asked Her Majesty's Government:

My Lords, the Department for International Development's policy in central and eastern Europe, as elsewhere, is focused on the reduction of poverty. We are determined to do all we can to mobilise the international system to meet the international development targets by 2015 in order that today's poor children do not become the parents of larger numbers of children living in extreme poverty in the next generation. In those countries of central and eastern Europe where the problems are most acute we are supporting specific children's welfare and social assistance reform programmes.

My Lords, I thank the Minister for that encouraging reply. However, is she aware that some countries of eastern Europe have worse levels of child poverty than many developing countries? Does she agree that unless western governments are vigorously active in this area the situation will create more distress and instability in the region?

My Lords, I agree with my noble friend. The transition to a market economy in central and eastern Europe is producing rising levels of child poverty, which is a cause of great concern. It has had an impact on the provision of child services.

The Department for International Development increasingly focuses its bilateral assistance on the poorer countries in the region. We are supporting specific children's welfare and social programmes, for example, in Romania, Bulgaria, Kosovo and Serbia. We are also working with the multilateral organisations because we feel that the leverage we can generate from working with those organisations is important. I agree with my noble friend. We need vigorously to tackle the problem.

My Lords, where European Union or World Bank funds are made available to central and eastern Europe, can the Minister assure the House that primary education and public health will be protected along the lines promised by the Chancellor of the Exchequer? Can the noble Baroness tell the House whether that aim is working in practice?

My Lords, the noble Baroness refers to the European Union and the World Bank. A number of organisations are working in the area of health, including the Department for International Development. For example, in Bosnia we are supporting healthcare reform. In Kosovo we give management support to Pristina University Hospital. In Serbia we support the Ministry of Health

I am aware that the European Union and the World Bank have a number of programmes in the region. However, the Department for International Development is not supporting primary education projects in the region.

My Lords, does the Minister agree that the many economic and social problems in eastern and central Europe, highlighted by the excellent report of the European Children's Trust, The Silent Crisis, are often associated with large numbers of orphans and abandoned children. Is DfID supporting any programmes to help orphaned and abandoned children? The policy has tended to be to put them in often unsatisfactory institutional care. Is DfID helping to promote a preferable form of foster family care?

My Lords, Romania in particular has suffered from a legacy of inadequate government financing and poor use of resources in relation to children's welfare. We have a major £3 million, three-year programme of assistance to the national authority for child protection and adoption. The money is being used in a variety of ways. For example, a consultant has advised on options to improve current adoption practices. With the authority, we have looked at management structures. We have considered training and development, and other areas about which I am happy to write to the noble Baroness in more detail.

My Lords, now that the United Kingdom has become the fourth largest donor to poor countries, a near 40 cent rise having been achieved over previous years, can we not do more for this very needy area?

My Lords, it was announced last week that the United Kingdom has become the world's fourth largest donor. We are focusing more on poorer countries in central and eastern Europe. However, at the end of March 2003 we shall no longer have programmes in the better-off countries of the region—for example, Poland, the Czech Republic, the Baltics, Slovakia and Slovenia. But we shall be focusing on the two candidate countries, Bulgaria and Romania, and on the Balkans.

My Lords, are not the two charities—the Free and Democratic Bulgaria (Children) Foundation works with Britain's Childhope—exactly the kind of children's charities which DfID can support, especially as they are being forced to close this year because of an EU reduction of funds? Does the Minister know that they have applied to DfID for funds but to no avail? What can Her Majesty's Government do for these worthy causes?

My Lords, the noble Baroness has asked a number of questions in this House on specific charities which have approached the Department for International Development for funding. As the noble Baroness is aware, we have clear criteria against which we assess those applications. I am happy to consider the two organisations to which she refers and write to her with more information.

My Lords, will the Minister acknowledge the clear determination that the new Government of Romania have shown to come to grips with the problems of child poverty and, in particular, with the scandal of children's homes and orphanages? Given the symbolic as well as the actual importance of that, will she assure the House that Romania will be given a high priority in the programmes, not just financially, but also in terms of know-how? If we can succeed in Romania, it will be a guide to the rest of eastern and central Europe.

My Lords, as I said in answer to the noble Baroness, Lady Cox, we have a £3 million programme in Romania that covers a number of areas. The international community is working very hard. I agree that the Government of Romania are working hard to develop alternatives for children in institutions. The EC has been foremost in support of that effort and has allocated £15 million for spending in 2001. The noble Lord is right to stress the importance not only of giving financial support but of developing the skills and capacity of people in those countries so that we build for the long term.

asked Her Majesty's Government:

My Lords, the Chief Inspector described Swinfen Hall as a centre of excellence and a healthy prison in which young prisoners can mature as people and are given the opportunity to address both their offending behaviour and their educational, work and social skills shortcomings. There is an excellent "Moving Out" course to prepare young prisoners for their release. The Chief Inspector's excellent report is a great credit to the governor and her staff.

My Lords, I am grateful to the Minister for that reply. As Swinfen Hall is in general a welcome example of good practice—unlike Stoke Heath, for example, on which Sir David also recently reported—would it not be a good idea for this report to be required reading at every institution in the Prison Service? Might not that result in a bit more focused attention on education issues, which some of us have grown old reiterating, such as the point made in paragraph 5.09 about the transfer of education records?

My Lords, the noble Lord has made a number of useful points. I am sure that the report ought to be required reading. I know that inspection reports are widely circulated in the Prison Service. They are certainly filleted for good practice. The inspector drew attention to 14 areas of good practice. There is much sense in recommendation 5.09. No doubt it will be dwelt on. It is essential when planning educational courses for young individuals that their educational records are easily transferred. Let us hope that we can do that using the best of new technology in the future.

My Lords, may I ask the Leader of the House why the Front Benches should pre-empt the Back Benches, contrary to the erstwhile traditions of this House?

My Lords, reverting to the Question, does my noble friend agree that we read a great deal about reports on prisons and offender institutions where things are far from well? Are the Government making any great effort to publicise this report and good reports in general?

My Lords, we always make strenuous efforts to publicise good reports, but unfortunately good reports attract far less attention. This one deserves to attract a great deal of attention. Sir David Ramsbotham said that he was taking a unique step in his time as Chief Inspector of Prisons by declaring Her Majesty's Young Offender Institution Swinfen Hall to be a centre of excellence. We should be proud and celebrate that fact and congratulate the staff at Swinfen Hall, who are obviously doing a very good job. Their work on improving the establishment over the past five or six years should be more widely known about publicly, particularly in the Prison Service.

My Lords, does the Minister agree that Sir David's report on Swinfen Hall shows his willingness to be critical when prisons are bad and to praise when they are good? Is it not another example of what an excellent Chief Inspector of Prisons he has been? Has a decision been made about his future?

My Lords, as I am sure that the noble Lord knows, we are in the process of appointing a new Chief Inspector of Prisons. Sir David has done an excellent job. I met him and his inspection team last week. They assured me that Swinfen Hall was not the only establishment that they had praised over their years of looking—quite rightly critically—at the prison estate. They said that there is much good practice across the prison estate. We need to draw more from that to ensure that standards generally are raised.

asked Her Majesty's Government:

My Lords, the Government have made clear our deep concern about President Bush's remarks on Kyoto. However, we do not believe that trade sanctions would be a helpful way of engaging the United States on climate change. We will continue to work towards our aim of ratification and entry into force of the Kyoto protocol by 2002. The climate change levy is a key part of the UK's climate change programme. It is intended to ensure that industry and other parts of the UK non-domestic sector play their part in helping the UK to meet its Kyoto commitments.

My Lords, I am grateful to my noble friend for that very full Answer. However, does he agree that UK manufacturers, who are liable for the climate change levy, are competing unfairly with US companies, which make no such contribution? Does that not justify a levy such as, I believe, the US Government imposed on cashmere because it did not like the solution to the banana dispute with the European Union a couple of years ago? Is it not the case that, if such action is good for them, it is good for us?

My Lords, although one has a certain sympathy with what my noble friend says, we do not believe that that is a sensible way in which to conduct trade negotiations. The WTO process has an integrity of its own. The US tried to put pressure on the WTO arrangements when they were going in its favour. However, we believe that the environmental dimension of international trade arrangements needs to be addressed. Indeed, the EU is anxious that the next WTO round addresses that. However, discussions on that aspect should be kept separate from those on Kyoto.

My Lords, what European countries, EU and non-EU, have ratified Kyoto? Is it not correct that the 15 EU countries have not begun to get close to the 8 per cent cut in carbon dioxide emissions target, and are they not all agreed on one thing—that is, that Germany has no hope of ever meeting the Kyoto target and honouring its promise to do away with nuclear energy?

My Lords, the last part of what the noble Lord said is definitely not true. The Germans, along with the British, are most on course for meeting their Kyoto commitments under the European bubble. Other European Union members are not as on course. We are anxious that they take measures which the British and German Governments have taken to ensure that we meet those commitments. It is hoped that the EU as a whole will aim for ratification by our target date of 2002.

My Lords, will the Minister confirm that the European Union is far ahead of the United States in respect of energy conservation and the attempt to use cars which use fewer fossil fuels in order to maintain a rate of mileage? Will he consider putting across to the United States good practice such as reducing the use of energy, which would enable the US not to open the Alaskan nature reserve for the purpose of acquiring oil?

My Lords, it is certainly true that the European Union, EU countries individually and European-based manufacturers have made substantial changes which limit the use of fuel, particularly in the area of transport. The commitment of European car manufacturers to improve fuel efficiency will save 4 million tonnes of carbon equivalent by the year 2010. Hopeful signs are being seen in the United States that manufacturers there are picking up the message. Indeed, politically within the United States—for example, in California—that message has also begun to be taken on board. Other voices have also been heard in relation to President Bush's remarks.

My Lords, although I recognise the genuine level of criticism registered against the United States Government, does my noble friend agree that, if the British Government followed the terms of this Question, not only would it make a difficult situation that much worse, it would be counter-productive?

Yes, my Lords. As I indicated, the use of World Trade Organisation mechanisms for achieving changes in the American Government's stance on Kyoto does not seem sensible and would lead to infraction proceedings against us under WTO rules.

My Lords, can the noble Lord tell the House what the scientists have been saying? What level of global warming is due to the sun and what level is due to industrial activity? Until that is made clear, is it not the case that many industrial countries will wonder why they should cut back on their emissions if many of them are due to natural causes? I believe that such statistics would be most helpful in putting forward this argument.

My Lords, the basic science of climate change, which effectively identifies the degree of human activity contribution to the step change in the rate of warming, is now fairly well understood and shared by the vast majority of scientists across the world. The latest International Panel on Climate Change report represents over 3,000 scientists from countries of all persuasions, including the United States and others. Therefore, I do not believe that the science surrounding this issue is now disputed by the vast majority of scientists. However, it is necessary for governments and industrialists to adapt to the facts.

My Lords, given the precariousness of the United States economy and the risks to the world economy of a United States recession, does the Minister agree that the imposition of sanctions on United States industries would merely lessen world trade, which the WTO exists to promote?

My Lords, yes. I have not advocated sanctions against the United States. However, we have advocated that, in terms of its own responsibilities, the United States should recognise the advantages to itself and to the world of addressing the problems which are causing 25 per cent of the world's carbon emissions. Were the United States to address those problems, the long-term benefits, not only ecologically but also to its economy and people, would become more evident. We hope that within its administration the voices which already recognise that come to prevail and that we can get down to constructive talks at Bonn in July and beyond in order to bring the Americans back into the discussions on climate change.

My Lords, will the noble Lord tell us what he believes to be available to European countries by way of bringing pressure to bear on the United States? If sanctions are not the way, what can we do to persuade that country? Does he believe that there is any chance of a change of heart on the part of the United States?

My Lords, I believe that there is indeed a chance for a change of heart. Clearly the Europeans will have to be flexible in negotiations. The American position has been made clear, but there will have to be some adjustment to that position. Nevertheless, I believe that the universal view of the European nations, which has been conveyed to the American administration by various means, industrial and private, will bring about a desire on behalf of the Americans to engage constructively in future negotiations. As I said, we shall see the beginning of that in Bonn in July and it is hoped that we shall then be back on course. This is probably the most important issue to face world leaders and I believe that President Bush recognises that.

My Lords, does my noble friend agree that, although the majority of scientists may well be in agreement about global warming and CO₂, a group of scientists, led by the distinguished Professor Fred Hoyle, believes that, far from needing less CO₂ in the atmosphere, we need more if we are to avoid a second Ice Age?

My Lords, I read the report of that view in those terms in the newspapers a few weeks ago. I do not believe that that is quite the position of Professor Hoyle. The conclusions that he draws reflect very much a minority of scientific opinion not only in this country and in Europe but throughout the world.

asked Her Majesty's Government:

My Lords, yes. There has been no change whatever in the Government's support for marriage. I repeat what I said in your Lordships' House on 17th January in a debate promoted by the noble Baroness:

"A loving marriage between two parties of the opposite sex provides, for the overwhelming majority in our country, the best assurance of a happy personal life and provides the surest foundation upon which to rear a successful family".—[Official Report, 17/1/01; col. 1162.]

My Lords, I thank the noble and learned Lord for that reply and remind him of other parts of his speech in that debate. He made it clear that government policy was primarily to support single mothers and children. Does he agree that every single piece of research evidence shows that what is best for children is to be brought up within the framework of a married couple and that marriage should be promoted as a better lifestyle than any other?

My Lords, in my view, the Government ought not to, and could not, force people to marry; nor could we prevent people who are not married from living together. Moreover, we cannot prevent people from divorcing if they have made up their minds to do so. We live in a free society and we must respect the choices that people make; we must not condemn them. We could not be—we should not be—condemnatory of cohabiting relationships outside marriage.

My Lords, surely it is always the case that children must come first. They should not be discriminated against by the state on the basis of the status of their parents or their parent.

My Lords, I completely agree with that; our primary concern must be the welfare of children. We are committed to the provision of a safe, secure and loving environment for the upbringing of children. That does not mean criticising or penalising people who choose not to marry; nor does it mean that the Government do not recognise the validity of or the stability provided by other relationships, such as one-parent families. Many lone parents and unmarried couples raise their children just as successfully as do married parents.

In my view, the role of the state is to encourage, not to compel, and to provide practical help, not to preach. Children of unmarried couples are not outsiders in society; they are as much insiders and worthy of support as are the children of couples who have chosen to marry. I could not begin to contemplate an apartheid of preferred children and non-preferred children that was dependent on the status of their parents.

My Lords, how does the noble and learned Lord reconcile his policy with the Government's taxation policy, which jeopardises many of the tax advantages once enjoyed—they existed for a long time—by married couples?

My Lords, our fiscal priority is to put children first. We concentrate resources where they are most needed: on families bringing up children, especially those on lower incomes. I repeat that it is wrong to discriminate against children on the basis of their parents' status. By October 2001, families with children will on the average be £1,000 per year better off as a result of measures introduced during this Parliament and 1.2 million children will be lifted out of poverty.

My Lords, does the noble and learned Lord see any connection between the decline in the number of parents who are married and the increase in so-called yob culture among, in particular, boys and young men?

My Lords, I find it difficult to draw a connection.

My Lords, we are told that this year the Law Commission will propose giving legal rights to live-in couples. Will the noble and learned Lord define for us the term, "live-in couple"? Would live-in couples have to be having a sexual relationship in order to have those legal rights or would those rights also pertain to other couples, such as two sisters or two other relatives living together in the same home?

