asked Her Majesty's Government:

My Lords, data from Airport Co-ordination Limited, which is responsible for slot allocation, show that BA and AA together currently hold no more than 51 per cent of the slots during any one hour. Their average over the peak period is about 40 per cent. However, the competition authorities are considering the proposed BA/AA alliance. They will determine whether the alliance should be approved and, if so, which competition remedies are appropriate.

My Lords, I am grateful to my noble friend for that detailed Answer. If his figures are different from mine, that just shows how easy it is to massage figures one way or another. Either way, how will the Government decide whether the BA/AA alliance is in the national interest? What conditions could they put on that if it goes ahead? Could they require the alliance to give up slots, and could they require, for example, fifth freedom rights for other airlines in the US as a trade-off?

My Lords, I should be happy to give a reconciliation of the difference between my figures and those of my noble friend, but it might bore him and the House if I did it now, so I shall write to him with it.

Two separate processes are involved. BA and AA—and British Midland International and, I believe, United Airlines—have proposed airline alliances. Those alliances are being considered by the competition authorities on each side of the Atlantic—in our case, by the Office of Fair Trading. As noble Lords know, that body is completely separate from the Government and it will make its decisions and recommendations about what increased competition would be necessary, were it to support such a proposal. As one would expect, that is almost bound to require the release of slots at Heathrow for other airlines to increase competition. If the competition authorities are prepared to support the alliance on the specified terms and the airlines are prepared to agree to them, the United Kingdom Government would be prepared to move forward to a new agreement that was based on "open skies" and, effectively, on opening up the US domestic market to such of our airlines as were prepared to form alliances. That is the system. I hope it is clear that two separate processes are involved, rather than one conglomerate.

My Lords, does the success of our national flag-carrying airline mean more to us than some narrow interpretation of competition policy? That seems to be the view in many other countries and it is strange that we take a different approach.

My Lords, I do not think that we do. The Government have several perfectly proper objectives. A fundamental objective is to increase competition in relation to the North Atlantic. That will benefit passengers and UK industry, which may he paying higher freight charges than would otherwise be the case. Just to agree to the United States proposal—the open skies approach would give US carriers access to Heathrow without getting access to domestic opportunities in the United States, arid that would be very much against the interests of United Kingdom carriers. We have to crack that nut. The problem, as noble Lords know, is that there are very strong domestic pressures in the United States against liberalising their domestic market. That is why several airlines and competition authorities have realised that the way to break in there is through airline alliances. That has been done by six other countries.

My Lords, would the Minister be kind enough to tell me when responsibility will devolve from this country to the European Union for negotiations on transatlantic services?

My Lords, the short answer is that we will have to wait and see whether that comes about at all. I am sure that the noble Viscount is aware that we are currently awaiting a judgment from the European Court of Justice on whether other such airline alliances infringe EU competition policy. The Attorney-General's judgment is, I believe, expected towards the end of January and I should not wish to second-guess what it might be. It is possible that it might be held that such alliances infringe competition policy and that therefore negotiations between European countries and the United States would have to be done collectively. There would no doubt be benefits from that but one would hardly expect the process to be quick.

My Lords, the Minister rightly pointed out the independence of the competition authorities in this country—and, for that matter. in the United States—from government. Bearing in mind the UK Government's strong views, which the Minister mentioned, does he propose to give evidence on behalf of the Government to those authorities, particularly to the competition authorities in the United States? As he said, it is most important, in relation to competition, for British domestic airlines to have access and to be able to compete with United States airlines in the use of airports in the United States.

My Lords, I have no doubt that, if required, the Government will give such evidence. We are certainly making strong representations to the United States Government about the need to move forward and increase effective competition in relation to the North Atlantic route. Indeed, my right honourable friend the Prime Minister made those points in his discussions with the President of the United States in November and asserted the importance of moving forward on this agenda. Having said that, it is right and proper that the OFT deals with these matters impartially and without political interference—that is in the interest of competition and consumers.

My Lords, I should declare an interest as the president of BALPA. Is my noble friend aware that the Americans are behaving with a very anti-competitive attitude by offering huge subsidies to American airlines, which, quite rightly, are not matched in Europe? Are the Government doing anything about that?

My Lords, I am not certain that I have put my finger exactly on the subsidy to which my noble friend refers. I suspect that he refers to the situation post-September 11th, when there was indeed strong support from the US Government, in an effort to get the internal domestic flights of US carriers started again. As noble Lords know, our Government also rapidly gave support to try to protect our industry when it could not get insurance cover and would therefore otherwise have been grounded. That arrangement continues until, I believe, 23rd January. I do not want to go into a detailed defence of the US position, but noble Lords will be aware that almost all of the US airline industry was grounded, whereas we were hit just in relation to the North Atlantic route. Nevertheless, that issue will be closely tracked by the UK Government.

asked the Leader of the House:

My Lords, it is the role of the Liaison Committee of this House to consider proposals for Select Committees. I would not propose the establishment of any Select Committee without first seeking the views of the Liaison Committee.

My Lords, I thank the noble and learned Lord for that Answer. I suggest that he asks the Liaison Committee to take soundings. I am sure that he is well aware of the cultural importance of broadcasting and communications generally to United Kingdom citizens and consumers and, equally, of the growing significance of this industry to the economy. I believe that it is rising faster than any other part of the economy—by some £61 million or 6 per cent per annum growth in GDP. I wonder also whether he is aware of the expertise and experience in your Lordships' House—far greater, I would argue, than in the other place—which could form the basis of a very knowledgeable Select Committee. In view of the number of times—some 21 occasions when your Lordships have met to discuss communications issues over the past five years, not counting the Ofcom Bill. I would ask for a reconsideration.

My Lords. I share the noble Baroness's view about the public and economic interests relating to broadcasting. It is true that there is expertise in your Lordships' House on that subject: there is expertise in your Lordships' House on all conceivable topics known to the mind of man. That is why, rightly, a procedure is in place for an individual Peer to write, usually to the Chairman of Committees, the noble Lord, Lord Tordoff, making a case and setting out the proposed terms of reference and the benefits that might inure.

My Lords, does the Leader of the House agree that overshadowing all other aspects of broadcasting at present is the date of the switchover from analogue to digital? Before that date is known, or before anyone can hazard a guess as to a date that might be appropriate, any Select Committee which met to discuss broadcasting without that knowledge would be in a very weak position.

My Lords, I am sure that the noble Viscount makes an important point, but I do not believe that it derogates from the observation that I have made. It is for an individual Peer to make his or her application and to justify it.

My Lords, would not such a Select Committee be able to address the issue of the broadcasting of Parliament? My noble and learned friend will know that channel 508 on satellite transmits a direct feed of actuality from the Floor of the House of Commons. Why cannot we take over channels 509 or 511? In my view, that would greatly enhance this House in the minds of the public outside and would lead to a far greater and better understanding of what we do in this Chamber.

My Lords, I am sure that these are all excellent ideas. If your Lordships wanted a larger audience, 95.8 might be a better waveband. I believe that that is Capital Radio. These are all excellent ideas but, alas, they are not within my gift.

asked Her Majesty's Government:

My Lords, following the court ruling, electoral registration officers must continue to sell electoral registers in accordance with the law. However, when selling to commercial concerns, they must exclude the particulars of electors who have objected to their details being included in such cases. The Government had always intended to provide for such an opt-out and for edited registers in the regulations which, subject to parliamentary approval, we were planning to make in time for the 2002 canvass. We are now considering how best to progress those proposed regulations in the light of the court ruling and we shall consult widely.

My Lords, I thank the Minister for his reply. Can one assume that, in the light of the Robertson v. City of Wakefield decision, the Government now accept that the sale of the register for commercial purposes without consent contravenes Articles 8 and 3 of the First Protocol of the European Convention on Human Rights and that it will be necessary to make an amendment to the Data Protection Act 1998? Can the House assume that the Government accept that position? In the context of the sale of the register, is the noble Lord aware that the Government relied on a flawed certificate of compatibility with the ECHR and that, at all three stages of the progress of the Bill, they refused to give a reason or an answer for doing so? Does the Minister agree that this raises a wider question?

My Lords, as the noble Lord points out, the current situation arises from an appeal by an individual against the publication of a register containing his name by an electoral registration officer. To my knowledge, the Government do not intend to appeal against that judgment. Therefore, we are left in the position that electoral registration officers cannot sell registers unless and until they have ensured that people have been given an effective opt-out.

The process for addressing the current anomaly is that, by the end of January, the Government will publish their paper setting out proposals on how to move forward on this matter. That paper will go out for widespread consultation with individual electors and with the credit data agencies which rely substantially on the registers. In short, the result is likely to be that in future individuals will he required to be given an opt-out. Only a register without the names of those who have chosen an opt-out can be published. The thrust of the noble Lord's question was about what happened when the Bill was before our House. I regret that I must plead ignorance on that, but I shall consider his question and write to him accordingly.

My Lords, is my noble friend aware of the concern and difficulty that this matter is causing in a number of commercial companies throughout the country? In certain cases, people who can no longer carry out what they considered to be a legitimate act are being laid off. Perhaps I may press the Government not to wait until the end of January but to make a statement before the end of the year so that people know exactly where they stand.

My Lords, we shall certainly publish as soon as possible what we consider to be sensible proposals for moving forward on this matter. I am well aware of the considerable concern expressed by the data protection industries and by a number of charities which rely on electoral registers for publication purposes. However, we are where we are, and it appears that past practices will not be able to continue in the future.

One should note that the electoral register has never been a perfectly reliable database, with regard to both inclusions and exclusions. For obvious reasons, it is certainly not a reliable record of identity because people can add their names to the register without validation. Over the past few months the Government have been hoping to find a consensus that will move the matter forward. In a sense, the court action has kiboshed that and forced us on to different routes, but we shall come forward with proposals relatively soon.

My Lords, does the Minister appreciate that we had lengthy discussions on exactly this subject during the passage of the Representation of the People Act 2000 in this House? Does he recall that on that occasion the Act enabled the Representation of the People Act 1983 to be amended so as to make it possible to publish an edited register for sale to commercial interests? Why did the Government not see this problem coming and deal with it when they made the Representation of the People Act regulations earlier this year?

