. May I ask him whether, with this batch of reversals, the quota for the next nine years has now been exhausted?

    My Lords, I do not think that the noble Lord expects me to answer the slightly flippant last supplementary, if I may so call it. However, I confirm that these matters are considered with the very greatest care, and I will say again, as I said to the noble Lord last week, that decisions of the authority are overturned or varied only after the most exhaustive consideration of all the facts. That indeed was what happened on this occasion. It is still the case that the number of appeals which have been allowed in the nine years or so since the passage of the 1971 Act is very small indeed, and that situation will continue.

    Criminal Justice (Scotland) Bill Hl

    5.7 p.m.

    Consideration of Commons Amendments resumed.

    Amendment No. 101B. Lord Fraser of Tullybelton?

    101B In subsection (6)( a) leave out ("in public") and insert ("otherwise than in private").

    My Lords, I think it is in order for me to say that the manuscript amendment which I have moved, which is consequential upon Amendment No. 101A, should be taken first.

    My Lords, the manuscript amendment of Lord Perth is numbered 101BA, and it is in these terms:

    "In subsection (6)(b) leave out ("any party") and insert ("both parties")".
    —(The Earl of Perth.)

    My Lords, as I understood the position, Amendment No. 101A was disposed of a few minutes ago and I was about to move Amendment No. 101B.

    My Lords, I am sorry if this is a muddle. I gave a manuscript amendment to be put on the table after Amendment No. 101A if Amendment No. 101A was accepted by the Government, and that is what has happened. Mine is a consequential amendment.

    My Lords, if the noble Earl will look at the Marshalled List he will see that the next amendment to be taken is Amendment No. 101B standing in the name of the noble Lord, Lord Fraser of Tullybelton. Thereafter the House can consider Amendment No. 101BA standing in the name of the Earl of Perth.

    My Lords, I have already explained that Amendment No. 101B is consequential upon No. 101A. I beg to move.

    Moved, That Amendment No. 101 B as an amendment to the Commons Amendment No. 101 be agreed to.—( Lord Fraser of Tullybelton.)

    On Question, Motion agreed to.

    Lords Manuscript Amendment As An Amendment To Commons Amendment No 101

    101BA In subsection (6)( b) leave out ("any party") and insert ("both parties").

    5.9 p.m.

    We now come to the manuscript amendment which I mentioned when we were dealing with Amendment No. 101A. This is purely a consequential amendment. If one looks at subsection (6)(b) one finds the words

    "without the consent of any party to the act".
    In Amendment No. 101A we have ruled out the possibility that more than two persons can take part. "Any party" seems to me to visualise that there would be more than two, whereas our amendment lays it down that there should not be more than two. Therefore, the proposal is that instead of the words "any party" we should insert the words "both parties" in order to make the position quite clear. If, however, the noble Earl, Lord Mansfield says that there is no need for that amendment, certainly I shall not press it. I beg to move.

    Moved, That Amendment No. 101BA as an amendment to Commons Amendment No. 101 be agreed to.—( The Earl of Perth.)

    My Lords, for the greater clarity of those Members who do not have it before them I will read Amendment No. 101BA again. It is that in subsection (6)(b) the words "any party" be left out and the words "both parties" be inserted. The question is that Amendment No. 101BA be agreed to.

    My Lords, perhaps I could just say for the record, since I disagreed with the form of wording of the noble Earl's original consequential amendment, that this one seems to be much more sensible and if it commends itself to the House then the Government would not complain.

    On Question, Motion agreed to.

    On Question, Whether the Commons Amendment No. 101, as amended, be agreed to?

    My Lords, a number of your Lordships in speaking to the last amendments, with which I personally sympathised, felt bound to reserve their position, directly or indirectly, on the general issue of this new clause and in discussing it one is bound of course to go over a certain amount of old ground. Among the smaller duties of life, I hardly know any more important than not praising where praise is not due and seldom has a Government spokesman damned a cause with such faint praise as my noble and learned friend Lord Mansfield did on the amendment. He described the manner of its introduction as unfortunate. He said it was introduced at a very late stage. He said, with all the authority of his office, that it was introduced at a time which precluded consultation, and he also said that it precluded debate. He might have added, what my researches have shown, that when the matter was voted on in another place on a free vote, no fewer than eight Ministers of the Government voted against it, and even though the Scottish Office continues to swell it does not as yet have eight Ministers; and at least one or two from outside the Scottish Office joined in on what I will call "the Government side" on that occasion. I believe that had the debate occurred with a full House instead of being decimated by a garden party, as it was, the Opposition would have been a good deal stronger.