My Lords, I doubt whether the Law Commission is as concerned with the sexual relations of people who live together as are some others. However, it is currently undertaking a review of the law as it relates to the property rights of home sharers. The Government will of course consider what it proposes. The working paper is currently expected later this year and it will be followed by a report in due course. The Government have taken no decisions whatever in this area.

My Lords, it may be for the convenience of the House if I say a few words about today's proceedings relating to the Chinook helicopter debate. Although there are Motions on the Order Paper in the names of the noble Lords, Lord Tordoff, Lord Chalfont and Lord Rodgers of Quarry Bank, it has been agreed that there will be one debate. The noble Lord, Lord Tordoff, will speak first and move the Motion standing in his name. The noble Lord, Lord Chalfont, will speak next and move his amendment. A debate will then take place on that amendment. That will provide an opportunity for the noble Lord, Lord Rodgers, and any other noble Lord who wishes to take part, to speak. At the end of the debate, it may be helpful if the noble Lord, Lord Tordoff, responds to any points that have been addressed to him. The noble Lord, Lord Chalfont, will have the right to reply. The business will then be disposed of without any further debate in the following order: first, the amendment of the noble Lord, Lord Chalfont; secondly, the Motion standing in the name of the noble Lord, Lord Tordoff; and, thirdly, the Motion standing in the name of the noble Lord, Lord Rodgers.

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

This report follows from a resolution that was moved by the noble Lord, Lord Chalfont, on 5th March after debate. It stated:

"whilst recognising that the final decision will be a decision for the whole House, it is desirable that the Liaison Committee should consider the appointment of a Select Committee to consider all the circumstances surrounding the crash of Chinook helicopter ZD 576 on the Mull of Kintyre on 2nd June 1994".—[Official Report, 5/3/01; col. 91.]

I am aware that many noble Lords will he disappointed by the fact that the report from the Liaison Committee recommends that the House should not appoint a Select Committee. I shall try to explain how the committee came to that conclusion.

First, the matter was not in any way treated lightly by the Liaison Committee. There were three meetings, which were called at very short notice. After the first meeting it was decided to ask the noble Baroness, Lady Symons, to give evidence. We were very grateful to her for giving a clear explanation of the Government's and the MoD's position and for her assessment of the likely attitude of the two Air Marshals to appearing before the Select Committee. Her evidence is of course published as part of the report. The noble Baroness's position can best be described as that of agnosticism to the idea of a House of Lords Select Committee on this subject. We understand that.

Secondly, as a result of that meeting, we asked the noble Lord, Lord Chalfont, to appear before us, which he did. We are extremely grateful to him because he enabled us to assess his interpretation of the phrase in his original Motion,

"to consider all the circumstances surrounding the crash".

At first sight, that appears to be very wide indeed. However, if noble Lords examine the evidence that he gave in answer to question 39 on page 18 of the report, it is clear that he believed that the inquiry could be quite tightly drawn and that it would not be necessary to go into the "technical details" and background.

After considerable discussion, certain opinions emerged in the Liaison Committee. I trust that members of that committee will join in this afternoon's debate and set out their views in more detail than I can. It is important to say that a large majority of the committee—this was not a unanimous opinion—felt a degree of unease about the board of inquiry's findings. They also felt—this appears in paragraph 7 on page 6 of the report—that:

"It may well be that the conclusions of the Board of Inquiry could usefully be reviewed by a suitable body".

Why could that not be done by a Select Committee of the House of Lords? Careful reading of the questioning by members of the committee reveals the answer to that question. First, some members were worried that however much we attempted to limit the scope of a committee of inquiry, it would be necessary to consider a substantial amount of existing evidence in order to decide whether or not the Air Marshals were justified in coming to the conclusions that they did.

With the best will in the world, an injustice to the board of inquiry may arise in those circumstances. First, there may not be sufficient technical expertise available to test the evidence. Secondly, there may not be sufficient time to give attention to the weight of the evidence and the committee may have considerably to extend its timespan in order to cope.

Some members felt that that was not a suitable matter for a House of Lords Select Committee because of its quasi-judicial character and that to embark upon such an enterprise might set unfortunate precedents for similar attempts to query legitimately constituted boards of inquiry in other fields. One thinks perhaps of a noble Lord having doubts about the Paddington inquiry, the "Marchioness" inquiry or the Kings Cross fire inquiry, and seeking to set up a Select Committee to look into those.

Also, some members of the Liaison Committee believed that it would be possible to have a small, focused, tightly timetabled Select Committee. To that end a Motion was tabled by the noble Lord, Lord Strathclyde, which, in the event, was defeated by four votes to two.

I repeat that this is a matter for the whole House, as was said in the original resolution. I look forward to hearing your Lordships' views from all sides of the House this afternoon, bearing in mind that this report is not an inquiry into the findings of the board of inquiry, but simply looks at the appropriateness of your Lordships setting up a Select Committee.

Finally, I can do no better than summarise by quoting paragraph 7 of the report, which states:

"It may well be that the conclusions of the Board of Inquiry could usefully be reviewed by a suitable body. But we do not believe that a select committee [of this House] is such a body".

I commend the report to the House.

rose to move, as an amendment to the above Motion, to leave out all the words after "That" and insert "this House rejects the recommendations of the Liaison Committee and appoints a Select Committee of five members to consider the justification for the finding of those reviewing the conclusions of the RAF board of inquiry that both pilots of the Chinook helicopter ZD576 which crashed on the Mull of Kintyre on 2nd June 1994 were negligent".

My Lords, I speak from these Benches but I do not speak on behalf of these Benches. My noble friends are free to speak and vote as they choose on the Motion in the name of the Chairman of Committees, the amendment of the noble Lord. Lord Chalfont, and, indeed, on the Motion standing in my name.

I take the view that this is a House of Lords matter. We must make up our own minds on these matters across party in the light of the issues which have been presented to the House by the Liaison Committee and which no doubt will be referred to in our discussions today.

Perhaps I make the matter plain to the House. In doing so, I shall use an expression used in a different context by the Chairman of Committees. As regards the issue which provoked the debate, the finding of gross negligence against the two pilots of Chinook helicopter ZD576—the matters which were raised by the noble Lord, Lord Chalfont—towards the end of his speech, I am an agnostic. I have taken no view whatever of the merits of the issue.

I wholly understand, as must the whole House, the feelings of the families of the young officers who died on that occasion. I respect the tenacity and passion of the noble Lord and of members of all parties and of none who have campaigned so that justice will be seen to be done. But that is not the issue before the House. The issue before the House is a simple but extremely important one both for the role of this House and for the future. Is a Select Committee an appropriate way to seek to carry forward and to resolve this dispute? I believe that it is not. Whatever the merits of the issue, however convenient it may be for the Ministry of Defence, a Select Committee does not fit this case.

It follows that I shall vote for the report of the Liaison Committee and vote against the amendment tabled by the noble Lord, Lord Chalfont. As for my own Motion, I tabled it as an alternative to the noble Lord's proposal in recognition of the strength of feeling expressed in this House on 5th March, of strong views held in another place and of public disquiet, which I fully acknowledge, especially in Scotland. I have no wish to close down further campaigning on the issue if that is what others want.

It will be said—it was said by the noble Lord, Lord Chalfont, today and no doubt it will be said by the Minister in reply—that the Ministry of Defence is not prepared to set up an independent inquiry of the kind referred to in my Motion and that the Prime Minister has endorsed that position. It was the view expressed by the noble Baroness, Lady Symons, in her evidence before the Liaison Committee.

That must be the position of the Government until the Government change their mind. Governments always say no until circumstances persuade them that they should be saying yes. It is no surprise to me that the Ministry of Defence wants to put the matter to rest and that it believes that one way of doing so is to push it on to your Lordships' House. I make no complaint at all.

However, governments change their minds. They change their minds on the eve of general elections. They change their minds in new Parliaments. Prime Ministers change their minds and the Prime Minister could certainly set up an inquiry if he so wished, either now or later—or for that matter, as referred to in discussions with the Liaison Committee, invite the noble and learned Lord the Lord Chancellor to do so. There is no constitutional impropriety in the Prime Minister saying no now and saying yes later. For those who are doubtful, to put it at its least, about the procedure for setting up a Select Committee, that option exists and I have placed my Motion on the Order Paper so that that will be plain.

The report of the Liaison Committee sets out the powerful reasons why the committee, by a majority, felt that it was not right to proceed with a Select Committee. The Chairman of Committees referred to those issues today. First, a Select Committee is not equipped to second guess the professional judgment and technical expertise of the RAF board of inquiry. That is probably true, but it is not the heart of the matter. Secondly, a Select Committee is unlikely to end the controversy. Again, that is true, but it is not the heart of the matter either. The heart of the matter, and the issue for the House today, is that this House should not adopt a quasi-judicial role for which it is unfit and which could be regarded as an encroachment on the separation of power.

We now have a Constitutional Committee of this House and perhaps it might have deliberated and reported on that matter. Be that as it may, it would be very unwise for your Lordships' House, in its lay capacity, to go down the road to becoming a court of appeal for those with a grievance, however legitimate, against the finding of some other body. Would we see other Select Committees when disciplinary decisions in the Armed Forces are similarly found to be unacceptable and legitimate grievances remain? Would we find appeals to your Lordships' House from decisions of the Police Complaints Authority? Would decisions of planning inspectors, when they cause offence, be brought to this House for a Select Committee? And what about the decisions of regulatory bodies?

It may be said that it is very unlikely that that will occur. It may be said that it will be within the good sense of individual Members of the House not to go down that path. I respectfully ask the House to consider that whatever the virtues of this case, and I can see that many noble Lords believe them to be strong, this could be a slippery slope damaging in the long run to the integrity, role and standing of your Lordships' House.

The noble Lord, Lord Chalfont, in a spirit of compromise, which I am sure the House will greatly welcome, has in his amendment suggested perhaps a narrow definition of the Select Committee name. It is not for me to say—and I do not know the answer—whether it is effectively possible to withdraw such an amendment and substitute for it an oral commitment of a kind which I understand the noble Lord has made. But I have to say to your Lordships' House that the noble Lord's proposal is still for a Select Committee. The phrase he used was a Select Committee "of some kind". Unless the Chairman of Committees advises the House, I know of no other way under the Standing Orders of this House that a committee should be established. So whatever the terms of reference, it will be a Select Committee of this House sitting in judgment.

On the other hand, in addition the noble Lord has helpfully suggested that there might be narrower terms of reference to review the findings. But I cannot see how, nor do I think the noble Lord suggested, that a review of the findings could be conducted without second guessing the verdict passed on the two pilots. Therefore, although I believe that the noble Lord has tried to be extremely helpful to the House and those who have disagreed with him, my instincts tell me that however well intended he has been, his proposal is not radically different to set aside the objections which I believe exist in following the course recommended in his amendment.

I repeat that the issue for the House is not whether two pilots were grossly negligent—they may not have been. It is not whether we sympathise with their families—I believe that all of us do. It is not whether the procedures of the Ministry of Defence were fair—I understand that they have been changed. It is not whether the campaigners will stop campaigning—they will no doubt go on. The issue is whether a Select Committee of this House is the proper way to resolve these matters. I am not persuaded that it is, and that is why my Motion offers an alternative if that is a course that the House would prefer.

My Lords, I find it extremely puzzling that we seem to be back where we were when we had a debate on the evening of 5th March. My impression was that the House was persuaded—there were exceptions—by the case put forward by the noble Lord, Lord Chalfont, and his Motion was passed without a Division. I believed it to be the will of the House that the Liaison Committee should not only consider but recommend the appointment of a Select Committee. On that evening, for the Liberal Democrats, the noble Lord, Lord Wallace of Saltaire, said that,

"the argument that this House does not have the resources for a further Select Committee is the weakest argument against one. If there is an argument for another Select Committee, then the resources need to be provided".—[Official Report, 5/3/01; col. 101]

The noble Lord was right then, and he still is.

If this House decided to set up a Select Committee it could appoint a committee of outstanding distinction and should staff it and equip it as well. I do not accept that a Select Committee of this House would not be suitable to conduct an inquiry. I do not agree that an inquiry led by a High Court judge—we should remember that the Government have said firmly that they would not favour such a process—would have more authority than your Lordships' House. Instead, I agree with the noble Baroness, Lady Symons, who told the Liaison Committee that,

"frankly, your Lordships' House is one of the most sensible fora",

to take a fresh look at this matter.

The first objection of the Liaison Committee was that a Select Committee would not be equipped to review technical and professional issues. But the noble Baroness again disposed of that when she said in evidence:

"I think it would be a mistake to say … it is all too difficult for everyone else to understand … There is nothing so mysterious that sensible, intelligent people who have looked carefully at the facts could not understand it".

When asked if she thought whether,

"a committee composed of lay Members of the House of Lords, possibly chaired by a Law Lord, could actually do justice to this subject",

the noble Baroness, speaking with all the authority of the Ministry of Defence, said:

"My honest opinion is yes".

That is, surely, the answer to the second objection of the Liaison Committee; namely, that the Ministry of Defence might ignore a report. I am ready to rely on the noble Baroness's words on this matter. Frankly, if we here decided not to do something because a government might ignore us, we would be abandoning one central purpose of this House, which is to ask the Government to think again if we consider it right.

I hope that we can conclude the matter this afternoon without much further delay. All of us on 5th March received the clear impression that the Government accepted that a fresh view could usefully be taken by a Select Committee of your Lordships' House. At col. 107 the noble Baroness told the House, as the noble Lord, Lord Chalfont, reminded us, that the Government,

"will, of course, co-operate fully with any committee that your Lordships may decide to establish".

I thought that that was clear enough. Nothing that I heard in the Liaison Committee has changed my view that a Select Committee would be a practical and authoritative vehicle for further consideration of this matter. Certainly, I would not be deterred by a suggestion that a committee of this House might find itself acting in a quasi-judicial capacity. I am not sure that it would be, but even if it were there is precedent enough for it.

I was very surprised that the noble Lord, Lord Rodgers of Quarry Bank, opposed an inquiry in this House and subsequently tabled his own Motion. I hope that the noble Lord will not press his Motion because it is not binding on the Government and does not ensure that there will be an inquiry led by someone of the standing of a senior Law Lord, or retired Law Lord. When the Government respond to the debate perhaps they can tell the House what assurances they have given that if the Motion of the noble Lord, Lord Rodgers, were to be passed, they would set up such an inquiry. After all, that Motion does not ask the Government to do anything that they cannot already do now.

I was even more surprised when the Government, having given the House the impression that they had accepted the inquiry, failed to vote to set up a Select Committee when the Liaison Committee divided. That was at odds with the spirit of the clear undertakings given with absolute integrity by the noble Baroness. I make no charge against her.

My Lords, I am most grateful to the noble Lord for giving way. The only person at the Liaison Committee at that stage was the noble Lord, Lord Carter, who was not a member of that committee and was standing in. I make no further point other than that, technically, the noble Lord was unable to vote.

My Lords, I had not intended to raise that rather delicate issue. The government member of the Liaison Committee, the noble Baroness the Leader of the House, was unable to attend any of the three meetings. Neither the Attorney-General nor the Government Chief Whip who stood in for the Leader of the House on those occasions could take part in the vote. Perhaps a fairer way to put it is that the Government abstained by not being there.