My Lords, there is some truth in what the noble Lord says. From 1983 it became obligatory on all electoral registration officers to sell electoral registers, whereas previously it had been discretionary. As the noble Lord said, the 2000 Act recognised on the face of the Bill that that appeared potentially to conflict with data protection rights. The delay has been caused fundamentally by the Government trying to find a way to reconcile what may well be reconcilable: the interest of data protection and human rights and the interest of the commercial organisations which have relied on these registers in the past. Therefore, the plan had been to lay regulations by the spring in time for the 2002 register in order to allow that to proceed. As I said, the court judgment has effectively put an end to some of that detail. It is hoped that we shall find the best way forward in the circumstances in the next few weeks.

My Lords, presumably the Government are not contemplating making it illegal for electoral registers to be available to political parties and, for example, to parish councils which make widespread and essential use of them? Is it really conceivable that there will be only an edited version published with as many people who wish to remain anonymous having been taken off the register? Is that practical?

My Lords, the noble Lord need have no fear in that respect. The court judgment does not put at risk the right of political parties, crime prevention agencies, the British Library and a number of others to have access to the full register. Similarly, individual citizens will still be able to go into their town hall, or wherever, and inspect the register. However, those of your Lordships who are more au fait than I am with the Representation of the People Act 2000 will recollect that Section 9 made clear that one could not photocopy the register and take it away. That would clearly circumvent the thrust of the legislation.

asked Her Majesty's Government:

My Lords, our policy is in accordance with the Sixth Protocol to the European Convention on Human Rights and with the provisions of the Extradition Act 1989. We refuse to extradite any persons to a jurisdiction where the offence for which they could be tried, or for which they have been tried, carries the death penalty, unless sufficient assurances are provided by a requesting state that the death penalty will not be imposed, or if imposed, will not be carried out.

My Lords, perhaps I may ask the Minister why our troops can, quite rightly, hand over to the Americans bin Laden or his accomplices if captured in Afghanistan, but if captured in this country, they will not be handed over unconditionally? Our American friends find that hard to understand. Where is the logic?

My Lords, I shall not answer hypothetical questions. I refer noble Lords to the Answer I gave to the same Question on 15th November at cols. 678 and 679. I shall not have a razor blade put between myself and the Secretary of State for Defence, or anybody else. If I am really pressed I shall read into the record the same Answers as I gave on that day when I was specifically asked about the position of bin Laden if he ended up in this country as an illegal immigrant. The position has not changed since 15th November.

My Lords, can the Minister explain to our American friends, of whom I am one, and perhaps to Mr Ashcroft, their Attorney-General, if this is raised, that the criteria applied are those that were laid down by the European Court of Human Rights in 1989? The government of the noble Baroness, Lady Thatcher, honourably gave effect to those criteria. Now, as a matter of European public policy, the framework decision on Eurowarrants makes sure that within Europe, at any rate, the policy of the European Convention on Human Rights will prevent anybody being extradited to face the death penalty, inhuman or degrading treatment or punishment or torture. That policy is observed by the 41 member states of the Council of Europe.

My Lords, I agree with everything said by the noble Lord, Lord Lester. I refer noble Lords to the original Answer I gave; that is, that our policy is in accordance with the Extradition Act 1989. I shall leave it there. I am sure that in a moment the penny will drop.

My Lords, does the Minister find, as I do, that it is at least inconsistent if not illogical that we can send our troops out to a situation where they might have to kill suspect terrorists or be killed by them, yet we are not prepared to put suspect terrorists in danger after due process of law? I find that inconsistent.

My Lords, there is nothing inconsistent as regards what happens under fire in enemy action under the rules of war as opposed to judicial execution. If the noble Lord cannot understand the difference between the two, we have a problem in debating the issue. There is a difficulty. I repeat that our extradition treaty with the United States does not cause any problems with the United States. We extradite people back to the United States even for offences which carry the death penalty there. That is done on the basis that if such persons are found guilty and the death penalty is imposed, it will not be carried out. That is a perfectly satisfactory arrangement that has worked well for years under both governments.

My Lords, does the Minister agree that perhaps the Prime Minister's statement earlier this week caused a little confusion in some minds? Does he also agree that the safest thing that Osama bin Laden can now do is to smuggle himself into this country?

My Lords, if, having put thousands of people to death he wants to save his own skin, that is absolutely right. That would show the kind of coward he is. My noble friend Lord Stoddart asked that question on 15th November during an exchange at col. 679. The position I gave then has not changed to date. That is clear. Perhaps I may add that no one, inside or outside Westminster, inside or outside the Government or the media, has questioned any of the Answers I gave on that day.

My Lords, does not the Minister realise that if a person were apprehended or convicted as a terrorist, some people would think that the best thing would be for him to be extradited to a country which carries out the death penalty as soon as possible?

My Lords, we have been concentrating on the United States. Most of our partners do not have the death penalty; the United States does. It is still in force in 38 states. That implies that there are many states where it is not in force. When explained calmly to members of the public, I believe that they understand the difference between what happens during enemy action and acts of war and our general policy of not having execution. That has been settled on free votes in this Parliament year after year, and there has been no change.

My Lords, before I move my Motion, I welcome hack to your Lordships' House our friend, the noble Baroness, Lady Young. I am told—I do not know how reliably—that she has been determined to come back today just to support the Government!

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

Moved, That, in the event of the Consolidated Fund Bill being brought from the Commons, Standing Order 46 (No two stages of a Bill to be taken on one day) be dispensed with to allow the Bill to be taken through all its stages on Monday next.—(Lord Williams of. Mostyn.)

My Lords, before we commence consideration of the Commons amendments on the Anti-terrorism, Crime and Security Bill, it may be for the convenience of the House if I explain that a supplementary Marshalled List of amendments has recently been placed in the Printed Paper Office and in other places around the House.

The supplementary list contains only two amendments. The first relates to Amendment No. 48. It has been tabled in the name of all three Front Benches, so I hope that the House will find it acceptable. The second relates to the last group of amendments on our list. It relates to an amendment proposed by the Government in respect of review of the Act by a committee of Privy Counsellors.

My Lords, I beg to move that the Commons reasons and amendments be considered forthwith.

Moved, That the Commons reasons and amendments be considered forthwith. —(Lord Rooker.)

My Lords, I beg to move that the House do not insist on their Amendment No. 5 to which the Commons have disagreed for their reason numbered 5A, but do propose the following amendment in lieu thereof—

5B Page 7, line 23, at end insert—"

"( ) No disclosure of information shall be made by virtue of this section unless public authority by which the disclosure is made is satisfied that the making of the disclosure is proportionate to what is sought to be achieved by it."

The noble Lord said: My Lords, in moving Amendment No. 5 I shall speak also to the other amendments in the group. We believe that the way in which the Bill was left after your Lordships had dealt with Part 3 would have been counter-productive. We all want to prevent terrorism and to catch the terrorists. The amendments would have made it more difficult for public authorities to disclose potentially vital information. Public authorities, by definition, are rarely experts in terrorism. They often will not be able to satisfy themselves that information is linked, even indirectly, to terrorism.

With our original drafting they could disclose for any crime. Therefore, vital information would reach the police. However, we are not giving a blanket disclosure power just for information relating to crime. Our new amendment will, we hope, clarify the position on the face of the Bill to your Lordships' satisfaction. The public authorities will have to take into account, before disclosing, the proportionality of their disclosures. Bulk disclosure of information without regard to the seriousness of the offence in question would not be proportionate and would therefore not be permitted by these provisions.

In the example offered in the other place by the Shadow Home Secretary a public authority would not be able to disclose vast swathes of tax information to the Baltimore Police Department if it had stopped someone in respect of a driving offence. In the unlikely event that a UK public authority had information that related to specific driving offences, it could disclose only that information which directly related to the offence. If there was a suspicion that the individual was involved in more serious crime, it could disclose information to the investigatory authorities.

Under your Lordships' amendment it could only do so if it believed that the crimes were terrorist or national security related. It may be that drugs are found in the car. Under our drafting a public authority could pass relevant information to the individual. That could help to show a connection with the funding of terrorism.

I shall give a couple of examples which I do not think have been given before. I hope that they will clarify the position. It has been said previously that the complex task of operating a terrorist cell may involve the smuggling of drugs into the UK which are not obviously linked to terrorism. Customs do not know that they are for a terrorist cell and information does not therefore reach the police. The police would ask only if they already have some evidence. So far as concerns the Customs, they have what has been smuggled but they do not have any connection.

The Inland Revenue has previously been unable to disclose to the police that a drug dealer was citing drug dealing on his tax returns. I read that slowly because I gulped this morning when I read it. If a drug dealer is arguing for taxation purposes and he puts "drug dealing" on his tax return the Inland Revenue is unable to disclose that to the police. We know that drugs are used to finance terrorism because that crook bin Laden was selling drugs to finance his terrorist activities, bringing not just death but misery to millions of people. That could prove to be a vital piece of intelligence but it cannot be passed over under your Lordships' amendment because the Inland Revenue has no idea that the drugs are linked to terrorism.

Terrorist groups rely on work in the construction industry—that is to say, mobile industry without any factories—to provide income and a cover while in the UK. While monitoring that industry for national insurance contributions evasion—in which the industry has a good record, but a bad record so far as concerns the Inland Revenue—it may obtain information which points to the operations of a terrorist cell but it has no idea that they are terrorists so the information never reaches the police. We think that that goes too far.

Frankly, I do not think that that was in the minds of noble Lords when the original amendments were passed to the Bill as presented. I hope therefore that, bearing in mind the debates in this House and indeed the other place and the fact that we want to put on the face of the Bill a test of proportionality, the new operation of Part 3, in terms of disclosure, will meet with your Lordships' favour.

Moved, That the House do not insist on their Amendment No. 5 to which the Commons have disagreed for their reason numbered 5A but do proposed Amendment No. 5B in lieu thereof.—(Lord Rooker.)