    The noble Lord, Lord Ross of Marnock, with all his prestige and standing as a former respected, if controversial, Secretary of State, said that in effect this "pops" into a statute the whole of another Bill "pops it in", that was his phrase. He again stressed that this was done on not more than two hours' debate; he again stressed that it evaded close public scrutiny and that in any case it does not really reproduce the 1967 Act. He has asked my noble friend what is the Government's attitude in general to this, and we are still looking forward to hearing; but after what we have already heard I cannot think that it will be very enthusiastic.

    The noble Lord, Lord Ross of Marnock, said that if we have to have this clause he will support the amendment, and I think many people took that view. But it might well be that he and others feel, with me, that it would be better to throw this new clause out altogether so that on another occasion it may be duly considered in the light of proper public discussion in Scot- land and still more proper consultation through the channels that are familiar.

    The noble Lord, Lord Ross of Marnock, also pointed out what had not occurred to me until he said it, that not only did this projected new clause escape the ordinary Committee stage of the Bill but it was not even exposed to the rigours of discussion in either the Scottish Grand Committee or the Scottish Standing Committee—This for a whole new Bill which is to affect the law of Scotland. It is a clause which is long, which plumbs unknown depths of legal complexity and I think it is only fair—without, of course, wishing any offence to Members of another place—to say that it was really smuggled in without proper consideration. The noble Lord, Lord Ross, said "popped in"; I say "smuggled in". It was never even listed among the Bill's original objects; it was never even suggested on Second Reading. It was tabled with the minimum possible notice of only a few days. Of course its promoters said that the reason why it was done in this way was because anything so important should be kept for the Floor of the Whole House. Well, my Lords, if you believe that you will believe anything, because there was the Grand Committee available and it could have been widely discussed there by Scottish MPs.

    I think one has to say that the fact is that the promoters knew that this was controversial and dangerous and they really funked the Committee stage and went on to say what is to my mind quite incredible—and I quote:
    "This new clause is already acceptable to their Lordships."
    Presumably that was a reference to Lord Boothby's previous Bill, but it does not read like that in the Hansard text and certainly this matter has not been discussed in this House in this Parliament in that way. At the least I suggest that there was something approaching a breach of parliamentary courtesy—I say "approaching" because I do not want to offend the other place but it was also something that came very close to a misstatement and may I say that lies are as communicative as fleas.

    I suspect that behind the sincere intentions of Mr. Cook there were other intentions that may have been less sincere and more obscure. It might even be described as a calculated con trick because the case was that this was to bring Scots law into line with the English. We know from the last debate on the amendment tabled by the noble Lord, Lord Fraser of Tullybelton, that it did not do so. But supposing the promoters had got away with this and supposing therefore that this "orgy law", as Gay News called it, which meant that things done in private could be done in a whole roomful of people—a room as big as the Albert Hall, if necessary—then the next proposition would have been to bring English law down to the level of Scots law. That would have been stage three, but mercifully we have been saved that, thanks to the amendment moved by the noble Lord, Lord Fraser, which I regard as a fail-safe device if we cannot get rid of this new clause altogether. The whole story is murky and I never wonder to see men wicked but in Jonathan Swift's words I do often wonder to see them unashamed.

    My Lords, if I may intervene, I seem to have heard the noble Earl making what were more than offensive remarks about a Member of another place. He accused him of "a con trick"; I did not think that was customary in the relationship between the two Houses.

    My Lords, I am much obliged to the noble and learned Lord for bringing his invariable courtesy and charm to my correction. No, I was not saying that Mr. Cook was guilty of these things but that I suspected—and do suspect—that those who were promoting it behind him may have had very dubious purposes. I am taking great care not to say anything that could be taken as damaging to another place.