We on this side of the House will have a free vote on this matter. I am sure that noble Lords opposite will also have a free vote. Following the Liaison Committee, I assume that if the noble Lord, Lord Chalfont, takes this matter to a vote the Government will abstain. That would be the correct thing for the Government to do. The noble Lord, Lord Chalfont, made a strong case on 5th March. He has made an equally strong case today. He has kindly referred to the Motion that I advanced in the committee. What he suggests would add to the standing and authority of the House. I shall support him and I hope that many noble Lords on all sides will do so too.

I conclude with a final thought on the causes of the crash. There is now a perception of doubt out there and so long as it lasts it blights unfairly both judged and judges alike. This House can help to dispose of that doubt, and we should not shirk our duty to seek to do so.

My Lords, when we last discussed this issue in your Lordships' House on 5th March, I made it clear that the Government would not ask your Lordships to oppose the Motion then on the Order Paper in the name of the noble Lord, Lord Chalfont. In the course of my remarks at the conclusion of the debate, I told your Lordships that I believed that successive Ministers, Conservative and Labour, had been fully and honestly briefed about this tragic accident and that Ministers of both parties had been honest in their dealings in this House and in another place. Nothing has been, or is being, hidden because there really is nothing to hide.

Since then the Liaison Committee has reported its view and recommended against the appointment of a Select Committee and given its reasons for coming to that conclusion. The noble Lord, Lord Tordoff, has explained it further this afternoon. Subsequently, the noble Lord, Lord Rodgers, expressed his wish that the House should call on the Government to set up an independent review of the conclusion of the board of inquiry.

Perhaps if may deal first with the proposition of the noble Lord, Lord Rodgers. It is clear that those who feel that an injustice has been done to the dead pilots are challenging the determination and judgment of two Air Marshals who were the reviewing officers of the RAF board of inquiry. I remind noble Lords that this was a lengthy board of inquiry which took over one year and produced four volumes of a report and numerous annexes. It considered the issues in detail. It was a properly constituted board of inquiry which was presided over by servicemen of impeccable integrity and very great expertise—indeed, the best possible professional expertise. They were entitled to make the judgment that they made within the rules prevailing at the time, and since then no new evidence has come to light.

In my evidence to the Liaison Committee, I reaffirmed that if the Government had felt there was a reason to reopen this matter they would have done so themselves. We did not and we do not. In making their final determination, the Air Marshals, both of whom were very experienced aviators, exercised their professional judgment as the reviewing officers. They were well aware of the import and impact of their judgment which was taken only after the fullest consideration of all the evidence. I repeat that they were required to look at this tragic case in the most objective and impartial manner. That is what they did. The fact that others may disagree with their judgment does not make it wrong.

The noble Lord, Lord Rogers, asks the Government to agree to set up an independent review of the conclusions of the board of inquiry into the crash. The noble Lord says, "Well, the Government changed their mind". But, in order to change the Government's mind, they need to believe that the original board of inquiry process was incomplete or flawed or that the judgment of the reviewing officers was incorrect. As I made clear in my evidence to the Liaison Committee on 28th March, there are no grounds on which the Government could accept those premises. I am well aware that my response will not salve the natural and absolutely understandable hurt feelings of those most closely involved in this tragic case; in particular, the families of the deceased pilots, with whom I am sure your Lordships have the utmost sympathy. However, it would not be right or proper for the Government to call into question those findings unless we believe we have a reason to do so; and we do not so believe.

I turn to today's contribution of the noble Lord, Lord Chalfont. Throughout our discussions on this very difficult issue the Government's position has been entirely consistent. The noble Lord, Lord Chalfont, suggested some helpful modifications—what one might describe as a "compromise"—to the remit of the Select Committee. The noble Lord, Lord Tordoff may believe that his committee would be prepared to consider that recommendation. If the noble Lord does so consider, the Government are content to leave the issue to your Lordships' judgment. If the Liaison Committee is content to recommend that a committee along the lines proposed by the noble Lord, Lord Chalfont, should be set up, the Government will not ask your Lordships to oppose that. Indeed, we would co-operate fully. As the noble Lord, Lord Strathclyde, was kind enough to remind your Lordships, that was my position when I answered the similar debate on 5th March.

Therefore, given the terms in which the noble Lord, Lord Chalfont, has made what I might describe as his "compromise proposal", I do not wish to oppose his suggestion. But I must, for the reasons which I have stated, ask your Lordships to oppose the Motion of the noble Lord, Lord Rodgers, which I believe takes us backwards rather than forwards in this debate.

My Lords, as a member of the Liaison Committee, perhaps I may explain why I support the report which is before the House. At that Liaison Committee meeting with the noble Lady, Baroness Symons, the noble Baroness talked about achieving a closure. After seven years there is an understandable feeling that a line should be drawn under the matter. But, from what the noble Baroness said in the course of her meeting with the Liaison Committee, it seems clear that there is no guarantee of closure. The noble Baroness was quite explicit. The MoD is not prepared to give any prior undertaking about its response to a Select Committee were it to be critical of the Air Marshals' judgments. I entirely accept that position.

Noble Lords will appreciate that as an RAF officer I have been required to deal with a considerable number of boards of inquiry into aircraft accidents. I have first-hand experience of what is involved. We were told that the quantity of material for the board of inquiry into the Chinook accident is massive and in many places highly technical. I am sure that it is. All of that information and evidence would probably have to be studied to consider the issues of negligence, of a breach of duty to take care, and because the Air Marshals' findings must rely on most, if not all, of what the original board members established in the course of their work. I have no doubt that that could be done. But I do not think that the purpose for which it was being done, in effect to use a Select Committee of your Lordships' House to sit as a court of appeal, as envisaged by the noble Lord, Lord Chalfont, is acceptable.

The noble Lord, Lord Chalfont, and others who have spoken on the matter, have always been at pains to stress that they were not impugning the integrity of the Air Marshals and that they had every right to find as they did. But it has to be said that sensational media treatment and less considered comments from some other quarters, far from upholding the Air Marshals' probity, have set out to denigrate it.

The noble Baroness, Lady Symons, said that she did not want to see the Air Marshals put in the dock. In the course of her evidence, the noble Baroness made it very clear that one of the reasons that Ministers, in the absence of new evidence, have not sought to set up a further inquiry was because it would be,

"an unprecedented dreadful blow to professional servicemen if we were to say there is no new evidence but we are going to start a new Board of Inquiry or we are going to get an independent judge in because we think your judgment was a bit 'iffy".

That is a most important point. The relationship between commanders and those under their command is of paramount importance to the operational effectiveness of the Armed Forces. Commanders must be respected and trusted by their subordinates, whether in matters of professional conduct or in discipline. It can only serve to undermine that sense of respect and trust if the actions of commanders are questioned on grounds which are not based on doubts about their own professional competence or integrity. With his immensely admired first-hand experience in military affairs, I feel sure that the noble Lord, Lord Chalfont, would agree with me on that point.

This is a tough call: to meet the interests of the deceased pilots and their families, or to meet the interests of the service. I feel duty bound to support the interest of the service. It is inappropriate to set up an inquiry into the professional judgment of the Air Marshals. At the end of the day, it is their professional judgment on which we must rely, not only in this sad case but on so much else that they do in their capacity as senior officers of the Armed Forces. So I also do not support the Motion of the noble Lord, Lord Rodgers of Quarry Bank.

The interest of the House, thanks to the valiant efforts of the noble Lord, Lord Chalfont, has been concentrated most importantly on the doubts and worries of the families of the deceased pilots. All of us can understand and sympathise with their intense feelings of loss and distress. But I think that it is also right that the House should remember the families of the other two air crew and the 25 passengers on that ill-fated flight. Seven years on they are still being reminded each time that this topic gets further news coverage of their own tragic loss and the harrowing events of the time. Another inquiry will not bring them much comfort or hope. We must not overlook their sufferings and agony as we consider the way forward this afternoon.

It has frequently been argued that it is wrong that there is no right of appeal against the Air Marshals' findings, but each stage of the consideration of whether human failings contributed to an accident is separately arrived at: initially by the board itself; by the station commanders; by the convening officer, the first of the two Air Marshals; and then by the reviewing officer, the second Air Marshal. I can recall other cases affecting deceased air crew where the views expressed on human failings and negligence have been changed, sometimes more than once, as the stages of the board were completed.

In other words, procedures are built into the board of inquiry which explicitly must,

"consider whether some human failing caused or contributed to the accident",

a process of separate independent reviews of commanders with the help of their own staff. In this sad case, that process has been carried out at the MoD as well, as reported by 10 Ministers at the Dispatch Box. Surely there must be a limit to the number of times that findings are revisited and separately considered.

Finally, the House may wish to note that, in spite of the wealth of interest and publicity that this tragic accident has generated, it is sadly far from being the only one in recent years which has led to findings of negligence on the part of deceased air crew, and not only those who were in the RAF.

In reply to Written Questions from Mr Frank Field MP, who asked about the number of accidents in which deceased air crew were found guilty of gross negligence in aircraft that were not fitted with cockpit voice and flight data recorders, Mr John Spellar, Minister of State at the Ministry of Defence, said that,

"further research has confirmed that the Mull accident was … far from unique in its findings of gross negligence".

I quote from a letter dated 10th July 2000 to Mr Field and placed in the Commons Library.

Each accident, some of which occurred after the Chinook one, will have unique aspects to it and the findings. But would the House feel that it was reasonable for any of them to become the subject for ad hoc Select Committees to consider? The House will recall that the policy change that boards of inquiry were not required to consider findings of negligence for deceased air crew in accidents was made only in July 1997, over three years after the Mull accident.

For all of these reasons, I agree with the Liaison Committee recommendation not to appoint a Select Committee to consider this matter.

My Lords, as the senior member of the Liaison Committee—I reach that position by equating seniority with long service—perhaps I may say, first, how much I and all the members of the committee admired the care and enthusiasm with which the noble Lord, Lord Chalfont, presented his case. Perhaps I may say, secondly, that I was one of the members of the committee who felt a deep sympathy for much of what the noble Lord was arguing.

As far as I am concerned, the matter can be put into one sentence. If there were to be any further inquiry into the matter, the issue would be whether the finding was justified by the evidence, applying the relevant standard of proof. I do not see how it is possible to cut short the nature of an inquiry if that is the issue to be inquired into. But that must surely be what the committee or tribunal would have to decide.

The important words are "the relevant standard of proof". Air Force regulations state that only in cases in which there is absolutely no doubt whatever should deceased air crew be found negligent. That is a most extraordinary standard of proof to apply. It is, if I may strike a slightly flippant note for a moment, adopted verbatim from "The Gondoliers":

"No probable, possible shadow of doubt—

No possible doubt whatever".

I ask your Lordships to consider the following point. As we go about our daily business of taking decisions of one kind or another, how many decisions could we take in a day if we had to apply that standard of proof to our own individual actions? It therefore seems to me—here I have disagree with the noble and gallant Lord, Lord Craig—that, bearing in mind that standard of proof, in a complex and technical matter such as this any reviewing body would start out by approaching the finding with substantial anxiety. I take that point no further at this stage except to say that. I am one of those who much sympathises with what the noble Lord, Lord Chalfont, and his colleagues are trying to achieve in this debate. Where I part company with the noble Lord, Lord Chalfont, is on the wisdom of the remedy that he proposes. I much prefer, not for party political reasons in any way, the remedy suggested by my noble friend Lord Rodgers.

Much has been said about the fact that if the Motion of the noble Lord, Lord Rodgers, were to be carried and the Government were invited to set up an inquiry, the Government might take no notice of it. I understand that. Indeed, the noble Baroness, Lady Symons, indicated that that might very well be so; they would not take any notice of it and they would not set up a further inquiry. Is it not equally true that if that is the attitude of the Government at the moment and we set up a committee of inquiry that reports in a way that is adverse to the Government's present views, there is no guarantee that the Government will take the blindest notice? They clearly have their mind absolutely set on supporting the present conclusion and taking no further action. It is therefore no argument in favour of the amendment of the noble Lord, Lord Chalfont, to say that it may be that the setting up of a committee would be acceptable to the Government. We have not heard a word to suggest that its findings might be acceptable.

I suggest to your Lordships that it is not appropriate for the House to appoint a Select Committee to reach a conclusion of the guilt, innocence or civil liability of named individuals in respect of a specific incident on which a court or tribunal has already ruled. That would be for a House of Parliament to intervene improperly in the due processes of law. As far as I know—I shall be corrected if I am wrong—there is no precedent for the action proposed. If there had been a precedent, those who are in favour of the proposed course of action would have hastened to bring it to the attention of the Liaison Committee. As the Houses of Parliament ceased many years ago to be a court of law in their own right, it would be quite wrong for them to take action of this nature.

I know that there is an argument about the complexity of the matter—that is bound to exist if there is a further inquiry—and whether that is suitable for a Select Committee. I know that there is an argument about the strain on our resources, which is a point to be borne in mind. However, the really crucial argument is that if we adopt the course suggested by the noble Lord, Lord Chalfont, we shall be setting a precedent that may have unfortunate future consequences for the House. Perhaps I may give a simple example. We all know of cases in which there are alleged miscarriages of justice. It happens frequently. In some of those cases the allegations turn out to be justified. In some of those cases the allegations are espoused by distinguished authors who write books about the innocence of the defendant, set up protest committees and walk about saying, "Free the Westminster One", or whatever it might be. Some of those causes will always be able to find a champion in this House.

The present position is that if a defendant is convicted in a criminal case and appeals to the Court of Criminal Appeal, that court determines the conviction. There was a time, some years ago, when for all practical purposes that was the end of the matter. That is no longer so. The position now is that in any such case, if there is the slightest suggestion that, for example, new evidence has been discovered, the Criminal Cases Review Commission will listen to representations made to it about further proceedings and will then decide whether to go back to the Home Secretary or refer the matter again to the Court of Appeal. If we adopt this precedent, is it really beyond the bounds of possibility that in future years cases will arise with some frequency of criminal convictions being called into issue and sent on their way to the Criminal Cases Review Commission and then some noble Lord with very proper motives deciding that he will raise in this House the question of whether we should have a Select Committee to review the guilt or innocence of the defendant?

It may not be an exact precedent—very few precedents are exact—but the case we are now considering would be a good enough precedent to set that argument on its feet. If we adopt the line suggested by the noble Lord, Lord Chalfont, we shall be setting a precedent that may have sad consequences for the House in the future. In a word, I believe that it is not the role of this House to interfere in our system of justice in the way suggested by the noble Lord, Lord Chalfont.

Although I believe in the cause being promoted by the noble Lord, I feel that the best course for the future of the House, as well as the one that accords with the traditions of the House, is to pass the Motion proposed by my noble friend Lord Rodgers and thus invite and press the Government to take the necessary action.

My Lords, noble Lords are faced here with a very heavy responsibility. Two highly respected and experienced pilots, now deceased, have been found guilty of gross negligence by two senior officers. That gross negligence accounted for the deaths of at least 26 people. The verdict is one that was taken in a situation where the deceased were not entitled to any representation. Furthermore, they were not entitled to any right of appeal.

It was my submission on 5th March before noble Lords and it is my submission today that the verdict reached by the Air Marshals was quite simply unlawful. It was unlawful because it was made beyond their powers. In forensic language it was ultra vires. For that reason it must be set aside ex debito justiciae— because justice so demands. It is not a question of discretion. The decision is a nullity.