5C Lord Thomas of Gresford rose to move, as an amendment to the Motion that the House do not insist on their Amendment No. 5 to which the Commons have disagreed and do propose Amendment No. 5B in lieu thereof, leave out the words after "House" and insert "do insist on their Amendment No. 5".

The noble Lord said: My Lords, I move this amendment on behalf of my noble friend Lord Phillips of Sudbury. The amendment restores the position to when the Bill went to the Commons.

It may be helpful if I remind your Lordships very briefly why we passed the amendment. Clause 17 of the Bill provides that a public authority—some 40 plus are listed in Schedule 4—may be required to disclose information in its possession about an individual or a company—medical records, bank records or company records—to anyone considering initiating any criminal investigation whatever anywhere in the world. It is not limited to the United Kingdom; it is not limited to the United Kingdom law enforcement agencies; and it is not limited of course to terrorism or suspicion of terrorism.

Many people will say, "Well, I have nothing to hide. People can look into my affairs if they want. It is a price worth paying for security. In times of danger security comes before privacy". We on these Benches entirely agree with that sentiment. Our amendment ensured that these unprecedented powers were given to the agencies in this country and abroad simply for the purposes of the Bill: namely, information believed—or even just suspected to be—related directly or indirectly to a risk to national security or to the existence of terrorism.

A further restriction was put on: that the information should not be released to anyone, which is what the clause stated as originally drafted, but a relevant public authority. Therefore, the effect of the amendment was to give to the clause that focus which the Bill should have in dealing with anti-terrorism measures.

Clause 19 concerns the Inland Revenue and Customs and Excise and provides that they may release their files and records,

"for the purposes of any criminal investigation",

anywhere, to anyone in the world.

The addition of subsection (2)(a) was quite significant because it was an addition to the Bill as originally drafted and brought before your Lordships and withdrawn before the general election. This Bill, unlike the original Bill, gives power to the commissioners of the Inland Revenue and Customs and Excise to make disclosure,

"for the purpose of facilitating the carrying out by any of the intelligence services of any of that service's functions".

So the Bill widens the provision from the ordinary police investigating authorities to the intelligence services for any of their purposes.

The amendment passed by your Lordships' House simply restricted the scope of such disclosures to the disclosure of information believed or suspected to relate to a risk to national security or to a terrorist. I emphasise the word "suspected". All that is required is that a person carrying out an investigation should say to the public authority, "I am investigating terrorism"—or the possibility of terrorism, or the existence of a possible terrorist—"and I should like your co-operation". We have no objection to that. We and, I am sure, all of your Lordships think it essential for the security of this country that such powers be granted in that limited way.

However, the Government have not listened in the other place and have returned the Bill to us seeking to reverse our decisions. All that has been added is a proposal that,

"No disclosure of information shall be made by virtue of this section unless I he public authority by which the disclosure is made is satisfied that the making of the disclosure is proportionate to what is sought to be achieved by it".

That merely restates the existing duty under the Human Rights Act 1998, because proportionality is a basic principle of that Act. If there is an invasion of privacy, it should be permitted only by means proportionate to the need that requires it.

We must ask: what is meant by the words,

"proportionate to what is sought to be achieved by it"?

If an investigating authority comes to this country from overseas and says, "I am investigating a drugs matter. Please release all your records", is it proportionate if the public authority releases information to that agency? Let us take the example given a moment ago by the noble Lord, Lord Rooker, of drugs being found in a car. That information should be passed to the police, but it is for the police to make the connections when they receive the information.

When it comes to income tax and Customs and Excise authorities, it is unlikely that a person will write down "terrorist" as his occupation. Consequently, it is for the police or other investigating authority—that is, the security services—to go to the Commissioners of Customs and Excise or Inland Revenue to say, "We are investigating X because we suspect that he is a terrorist or engaged in terrorist activities. Can we see his files?" In other words, the initiative should come from the police to the public authority.

The amendment proposed by the noble Lord, Lord Rooker, is just window dressing. It adds nothing to the previous provision and does not assist your Lordships. The purpose of my amendment is that the position on which we decided after a great deal of debate should be maintained.

Moved, That, as an amendment to the Motion that the House do not insist on their Amendment No. 5 to which the Commons have disagreed and do propose Amendment No. 5B in lieu thereof, leave out the words after "House" and insert "do insist on their Amendment No. 5".— (Lord Thomas of Gresford.)

My Lords, in rising to speak to this group of amendments, I should say straightaway that Her Majesty's Official Opposition take a different approach from that of the noble Lord, Lord Thomas of Gresford. We are grateful to the Government for, as we see it, responding to our concerns—concerns that we expressed during each stage of consideration of the Bill in your Lordships' House. Indeed, it is fair to say that we have worked hard to persuade the Government that there is a fundamental problem with Part 3 as drafted. Their proposals for disclosure of information go way beyond the agenda that we all want to support. That agenda is the fight against terrorism.

Part 3 as drafted is draconian, not measured, and the question of proportionality would in practice only arise, and possibly bite, in the event that an individual or class of person felt aggrieved and acted on that grievance after disclosure had been made and the damage done. The government amendment recognises that thought must be given by the relevant investigatory authorities, such as the National Criminal Intelligence Service, the National Crime Squad and the Commissioners of the Inland Revenue or the Commissioners of Customs and Excise, as to whether the request for information is proportionate—in other words, in comparative ratio—to the investigation at hand before that request is made.

Time will tell whether that works in practice. We shall wait and see. On that basis, we shall support the government amendment.

My Lords, this particular Member of Her Majesty's Loyal Opposition tends to agree with the other part of the opposition. The government amendment does not go far enough. It is rather sad that we on these Benches have been seen to cave in to what I would describe as waffle. There are many ways to beef up the amendment a little. If someone puts "drug dealer" on his tax return, it is always possible that he is actually a manager of' Boots the Chemists, but he probably is not. It strikes me as hard to believe that the Inland Revenue could not say to the police, "We have someone admitting a crime. Why do you not investigate?" I am sure that that happens now.

I am afraid to say that if the Liberal Democrats push this to a Division, I shall be trotting through the Lobby with them. I believe that it is the duty of your Lordships' House to protect, as much as we humanly can, the individual rights and liberties of the subject. This is a minor blip—that is all—on the otherwise impeccable behaviour of those on my Front Bench. They have conceded too much on this matter.

My Lords, I wish to say one or two words in support of the amendment standing in the name of my noble friend Lord Thomas of Gresford. The government amendment is indeed a piece of window dressing. If the noble Baroness, Lady Buscombe, will forgive my saying so, I find it a bit pathetic that a piece of window dressing should wholly satisfy the Official Opposition.

If we penetrate the true legal position and the government amendment, it is much more complicated than appears at first sight. I want to explain the position because public authorities may be liable as a result of the legal uncertainty that will remain if the Government have their way.

My noble friend is completely right when he says that the government amendment begs the question when it says,

"proportionate to what is sought to be achieved by it".

If the Liberal Democrat amendment is not passed, the answer to the question is partly given in Clause 17(2). In other words, without any link with terrorism on the face of this part of the Bill, if the disclosure of information is for the purposes of any criminal investigation, criminal proceedings and so forth, the question will be whether the disclosure is proportionate to those matters and not to any link to terrorism.

I recognise that under Article 8.2 of the European Convention on Human Rights it is permissible to invade personal privacy not only to protect national security but also to prevent or detect crime. I therefore recognise that a power of the width which is being conferred by Clause 17 is capable of falling within a legitimate aim in terms of the ECHR and that then a test of proportionality necessarily comes into place not because of the government amendment but because of the various provisions of the Human Rights Act, to which this amendment adds nothing of substance.

However, in practice it means that if anyone discloses information acting under Clause 17 in a way that breaches Article 8 of the human rights convention—the guarantee of personal privacy—for any of the aims stated in Clause 17(2), although he may be pursuing a legitimate aim he must do so only in a proportionate way.

The word "proportionate" is not defined in the amendment but it means that the means used to accomplish one of those aims must be necessary—and no more than necessary—to achieve that legitimate aim. They must involve the least sacrifice compatible with human rights, as the House of Lords recently held in the case of Daly. That is what proportionality means.

Therefore, there is quite a strict test, but the problem is that the poor old public authority or other body which makes the disclosure will be potentially liable under a Bill conferring powers which are broad and not well defined. If we reject the link with terrorism which the Liberal Democrat Benches have sought to make and leave it to the window dressing of the amendment about proportionality moved by the noble Lord, Lord Rooker, all we shall be doing is dumping the problem on the public authorities and in the end on the courts. There will be great legal uncertainty and it will be unsatisfactory.

However, I concede that ultimately when people are properly advised and can afford to bring their cases and sue, the courts will provide effective protection. For those who understand their legal rights that will be so. But I regard the position as a mess—and an unsatisfactory mess. Therefore, I very much hope that even at this late stage the Official Opposition will join with the rest of us on these Benches in standing firm to clarify the position so that we can avoid lawyers such as myself earning far too much money, as the noble Lord, Lord Rooker, would say, in arguing such cases.

My Lords, I am perhaps a little more easily persuaded by the Government than noble Lords who sit to my right. That is partly because we still anticipate that the Bill will have a short life and that it will be on the statute book for an experimental period; and partly because, seeing my noble friend Lord St John of Fawsley in the Chamber reminds me that in the Church of England marriage service those entering into the state of matrimony are advised not to do so wantonly or ill advisedly. A similar caution appears to be pointed at the public authorities in question.

I have only one question to ask the Minister and if he will answer it satisfactorily, he will greatly increase my comfort in what he proposes. It is a question I asked when the Bill was previously in this Chamber. What connection can there be between terrorism and information given under Section 9 of the Diseases of Fish Act 1983?