    My Lords, I should have thought the noble Earl had really added insult to injury by extending the limitation of his insults previously to the generality of Members in another place.

    My Lords, not even to the generality of Members; those who are promoting the matter. In fact I shall come presently to some of the pressure groups who are pressing this. I am not referring at all to Members of another place but if it is the wish of your Lordships I will very gladly withdraw what I have said.

    My Lords, when the noble Earl is considering his position will he bear in mind that the right honourable Secretary of State for Scotland, in col. 390, informed the House—I quote what he said of this particular clause:

    "It is merely a carbon copy of an English Act passed some time ago."
    The noble Earl can hardly suggest that Mr. Robert Cook misled the other place into thinking that the law was being brought into line with the law of England when the Secretary of State for Scotland assured the House that the Bill then before the House was a carbon copy of the English Act.

    I am much obliged to the noble Lord, Lord McCluskey, for coming to my assistance. As a matter of fact, the Secretary of State said something else that was not quite accurate; he said if the Bill came back to our House we could either accept it or reject it and not amend it, which was incorrect. As a matter of fact the new clause remains dangerous because it still allows under-24s to claim that their partners seemed to be more than 21. It also limits Scottish prison sentences to two years against 10 in the South. Therefore, in both these respects I submit that it is not in fact the carbon copy which was claimed. Perhaps I have said enough on that score.

    All I would like to do further is to make a general point, that even the most primitive societies, let alone the most civilised, deny that the right to sexual gratification is absolute; they ensure, all of them, that the law is supportive of the social institution of marriage. Surely we will agree that morality cannot be legislated but behaviour can be regulated, and judicial decrees may not change the heart but they can restrain the heartless, so that even base men will disown from shame what from folly they crave.

    We are talking about a disagreeable subject and there are those who would rather we did not discuss it at all. But this practice is gratification for gratification's sake; socially it is without purpose; it produces no offspring; it demands no special commitment to the partner; it is especially tolerant of promiscuity. And since those who advocate this behaviour cannot multiply by procreation are they therefore to be allowed to do so by recruitment, by public display, advertising, by soliciting the young?

    There is nothing to suggest that Scottish opinion at large is seeking such a change in the Scottish law. Indeed, we are told the contrary. Most of us are well content with the many differences that do exist. I believe it is the case, for example, that, suppose somebody tries to commit suicide by drowning in the Tweed, if he is pulled out on the English side he is sent to prison, and if he is pulled out on the Scottish side they dry his clothes and send him home.

    When the present clause was introduced—I forebear to use the word I used earlier which caused such disturbance on the other side—after only two or three days on the Order Paper, the Scottish public had no time to react. So our land of Calvin, oatcakes and sulphur went unheard. If we cannot be decent let us at least try to be graceful; if we cannot be moral let us try to avoid being vulgar. To oppose this change is not to ask for a witch-hunt for police snooping or for victimisation; it is simply to ask for a declaratory law to remain in force about right and wrong sexual behaviour, that this should stay on the statute book as an ethical pointer for the community at large. In those terms, I beg to move the Motion standing in my name.

    Moved, That this House doth disagree with the Commons in their Amendment No. 101, as amended.—( The Earl of Lauderdale.)

    I should like to support the noble Earl in his excellent opposition to the proposed addition after Clause 77. What has puzzled me throughout the whole of this debate is when the noble Lord, Lord Boothby, said "Let us get rid of it this afternoon". We will not get rid of it this afternoon. I would not be surprised if the noble Lord, Lord Boothby, would be one of the agents who would not let this rest, because he moved in 1977 an amendment to lower the age to 18, and from 18 we will then go to 16, and probably end up at the age of puberty before we are finished. We still have even from that angle the position of Northern Ireland, which as recently as 1979 refused to alter or reform the law on homosexuality. A Northern Ireland subject took a case to the European Court on Human Rights, and it was dismissed because of the fact that although he proclaimed himself to be a homosexual he had not been charged with the offence. That seems to be one of the arguments in regard to the alignment of English and Scottish law on this subject. We have this Act which creates a criminal offence, but it has never been exercised. What is wrong with that? The Scottish people have not suffered because of the fact that we are not in line with the English law at the present time. If successive Lord Advocates decide they are not prepared to bring someone who is guilty of a homosexual act to justice or subject him to criminal proceedings, nothing has happened; they are no worse off in Scotland. Certainly the Scottish people will not thank this House if your Lordships carry this particular clause, the addition to Clause 77.