Perhaps I may explain the short point of law which forms my justification for that rather emphatic submission. During the debate on 5th March, my noble and gallant friend Lord Craig of Radley said that the board of inquiry was not a court of justice. Its overriding concern was to discover what happened. The current position in regard to boards of inquiry of this kind is that they are not entitled to make any apportionment of blame.

Perhaps I may ask noble Lords to assume for a moment that if, today, two senior Air Marshals overlooked this relatively new change in procedure and did in fact apportion blame, that decision would be set aside for the simple reason that the Air Marshals have no power to reach such a verdict. It was an unlawful decision that was ultra vires. Some seven years ago, the position was that the power to apportion blame existed, but only in very heavily circumscribed circumstances.

In the words of the regulation, it was possible only in cases in which there is—I stress the words—absolutely no doubt whatsoever that a deceased air crew can be found to have committed negligence. The words have obviously been carefully thought out. The word "absolute" is placed in front of "doubt". What does "absolute" add to the formula? The word presumes and emphasises that the doubt is unqualified and is unrestricted. Doubt is not limited to cases of "reasonable doubt".

What of the words "absolutely no doubt whatsoever"? The word "whatsoever" means that there can be no doubt of any kind. It may be said that the onus here requires certainty. I am saying that that is the case. That does not rule out everything. It may require a fertile imagination, but it would be possible to have a situation of certainty. Let us take the situation where a daredevil pilot said to his mess, "I am going to fly upside-down through that narrow clearing in the jungle". He then does so unsuccessfully. That would be such a case; in that situation, there would be absolutely no doubt whatsoever that the pilot had been negligent.

It is an obligation on the Air Marshals, if they are going to interfere with a decision reached by those below them, for them to explain how they have reached their decision.

My Lords, I am most grateful to the noble and learned Lord for allowing me to intervene. I am sure that what he is saying is relevant to the issue that might be placed before a Select Committee if one were to be formed. However, that is not the Motion before the House today. We are considering here the question of whether we should set up a Select Committee, not whether the Air Marshals were correct in what they did or whether this is a matter of law. With all due respect to the noble and learned Lord, I suggest that perhaps we should stick to that point and come to a conclusion.

My Lords, I think the answer to that, which of course I was just coming to, is that for the verdict to be considered valid, there are two requirements which must be met—each of them vital. First, the Air Marshals must have concluded that this was a case where there was absolutely no doubt whatsoever; secondly, that there was an adequate amount of material available to support such a decision. In my view—although I may be wrong and therefore the second question will fall to be decided—the Air Marshals fell at the first fence. They did not purport to say that, "This is one of those rare cases where there is absolutely no doubt whatsoever". The nearest they got to that—I quoted Air Vice-Marshal Day on 5th March—was to say,

The Board and Officer Commanding RAF Odiham postulate various factors and scenarios, including possible distraction or disorientation, in attempting to explain why the crew might have failed to make a safe transition to Instrument Flight Rules".

I stress the following words:

"In my judgment, none of the possible factors and scenarios is so strong that they would have been likely to prevent such an experienced crew from maintaining safe flight".

What is being said, quite simply, is that none of the factors or scenarios is of sufficient strength to provide a likely explanation.

That does two things: first, it puts the onus upon the deceased, which is wrong; and, secondly, it deals with probabilities. It does not deal with even reasonable doubt, let alone certainties. That is the only material in which that Air Marshal vouchsafes his reason for exercising this power. His senior officer, Sir William Rattan, adds nothing at all.

Perhaps Air Marshal Day gives the game away to some extent when he states:

"Therefore, while aware of the difficulty of attributing negligence to deceased aircrew, I am nevertheless forced to conclude that Flight Lieutenant Tapper was negligent to a gross degree".

"Difficulty" is a gross understatement of the task that faced him. What faced him was near impossibility, and that is something that he did not address.

The only other part of the judgment which I think is worthy of quoting is,

"It is incomprehensible why two trusted, experienced and skilled pilots should, as indicated by all the available evidence, have flown a serviceable aircraft into cloud covered high ground".

I entirely agree with him—it is incomprehensible—but that merely shows that it cannot be a situation in which there is absolutely no doubt whatever.

Your Lordships are being asked to pass by on the other side. I respectfully submit that that is an unworthy attempt to induce your Lordships to take the easy way out. I hope that your Lordships will reject it.

My Lords, having listened to the noble and learned Lord, Lord Ackner—who has clearly made a case in support of the noble Lord, Lord Chalfont—I feel that I must return to the original issues which were raised and to which the noble Lord, Lord Tordoff, referred.

I support the noble Lord, Lord Chalfont. The House should recognise that he has moved since 5th March: he has narrowed the terms of reference and made it perfectly clear that he will stand by the findings of any Select Committee and will not himself raise the matter again.

I speak as someone who has never taken part in any of the debates about this helicopter. As a member of the Liaison Committee, of course, I read with great care the debate on 5th March, the earlier debates and some of the papers that were put to us. When I arrived at the Liaison Committee I thought—clearly incorrectly—that it was a foregone conclusion that the Liaison Committee would set up a Select Committee. At the end of the debate on 5th March, it seemed to me perfectly clear that the House had determined that there would be a Select Committee.

I particularly felt this because I had read very carefully what the noble Baroness, Lady Symons, said on that occasion and, indeed, when she quite fairly told the Liaison Committee that the Government would not oppose a Select Committee. I have been a government Minister; I know what it is to stand up at the Dispatch Box and to make statements on behalf of a government. I know full well that no Minister would make a statement like that unless it had the full support of her department. No doubt, it had been to some Cabinet committee and had the support of the Government. It is a very serious and important statement to make.

I therefore assumed—quite incorrectly, as it turned out—that the Government would support a Select Committee in the Liaison Committee and would have to deal simply with the formalities of setting one up. As it turned out, the situation was quite different. I find it an extremely painful experience to have to say to the House that I believe that the noble Lord, Lord Chalfont, was misled on 5th March as to what was intended. He must be now very surprised by the result of the Liaison Committee.

The arguments subsequently put in the Liaison Committee simply do not stand up. The idea that a House of Lords Select Committee could not consider an issue like this—that it would not have the expertise—suggests at once that many Select Committees of the House on the most complex, technical and difficult issues are really not suitable for them at all. That argument simply does not stand up. The more practical arguments about staffing and money, again, simply do not stand up.

It seems to me that, at the end of the day, this is a constitutional matter. It is a duty of the House of Lords, as the legislature, to hold the executive to account. That is what it is expected to do. As to the argument put forward by the noble Lord, Lord Wigoder, when he said that if we agreed to this a lot of other issues would be raised, many of the issues he quoted are civil issues which would go before the civil courts. They are completely different issues from this one, which is a matter for a government department. We are not, therefore, talking about the same thing at all.

I listened very carefully to the noble Baroness, Lady Symons, when she said, once again, that the Government would not oppose a Select Committee. Are we to understand—I hope that someone will make this absolutely clear—that this means that the Government will support a Select Committee? Or does it mean that they simply will not be there on the day and, therefore, it will be, as the noble and learned Lord, Lord Ackner said, a case of passing by on the other side of the road?

I wrote down what the noble Baroness, Lady Symons said. I hope that she will forgive me if I have not quoted her quite correctly. But are the Government saying that they will leave the issue to your Lordships' judgment today; that they will not oppose the noble Lord, Lord Chalfont, in putting this matter to the Liaison Committee; and that they will, in the Liaison Committee, argue in favour of a Select Committee? Unless we have that assurance we shall find ourselves in exactly the same position as we were on 5th March.

I feel unqualified to speak about this whole issue—I know only what I have read—but it seems to me, having listened to the debate, that the noble and learned Lord, Lord Ackner, made some extremely important legal points which, if nothing else, deserve full consideration. Having looked at the matter, I feel that we all owe a duty to the young pilots who died in this dreadful crash and who are unable to defend themselves. They have had very few people to speak for them and we owe it to their families to do what we can.

I entirely agree with the noble Lord, Lord Chalfont. The end of the Select Committee will be the conclusion of the matter as far as he is concerned. It would be appropriate if that were to be the end of the matter, but to leave it today in a state of suspense would amount, as the noble and learned Lord, Lord Ackner, said, to passing by on the other side of the road. Passing by does not matter to any of us sitting here, but it does matter to the families and it does matter to the cause of justice. I should have thought that your Lordships would think that it matters also to the House of Lords. It is one of our responsibilities. We are a legislature; we should hold the executive to account. I very much support the proposal of the noble Lord, Lord Chalfont, and I hope that the House will agree to it.

My Lords, I support the amendment moved by the noble Lord, Lord Chalfont. I can do so briefly because I shall be following very much in the footsteps of the noble and learned Lord, Lord Ackner. I should make it clear that I have no detailed knowledge of the facts of the case, but it seems to me that at this stage detailed knowledge of the facts is not required.

To sustain its conclusion, the board of inquiry had to be left with absolutely no doubt that the crash was the result of pilot error or of negligence on the part of the pilot. That test is an objective one. It means that the board of inquiry must have excluded with certainty—that is the critical expression—every other possible cause; otherwise, it could not be driven to the conclusion of pilot error.

What were the other possible causes? Taking the matter purely hypothetically and knowing nothing about the facts, one possible cause could be engine failure. It does not follow that engine failure did not occur merely because there was no evidence to support such a finding. That is a great mistake and one that is often made. Absence of evidence means what it says: that there is no evidence one way or the other. It is not the equivalent of what is referred to by the noble Lord, Lord Craig, in paragraph 26 on page 14 of the report, as negative evidence.

Let us suppose that there was negative evidence in the hypothetical case of engine failure; for example, that the warning lights were shown not to have come on. Many years ago, I took part in an inquiry into a crash involving a Trident aircraft which happened shortly after take-off at Heathrow airport. The inquiry was presided over by the noble and learned Lord, Lord Lane, who I am glad to see is in his place. I have forgotten the details and even the conclusions of the inquiry. What I do remember is that warning lights do not always do what they should do. Should my hypothetical case be correct, it leaves open the question that the board of inquiry, in reaching its conclusion, applied the wrong test—the test of excluding with certainty every other cause.

In the end, that raises a legal question rather than a factual one. It seems to me, for the reasons given by the noble and learned Lord, Lord Ackner, that it is a relatively short question and that it is well within the capacity of a Select Committee of this House. For those reasons, I support the amendment.

My Lords, perhaps I may add a few words as the last remaining member of the Liaison Committee to speak. I disagreed with the noble Baroness, Lady Young, in terms of the solution arrived at by the Liaison Committee. However, the noble Baroness has put her finger on an important matter on which there must be clarity before the end of this debate.

I came to the conclusion reached by the majority of members of the Liaison Committee—not after a thoughtless moment of impulse, nor indeed under the influence of my noble and gallant friend, but after, I hope, a proper anxiety about the matters under discussion.

A number of aspects of this case are truly regrettable. The first is the stain that hangs over the reputation of Flight Lieutenants Tapper and Cook. My noble friend Lord Chalfont has been pursuing that matter relentlessly for years, and I admire him for it.

The second, most regrettable aspect—which has since been put right—is that any board of inquiry should have the terms of reference to which both noble and learned Lords have referred. The board of inquiry then reaches a conclusion on dead air crew which has the effect of finding a responsibility certainly of a civil law nature and possibly, as was argued previously, of a criminal law nature.

The third disadvantage of this procedure is that there is no form of appeal. It is all very well saying that a review of the board of inquiry by senior officers forms a kind of appeal; but in the minds of most of us I do not believe that it does. This is the fundamental point. The trouble with such boards of inquiry—and this one is no exception—is that no one is allowed to see what happened.

My noble and learned friend Lord Lloyd has given an example of what might have happened. If your Lordships had the findings of the board of inquiry and the detailed remarks and conclusions of the two reviewing officers, it would be very much easier to discuss the case. What worries me at this stage is this. It is only too clear from the remarks of the two noble and learned Lords that, for the board of inquiry to reach the conclusion that it did reach, the two Air Marshals had to be certain to a very high degree indeed.

My noble friend Lord Chalfont says let their Lordships do it again. He says, rightly, I am sure, let them do it again in accordance with the same rules as applied. Therefore, the same degree of certainty would have to be leached according to the same burden of proof.

The evidence from the Liaison Committee indicated that the board of inquiry sat at least once a week for seven months. The review exercise took five months, during which time the committee also sat at least once a week—and I do not believe that in these matters there are any recesses. The pile of papers is colossal. What are the narrow terms of reference that your Lordships are being invited to adopt? There cannot be any narrow terms of reference. The only way in which a Select Committee of this House could reach a conclusion to the degree of certainty to which everyone has so far subscribed is to go through the entire exercise again. A Select Committee would require such explanations from expert witnesses or expert advisers as would enable it to deal with the technical matters concerned. I have no doubt that this could be done by a Select Committee. But is it the right way to proceed? Is it a useful contribution to our parliamentary proceedings? Is it the way in which our resources should be exercised and spent—and to what effect?

My Lords, will the noble Viscount give way? Is it not a possible result that we shall be left in the position of the cause simply not being known? That would be a perfectly respectable conclusion. What is objected to is a conclusion that points the finger, possibly unjustly, at the two pilots because the Air Marshals applied the wrong test.

My Lords, I accept that a Select Committee might conclude that it did not know the cause. That does not overturn the findings of the board of inquiry. It does nothing to solve the problem of the two pilots and their families. The Ministry of Defence would have to adopt the Select Committee's report; and there is no indication that it would be prepared to do so on the basis of a rehearing simply of the same material all over again.

My Lords, will the noble Viscount give way? If the Select Committee came to the conclusion that it could not establish the cause of the accident, that would immediately set aside the verdict of the Air Marshals. If the Ministry of Defence did not accept that, then the mind boggles. I have nothing more to say. If a Select Committee of this House decides that it cannot determine the cause of the accident on the basis of the available evidence, 'As the noble Viscount saying that the Ministry of Defence might not accept that? If it did not, it would be seriously in error.

My Lords, I have heard my noble friend say that there should be narrow terms of reference. I have attempted to explore how narrow, or how broad, those terms of reference might be. I have suggested to your Lordships that this is a massive exercise. The Select Committee may come to any of the conclusions that noble Lords care to imagine. However, at present, we have a clear statement from the Minister—she has maintained this—that the Ministry of Defence does not want to reopen the matter; and it will not do so on its own account. I do not know what would happen if the sort of solution was reached by the Select Committee that has just been predicated.

That is why I am asking for a little more clarity on the matter before we make up our minds. I emphasise that it cannot be a narrow exercise; it must be a full and complete rehearsal of the entire material that was before that board of inquiry. There is no escaping that. But what happens when a conclusion is reached? I cannot subscribe to something that will entail all that time and trouble—and, indeed, renew the expectations of the Cook and Tapper families, and their supporters—only to find that nothing happens. Before we finish this debate, can we know the answers to the following questions? First, we should know whether my noble friend Lord Chalfont accepts that it is a formidable task that he proposes. Secondly, can we have clarity from the Government Front Bench of what they would do if the Select Committee came to the conclusion that it did not know, or concluded on similar terms? I do not believe that we ought to appoint a Select Committee unless those two matters are clarified.

My Lords, it is many years since I served in the RAF, but I have kept up with the thinking of the service. I should like to support what was said by the noble and gallant Lord, Lord Craig, in this matter. One thing that ran through every court of inquiry in which I took part long ago—and that also applies to the ones that I hear about now—was the utmost reluctance of the examining officers to adopt the easy notion of pilot error. One theme that runs through every court of inquiry in the RAF is that all the possibilities must be exhausted.