My Lords, I absolve the Front Bench of the Official Opposition from what I am about to say. I feel that this House is behaving like the Grand Old Duke of York. It was but a week ago that we went into the Lobbies in great and convincing numbers to introduce into the Bill the provision which is now to be struck out of it. We did so for extremely good reasons. First, because this Bill will extend the right of state surveillance of citizens' confidential information in an unprecedented way; secondly, because we felt it went beyond the purview and intention of the Bill, which is to deal with emergency terrorism and risks to national security; thirdly, because we considered that the issues involved run very deep in our tradition of civil liberty and that it was unsafe and unwise to give such vastly extended powers to non-terrorist situations, as the Bill provides.

I agree with other noble Lords that this is a real sop to Cerberus. Perhaps I may remind the House that the noble Lords, Lord Rooker and Lord McIntosh, said on no fewer than six occasions during debates on the Bill that it was quite unnecessary to have reference to proportionality on the face of the Bill because it was absolutely inherent in the Bill; it was inherent in the European Convention on Human Rights; and it was inherent in the Human Rights Act. They said that such reference was wholly unnecessary. Yet today, apparently the Official Opposition are content with the single change to the Bill as originally drafted; namely, to bring on to the face of it that which was inherent in any event.

l want quickly to refer to the extent to which I believe the Government spokesmen have never understood either their Bill or the amendment we passed a week ago. Only on Monday this week, David Blunkett stated in an article in The Times that the amendment we passed a week ago would prevent the police and security services investigating terrorist networks if,

"they are forbidden to look at anything that cannot immediately be proven to he linked to terrorist activity".

As your Lordships well know, the amendment we passed was of the mildest kind. Far from requiring immediate proof of linkage with terrorism, our amendment provides that the information can be requested or disclosed only if there is a suspicion that it may indirectly relate to a risk to national security. That is a vastly different proposition.

I ask the House why the Home Secretary would so misrepresent an amendment passed by the House. "Why?", I ask. Indeed, the noble Lord, Lord Rooker, in responding to the speech I made in proposing the amendment last Thursday, referred to information that was related to a terrorist threat. Again, our amendment does not limit disclosure to information related to a terrorist threat; it is information which may relate indirectly to the risk of a terrorist threat.

It is not good enough for this House to sit down under a Bill which goes way beyond its scope and exposes, I believe, well established civil rights to such a risk. We have had a lot of soft soap about public authorities acting responsibly and not engaging in bulk disclosure. Clause 17 of the Bill goes way beyond the public authorities which we normally associate with that phrase, which is why we tried to restrict the measure to the police and intelligence services. It goes way beyond that. As my noble friend Lord Thomas said, it goes to foreign public bodies which may operate in countries which may have standards vastly different from those to which we adhere in this country.

I shall not repeat all that was said but a week ago, but I believe that we should continue to resist the proposal and uphold the amendment which we passed last Thursday.

My Lords, I shall be brief. First, I turn to what was said by the noble Earl, Lord Onslow, about the Inland Revenue. It may come as a surprise to the noble Earl to learn just how restricted the Revenue is—and rightly so. The current statutory position is that the Inland Revenue is able to pass on of its own volition information only where it relates to murder or treason. I can tell the House that there have been cases where a heroin dealer has declared heroin dealing to be the source of his income. The Inland Revenue is not able to pass on that information. Consider that position: from where does heroin originate? The vast majority of the drug comes from Afghanistan and a link could be made. That is the fact of the matter at the present time. I shall give way to the noble Lord, Lord Phillips, in a moment, if he insists.

We are unnecessarily fettering ourselves in dealing with the management of information which ordinary people may think is already passed on. Members of the public believe that one part of government would obviously pass on information concerning the tax affairs of a drug dealer to another part of government if the dealer chose to put that information on his tax return. But the fact is that we do not. That is the way that the rules operate at the present time.

My Lords, I am most grateful to the Minister. Surely he has been advised that the amendment that was passed last Thursday would allow the Inland Revenue to release exactly such information, along with a great deal more.

My Lords, I have been advised to the contrary. The amendments passed last Thursday make the Bill worse than it was when it came to this House from the other place.

Perhaps I may address a point made by the noble Lord, Lord Thomas, with regard to the final words of the amendment. Those words are,

"the making of the disclosure is proportionate to what is sought to be achieved by it".

What is sought to be achieved here certainly relates to investigations and criminal proceedings. It also means that there would be no disclosure of information on the off-chance. In other words, the wording offers a protection on the face of the Bill. I know that in court the lawyers might argue about exactly what is meant by the wording, but it means that there will be less opportunity and less possibility of information being disclosed on the off-chance. The information must have a purpose and that purpose is to be measured in a proportionate way as regards the inquiries being made.

I do not think that the wording constitutes soft soap or window dressing.

My Lords, if the wording is not window dressing, can I ask the Minister whether the purpose is to be terrorist-related or is it to be wider?

My Lords, that takes us back to first principles: we do not know. That is the whole point.

When investigations are taking place, no linkages may have been made. That is the point where, I believe, there can be no meeting of minds between myself and the Liberal Democrat Peers. I cannot argue on their level simply because there is a lack of acceptance—from beliefs genuinely held; I accept that—of the fact that we cannot initially argue that there may be the possibility of a terrorist offence having been committed.

When stopping a vehicle or investigating a twitcher close to a military base, terrorism is a million miles away from the minds of those who make the initial investigation of what might be simply a breach of the peace or a misdemeanour. It is not possible to make the link; that is, to draft the Bill in such a way that such a possibility can be defined. I accept that there is nothing that I can say to Liberal Democrat Peers that will convince them of the case. To that extent, I admit that I have a failure on my hands.

My Lords, I thank the noble Lord for giving way. Let us return to the case of the twitcher. The twitcher is stopped while looking at an Indian ring-necked parakeet perched on the tail of an aeroplane. He has been stopped for a speeding offence. But something leads the policeman to believe that there is more involved than looking at the Indian ring-necked parakeet sitting on the tail of the Tiger Moth, or whatever. The policeman comes to the conclusion that a terrorist investigation should be carried out. Under those circumstances, the amendment passed on the previous occasion was valid.

However, if the policeman stops a twitcher on the basis, "I just want to look at this chap's record on the off-chance that he has been involved in drug smuggling", but has no grounds for harbouring such a suspicion, then it is to that circumstance that we object. We object to the ability to trawl just for fun. If the policeman thinks that an act of terrorism is taking place, then fair enough. His actions are absolutely right and no one would argue with that. However, noble Lords are arguing over the possibility of a trawl.

It is on that point that my mind is slightly attached to those on the Liberal Democrat Benches—but only temporarily, I hasten to add—and divorced from that of the noble Lord opposite.

My Lords, I was reluctant to interrupt the noble Earl in full flow, but we are operating under the rules of the Report stage. Interventions should be restricted to questions on matters of fact.

My Lords, to be honest, I shall not be able to convince the noble Earl either. However, I think that he destroyed his own case when he said that the investigators would trawl for the fun of it. We are not in that business. The authorities are not in that business. It is demeaning to use that kind of term because it does not strike at the heart of the seriousness of these matters.

The Bill is a very precise piece of legislation. We are keeping as tight a control over the authorities as is possible. Noble Lords must understand that most of the information that can be exchanged under the terms of the clause is already disclosable in other circumstances. All the Bill seeks to do is to harmonise the circumstances under which disclosure can be made. It is not the case that the information cannot be disclosed. It can be disclosed, but in the Bill we seek to harmonise the situation.

In response to the noble Lord, Lord Elton, from memory I had thought that the question of the Diseases of Fish Act had been dealt with, but clearly not. That looked to the barriers to investigations in terms of legislation. We seek to ensure that the statutory barriers to disclosure do not prevent the authorities from the proper exercise of their functions.

It is not the case that all the gateways will be used, but we have looked at the statutory barriers to disclosure which, it should be pointed out, are not in place once criminal investigation proceedings are under way. We seek to marry the two. No new powers have been introduced in terms of disclosure; rather it is a question of harmonisation. Having listened to the debates in both Houses and having considered the concerns expressed, I do not think that it is either window dressing or soft soap to put on to the face of the Bill, so that it is in place in primary legislation—an Act of Parliament—that the disclosure must be proportionate. That is an important point.

It is no good to say that it would be taken for granted because it is in place under other legislation. Many elements that noble Lords have argued against could attract the counter argument that in any event the safeguards are already in place. Here I refer specifically to other parts of the Bill such as the retention of data. I have referred repeatedly to data protection legislation and human rights legislation. However, noble Lords have responded by saying, "Oh, that doesn't matter. We still want our amendment". I am dismissed when I put those arguments.

Here we are putting a form of words on to the face of the Bill to concrete the intention, made up-front for all to see, but it is dismissed as soft soap. I do not accept that.

My Lords, I thank the Minister for giving way. Perhaps I may say that you are being provocative.

Order!

My Lords, I beg the pardon of the House. Twice the noble Lord has said that this is a harmonisation measure. However, is it not the case that the clause is entitled, "Extension of existing disclosure powers"? There is no reference to harmonisation.

My Lords, it is the case that many of the Acts listed under Schedule 4—we could have a further debate on the schedule if noble Lords so desired, although I suspect that that might be out of order—already allow for disclosure at the investigation stage. The point is that we are discussing the stage prior to investigation. To that end I cite the Utilities Act 2000, the Chemical Weapons Act 1996 and the Water Resources Act 1991.

The Bill seeks to harmonise the circumstances under which disclosures can be made. For that reason, I rest my case and ask noble Lords to accept the amendment.

My Lords, the Minister probably did not intend to do so, but he gave the game away by referring to the current restrictions on the powers of the Inland Revenue to disclose information. The noble Lord commented, "and rightly so", to the fact that disclosure is restricted at the present time. Having made that concession, he proceeded to argue that the doors of the Inland Revenue should be thrown wide, that tax offices throughout the country and the Cumbernauld centre should be opened so that anyone will be able to walk in. When the Minister said, "I have been advised that these amendments make the Bill worse", noble Lords may have thought that he was referring to the gentleman in the Box. But yesterday, Mr Blunkett said:

"Our law enforcement agencies, the services that provide support to them and our security services have given us a clear understanding that if the Lords amendments are approved by the two Houses, they will simply not be able to do their job".—[Official Report. Commons, 12/12/01; col. 896.]