    I am guided in this matter by two opinions. Let me interpolate here that we have had no statistics this afternoon of any kind, but I will quote these statistics which have had a great influence on my opinion in this matter. On 10th May 1966 the late Lord Kilmuir said that during his experience as Home Secretary out of 96 cases in Britain for homosexual offences that were reported to him only 15 were cases of genuine inverts, and the others included those who committed the act from motives of sensationalism or for money or for reasons of that kind. That is the first opinion. The other is the opinion of the Wolfenden people themselves. The Wolfenden Report admitted that the passing of the English Act when it was passed would lead to an increase in homosexual practices and activities; they admitted it. If I were to cite a third opinion it would be that of the late James Adair, one of our best known procurator fiscals in Glasgow, who pre- sented a minority report. He argued strongly for exclusion of Scotland from any proposal to bring it into line with England.

    We have heard that two hours were devoted to it; it was not even two hours; exactly 100 minutes were devoted to this clause. I support the noble Earl, Lord Lauderdale, that it was slipped in—I go further and say deliberately slipped in—at that stage by Mr. Cook in another place because the purpose was not to give it adequate discussion. This is a matter, as the noble Lord, Lord Ross, has pointed out, which was the subject of an Act as far as English practice is concerned, but the Scottish people were denied the opportunity of studying in depth the whole of the proposal in this new clause and the effect it would have upon the morality of the people in Scotland. Surely they ought not to be denied that opportunity by this slick method of putting it through.

    Therefore, when we come to consider the matter from the angle of what we are doing should we not turn our attention, as we have done with alcoholics, to engaging in more research into the causation of honosexual practices or homosexual indulgence. Surely research, which I think is grossly inadequate if there is any going on at the present time, should be directed, as we have spent millions of pounds on trying to help alcoholics, to some medical effort to relieve these people of what their indulgences are and what their practices are. Nevertheless, we will still have people saying that we should have it in line with England, that we should align the Scottish law with the practice of English law. We have dozens and dozens of Scottish laws and Acts that do not apply to England and they are not in line with England. There is an excellent one I could suggest to the English legal practitioners. Our excellent criminal verdict of "Not proven" could usefully be adopted, but we do not try to impose that on them. It would be a very useful contribution indeed to legal practice if we tried that one.

    This matter has been argued so much on the English basis but never on the Scottish basis, and perhaps I will get an answer to the question I am going to put. If we pass this addition to Clause 77 are we or are we not legalising sodomy carried out by two homosexuals in a private place? My view is that we are. For hundreds of years we have operated against sodomy but now we are going to legalise that very act. As we have already had explained to us, the Secretary of State for Scotland and Mr. Rifkind and Mr. Alec Fletcher have the pulse of the views of the people in Scotland. They know far more about what is going on, what is right and what we ought to do. Each one of them trooped into the Lobby and voted against the Bill, together with the other Ministers who have been mentioned. Therefore I think we should follow the excellent lead in this particular field given to us by the Members of the Commons when this came before the House of Commons.

    My Lords, I had not intended to speak for long, but I find myself involved in this under the references by the noble Lord, Lord Boothby, to his Bill in 1977. He gave some figures; I think he mentioned 127 votes to 25. That was not on the Bill.

    My Lords, it was on an amendment moved by me. On that occasion I moved that,

    "in view of the present proposals for a Scottish Assembly now before Parliament and of the subject matter of the Scottish Bill this House considers its introduction inappropriate and untimely and declines to give the Bill a Second Reading".
    That was rejected by the House, but I took no part in the subsequent—

    My Lords, if I may interrupt my noble friend, I should like to say that I did not give those figures. They were given by a member of the Opposition.

    My Lords, I should like to repeat that I quoted what the late Lord Kilmuir said in this House on 10th May 1966. Is that what the noble Lord referred to?