The noble and gallant Lord has given the record of the enormous trouble that has been taken to go through all the evidence. I have no doubt that it was with extreme reluctance that both Air Marshals came to this conclusion. However, I am absolutely sure that they were certain that there was no other cause they could find. I believe that this reluctance on the part of the service adds weight to the opinion of the RAF courts of inquiry. It would save a great deal of distress if this House were to accept that the utmost care had been taken in arriving at this verdict.

My Lords, before I begin my remarks, I should like to draw your Lordships attention to an extract from page 18 of the committee's report in which the noble Lord, Lord Chalfont, says that,

"the Wing Commander in charge of the original Board of Inquiry, before it went for review to the Air Marshals, said there was no way in which they could attribute human failing to the pilots".

That is what is at issue. However, to my mind, the real issue today is the credit of this House. When we discussed this issue in March, we decided that the ad hoc committee should consider the appointment of a Select Committee to examine the issue. A commitment was made by the will of this House and, at that time, the Government said that they would co-operate; indeed, the Minister said so today.

I do not believe it was expected that the Liaison Committee would, in effect, reverse our decision—a decision for which there was both wide support, as well as a commitment from the Ministry of Defence to co-operate. I believe that a commitment was made in principle by the House, and that it must be honoured.

My Lords, I recognise that the debate is drawing to a close. I sense that the feeling of the House is that we should make a decision on the matter. However, perhaps noble Lords will excuse my intervention. I should explain that I travelled back from the United States last night in order to attend this debate. I have been working on this subject with the noble Lord, Lord Chalfont, for more than two years. Nevertheless, I shall shorten my remarks in deference to your Lordships.

The question is: why does the pressure continue unabated for a new inquiry to be instituted? The issue is in fact quite straightforward; it is not one that the Ministry of Defence is willing to entertain. The standard of proof required is "absolutely no doubt whatsoever". It is a higher standard of proof than that which applies in a criminal court. While most of us who have studied the evidence accept that the pilots could have been guilty of gross negligence, we are wholly unable to comprehend how four reviewing officers could come to the conclusion that there was absolutely no doubt whatever as to the pilots' guilt. I shall not enumerate on this occasion the dozens of examples of doubt, except to refer to one notable issue; namely, the fact that the random engine failure warning signs were being illuminated from time to time on that particular Chinook, and the cause of those signals was not properly understood at that time.

From the evidence, the reviewing officers were unable to find any mechanical or electronic cause of the accident. They reasoned that the accident must have been caused by pilot error. By no standard of justice whatever can that be considered proof. Why, therefore, are we now seeking a Select Committee when surely a fresh inquiry would be more appropriate? On that, none of us disagrees—I believe that I speak for the noble Lord, Lord Chalfont, in that respect—but as governments have refused for seven years to agree to establish a new inquiry on the basis that no new evidence has been produced, it seems unlikely that they will now agree to do so. Indeed, as we heard today, they probably will not.

The issue that really troubles the Ministry of Defence is that the opening of such an inquiry would be to re-examine whether the judgment of the reviewing officers was mistaken. Perhaps I may refer to part of the statement made by the noble Baroness, Lady Symons, at a meeting with the Liaison Select Committee in which she stated that by having a new inquiry the Government would imply that they had no confidence in the judgment of the Air Marshals. The Minister went to say that she did not think that the Government could instigate anything that would cast doubt on the judgment of highly professional men of absolute integrity, who we know reached a judgment based on all the evidence that was available to them in accordance with a properly constituted board of inquiry.

To my way of thinking, that is no different from a court finding a defendant guilty and saying that the case cannot go to appeal because that would cast doubt on the judgment and on the integrity of the court. That would be an absurd situation. Yet we are faced with such a situation here. Under the British system of justice there is always a court of appeal, except in this case. Therefore, not only were the deceased pilots not provided with legal representation, they were also denied a court of appeal. I am sure that your Lordships will agree that that is the key to the whole matter. Surely there should be some court of appeal; indeed, if the Government are unwilling to open the inquiry, the appointment of a Select Committee would at least be appropriate.

Perhaps I may mention that I consulted my noble friend and kinsman Lord Wigoder, who is a successful QC. He expressed the view, with which I agree, that we cannot have a Select Committee acting as a court of appeal for every defendant who is unhappy with a court's decision. However, as I respectfully pointed out to him, there is a court of appeal in all normal legal cases; but in this particular case there was none. That is why something must be done. I urge noble Lords to support the Motion for the appointment of a Select Committee. I should have been equally willing to support the Motion tabled by my noble friend Lord Rodgers, if the Government had given an undertaking that they would set up some form of new formal inquiry if his Motion were carried. Sadly, they have not agreed to do so.

My Lords, I remind the House that I have a somewhat peripheral interest in this matter. I spoke from the Opposition Dispatch Box to a very similar Motion tabled on 5th March. I stand by every word that I said on that occasion, and shall not repeat now all the points that l made then. I am thankful that we shall have a free vote tonight. I have no difficulty with the House acting in a quasi-judicial role, if that is what we are doing.

Noble Lords have talked about creating a precedent. I disagree. This case is different from a criminal case. The deceased were not able to defend themselves. I also believe that the relatives of the deceased did not realise what the outcome of the case would be.

The Select Committee will not be a court of appeal. However, I caution your Lordships that it may turn out to be a. committee of confirmation. The Select Committee may well find that the pilots were guilty of gross negligence. It may well find that everything is in order. I believe that this House is an ideal place in which to conduct the onerous duty of reviewing matters of service discipline and the inquiry. I believe that we need narrow terms of reference. The advantage of the Select Committee procedure in your Lordships' House is that it avoids the risk of a legal bonanza outside.

The noble Viscount, Lord Colville of Culross, said that we need to consider all the matters. The major points that concern us are uncommanded flying movements; the FADEC and related accidents; possibly the flight plan and the rules under which the Air Marshals had to operate. The committee needs to be told why there is not a problem and to be told by the experts that we are worrying about nothing.

It has been implied that the Select Committee will be unable to assimilate all the information. If a Select Committee of your Lordships' House is not able to assimilate all the information, how on earth were the Air Marshals able to do so?

I believe that the Select Committee should also consider whether it ought to be able to question the integrity of the Air Marshals. Perhaps it ought to be an instruction to the committee that it cannot question the integrity of the Air Marshals.

It is possible that there was gross negligence on the part of one of the pilots. But suppose the subordinate pilot strongly opposed the breaking of the visual flying rules? Suppose he went to the absolute limit of safety and military discipline in suggesting to the superior pilot that he should not break the visual flying rules and fly into the clouds? Why should he be held to be grossly negligent in those circumstances? The committee should consider that point in detail.

Some noble Lords are convinced that the pilots were guilty of gross negligence. Indeed, some of my noble friends are of that view. But this issue will not go away. The actions of the Air Staff will continue to be questioned. Ministers will continue to be put under pressure on this issue. The Air Marshals are able to defend themselves only by having letters published in the broadsheet newspapers. I believe that it would be advantageous for them to appear before a Select Committee of your Lordships' House to explain why they reached the decision that they did. I believe that a Select Committee is ideally suited to consider that matter. I strongly support the Motion of the noble Lord, Lord Chalfont. I believe that if we follow that route, the matter can be put to bed once and for all.

My Lords, I ask for indulgence in adding further reflection at the end of this debate. The noble Lord, Lord Wigoder, stated that if we were to accept the Motion of the noble Lord, Lord Chalfont, we would be trenching upon the separation of powers. I thought that that was wrong, for the following reasons.

It is, of course, to trench upon the constitutional understandings and conventions of either House of Parliament to engage in a review of a judicial decision. However, we are not considering the judiciary in this case. We are considering the conduct of extremely senior and experienced officers of one of the Armed Forces for whom Ministers answer in Parliament. We all appreciate that they have done their level best. However, as has been said, there are doubts outside about the conclusion they have reached—doubts that have been mightily reinforced by contributions from all sides of the House, most notably from noble and learned Lords on the Cross Benches. This House is entitled to review the decision of the Royal Air Force, just as it is entitled, in my submission, to review anything else that is done by any of the departments of state for which Ministers answer in Parliament. That is the fundamental distinction. We all observe a self-denying ordinance of not tangling with the judiciary. However, as I say, we are not talking about the judiciary here.

If there is a doubt that will not go away, should we pick up the challenge here? I confess to something of an emotional involvement with the matter in that I knew most of those who perished in the Chinook crash. I met their families and I attended a religious service for one of the pilots. I stood at the airport for a long time while the bodies of those who perished were brought back to Northern Ireland. I have always felt that something more should be done than has yet occurred to explore the conclusion that was reached by the board of inquiry.

On any view of the matter, a grievous wrong was done to the passengers, whatever the reason. On one view of the matter a grievous wrong may have been done to the pilots. I agree that the terms of reference probably have to be wide. It is difficult to review the justification for the decision without going into quite a lot of what that justification purported to be founded upon. The Select Committee would consider whether the essential foundation for the finding existed; namely, that there was absolutely no doubt whatever. It would not produce a finding as to what actually happened. As has been said from the Cross Benches far more authoritatively than I could express it, ii would consider whether that essential foundation existed. If it was discovered not to exist, the members of the Select Committee would have done their duty and their job in so finding. I support the noble Lord, Lord Chalfont.

My Lords, perhaps it would be appropriate if I were to begin to wind up this long debate which has gone on for two hours and has been—

My Lords, I hope that I may speak for a few minutes. First, I am sorry that the consequences of this tragic and horrific accident are still rolling on after seven years for reasons mentioned by the noble and gallant Lord, Lord Craig of Radley. The loss suffered by the widows and families in those terrible circumstances must be hard enough to bear, but each reference to the incident in the press brings back the agony that they have suffered and which they have done their best to put behind them. I do not think that that can be ignored.

Some practical aspects bear a little consideration. I know the Mull of Kintyre well, having sailed past it and around it many times, often with the upper portion hidden in cloud. The lighthouse, which is low down because of frequent cloud, can usually be seen. I can visualise the events from the report from the yacht which was sailing through the North Channel at the time. The crew saw the helicopter coming from the direction of Rathlin Island towards the Mull. It was flying below cloud level and therefore could see the lower part of the Mull and perhaps the lighthouse, which the yachtsmen could see. The yacht's crew watched it pass overhead and then disappear into the cloud on top of the Mull not far from the lighthouse. I forget whether they heard the crash.

My knowledge of helicopters is limited but I believe is relevant. Some years ago, over several years, I was a passenger flying in helicopters, with two or three other Commissioners of Irish Lights, in order to visit and inspect the lighthouses around the coasts of Ireland from Tory Island in the north to Fastnet in the south. Frequently there were headlands in our path, some cloud covered like the Mull of Kintyre. The first time I saw one of these ahead—

My Lords, I hope that the noble Lord will forgive me. He clearly has expertise in this matter and a knowledge of the situation. However, I wonder whether that is the issue before your Lordships' House today. If noble Lords will forgive me, perhaps we may take the opportunity of bringing the debate to a conclusion.

It has been a most intriguing debate. I can perhaps tidy up two issues. First, as regards the absence of the Leader of the House at the Liaison Committee meeting, the noble Baroness was at the Constitutional Committee at the time of the first meeting. She felt, therefore, that others should carry on for subsequent meetings. The noble Lord, Lord Strathclyde, will remember that we held these meetings in a great hurry; many other things were taking place at the same time. I simply put the facts before the House. Secondly, it has been suggested by a couple of noble Lords that the question of staffing and costs was involved in the decision of the Liaison Committee. I assure the House that that was never a consideration at any time during the course of our deliberations.

I find myself in considerable difficulty in replying to the debate. Indeed, I do not intend to reply to the debate; it is not my job. Members of the Liaison Committee have set out their position in much the same way as I indicated that they did during the Liaison Committee meetings. We are asked by the noble Lord, Lord Chalfont, to accept perhaps a smaller committee, and to put the issue again before the Liaison Committee. Having listened to the debate today, I think that the chances of getting a different decision from the Liaison Committee at another meeting are zero. It seems to me, therefore, that, as is proper, it is a matter for the House to decide what it wants to do. I leave the matter in your Lordships' hands.

I say just this. The Liaison Committee discussed the whole matter very seriously. Sensible, intelligent people took part in that debate. To overturn a recommendation of a committee of this House is a serious matter. In coming to a decision, I hope that noble Lords will bear in mind all the remarks which have been made today.

My Lords, I am grateful to the noble Lord for giving way. He said that if the matter went back to the Liaison Committee he had no doubt that it would come to the same conclusion. Do I understand from that remark that the Government would not support the setting up of a Select Committee on the lines that the noble Lord, Lord Chalfont, proposes? It is an important point that the House should know.

My Lords, I do not speak for the Government. The quickest way to deal with the matter would be for the Motion of the noble Lord, Lord Chalfont, to be decided today.

My Lords, before the noble Lord sits down, as a matter of constitutional interest, is it normal for the chairman of a Select Committee not to vote?

My Lords, I believe that it is. Certainly in these circumstances there was no question of my voting. I did not feel that I had a duty to vote on the matter, particularly since it was such an unusual constitutional matter so far as concerns the House. I thought it better to abstain and to come to the House and give noble Lords a straightforward report of what the Liaison Committee decided.

My Lords, one understands that it is not for the noble Lord to answer on behalf of the Government. Presumably it would be within the rules of the House for him to allow a member of the Government to interrupt him.

My Lords, it is entirely within the rules of the House if he or she so wishes. However, if everyone has a free vote here, and a free vote in the Liaison Committee, I am not sure that the Government can bind the other members of the Liaison Committee to vote in a particular way.

My Lords, it may be of some help if I repeat what I said earlier. Given the proposals he put forward for a more limited remit, and in what I described as a compromise, the Government do not oppose the noble Lord's proposal.

My Lords, that being the case, the result of any Division on the issue should be clear.

My Lords, that places me in a somewhat difficult position. The noble Lord, Lord Tordoff, accepted my suggestion about a reference back in the spirit in which it was made. I am also old enough to know that when the noble Lord says that there is little likelihood that the Liaison Committee would come to a different conclusion this time from its previous decision he knows what he is talking about. The noble Lord has links with everyone in the House: the usual channels and the leaders of the parties. If he says that that is what will happen, I am forced to the conclusion that that is what might happen. While I might have been prepared to refer the matter back if there had been an undertaking, I see no point in doing so if I shall receive the same answer as previously.

It is not right for me to ask the noble Lord to give any assurances. However, in the light of what the Minister has just said, it seems to me that the Government are not in a position to give any. Despite all that has been said, before deciding whether to withdraw my Motion or press it to a Division, I thank all noble Lords for their contributions and thank those who have not made a contribution for listening so patiently.

Many important points have been raised. I was particularly impressed by the important remarks of the two noble and learned Lords sitting with me on these Benches. The noble Earl, Lord Attlee, raised an extremely important point relating to the two pilots which may not have had sufficient currency in the debate. As there was no voice recorder on this aircraft, no accident data recorder and no survivors, we are being asked by the verdict reached to assume that both pilots came to the decision in concert. There is no currency given to the suggestion that one of them might have said, "Look, mate, I'm going to fly straight into that cloud and to hell with it all", with the other saying, "No, you cannot do that". Who knows? No Air Marshal knows. No one knows. The noble Earl, Lord Attlee, rightly draws attention to that aspect. It underlines the point I have made about the requirement for absolutely no doubt whatsoever.