Later, at col. 921, in relation to another amendment, he said:

"The security services made it absolutely clear to me…that they would bring no cases forward if we used the normal court system and attempted to use public interest immunity".

Who is running this country? It looks as though the security services are advising the Minister, not the Home Office officials behind him.

My noble friend Lord Lester was right when he pointed out that, under the amendment of the noble Lord, Lord Rooker, it will be for the public authorities to make a judgment as to what is proportionate. Is disclosure to be made wantonly or ill advisedly, as the noble Lord, Lord Elton, said? How on earth are they to judge? When he introduced his amendment, the noble Lord, Lord Rooker, said that public authorities are not experts in terrorism. As they are not experts in terrorism, why, without any guidance from Parliament, is this burden of determining what is proportionate to what is asked of them being thrust upon them?

We regret on these Benches that the Conservative Front Bench has taken the meagre size 14 fly which has been whisked past their nose, but we are swimming on. I beg to seek the opinion of the House.

The Question is that this House do not insist on their Amendment No. 5 to which the Commons have disagreed but do agree Amendment No. 5B in lieu thereof.

My Lords, I beg to move that the House do not insist on their Amendment No. 6 to which the Commons have disagreed for their reason numbered 6A. I spoke to that when I spoke to Amendment No. 5.

Moved, That the House do not insist on their Amendment No. 6 to which the Commons have disagreed for their reason numbered 6A.— (Lord Rooker.)

My Lords, I beg to move that this House do not insist on their Amendment No. 8 to which the Commons have disagreed for their reason numbered 8A, but do propose Amendment No. 8B in lieu thereof—

8B Page 9, line 18, at end insert—

"( ) No disclosure of information to which this section applies shall be made by virtue of this section unless the person by whom the disclosure is made is satisfied that the making of the disclosure is proportionate to what is sought to be achieved by it."

The noble Lord said: My Lords, I have already spoken to this amendment with Amendment No. 5. I beg to move.

Moved, That the House do not insist on their Amendment No. 8 to which the Commons have disagreed for their reason numbered 8A, but do agree with the Commons in their Amendment No. 8B in lieu thereof.—(Lord Rooker.)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 22A.

Two amendments were made on Report relating to judicial scrutiny of actions by the Secretary of State and the Special Immigration Appeals Commission in connection with the certification and detention powers. The clause on "exclusion of legal proceedings" was omitted, as was subsection (2) of the next clause, which confined an initial challenge to a derogation matter to SIAC.

These amendments—Amendments Nos. 21 and 22 on the Marshalled List were accepted by another place yesterday, but in their place the Commons have substituted their own amendments, Amendment No. 22A and Amendments Nos. 22B to 22F on the Marshalled List.

We have had many detailed debates in this House about the appropriate form of judicial scrutiny for the powers in Part 4 of the Bill, during which we in the Government explained our position at some length. Before turning to the amendments presented to this House by another place, I ask the House to recall why SIAC was set up in 1997; namely, to deal with national security cases of the kind it will be considering under the Bill.

In its judgment on the Chahal case in 1996, the European Court of Human Rights stated in clear terms that the traditional remedies of judicial review and habeas corpus did not provide an individual with adequate protection in national security cases. SIAC was constructed specifically to remove those inadequacies. It does this as follows.

First, and most importantly, the legislation creating SIAC provides a mechanism by which both SIAC and a person working on behalf of the appellant—called a "special advocate"—can have full access to the security information which the Secretary of State has seen and relied on in forming his view about the national threat posed by the appellant. That is something that is not possible under traditional judicial review.

Secondly, the membership of SIAC includes a High Court judge to give it the appropriate judicial standing. It also has a senior immigration judge and a lay member. It thus brings a range of relevant expertise to bear on any case.

Thirdly, the Bill provides that when hearing an appeal or review, SIAC will be required to take account of all relevant information, including information which comes to light after the date of the Secretary of State's decision. This ability to take account of new information does not apply to judicial review.

For all the above reasons we have consistently argued that SIAC is a more than adequate body to determine matters under Part 4. And since there is an existing route of challenge to SIAC's decisions on a point of law to the Court of Appeal and to the House of Lords, we have argued that those existing routes of challenge should be used for SIAC's decisions under the Bill.

As is clear from what I have said on previous occasions, I believe that there are, therefore, powerful arguments in support of our position that providing for traditional judicial review of decisions of SIAC would bring no benefits. I indicated my view that it would simply cause confusion as well as adding costs and delay for no good reason. So I am convinced that the policy intention reflected in the Bill as originally drafted was correct—that is, to confine legal challenges to a tried and tested bespoke system of justice which SIAC and the higher Appeal Courts provide. However, I accept that we should do more in the Bill, as we have in debate, to emphasise why this is the case.

That is what the amendments in lieu do. They have been devised following discussions that we have had with the noble and learned Lord, Lord Donaldson of Lymington—for whose assistance I want to express my thanks—and some discussions with the noble and learned Lord, Lord Mayhew of Twysden.

Under these amendments, the routes for judicial challenge of decisions under Part 4 would be channelled in the same way as set out in the Bill as introduced to Parliament, but in addition the amendments make SIAC a superior court of record. The title of "superior court of record" has previously been bestowed on certain bodies, such as the National Industrial Relations Council and the Employment Appeal Tribunal. Having that status means that the decisions of such a body are a matter of public record and they are binding on any inferior courts. In those respects it puts them on a par with the Administrative Court.

Noble Lords will recall that when I last dealt with this matter, I indicated that by virtue of agreement between the Lord Chancellor and the Lord Chief Justice the judges who would be able to hear SIAC cases would be the same judges as those who sit in the Administrative Court—indeed all of them. That puts SIAC on a par with the Administrative Court.

Given the high quality of membership of SIAC, which includes a High Court judge, it is entirely right that SIAC should be conferred with that status as well. It helps to underline the point that a traditional judicial review of decisions of SIAC would simply be inappropriate. It would be a case of one High Court judge sitting in judgment on a body which has three members, including a High Court judge from exactly the same court. I suggest that what is important is that if there is to be an appeal it should be to more senior judges who sit in the Court of Appeal.

The amendments in lieu also describe what we are doing in more accurate terms. It states the manner in which decisions may be challenged—namely, a decision of the Secretary of State may be challenged only in SIAC, and a decision of SIAC may be challenged only by an appeal to the Court of Appeal—rather than referring to the exclusion of legal proceedings. The Bill does not exclude legal proceedings; it does not exclude judicial scrutiny. It sets out where the judicial scrutiny is to take place. I accept that it may be that the terminology previously used in the Bill has confused the picture, so we are grateful for suggestions on how to put that right and to make the position clearer.

I hope that your Lordships will find these amendments to be an acceptable response to the concerns expressed in earlier debates in this House, and will adopt them on that basis.

Moved, That the House do agree with the Commons in their Amendment No. 22A.—[Lord Goldsmith.]

moved, as an amendment to Commons Amendment No. 22A, Amendment No. 22AA:

222A At end insert—

"(5) Rules made under section 5 shall make provision for access to such advice, assistance and representation (including the provision of translation and interpretation services) as the interests of justice requires in connection with proceeding before the Commission, to be funded as part of the Criminal Defence Service established by the Access to Justice Act 1999 (c. 22)."

The noble Lord said: My Lords, in moving Amendment No. 22AA, I shall speak also to government Amendments Nos. 22A and 22B to 22F.

Amendment No. 22AA has been tabled largely for reassurance. I hope and indeed expect that the Attorney-General will confirm that legal aid and interpretation services will be made available to detainees on appeals and reviews before SIAC and on subsequent appeals.

The matter of substance is what is in the government amendments. A week ago today, your Lordships' House, by a large majority, which included several Members of the Government Benches, rejected the government proposals that were to exclude the right of detainees to apply to the High Court for judicial review of decisions of the Home Secretary and SIAC itself under Part 4 of the Bill. Now the Government have put forward a new amendment that makes SIAC a superior court of record, but continues in effect to exclude judicial review.

I believe that these amendments are mere window-dressing. The distinction between courts of record and other courts is obscure. It seems to me that historically courts of record were those whose orders were inscribed on parchment after they had been made. At present the only effective difference is that courts of record can sentence people for contempt and other courts cannot.

The effect of being a superior court of record, as opposed to a mere court of record, is a little more significant. The law recognises the principle that one superior court of record cannot review the acts of another. By making SIAC a superior court of record, the powers of the High Court to review its activities are necessarily excluded. The provisions of Amendment No. 22B, relating to the questioning of the actions of the Secretary of State only in proceedings before SIAC or on appeal from SIAC, therefore are superfluous because that is the automatic effect of making SIAC a superior court of record.

Amendment No. 22C declares that the derogation matters are the exclusive reserve of SIAC and cannot be questioned by judicial review. Therefore, it restores in that respect the exclusion of judicial review. In the real world the government amendments contain nothing that improves the position of the Bill as it was when it first came to your Lordships' House. Yesterday in the other place the Home Secretary was asked by Mr Robert Marshall-Andrews what was the point of making SIAC a court of record. He replied:

"It establishes … the position, the status and the record, which can be carried forward".—[Official Report, Commons, 12/12/01; col. 919.]

I regard that as a fairly accurate summary of the effect of Amendment No. 22A in that it is essentially meaningless.

In fact, it makes matters a little worse because the effect of Amendment No. 22A is to exclude judicial review, not only from proceedings under this Bill, but also from the existing jurisdiction of SIAC. SIAC will be a superior court of record for the whole of its jurisdiction, which, as already explained, will prevent a review of its decisions by the High Court, whether they are in reference to its existing jurisdiction or to its new jurisdiction under this Bill.

I shall not go into the reasons why judicial review should be retained. Last Thursday they were fully argued, notably by the noble and learned Lords, Lord Mayhew of Twysden and Lord Donaldson of Lymington. Those arguments persuaded your Lordships to vote to retain judicial review over the proceedings of SIAC. I believe that there is no reason to go through those arguments again because they have not changed. Nothing in this amendment represents a real concession or changes the force of the argument that your Lordships heard a week ago. I regret that the noble and learned Lords, Lord Mayhew and Lord Donaldson, and the Conservative Front Bench have accepted what I believe is an entirely illusory olive branch offered to them by the Government. I beg to move.