My Lords, while the noble Lord makes up his mind what he will do, perhaps I may pose another question to the Government. They abstained in the Liaison Committee. If the noble Lord decides to press his Motion, am I right in thinking that they will be consistent with the decision they took and that while they may well support the noble Lord, Lord Chalfont, no member of the Government will seek to vote against him?

My Lords, I was present for the vote and did not vote. As the noble Lord, Lord Strathclyde, knows, I made it clear that the Government neither supported nor opposed the proposal for a Select Committee. Equally, I was not a member of the committee so I was not able to vote.

My Lords, what happened in the Liaison Committee is now history. If the noble Lord, Lord Chalfont, decides to press his amendment, what will be the advice of the noble Baroness, Lady Symons, to her Front Bench? Given that she has just said that the Government are not opposed to the setting up of a Select Committee, I assume that she will tell the Chief Whip that it is her view that Ministers should abstain. I merely wanted confirmation of that. If that is not the case, I should like to know why.

My Lords, I hope that I have already made the position clear, but if I was not clear enough, perhaps I can be this time. We shall not oppose the terms that the noble Lord, Lord Chalfont, proposed—not the terms on the Order Paper, but the more restricted terms that he spoke to, which I referred to in my opening remarks as his compromise and his amended version of his proposals. I hope that that makes it clear that I am addressing the opening remarks of the noble Lord, Lord Chalfont. In that sense, we shall not oppose him.

My Lords, I think that the noble Baroness has been helpful. If the noble Lord, Lord Chalfont, moves his current amendment, the Government will vote against it, but if he puts forward his compromise—I am not sure that the whole House understands what that compromise is or how the House could agree it—the noble Baroness will support it. I think that that is the position. Perhaps the noble Lord, Lord Chalfont, can now decide what he is going to do.

My Lords, if I was confused before, I am even more confused now. Perhaps confused is not the right word. I am in a dilemma. I am grateful to the noble Lord, Lord Tordoff, for saying that in certain circumstances he would refer the matter and the report back to the Liaison Committee and consider the appointment of a different kind of Select Committee. However, he also said that he saw no reason why the Liaison Committee should present me with a different solution. I assume that the noble Lord knows what he is talking about. He is the chairman of the Liaison Committee and is in contact with everybody connected with the committee.

In the course of the debate I have felt that, whatever my own feelings about the issue, the House wants the matter resolved now.

Hear, hear.

My Lords, I do not think that I could have a clearer endorsement than that.

My Lords, I should like to add one slight caveat. I hope that the noble Lord is talking about restricted terms of reference in such an inquiry. If that is clear, the matter will move much more swiftly.

My Lords, my amendment makes that clear. I now have a feeling of what the House wants. Although I know that whatever decision I take will be unpopular in some quarters, I feel that I must test the opinion of the House.

My Lords, does the noble Lord, Lord Rodgers of Quarry Bank, wish to move his Motion.

No, my Lords.

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

moved Amendment No. 1:

Page 2, leave out lines 18 to 32.

I point out to the Committee that if the amendment is agreed to, I cannot call Amendments Nos. 2 and 3.

I rise to speak to Amendments Nos. 2 to 6 and 36. I also want to respond briefly to the comments of the noble Lord, Lord Phillips, on Amendment No. 1.

We on these Benches cannot agree that all of the listed offences should be removed. We have real concerns about the list; hence our amendments. However, we are supportive of there being in the Bill a list that sets the pace and parameters of the legislation. Indeed, we want much more detail in the Bill. I shall return to that point throughout our debate.

The noble Lord, Lord Phillips, said that the Liberal Democrats wish to retain an open mind about the Bill's prospects. We echo that sentiment. We, too, have concerns about the new hybrid category; hence our Amendment No. 7, which relates specifically to the two tests and the burden of proof.

I shall deal first with our Amendments Nos. 2 and 3, in which we seek to exclude Section 1(1) of the Criminal Damage Act 1971, which concerns the destruction of or damage to property without lawful excuse, and Section 5 of the Public Order Act 1986, which concerns threatening, abusive or insulting words, or disorderly behaviour within hearing of or in sight of a person likely to be caused harassment, alarm or distress. While we are in favour of the introduction of on-the-spot penalty fines in principle for certain clear-cut, minor offences—it is now clear to us that they will not attract a criminal record and we understand that there will be no national register or database that will record those offences—we do not believe that criminal damage involves a proper use of that vehicle.

We are told that the Bill is about fighting crime and, in particular, the so-called yob culture which, sadly, is on the increase and tends to compromise all of us in one way or another in our daily lives. We believe that it should not allow thugs to shrug off their sometimes despicable acts by the payment of a fine. I repeat what I said on Second Reading; namely, that this should not be a case of crime pays so long as one pays up.

I read with interest the Government's response to our concerns in Committee in another place. I am not persuaded that the Government would achieve their stated aim without our amendments. With reference to criminal damage, I quote the Minister of State, Mr Charles Clarke. He said:

"We intend the Bill to catch behaviour at the less serious end of the spectrum where the damage caused is the result of disorderly or antisocial behaviour. We do not intend it to apply where the serious criminal sets out deliberately to destroy or severely damage the property of another person".—[Official Report, Commons, Standing Committee F, 6/2/01: col. 26.]

Where in the Bill is that spelt out? Surely that is what criminal damage is. How can a police officer make a balanced judgment on the spur of the moment? As the noble Lord, Lord Phillips, said, difficult circumstances are often involved, which makes it difficult to establish whether the offence caused is—hitherto, it has been—an arrestable offence. Do the Minister of State's words mean that criminal damage attracting an on-the-spot penalty merely involves damage that is caused unintentionally or, if it is intentional, that it involves only partly destroyed or lightly destroyed damaged property? Do threatening, abusive or insulting words or disorderly behaviour also involve an arrestable offence? There is a plethora of circumstances in which that offence can occur, often with serious consequences. It is easy to imagine situations in which the imposition of an on-the-spot penalty fine would be likely to increase confrontation and the seriousness of the offence.

Part of the difficulty rests with the fact that such offences are not clear-cut. Parking on a double yellow line is clear-cut: if one is caught, that is a fair cop because the evidence is there for all to see. The degree to which someone can be abusive is far from being clear-cut. Further, the measure of actual harm to property will require the police officer to make a tough, subjective, on-the-spot judgment about whether an on-the-spot fine is proper in all the circumstances or whether the thug in question should be arrested.

Another difficulty relates to deterrence. I firmly believe that there is precious little point in putting anything on the statute book unless it is going to act as a deterrent. It is our view that on-the-spot penalty fines will only act as a deterrent for minor, clear-cut offences. It is, we believe, wrong to use that vehicle for offences such as criminal damage which, in the words of Edward Crew, Chief Constable of the West Midlands Police, speaking on behalf of the Association of Chief Police Officers, are "triable either way", and can have an enormous impact upon victims' lives even in the most minor instances.

I turn to Amendment No. 4. We made it clear at Second Reading that we believed that there should be an offence for urination or defecation in a public place. It would be clear-cut, tangible and, as such, ideally suited to the use of the on-the-spot penalty fine. As I said at Second Reading, Westminster City Council informs us that street fouling is now perhaps the single aspect of anti-social behaviour that most undermines the quality of life for those who live and work in parts of the city. There is little doubt that where patterns of behaviour manifest themselves and develop in one of our great cities, so it follows over time—usually a brief amount of time—in others. Why not make this an offence now to act as a deterrent, a warning, that we will not tolerate this foul behaviour in our public places?

I note that in another place the Liberal Democrat Member for Southwark North and Bermondsey, Mr Simon Hughes MP, suggested,

"Every male aged over 18 … admitted to having done it when caught short … Women do not have the same problem because they have much better control".—[Official Report, Commons, Standing Committee F, 6/2/01: col. 38.]

Control has nothing to do with it; civilised behaviour does. I hope to receive such a response from the Minister.

The Parliamentary Secretary at the Lord Chancellor's Department argued in another place, at col. 36, that,

"it is not currently an offence under any law that applies throughout England and Wales, although it is an offence under certain local authority byelaws. It would be administratively complex to devise a national fixed penalty notice scheme that would apply to a local authority byelaw that applies in some parts of the country but not in others".

With respect, that is not a valid argument. This Bill introduces a new offence under Clause 1; that of consumption of alcohol in designated public places. There is therefore absolutely no logical reason why this Bill should not also be a vehicle for introducing the offence of urination or defecation in a public place.

We suggest a further new offence under Amendment No. 5, that of unlawful street trading. This amendment presents a further opportunity to deal with an entrenched wrong which compromises all those who work hard and stick to the rules of fair trading. Again, it is clear-cut and tangible and, at the moment, it is too easy to flout the rules. More than that, as said by Edward Crew, on behalf of the Association of Chief Police Officers, unlawful street trading can attract large audiences in busy market areas, providing an ideal environment for pick-pocketing and street robberies.

The honourable Member for Norwich South, the Minister of State, Mr Charles Clarke, MP, said in another place at col. 29:

"We felt that penalty notices for such offences, which involve financial recoupment, might result in the perpetrator seeking to recoup the cost of the penalty through increased activity elsewhere".

With respect to the Minister of State, it is hard to think of a more defeatist approach. What is the point of the "Let us be tough on crime and the causes of crime" mantra if that is the kind of argument engaged by the Government to pass up the opportunity to combat an albeit relatively minor offence and thereby one suited to the on-the-spot penalty offence?

Amendment No. 6 has a simpler purpose. It would limit the degree of severity of offences that could be added to the list of offences attracting on-the-spot fines under Clause 1 of the Bill. Without that qualification, the Bill is unclear in its intent and therefore uncertain and while the current Secretary of State may be clear in his mind as to the parameters under which the clause should operate, a future Secretary of State may have an entirely different view as to the limits within which he or she may use this vehicle to tackle anti-social behaviour.

I rise partly to support Amendment No. 1, which is very sensible, but more particularly to oppose Amendments Nos. 4, 5 and 36.

I could not believe my eyes when I saw Amendment No. 4 on the Marshalled List. I made up my mind that I should speak against it if I had the chance. It seems to me that Amendments Nos. 4, 5 and 36 are trying to make offences of acts which should not be offences except in certain, limited circumstances. They certainly should not be included in the Bill as at present drafted. If the Committee felt we should accept these amendments, at least we could take out urination at a later stage.

Today, between the turnstiles in Westminster Underground Station and the entrance to your Lordships' House, someone was urinating against the wall. He looked apologetic and had clearly been caught short—I could tell that if only by the amount of liquid proceeding down the wall and across the pavement. People are caught short. Urination and defecation are natural processes and part of the human condition. They should not be included in this kind of legislation and I hope that Members of the Committee will not what is proposed.

For reasons which I explained at Second Reading, I am opposed to the policy of on-the-spot penalties for disorderly behaviour in principle. I believe that they originated from some ill thought out and populist assumptions on the part of the Government and that Home Office officials then had the difficult task of trying to turn them into legislative form. The draftsman in particular must have had an exceptionally arduous task.

The objections are of principle and practicality—the two come together—and permeate this part of the Bill. The amendments of my noble friend Lady Buscombe, who spoke for the Opposition, and of the Liberal Democrats to an extent would ameliorate some of those objections by varying the list of offences in the existing statutes which would attract the fixed penalty. But it is not so much which offences should attract the fixed penalty; it is the concept of the fixed penalty itself which is objectionable.

The Government have recently circulated a document entitled Guidance to the Police on Penalty Notices for Disorder, made available by the Minister of State in another place, Mr Clarke. I have no doubt that the Parliamentary Under-Secretary is familiar with it. I stress that it is no more than a draft document. It states clearly enough that the aims include the following: trying to deal more effectively with anti-social and disorderly public offending; to provide a swift response that has a deterrent effect, and to save police and court time.

I am fairly confident that none of those three objectives will be secured. Let us take the last of the three, which is often cited, and valuable if achieved; that is, to save police and court time. The Justices' Chief Executive of the Inner London Magistrates' Courts Service stated that it is probable that the proposal might achieve exactly the opposite. That is on behalf of magistrates who sit in the courts, day in day out, trying offenders charged with summary offences. The argument is that it appears to overlook the effect of the Government's own Narey initiative. The justices' chief executive states that since the introduction of the Narey reforms, anyone charged is now brought before a court within a day or two. Under the proposed system the issue of the notice may indeed be swift, but payment will be delayed for at least a statutory period and in many if not most cases will not be made at all, at least without further court appearances either in the form of a summons for the offence or a means warrant for non-payment. The issue of compensation is not addressed. That is one example of how practical experience in the courts runs against the easy assumption that in some way this initiative will save the time of the courts and the police as well as saving money.

It seems to me that claims are being made for a novel proposal which are not based on experience. Ministers are now trying to give effect to what was a policy driven by presentation, to respond to a groundswell of public opinion and dissatisfaction with extremely offensive and disagreeable behaviour. We can all share in and respond to that feeling, which is understandable and reasonable. However, the response has to accord with the rule of law. We shall return to that later in Committee. The noble Lord, Lord Phillips of Sudbury, referred to some of those aspects. However, we must also consider the practicalities. I suggest that we address our attention to that at this stage in Committee.

I, too, have doubts about the whole principle of on-the-spot fines. However, we must realise that the proposal will save public money because it will save the time of the courts. In some other countries—I cannot give details—the system has prevailed for some years. However, we must be careful in our choice of offences.

I am glad that my noble friends tabled Amendments Nos. 2 and 3. Offences such as destruction of or damage to property without lawful excuse are not easy matters for a police officer to decide on the spot. They will require careful inquiry, which should be done by the courts. The same comments apply to Amendment No. 3, which seeks to leave out the provision on,

"Threatening, abusive or insulting words or disorderly behaviour".

All those are matters of opinion for the courts.

Having made those general remarks, I wish to support the amendments tabled by my noble friends.

The offences set out in Clause 1(1) of the Bill are already offences, which goes without saying, save for the new offence under Section 12 of the Licensing Act. If one looks at Section 12, one observes that that offence is to be arrestable in that a constable may arrest a person who fails without reasonable excuse to comply with the constable's requirement to cease drinking in a public place. There is already in existence, subject to the rule of law and control of the courts, a way of dealing with each and every one of the offences set out in this provision.

The Bill seeks to reduce the burden of proof, remove the safeguards of the court process and impose penalties on an individual who is thought to be committing or to have committed those offences simply on a constable's belief. That is a dangerous principle to bring into the criminal law of this country. All the safeguards which surround the conviction of offences are absent in a situation such as that.

Some of the offences which are set out are of a minor nature: being drunk, throwing fireworks, trespassing on the railway, and so forth. For the purposes to which the noble Lord, Lord Renton referred—that is, the saving of public money by saving court time—the provision of penalty notices might be justifiable. However, in the more serious offences set out in lines 18 to 32—the subject of Amendment No. 1 tabled in my name and that of my noble friends—one sees that much more complex offences are under consideration. In particular, wasting police time or giving a false report are not matters which can be immediately decided by a policeman in the street. They imply a degree of investigation before a policeman can come to a particular belief. Destruction of, or damage to, property without lawful excuse also involves a value judgment by a police officer if an excuse is put forward by an individual. I omit reference to the Tecommunications Act, although it would be difficult to arrest a person simply because he was standing in a telephone booth and making a phone call without having some means of knowing what was being said and what was being received on the other end of the telephone. That also requires a certain degree of investigation, and is not immediately obvious to and observable by a police officer.

The provision in Section 5 of the Public Order Act regarding threatening, abusive or insulting words or disorderly behaviour throws up all sorts of problems. As I recall, Section 5 requires the words or disorderly behaviour to occur in a public place. There is certainly authority for that. I was involved in a case concerning disorderly behaviour in a front garden of a property abutting a road. The issue was whether that was a public place. One can envisage a situation where words are exchanged over a hedge and a policeman has to decide whether that is a public place and whether the person standing in the garden can be arrested and given a penalty notice in such circumstances.

As regards the person who is likely to be caused harassment, alarm and distress, there is authority as to whether that person merely has to be the policeman. Therefore, is swearing at a policeman an arrestable offence? Can it give rise to a penalty of this nature? Many issues can arise around such a charge.

If the burden of proof is to be reduced in the way the provisions suggest, so that it is the belief of the constable which matters and not proof beyond reasonable doubt, surely such a penalty notice should be confined to offences which are simple and observable and can be dealt with instantly without further investigation by the police officer. The provision goes too far and I support my noble friend in this amendment.

The fact that drink is a major component in the commission of many minor offences hardly needs repeating. The first group of amendments with which we are concerned tonight again gives an opportunity to Members on all Benches to question the philosophy of the Bill. I state the problem before I consider questioning the philosophy. The problem is major.

On Second Reading, I had occasion to recount to the House that in Manchester over a weekend—that is the accumulation of three nights—half a million young people come into the city centre from the outlying conurbation and stay up drinking most of the night. I invited the House to note that that was a social phenomenon that we had not previously had to address.

It is not correct to assume that offences relating to drink and the minor, as I am sure we shall be told, consequential offences of threatening behaviour and so on are the product of people who are emotionally or educationally deprived and cannot manage their own affairs. Many irritating minor offences are committed by people with money and good jobs who on occasion display a lack of common sense which they would remember to exercise if they realised that the following day they would have a fixed penalty to meet.

The problem is new. We should galvanise our thinking—even the most dedicated proponents of a traditional criminal justice system—to meet the problem. Fixed penalty notices are worth trying but with two important provisos. One is the scope of the offences that they should embrace. It seems to me that much of the concern expressed on the Benches opposite is directed at Clause 6. That establishes how the Secretary of State will give guidance as to the proper implementation of the power by police officers around the country. I shall return to that matter when the clause comes up for discussion.

Surely that guidance will be directed principally at telling police officers to discriminate between a minor offence, readily observable and easily prosecutable under a fixed penalty, as against the more serious matters which some Members of the Committee put forward as examples. That is the first point.

The second point is more important. What will be the system effectively to enforce the collection of fixed penalties? Nothing will be more likely to undermine the effectiveness of the new system if those involved think they can get away with it anyway. It is a pretty effective system which these days applies to parking offences. We should introduce the same ethos with this new type of penalty for minor offences, not in order to flood the system of fixed penalties but in a genuine attempt, even for offences which may have wide degrees of culpability, of deterring young people with money not to commit the kind of behaviour that will attract fixed penalties. I oppose the amendment.

We have had a wide-ranging discussion on this group of amendments. It has been said that, on the one hand, we have included too many offences and, on the other hand, that we ought to be adding to them. There is also a degree of consensus about one or two of the offences which might be covered by fixed penalty notices. There has also been further discussion of issues of principle and a picking away at some of the detail.

However, there is a consensus in the Committee that this matter relates to an important issue; that is, appalling and offensive behaviour, often described as part of the yob culture, which takes place in our towns, cities and elsewhere from time to time, particularly at the weekend and where drink is at the root of the matter.

I do not claim that we have a monopoly of wisdom in the Bill, but we are trying to develop policies to deal with the developing and expanding phenomenon. We are trying to come forward with yet another approach but it is certainly not the only answer or solution. Therefore, my comments should be considered within that framework.

The criminal damage offence included in Clause 1 is that under Section 1(1) of the Criminal Damage Act 1971 and is the destruction of and/or damage to property without lawful excuse. We have deliberately not included the more serious offence under Section 1(2) where life is endangered, either intentionally or recklessly, as that would clearly be unsuited to the fixed penalty notice scheme.

The behaviour that the Bill intends to catch is that at the less serious end of the spectrum where the damage caused is the result of disorderly or, as is more broadly described, anti-social behaviour. We do not intend it to apply where the serious criminal sets out with the intention of deliberately destroying or seriously damaging the property of another person.

I appreciate that the offending covered by Section 1(1) encompasses a range of behaviour and we shall be issuing guidance to the police to make clear the type of offending with which the scheme has been designed to deal. In particular, we shall draw attention to the need to consider carefully before issuing a notice whether, if the case went to court, a compensation order might be made in favour of an individual whose property had been damaged. In such a case, it would understandably be preferable for the case to be dealt with by other means.

The offending behaviour covered by Section 5 of the Public Order Act includes the use of threatening, abusive or insulting words or disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress by it. That again seems central to the type of behaviour to which we would like the new scheme to apply. Indeed, the description of the offence included the words "disorderly behaviour". It would not seem logical intentionally to omit it from the list before we had the opportunity to see how it worked in practice.

I turn to the offences of wasting police time and using the telecommunication system to send false or annoying messages.

Before the Minister leaves the question of criminal damage, it is difficult to expect a policeman to decide on the spot whether any compensation is liable to be paid in a case of criminal damage. Normally, there is a possibility of compensation in a case of criminal damage; if so, an on-the-spot penalty is not to be used. Therefore, this arises only in a case of extremely minor criminal damage where there is no possibility of compensation. That is the kind of the difficulty in which a police constable will be placed in deciding whether to issue a penalty notice. It is very difficult to judge what criminal damage could not possibly lead to any compensation.

I accept what the noble Lord says. However, I made the point at the outset that we wish to focus attention on the lower order of this offence, and that will be made clear in the guidance. We have also made it clear in the draft guidance that we intend to issue to the police that we have included these offences to catch the making of false 999 calls. We regard that type of offending as appropriate for the new penalty notice system. I note that noble Lords opposite have not proposed the omission of the similar offence of knowingly giving a false alarm to the fire brigade. If we accepted this amendment, we would be left with an inconsistency in this respect. One could receive a penalty notice for falsely calling the fire brigade but not an ambulance or the police. In any case, we believe that all these offences should be included in the scheme.

Does the Minister not realise that the penalty notice minimises the offence; it does not maximise it so that it is a more serious offence to make false calls to the police and the ambulance service which will be dealt with under the existing legislation? The whole point is that to give a penalty notice to someone is the soft option. The Government are supposed to be tough on crime but they give a soft option in many of these offences.

I do not believe that it is a soft option; it could well be an effective option. As I argued earlier, we need to recognise that there are new ways to tackle some of the problems that we confront in dealing with yobbish behaviour. That is what we seek to do, and I thought that in measure that principle had been accepted. I hope that Members of the Committee are reasonably reassured by what I have said. If they still believe that we can leave out these offences, they should consider the effect of so doing. Without these offences we would have a new scheme to deal with offences of disorder and anti-social behaviour, but with the new disposal unavailable for much of the relevant offending behaviour. We shall certainly monitor the scheme closely to see how it works in relation to these offences, but we want to start with them included.

I deal next with Amendments Nos. 4 and 36 which deal with urinating and defecating in public. First, the criminal justice system is a limited and scarce resource and should be employed only where there are particular and significant public policy reasons for doing so. Accordingly, and perhaps most obviously, new offences should be resisted where the conduct in question is already defined as criminal. Urinating or defecating in public is currently an offence under by-laws set out in the Home Office model by-laws set No. 8: Bylaws for Good Rule and Government. By-law No. 24 of the set reads:

"No person shall urinate or defecate in any public place".

An offender under the by-law is liable to a fine not exceeding level 2 (£500). The offence can also often be dealt with under other legislation, such as that governing drunk and disorderly behaviour or offences under Section 5 of the Public Order Act.

Secondly, criminal offences should be created only where there is a clear public policy need. To the extent that urination and defecation is a social problem, it must by its very nature be one that is subject to great variation in degree on a geographical basis. In certain urban or high density residential areas a problem may exist which is entirely absent in rural areas. I am tempted to suggest that in the middle of Ashdown Forest, Dartmoor, or the North Yorkshire moors, which one could regard as public places, somebody who must relieve himself—

With great respect to the Minister, surely on the whole the yob culture occurs only in urban areas. One does not have much yob culture in the Forest of Dean.

The point I seek to make is that the nature of the offence that the noble Baroness seeks to add to the list is a catch-all and the by-law is rather more focused. The point just made by the noble Baroness is a relevant one, but I believe that those who live in small towns and villages that are visited by yob culture would see that behaviour as a threat to their peace of mind and the peaceful nature of their neighbourhood.

A new offence should be created only where it is a proportionate and commensurate response to the social problem identified. In many public places, particularly in the wilder and less populated parts of the country, a person can urinate or defecate without any risk of causing either offence or a public health risk. It seems unreasonable to criminalise conduct of that kind in an environment where there may be no provision of public toilets and no alternative to those upon whom nature calls. For these reasons, adoptive law such as by-laws is an appropriate response to such problems. A by-law is made locally and can be reasonably expected to meet local conditions, such that the provision of public toilets will be taken into account when the by-law is made. The local authority takes the decision in those circumstances whether to prosecute an offender. I believe that I have said enough to explain why the Government cannot accept that new proposition.

I have some sympathy for the Member for North Southwark and Bermondsey who said of this proposed offence in another place:

"Every male aged over 18, including me, admitted to having done it when caught short … We must be cautious about making it a criminal offence because anyone could be caught. The answer is more accessible public toilets, not more offences".—[Official Report, Commons. Standing Committee F, 6/2/01: col. 38.]

We cannot have a generally applicable offence which criminalises almost everyone at some point in their lives. I do not believe that that is a proper use of the law, and I do not think that noble Lords opposite would so regard it. For those reasons, we cannot accept those amendments.

The Minister relies on the argument that "public place" covers a wide variety of situations: on the one hand, a forest and on the other hand, the urban situation. I note that in Clause 13 in Chapter 2, in connection with alcohol consumption in designated public places, the Bill provides a mechanism to identify public places from which drinking may be banned. For example, it gives the local authority the ability to designate an area as a designated public place. Would not something on the lines of the mechanism provided in Clause 13 remove the noble Lord's objection with regard to what would clearly be anti-social behaviour which we would all recognise when we saw it?

It might, but, as I believe I argued earlier, we believe that the issues covered by this particular amendment are dealt with in law in any event, and also by adoptive by-laws. We argue that, even if there is a genuine problem—I fully accept that there may well be one in Westminster, Kensington and Chelsea, or perhaps even parts of Brighton and Hove—this is not the most appropriate way to deal with it.

I turn to street trading offences. The Government believe that it is not appropriate to bring offences with a financial motive of any kind into the scope of the penalty notice scheme. Unlawful street trading falls into that general category, and there would be a number of potential difficulties involved. Moreover, it is hardly an offence of disorder. There is a danger that a penalty notice awarded on the street for this kind of offence would have little more effect on the perpetrator than simply being moved on. He might simply seek to recoup the cost of the penalty through increased activity elsewhere. Further, the issuing of a penalty notice for this offence, whether on the street or at a police station, would mean that no consideration could be given to seizure by the police and eventual forfeiture of items used in the commission of the offence, which is a particularly important tool to deal with some examples of this type of activity. We believe that penalty notices are unsuitable for this type of crime and are, therefore, unable to accept the amendment.

Finally, Amendment No. 6 seeks to limit the power of the Secretary of State in his exercise of the power in Clause 1 to add new offences to the list of penalty offences. The proposed amendment would allow the addition by order of an offence only if the maximum penalty for it did not exceed level 3, which is £1,000 or three months in prison or both. The list of penalty offences in Clause 1 already includes four offences which exceed the maximum penalty. I am aware that noble Lords opposite seek to remove three of these, but this still leaves the offence of throwing fireworks in a thoroughfare, which carries a maximum fine not exceeding level 5 (£5,000), to which no one appears to object as a penalty offence. But it may be that it is only offences added by order that concern noble Lords opposite. If so, I give them the assurance that the new system is designed to deal with minor examples of disorder offences only, even if the penalty offence listed covers a broad spectrum of behaviour. We have made that clear on many occasions.

Moreover, the Government accepted an amendment in another place to make this order-making power subject to the affirmative resolution procedure. So there is no danger of new offences being added without Parliament's agreement. While I appreciate the motivation behind the amendment, I am certain that we have put in place enough and sufficient safeguards to dispense with what might otherwise be considered an unnecessary restriction on the power of the Secretary of State.

The noble Lord, Lord Thomas of Gresford, made a point about the reduction of the burden of proof. It is worth saying to the noble Lord that there is in the legislation an absolute right to ask for a trial. That point was reflected in the Joint Committee on Human Rights. It said that,

"we consider the right to request trial is adequately protected,"—

and this is the noble Lord's point—

"bearing in mind that a suspect who has a reasonable excuse for failing either to pay the penalty or elect for trial within 21 days can apply to a magistrates' court to set aside any line in the interests of justice".

The other point made by the noble Lord, Lord Thomas of Gresford, related to penalty notices being suitable only in clear cases. On-the-spot penalties should not be issued where further investigation is required. We are quite clear on that point. We will ensure it is covered in the guidance.

The noble Lord, Lord Cope, said that criminal damage needs to be looked at in some detail because it could be that it is more serious than perhaps is immediately apparent. The point is that careful consultation with the complainant and a careful view of the extent of any damage needs to be made prior to a police officer effecting an arrest.

I hope I have covered most of the comments made. This is a significant amendment because it deals in part with an important point of principle and in part with points and matters of detail.

I am most grateful to the Minister for accepting my intervention on whether or not this is a minimising of the effect of criminal offences. The mechanism of the Bill envisages that some of these notices should be issued in the police station. Under Clause 2 of the Bill they have to be issued by an authorised officer. What is envisaged is that—for example—someone who is suspected of having committed an offence under Section 5 of the Public Order Act could be arrested, taken to a police station and, instead of being charged and dealt with through the ordinary processes of the criminal justice system, given a penalty notice. That is why I used the word a "soft" option.

The provision would enable people who might otherwise have found themselves in court facing the possibility of larger sentences, even imprisonment under Section 5, being given the option of a penalty notice which would save the police an enormous amount of trouble in putting a file together and going to the CPS. The danger of the provision is that penalty notices will be issued where prosecutions would in the past have been carried out.

The noble Lord, Lord Thomas of Gresford, has made some very important points. One matter which arises out of them worries me. Have the Government envisaged the possibility that a police officer when trying to get the accused person to pay this lower penalty has the opportunity of saying to the accused person, "If you don't pay this, you will be brought to trial and it will cost you much more"? That is a factor we must bear in mind. There will be a great temptation for the police to say that to criminals.

I speak in response to a number of points made by the Minister. It is very important to repeat the words of my noble friends Lord Windlesham and Lord Renton: first, it is the concept of the fixed penalty which is of real concern; and, secondly, can it actually work in practice?

With regard to criminal damage, while the Minister has made it clear that the Government have been careful not to include the more serious offences—for example, endangering life—the parameters are not actually set out on the face of the Bill. We feel quite strongly about that matter. The Government are saying that they want to have the opportunity, with the benefit of the Bill, to see how the provision works in practice. But surely, with something so new and different—this new hybrid vehicle, as I keep calling it—it would make sense to have a pilot scheme of some kind to see if it works. As we go through our amendments we shall be saying again and again that in practice it is very hard to see how the provision will work. It will be very impractical.