Moved, as an amendment to Commons Amendment No. 22A, Amendment No. 22AA.—(Lord Goodlicirt.)

My Lords, the original Question was that this House do agree with the Commons in their Amendment No. 22A inserted into the Bill in place of words left out of the Bill by Amendment Nos. 21 and 22 to which the Commons have agreed. Since when an amendment has been moved to insert the words as printed. The Question is that Amendment No. 22AA be agreed to.

My Lords, what appears to be so daft about these procedures is that they apply only to people who come to this country without a right of abode and without any right of entry. So these provisions do not apply to citizens of the Irish Republic, nor do they apply to citizens of other countries who have a right of abode in this country. That means that if any such persons are suspected of being terrorists they will not be dealt with under this immigration procedure; the only way in which they can be dealt with is through the normal court procedures of charge and trial.

As secret information will be involved, the usual procedures that take place in courts will be employed; namely, that public interest immunity will be claimed; that the proceedings will be held in camera; and that there will be screens or methods, such as videos, employed to ensure that the identity of witnesses who give evidence is not known. That will happen with anybody except that limited class of people who are in this country but who have no right of abode here.

The procedures distort the SIAC system, which was brought into being for the purposes of immigration, not for the purposes of detention without trial and the apprehension of terrorists. That is what is wrong with them. Because of that distortion, we have the ridiculous situation of the commission being bumped up to be a court of record, equivalent to the High Court, thereby preventing judicial review by a mere piece of window dressing. I respectfully submit that the provisions are a disgrace.

My Lords, in a sense I have to declare an interest in the amendments because the noble and learned Lord the Attorney-General was kind enough to engage in wide ranging and long discussions on the problem that had arisen. As I saw it, the problem was that unless we could do something new, we were faced with a highly damaging conflict between the two Houses. If that conflict was necessary, we would have it, but it should be avoided if possible.

As I understand it, the background is that each House was convinced that its approach to the problem was the only way forward and that, if only the other House properly understood what it was at, it would realise that the proposals met all its legitimate aims. Neither House was prepared to compromise because any compromise, by the nature of all compromises, would involve one or both Houses giving up some aspects of the matter which they regarded as of fundamental importance.

Something different was needed—I call it an accommodation, although that may not be the right word—whereby the whole matter was re-jigged in a form that met the full requirements of both Houses.

To explain that a little more, let me outline briefly the attitude of the two Houses. This House was strongly of the opinion that there could be no ouster of the judicial review jurisdiction of the High Court, which is and has been for centuries the ultimate constitutional safeguard against the abuse of power by those in authority. It was certainly not acceptable that, for the first time in history, judicial powers of review should be conferred on a court of inferior jurisdiction. I do not use the word inferior" in any pejorative sense—I am merely referring to a court that is not a superior court of record.

Secondly, this House thought that that refusal did not conflict with the Government's aim of retaining the involvement of SIAC if the actions of the Secretary of State were called into question. If the actions of SIAC were called into question. the High Court would, without doubt, have used the special procedures contained in the 1997 Act to safeguard the interests of the security services arid of national security.

My Lords—

My Lords, the noble and learned Lord should not get too excited. I am describing the view of the House, not his view. If SIAC overstepped the mark, it could and would be dealt with using special procedures by the High Court.

The Government's approach was different. I pardon the infelicity of what they were saying, but their approach was that no court other than SIAC could be relied on to preserve the secrecy of intelligence material provided by the security services if it became concerned with issues other than law. Secondly, they expressed the view that SIAC must be free from all supervision by the High Court, and therefore judicial review must be ousted. That relates to the security issue; the Government were not merely favouring SIAC. The Government's final point was that any other approach could cost lives. It may not be likely, but it could happen.

Against those two conflicting approaches, the noble and learned Lord the Attorney-General and I looked to see what building blocks were available to produce an accommodation. First, there was the building block that no superior court of record can be judicially reviewed. I add anecdotally that the late Mr Justice Megarry was minded to do that when I was president of the National Industrial Relations Court. I rang him up and pointed out that the issue was rather important and he could not do it. He fully accepted that.

Secondly, the High Court is not the only superior court of record. The noble and learned Lord the Attorney-General has mentioned the NIRC and the Employment Appeals Tribunal. I think that I am right in saying that he could also have mentioned the Restrictive Practices Court.

The question then arose: why not make SIAC a superior court of record? Like the High Court, it would be subject to all rulings, in all respects of any jurisdiction that it was exercising, by the Court of Appeal. The High Court, in its ordinary jurisdiction makes rulings that the Court of Appeal can look into and overrule. There is no problem with that. So why not make SIAC a superior court of record? I should not like that to happen on a wide scale. It is an exceptional action, but it is justifiable in this case because of its similarity to the administrative division of the High Court. After all, by arrangements of which we were told earlier, it will always be presided over by not only a High Court judge, but a specialist judge appointed to the administrative court who is skilled in and familiar with judicial review.

It has to be said straightaway that a superior court of record does not automatically achieve judicial review jurisdiction, still less does it become part of the High Court, as I heard suggested on a televised programme of the proceedings of the other place.

The next building block is to confer a limited—I stress that word—judicial review jurisdiction on SIAC in order that it might exercise that jurisdiction in respect of the Secretary of State or anybody else who was concerned. That produces concurrent jurisdiction between the High Court and SIAC.

Given that situation, I see no reason why Parliament should not express the view that, of the two concurrent jurisdictions, one should be concerned with SIAC matters. That is what has been done.

Using those building blocks, we arrive at the situation in which SIAC shall be a superior court of record, given both an appellate and a judicial review jurisdiction. As between SIAC and the High Court, SIAC shall deal with matters arising within its own sphere, as judged by its constitution and the Acts relating to it. SIAC shall be answerable to the Court of Appeal under Section 7 of its own special Act and, in relation to derogation, under Section 31(6)(a) of this Act. That seems to meet the requirements of both Houses without either House having to surrender its strongly held view.

I should mention one other matter. There was some criticism in the other place about the fact that SIAC's appellate jurisdiction would he limited to questions of law. However, as all questions of judicial review on appeal involve questions of law, there will be an unfettered right of appeal in that respect. As for true fact. in my view—although perhaps not in the view of some litigants—one of the glories of the English law is that the idea of a question of law is extremely elastic. For a start, it includes the question of whether there is no evidence of fact; and it may go rather further than that if there is, for example, only a scintilla of evidence.

Your Lordships see where the courts would be going if they thought that there was an injustice that they were being prevented from righting. I have no problem with that.

There is another reason why I have no problem with the proposals. Although I have not done the research that I should perhaps have done, experience teaches me that, when it is a second appeal, there are a number of statutory provisions that limit rights of appeal to questions of law. In this case, the Secretary of State will make what is essentially the original trial decision, after which there may be an appeal to SIAC. The appeal from SIAC to the Court of Appeal is a second appeal. There is nothing very remarkable about that.

I hope that the accommodation approach that I have just outlined will also help to address the point which was raised on Report by the noble Lord, Lord Lester, on satisfying the European Court of Human Rights, and the Council of Europe if it is involved, that we are not departing unnecessarily from the principles that it seeks to support.

Finally, I hope that I shall be acquitted of being a window dresser. I have never been very good at it.

My Lords, on the last occasion when this matter was debated by this House, I agreed with the noble and learned Lord, Lord Donaldson, and I took the view that the Government should make material concessions. I believe that they have done so. I thank those who were responsible for achieving that. It is not the first time that I have agreed with the noble and learned Lord. He has the misfortune of knowing that I agree with him also on this occasion.

I think that it would be churlish not to thank the Home Secretary for listening very carefully to what we had to say. It is not that we want to score a success against the Government. I am concerned about the state of the law, and I know that the noble and learned Lord, Lord Donaldson—who speaks from a rather superior position—is concerned about that too. I thought that there was a terrible anomaly in the current position. I therefore end where I began, by thanking the Government for carefully taking note of what was said in this Chamber and acting accordingly.

My Lords, I think that the whole House will be grateful for that expression of helpful opinion by the noble Lord, Lord Clinton-Davis, who spoke very passionately a few days ago on Report. I think that the whole House will also think, as I do. that it was very helpful of the noble and learned Lord, Lord Donaldson, to try so constructively to find an accommodation. I supported him while he was engaged in the process and I am very glad to support him now, for whatever value that may have.

I am also extremely glad that, in consequence, the Government have moved on the issue of judicial review. The question is whether, in their own amendments which were passed last night in another place, they have moved far enough to satisfy the declared objections to former Clauses 30 and 31, which this House removed a few days ago.

What were those objections? I can summarise them very briefly. First, SIAC was not a court but a commission. Secondly, as a commission, it did not have all the power that the High Court would usually have to submit a certification by the Home Secretary or a derogation to judicial review; on one view, it had no power to do that. Thirdly, any irregularity in the commission's procedures could not on complaint be subjected to judicial review, as it could not review itself. Fourthly, to oust judicial review from the exercise of any authority's power that is usually susceptible to judicial review was a bad precedent to set ourselves, and one that was all too likely to be followed in future. Finally, the defence of the country in the present emergency revealed no need for such provision.

How do these amendments measure up? Your Lordships have a very heavy time ahead of you today and tonight, and I do not think that it is your Lordships' wish that I should seek to improve on what has been said by the proposal's principal author and progenitor, the learned and noble Lord, Lord Donaldson. I am very content to adopt, with respect, his comments on his building blocks and the accommodation that they achieve. It was a very helpful intervention and I shall not seek to diminish its beneficial effect by delaying your Lordships.

My Lords, the noble and learned Lord, Lord Donaldson, was kind enough to mention my previous comments. The Attorney-General and the House will know that I have consistently said that I am in favour of the Special Immigration Appeals Commission as an independent and impartial tribunal established by law. I have also taken the position, which I believe is the position in law, that the Special Immigration Appeals Commission is bound by the Human Rights Act 1998 to ensure a fair procedure under Article 6 of the convention, as is the Court of Appeal.

It seems that the Home Secretary made a very important statement yesterday evening, but I should like the Attorney-General's confirmation—although I see that his mind is on another matter—that those comments represent the Government's position. The Home Secretary said:

"SIAC as a superior court of record and administrative court … will provide the equivalent of judicial review"—[Official Report, Commons. 12/12/01; col. 919]

Does that mean that SIAC will have all the powers that are held by a normal judicial review court? As I understand it, it was on that basis that the Home Secretary went on to say that Law Lords and "ex-Law Lords"—which I take to be a reference to the noble and learned Lord, Lord Donaldson—were and are satisfied with the proposal.

If it is correct that the Government accept that SIAC—which should be renamed a special immigration appeal tribunal, because that is what it is—is to have all the powers of a judicial review court, and given the Human Rights Act and all its consequences, the position has changed profoundly.

As my noble friend Lord Goodhart indicated, in one respect the amendment now before us removes normal judicial review further than when we last considered the matter. It now applies to deportation orders under the 1997 Act as well as detention and certification. I understand why: it is to produce consistency which would otherwise not be there.

I shall be grateful, therefore, if the Attorney-General will confirm that what the Home Secretary states and what the noble and learned Lord, Lord Donaldson, understands to be the position, really is the position. That will make a considerable difference to my attitude to these matters.

Finally, if my noble friend will forgive me, it follows from what I say that I do not now agree—nor have I agreed during these debates—with what my noble friend Lord Thomas of Gresford said. We look at this through different eyes, perhaps because of our previous legal background. But as a public lawyer I am not as affronted as he is by SIAC; on the contrary.

My Lords, first, I echo what was said by my noble friend Lord Clinton-Davis. I thank the Attorney-General and the Minister for riot only listening to the voices throughout this Chamber on judicial review, but also for listening to the voices in the other place. And not simply listening, but also finding a way in which to respond.

Secondly, I hope noble Lords on the Liberal Democrat Benches will think carefully about this matter. The accommodation explained by the noble and learned Lord, Lord Donaldson of Lymington, means that no one loses in either this place or the other place. It is an accommodation and an honourable accommodation. The Government should be thanked for it.

My Lords, speaking from the Liberal Democrat Benches, but for the moment only for myself, I respect the principle of accommodation and I respect the need for it. The question is how far 'the accommodation will be effective.

When I spoke on this issue at Second Reading and in Committee, I had two specific concerns. One was that just expressed by the noble and learned Lord, Lord Mayhew of Twysden: that if we had an ouster of judicial review in one place, we would soon get a precedent which would be regularly repeated; in fact the Government would have set up a young lady of Spain, ready to do it not once, but again, and again and again.

On that we may possibly regard what happened as a draw, which is an honourable result. But the trouble with draws is that they tend to be followed by replays. If, when the noble and learned Lord the Attorney-General replies, he can give us an assurance that this particular draw is one that is not expected to be followed by a replay, I would find that extremely helpful.

My other anxiety, to which the Attorney-General has not yet fully given his mind, is the restrictive nature of the appeal allowed under SIAC procedure as limited by Clause 34(3) of the original Bill—the strict confining of the appeal to the matter of certification; the inability to look at the asylum claim in the round. I noticed in today's The Tunes Mr Ruud Lubbers, of the UN High Commission for Refugees, expressed considerable concern about the growing climate of hostility to asylum seekers throughout the world. That is something of which this country cannot be innocent. So to set up an appeal system which is not able to examine the asylum claim and is therefore unable to examine the proportionality of the certificate, may restrict justice.

I hope that the Attorney-General can tell me, before anyone has to take a decision, whether that elevation of the status of SIAC empowers it to consider material facts other than those in the certificate. I know he will say that it concerns only people who have no right to be in this country. But this is the most unreliable part of the whole of the decision-making machinery of the British Government—and that is saying something. So decisions taken about asylum should not be taken without the possibility of review, and the circumstances which give rise to the asylum claim should be looked at at the same time as the circumstances which give rise to the certificate. What conclusion that should lead to in any specific case one cannot say. But if the noble and learned Lord were able to help me on that point, I would find that very material and be extremely grateful.

My Lords, To show particular restraint as to one aspect of this Bill does not involve any lack of resolve in supporting its general objectives. The specific restraint shown by the Government on this occasion is to preserve what many lawyers will feel to be the need for the rule of law in every aspect of national life, including security.

During the course of these debates noble Lords have shown considerable patience and understanding towards lawyers. I shall continue to show that patience towards my learned friends on the Liberal Benches, but not I am afraid on this occasion any understanding. This change in the Bill is welcome for three reasons, which go beyond the rather technical analysis—important though that is—that we have—heard thus far.

The first is that judicial review, as the noble and learned Lord, Lord Donaldson, said, is the ultimate constitutional safeguard between the people and the state and should always be so. That is for our nation. Secondly, by the end of this year or early next year all member nations of the United Nations will report to the Security Council on the steps that they have taken to combat terrorism. This Bill will be looked at as an exemplar for other countries to copy. It is essential that those countries see in it and recognise the value of judicial review as a constitutional and justice safeguard in their systems.

I cannot emphasise that too much. Travelling the world as we lawyers do, we see that it is to this country that countries look to produce just law. This Bill, when it becomes an Act, will be pored over by countries throughout the world.

The last reason why this matter is important beyond the current debate is that it gives protection. In the Second World War, in the United States, noble Lords will remember the internment of any Japanese citizens of America who were Japanese by ancestry rather than by birth. The Supreme Court upheld the internment. But many years later they were given justice. I should like to read a sentence from the judge who acknowledged what had gone wrong. He said,

"This case stands as a caution that in times of distress and international hostility and antagonisms, the shield of military necessity and national security must not be used to protect governmental action from close scrutiny and accountability [at all times]".

This amendment preserves that accountability. For those three reasons I commend the government amendments. Of course it is important for both our Houses to get this Bill through. That is the administrative task. But it is a much greater aspiration that it produces good law. These amendments help that aspiration.

My Lords, I shall be extremely brief. On behalf of Her Majesty's Official Opposition, I am grateful to the noble and learned Lord the Attorney-General for clarifying the position and for bringing forward their Amendment No. 22A. I am also extremely grateful to the noble and learned Lord, Lord Donaldson of Lymington, and my noble and learned friend Lord Mayhew of Twysden for assisting the Government in developing consensus on this difficult and important matter.

Also, I agree with the noble and learned Lord, Lord Donaldson of Lymington, that we view this approach as an exceptional action and one that we would not wish to entertain other than on that basis. It gives me pleasure to support the government amendment.

My Lords, I shall deal first with Amendment No. 22AA in the name of the noble Lord, Lord Goodhart, which is an amendment to my Amendment No. 22A. That amendment seeks to put into the Bill particular words relating to legal assistance. Section 5 of the Special Immigration Appeals Commission Act 1997 already provides that,

"Rules under this section shall provide that an appellant has the right to be legally represented in any proceedings before the Commission or an appeal under section 2".

So there is no difficulty. The right to legal advice and assistance is already there.

This Bill also provides that Section 81 of the Immigration and Asylum Act 1999, which relates to grants to voluntary organisations to assist persons who have rights of appeal under that Act, shall be treated as including a reference to suspected international terrorists. The Bill also provides that SIAC may adopt the rules as it considers necessary. I have referred to that before. Therefore, I can assure the noble Lord that a detained individual will have adequate access to legal advice. I can further assure him that adequate arrangements will be made to ensure that the detained individual is fully aware of the disclosable case against him, as indeed is the case in other immigration-related appeals.

I turn to the specific reference that the noble Lord proposes as regards the criminal defence service. I suggest that that is an inappropriate proposed reference for this reason. The Access to Justice Act 1999 identifies the purpose of the criminal defence service as securing that individuals involved in criminal investigations or criminal proceedings have access to such advice, assistance and representation of their interests. Criminal proceedings are defined in the Act and would not include the SIAC proceedings.

The power to fund the criminal defence service rests not with my right honourable friend the Home Secretary, but with the noble and learned Lord The Lord Chancellor. I hope that the assurances that I have been able to give will at least satisfy the noble Lord as to the substance of his proposed amendment. It does not appear to us that there is need for any of it to appear on the face of the Bill.

I turn briefly to Amendment No. 22A. I may have misunderstood the noble Earl, Lord Russell. There is no question of a replay in the sense of another place disagreeing with this amendment because it has already been accepted there and brought forward to us. If the amendment is now accepted, that is the end of the matter.

I am very grateful to those noble Lords who spoke in this debate, particularly my noble friends Lord Clinton-Davis, Lord Corbett and Lord Brennan. I acknowledge their remarks and thanks to my right honourable friend the Home Secretary. I have already given—but I do so again—my thanks to the noble and learned Lord, Lord Donaldson of Lymington. He has clearly explained why this is a justifiable amendment to make and why it is a sensible way of achieving the ends that both Houses want.

I come now to the dissenting voices of the noble Lords, Lord Goodhart and Lord Thomas of Gresford. The noble Lord, Lord Lester, said that he did not agree with the noble Lord, Lord Thomas of Gresford. I have not agreed with the noble Lord, Lord Thomas of Gresford, throughout the debate on this clause. He has consistently taken the view that it is somehow possible to use the public interest immunity route in order to deal with the problem. I have consistently said that that is not a way for getting the matter before the court.

My Lords, is not that the way in which people who have a right of abode in this country or citizens of the Irish Republic will have to be dealt with because they will not come under this procedure?

My Lords, this procedure does not apply to them, so the issue does not arise. There is no point in continuing the debate with the noble Lord, Lord Thomas of Gresford, because we will continue to disagree. I am grateful that the noble Lord, Lord Lester, has made clear his agreement, as he has done previously, with the fundamental position that SIAC is appropriate.

My Lords, will the Attorney-General deal with the specific question that I put to him, which will determine my attitude? Is there any difference between what is now proposed and judicial review?