With regard to Amendments Nos. 4 and 36, I am disappointed obviously with what the Minister said. Yes, there are by-laws in place, but the Minister knows that they are much more difficult to invoke. The noble Lord is concerned that public policy should take precedence over them. We believe that to be the case also. However, the Minister really is saying that we just have to wait until the situation gets worse. The reality is that—I quoted Westminster City Council—this is a serious problem already in our cities; a problem which perhaps the Government are not in touch with. It is one which affects many people's lives and one, we feel, which is absolutely suited to the on-the-spot fine. The Government say that they want to avoid criminalising all of us in one fell swoop. Later I shall argue that the alcohol-free zone does just that. There is no difference.

We feel strongly that here is an opportunity with—as we called it at Second Reading—a "rag bag" of a Bill to use the provision to include a number of clear-cut offences, such as the offence of urinating and defecating in public, to act as a deterrent against behaviour which is happening more and more. One of the reasons is that many public lavatories have been or are being closed in cities for reasons of which we are well aware. But that is no excuse for allowing this frankly disgusting behaviour to take place, as it now does a great deal, in our cities.

In relation to street trading, I repeat what I said a few moments ago. I feel that the Government are being pretty defeatist when they say that there is no point in having this as an on-the-spot fine offence because the street trader will just move his illegal trading elsewhere. Surely the whole point is that with all of these on-the-spot penalty offences offenders will be able to offend again and again, particularly if they move around the country, without having any deterrent. The provision deals with minor clear-cut offences. Street trading is an offence—the evidence is tangible—that is much more suited to this provision than criminal damage. That we have proposed under Amendment No. 3 with regard to harassment and abusive behaviour. Therefore, we feel considerable disappointment with the Minister's response.

We have had an interesting debate on an important part of the Bill. We are disappointed that the Government appear to have taken to heart none of the many points that were made. I think it is fair to say that only one speaker in this mini-debate has wholeheartedly supported the Government. We have tried to be constructive in saying to the Government, "Yes, let us give this a go. We have a good deal of doubt about it, but let us give it a chance and see how it runs". The noble Baroness, Lady Buscombe, made the point that it would have been—

I accept the point that this is the stage at which we should be as constructive as we possibly can be about elements of the Bill. I make this observation. We have issued some draft guidance on the way in which the fixed penalty notice scheme will work. If Members of the Committee are concerned about the operation of the detail—a good deal of the discussion has been about the detail—we want to hear more precisely about those concerns. We need to put the legislation in place so that the scheme can work. We intend to pilot the scheme with the close co-operation of the police. There is always an opportunity to see how the scheme works on the ground. That is our intention. We want to make these measures as practicably based as possible. I hope that those are taken as constructive observations.

Having listened to what the noble Baroness, Lady Buscombe, said, I appreciate that there are problems with urination, defecation and so on in urban areas. I do not dismiss those concerns at all. I look forward to receiving correspondence from Westminster Council on the size of the problem and the shortcomings that it might feel exist in the current legislation. I very carefully drew attention to legislation on the statute book that might be of help.

Members of the Committee have made constructive comments. Those comments were designed for the purpose of taking forward the debate. I do not dismiss those concerns at all.

I am grateful for the Minister's assurance. However, it does not satisfy us as we are of the view that if the Government were sensible they would limit the type and number of offences for which on-the-spot fines can be levied. I shall not go over our arguments for believing that beyond saying that many speakers in this mini-debate have referred to the difficulties in establishing the necessary evidence and the necessary mental element in this truncated procedure. I think of what the noble Lord, Lord Windlesham, said. I think also of what the noble Lord. Lord Cope, said in response to the Minister's point about compensation orders, which cannot be imposed under the system of on-the-spot fines. That point was laboured effectively by my noble friend Lord Thomas of Gresford.

For all those reasons, we are not content with leaving matters as they are. What the Minister said about guidance—the noble Lord, Lord Brennan, made the point—was not satisfactory. Guidance is guidance. The police have the job of working the scheme. It is their discretion and their authority that will be at stake. Indeed, it would be dangerous if the Home Secretary's non-statutory guidance could tie the hands of police forces. We think that the discretions are too wide and that the experiment is too wide. If the Government were to accept the proposed de-limitations, it would be helpful all round. I am inclined to test the opinion of the Committee.

moved Amendment No. 7:

Page 3, line 3, leave out "has reason to believe" and insert "believes beyond reasonable doubt"

Surely it is in the interests of justice that the Government should accept the amendment. The clause as it stands at the moment—which has a purely subjective test on the question of whether an offence has been committed—is wrong. It is a subjective test at the moment because the words,

"A constable who has reason to believe",

refer to his own reason to believe, not to an objective reason.

By proposing that the constable should believe beyond reasonable doubt, my noble friend seeks to make the constable subject to an objective test, which is right in the circumstances. I am afraid that unless the amendment: is accepted there will be injustices.

We support the amendment. The way the criminal justice system works at the moment is that a police officer may arrest someone for an arrestable offence on suspicion or reasonable belief. However, he then has to consider whether that person should be charged. When he comes to the charging point, he has to take a decision as to whether there is sufficient evidence to persuade a court beyond reasonable doubt that an offence has been committed. The matter will then ordinarily go to the CPS, which will apply the same test; that is, is there at least a 50 per cent chance that a court will be satisfied beyond reasonable doubt of the guilt of the accused person?

If the Government choose to introduce an alternative way of dealing with a criminal offence by the use of these fixed penalties, then, as the noble Lord, Lord Renton, pointed out, the same objective tests should be used for the alternative procedure as would normally be used by those charging and by the CPS in taking a decision to prosecute. That is a sensible way forward and I support the amendment.

As we have heard in previous speeches on the amendment, the standard of proof is that a police officer has reason to believe that a person over the age of 18 has committed a penalty offence. As the noble Lord, Lord Renton, argued so effectively, that must be the police officer's own reason to believe and must be subjective. How can it be anything else? I believe that this is another—imperceptible perhaps to some, but nevertheless gradual—erosion of civil liberties, as we have seen in other criminal justice measures which have been brought before this House during the current Parliament.

I do not accuse the Government of any bad motives; I do not think that it is deliberate. I think that these are consequences which have not been thought out. It is the law of unintended consequences that often does much harm before the situation is finally put right by subsequent legislation, often when the harm has been done.

We must remember that the concept of the burden of proof describes the duty which is on the prosecution in a criminal trial to establish the facts beyond reasonable doubt. As all law students know, this has long been regarded as a golden thread in our criminal jurisprudence. It should surely be maintained when there are alternative, novel forms of penal sanction and when we are not sure where they will lead. During the initial stages they do not involve an appearance in court, but, as the noble Lord, Lord Thomas, pointed out, that may be the consequence at the end of the day.

At present the Bill requires that a police officer has only to have reason to believe that a penalty offence has been committed in order to issue a fixed penalty notice. As I have argued, this standard obviously is less than the criminal burden of proof. So the effect of accepting a fixed penalty notice will be to accept that behaviour has occurred to a criminal standard; that the behaviour is criminal behaviour. Police officers imposing penalty notices should therefore surely be required to be satisfied to this standard before being able to impose them.

The noble Lord will need notice for this question, so I ask him and those who advise him to listen closely. If an accused is brought to a police station, does he have access to legal aid and the duty solicitor? If he is accused of a criminal offence, he does; but I do not know whether or not it has been thought out what will happen if he is not accused of an arrestable offence at this stage. It is possible that that question is not right in the front of the Minister's mind either, but there must be those who can advise him and who, by the time we reach the end of the debate, can give an answer. For those reasons, I strongly support the amendment.

In regard to the issue of the level of the burden of proof, perhaps I may ask the Minister two factual questions about the procedure which will occur if such circumstances arise. If a person is arrested for, perhaps, being drunk and disorderly or for criminal damage and is offered the penalty notice, as I understand it, that is the equivalent of a 21-day option. He can accept it and pay the fine, or he can during that period ask to be tried. If he does ask to be tried, will the fact that he originally wished to take the fixed penalty option weigh with the court? Will that be brought up in court? In other words, will he have made an admission of guilt? Will that count as an admission of guilt or not?

Similarly, if the individual—who may well, if it is an alcohol-related charge, not be in a fit state to make such a decision—should say to the police constable, "No. Under no circumstances do I accept this. I will see you in court", can he then change his mind the other way? In other words, is there a two-way 21-day option? Can be decide at a later date—perhaps when he sobers up the next morning—"Oh yes, I did do that and I shall be better off with a fixed penalty"? Can he do that?

At first sight the amendment looks as though it puts a torpedo below the waterline of the whole idea of on-the-spot fines. I do not believe that it does. In a strange way it assists the process that the Government are seeking to put in place, albeit that it may reduce the number of occasions on which constables will use the power. The fact that it will give further pause to police before they use the on-the-spot fine will, in the long run, prove of benefit to the scheme as a whole. That is partly why we support the measure.

The amendment concerns the circumstances in which a constable may issue a penalty notice. It would have the effect of changing the test that a constable would have to apply before issuing a penalty notice. Instead of having reason to believe that an offence had been committed he would have to believe beyond reasonable doubt that an offence had been committed.

It needs to be understood that there is a degree of subjectivity in all of these matters. Police officers are used to making subjective judgments from time to time. It is part of their job as operational officers. The important point is that it must be believed that the test "has reason to believe" is appropriate. We believe that it is appropriate to what we have described as a lower order of offences. It is appropriate also in terms of the other part of the scheme; namely, that the behaviour must clearly have occurred, that it must have been plain on the face of it that that was exactly what was going on, and for those reasons the police officer "has reason to believe" that an offence has been committed. It must have been plain to the officer that he or she had good reason to believe that offensive behaviour had occurred. I agree that sometimes the test will be applied in a subjective way. That is the way in which policing is conducted.

We believe that the test is appropriate for a scheme such as this. The scheme is based on consent; it has no impact on the fundamental rights of the individual;a similar test is applied in the case of road traffic fixed penalty notices, so it is consistent with fixed penalty notices in other instances; and if on receiving a fixed penalty notice an individual does not accept the allegation, he or she may challenge that allegation in court, where the test of proof—of the matter being "beyond reasonable doubt"—would apply. The provision does not qualify that in any way. In reference to a more rigorous and objective test, if people do not like the suggestion of conforming to a fixed penalty notice, they have the important option to test the veracity of the evidence. In this way, the right of a person who receives a penalty notice to a trial of the allegations is preserved and the higher threshold is therefore not necessary. For those reasons we cannot accept the amendment.

A number of questions have been asked. The noble Lord, Lord Windlesham, raised one that is not contained in my immediate briefing, as the noble Lord accurately surmised, and I should like to reflect the point he raised.

The noble Baroness, Lady Buscombe, made some points about how a police officer might consider giving a penalty notice. The police officer will know, if the alleged offender asks for a trial, that he will have to back up the allegation with evidence in court in a full test of the proof. That is the more important consideration. The police should look on the scheme of fixed penalty notices as part of a range of approaches to dealing with some of the problems with which we are all trying in our different ways to grapple. The police already have the power to caution or to give informal warnings. This is a further option. As I said, police officers already exercise discretion in deciding how to deal with an offence. There is no reason to believe that they will use these powers any less appropriately than they use other powers.

The example given by the noble Baroness had to do with warring factions. I suspect that that is exactly one of the circumstances in which a fixed penalty notice may be less appropriate. It is important in such circumstances that evidence is properly tested.

Perhaps I may interrupt the Minister. The point I was trying to make was this. There may be a situation where an on-the-spot fixed penalty notice may be less appropriate, but the police officer may weigh up quickly in his mind that given the fact that the case will take up a great deal of time in form-filling and that if the case goes to court he will be involved with a shift in the burden of proof beyond reasonable doubt, it will be much easier to hand out an on-the-spot penalty—and our criminal justice system is thereby diminished.

I cannot accept that point. In effecting an arrest, the officer will have to make a judgment. He will know that if he wishes to go along the route of a fixed penalty notice, it is not an absolute: it is not in his discretion; there is another party to this. If the individual does not wish to accept the fixed penalty notice, he or she can ensure that there is a proper legal challenge.

Supposing that the offender prefers to accept the on-the-spot penalty, he does not have to go through the embarrassment of a court case, even though the offence that he has committed is quite severe.

I keep returning to the important point that these will be lower order offences. We need to focus on that and I hope that the noble Baroness can accept it. The noble Baroness must choose whether or not she supports fixed penalty notices. Having heard some of her points, I am not sure that she does. If she accepts the principle, as I thought she had—

We accept the fixed penalty notice in principle, but we should prefer the burden of proof that a police officer must apply when deciding whether to go for a fixed penalty notice to be the same as that used in a court of law; namely, that the matter is "beyond reasonable doubt". If, in the words of the Minister, we are talking about clear-cut offences that have occurred, what is the problem with retaining the same threshold as already applies in a court of law? Why lower the threshold for the burden of proof?

What we are trying to capture here, with a range of other measures including cautions, final warnings and so on, is in part anti-social behaviour. If we were to apply the higher burden of proof, the test that a matter is "beyond reasonable doubt", I suspect that an argument might be made that fixed penalty notices were being used for more serious offences. I have made it plain that we do not believe that that should be the case. The noble Baroness cannot have it both ways.

We are trying to use this provision and focus it on a lower order of offences to ensure that we capture such offences as anti-social behaviour. Yes, I accept that the police will have a judgment to make. They will have to arrive at a proportionate decision. I am sure that, with guidance and training and with their understanding of the way in which it is intended that the scheme should work, and given our belief that we shall need to pilot these provisions carefully with the police and work out how best use can be made of these proportionate measures, the scheme should work well.

Having listened carefully to the Minister, I hope that he will give this matter further thought between now and Report stage. What may happen is this. A constable deciding to ask an accused person to pay the immediate penalty may be influenced by mere folly or by excessive zeal. He may have no valid reason but may hope to get away with it. If we simply stick to the subjective test, he may get away with it, or—and this will lead to public expense—the accused person may think the circumstances unreasonable and may refuse a penalty and have to be taken to court. I implore the noble Lord, in the public interest, to bear those factors in mind.

I merely want to add to the accurate comment of the noble Lord, Lord Renton. There is a fault-line running through the Minister's argument about applying on-the-spot fines to what he terms "lower order offences". All such offences can be taken to court, in which case they are not lower order offences at all; they are ordinary offences for which the normal criminal test applies. Perhaps the Minister will tell the House whether there is any example in our legal system of this duality of test applying in the way that it does in this case. I doubt whether there is. If there is, it should not be there; it is a logical nonsense

What we are really discussing is lower-order plea bargaining. Public policy in this country has always set its face against plea bargaining which involves this sentence. Time and again, the Court of Appeal has said that the judge who imposes the sentence should play no part in the decision as to whether a prosecution is continued, what charges are accepted, and so on. We are talking about the police station where the police officer says, "Well, look, I'm not really sure that I can get a conviction as a result of the disorderly conduct for which you've been arrested. I can try. I could take you to the court for affray; I could take you to the court under Section 5 and, if I get a conviction, you would get something on your record that will always be with you. On the other hand, if you pay this penalty under the notice, you will hear no more about it. It won't be on your record and it won't be a conviction. Just pay up and that'll be the end of it". That is the whole problem with this system.