My Lords, the noble Lord must he patient. I am coming to that. The noble Lord, Lord Goodhart, described it as window dressing and not of the real world. The real world is the one that we were in where it was recognised by noble Lords in this House, with very few exceptions, that separate judicial review was important for one reason only, and that is the symbolism and precedent that it would give rise to. The noble and learned Lord, Lord Mayhew of Twysden, and others have spoken of how that precedent is not there. I never thought that there was an issue. I always believed that we were sending a clear message that there was to be judicial scrutiny of these decisions, but I was in a minority on that matter. I am grateful to noble Lords who have made the point. I make it very clear that no precedent is being set. There is no statement by this country that we are against judicial scrutiny, but quite the opposite. We are saying that these decisions, difficult and sensitive though they are, will be subject to full review by a body which is a superior court of record.

I turn now to the point made by the noble Lord, Lord Lester of Herne Hill. I have also said in the past that I could not see areas where something could be done under judicial review which could not be done by SIAC. I invited noble Lords to point out where I was wrong. That remains my position. I believe that SIAC will be able to take everything into account which would have been considered on judicial review and more. I have made the point before that SIAC will be looking at the situation at the date of the hearing and not simply at the date of the certificate. Therefore, it is not simply a case, as the noble Earl, Lord Russell, asked, about looking at the grounds in the certificate because SIAC is entitled to take account of matters which have taken place subsequently. Given that and the fact that there is a clear right of appeal to the Court of Appeal on a question of law, I hope that I have adequately confirmed that there is nothing that could be done on judicial review by way of dealing with the certificate of the Secretary of State that SIAC would be unable to do.

My Lords, as regards our own amendment, I am happy to accept what the noble and learned Lord, the Attorney-General, has said. We shall not press it. Turning to the substantive amendment and the group of Government amendments, we are not persuaded by what the noble and learned Lord has said. I am interested and somewhat surprised to note that the Conservative Front Bench in the other place abstained on the vote last night and it is now proposing to vote with the Government. In that case we do not see any point in seeking to divide the House, but the fact that we will not do so is not to be taken as representing any agreement by us to the proposals which have been put forward. I beg leave to withdraw Amendment No. 22AA.

My Lords, I beg to move that the House do agree with the Commons in their consequential amendments, Amendments Nos. 22B to 22F.

Moved, That this House do agree with the Commons in their consequential amendments, Amendments Nos. 22B to 22F.—(Lord Goldsmith.)

My Lords, I beg to move that the House do not insist on their Amendment No. 23, to which the Commons have disagreed, and do agree with the Commons in their Amendment No. 23A to the words so restored to the Bill.

We return to the issue of expanding the existing law on incitement to racial hatred to cover incitement to religious hatred. Noble Lords will recall that this House voted to remove Clause 39 from the Bill and the Commons have disagreed with that amendment and agreed an amendment to restore Clause 39 as amended by the government amendment regarding guidance.

The Government remain convinced that it is necessary to extend the law to cover incitement to religious hatred. We believe that it is necessary to do that now to ensure that those who have sought to stir up racial hatred, exploiting the tension since September 11th, are not allowed to do so. We believe that it is time to end the anomaly under which some religious groups are covered by incitement to hatred provisions when others are not. We believe that the clauses proposed by the Government are the right way to create these offences because they build on the tried and tested—and not abused—incitement to racial hatred offence. We believe that it is time for this House to send the message that it does not condone this kind of vile hatred.

I shall turn in a moment to the question of guidance. Today I have placed in the Printed Paper Office draft guidance which I intend to publish, with the agreement of the Director of Public Prosecutions, as soon as this clause passes into law. Before I discuss that matter, I shall deal with the following point. We do not accept that this conduct can simply be dealt with under the law relating to other offences. Of course, some cases, depending on the facts, will involve conduct which could amount to incitement to religious hatred but could also amount to another offence. The choice of charge will be for the prosecutor. However, there is a gap. Public order and harassment offences in particular, such as using threatening or abusive or insulting words or behaviour towards another person with intent to cause that person to believe that immediate violence will be used against him, or with intent to provoke immediate violence, require conduct which is directed at a specific individual—that was the point I sought to make the other day—and, therefore, do not bite on the general distribution of literature such as on a website or by leaflets which are distributed.

It has been said that the ingredients of the offence would not criminalise legitimate freedom of expression; that is, criticism, even robust criticism, of religion or religious discussion and debate. The criminal threshold has not been abused in the Companion incitement to racial hatred cases, and it would not be for religious hatred. In order to provide some further reassurance on that, I agreed to provide guidance.

Before I turn to the guidance I make two specific preliminary points. First, the guidance is intended to clarify factors which I would consider when exercising the power that I have under statute to consent, or to decline to consent, to a prosecution under Part 3 of the Public Order Act 1986. That is an existing power to consent which applies at the moment to the offence of racial hatred as it does to a number of other offences. The intention has always been that if the offence of incitement to religious hatred were included, it would be subject to the same regime; that is, a regime where there would have to be consent by the Attorney-General. But—this is important—the guidance does not alter the ingredients of the offence. It is not within my power to alter the ingredients of the offence. That is important as it was suggested in another place that this was an administrative power which allowed the Attorney-General to determine or change the law. 'The power already exists for me to consent to prosecutions. The guidance clarifies what factors I would normally consider when making that decision. However, I certainly cannot make anything criminal which is not criminal under the statute as passed by Parliament—if it is—and as interpreted by the courts.

The second important preliminary observation is one that I hope noble Lords will readily recognise. I also hope that noble Lords will readily recognise that as a prosecutor, with a responsibility to prosecute in the public interest, I cannot make sweeping or categorical statements that might apply to circumstances I cannot presently envisage. That would fetter a discretion in a way that noble Lords would not expect that any Attorney-General would want to do. The difficulty is that there is always a possibility of something that one cannot envisage at the moment occurring in the future. In looking at the guidance which I have produced in draft, I hope that noble Lords will recognise that point and kindly bear it in mind. Notwithstanding that, I hope that noble Lords will still find the draft guidance helpful and will agree that it meets at least the particular concern which has been expressed; namely, that this offence might somehow be used to stifle legitimate expression of religious belief or even criticism of religious belief.

First, the guidance sets out the procedures. It emphasises that any decision for consent would be a decision taken personally by the Attorney-General, or, in certain cases, by my deputy, the Solicitor-General. It refers to police investigations and the necessity for specialist prosecutors to be involved from the CPS central facilities. It identifies the necessary ingredients of the offence, each of which would have to be proved in order for a prosecution to succeed, and each of which must, therefore, be considered. It makes the important point, in accordance with general practice, that no prosecution would be brought unless there was a realistic prospect of conviction; that is, that the evidential test is satisfied, and also that, in my opinion, it is in the public interest to prosecute. Both those matters have to be satisfied. It seeks to give some guidance on some of the elements. I refer, for example, to hatred, which is an important ingredient. The guidance states in paragraph 5.4:

"'Hatred' is a strong word and, as a matter of common sense, it is likely to be held by the courts to mean something stronger than dislike, contempt or ridicule".

The guidance also deals with the matter to which I referred earlier in relation to legitimate expression. Paragraph 5.12 states:

"Given the high threshold tests set by these offences it is not easy to foresee circumstances in which legitimate methods of religious debate will justify a prosecution. So, expressions of, or indeed criticism of, one's own or another's religious beliefs or practices, even when robustly expressed, or satirising or poking fun at or making comical representations of religion, people who are religious or who follow particular religions are unlikely to offend the statute. Legitimate expressions of religious belief which, taken within their context, time and the wider national and international arena, could not be construed as anything other than the expression of a religious tenet are, similarly, not likely to amount to an offence of incitement to religious hatred".

The guidance was produced in the hope that it would give further reassurance as regards the additional safeguard in the Act and as regards the ingredients being such that legitimate expression of religious belief, or criticism of others' religious belief, would not be criminalised.

Moved, That the House do not insist on their Amendment No. 23, to which the Commons have disagreed, and do agree with the Commons in their Amendment No. 23A to the words so restored to the Bill.—(Lord Goldsmith.)

5.30 p.m.

23B Lord Campbell of Alloway rose to move, as an amendment to the Motion that this House do not insist on their Amendment No. 23 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 23A in lieu thereof, leave out the words after "House" and insert "do insist on their Amendment No. 23".

The noble Lord said: My Lords, I move this amendment to reaffirm that, as was decided on Report, Clause 39, which seeks to criminalise incitement to religious hatred, be left out of the Bill.

On Report, I spoke only to Amendment No. 23A. The numbers are so confusing that I shall call that the Attorney-General's guidance amendment. It was heavily criticised by the noble and learned Lord, Lord Mackay of Clashfern, the noble Lord, Lord Neill of Bladen, myself and many other of your Lordships. No satisfactory answer appeared to be given at the time and on reading the Official Report, none materialised. There is no justification for such an unprecedented procedure.

When I moved the amendment to omit Clause 39 and it was carried, the Attorney-General's guidance amendment had not been divided upon. That was never divided upon because it could not exist if Clause 39, which it was proposed to amend, were left out of the Bill. It was the decision of the House by a substantial majority of members of all three main political parties and of Cross-Benchers—after a long, good-humoured and constructive debate—that Clause 39 be omitted.

It is not my intention to reopen that debate but I shall make three salient points. First, what is the hurry when the sense of the House was that there is a need for further comprehensive consultation and discussion?

What is the connection with terrorists in an antiterrorism Bill? What is wrong with the law as it stands, if it were enforced?

Secondly, there was a flood of opposition from all three monotheist religions; religious bodies including the Free Presbyterian Manse, eight Islamic institutions, the Christian Institute and Liberty. A veritable mountain of unsolicited correspondence expressed in one way or another the belief that Clause 39 could do more than harm than good, cause much unintended mischief and inhibit freedom of speech and religion.

The third salient point was made, inevitably, by the noble Earl, Lord Russell. I wholly agree that the proposed reach across, as the noble Earl termed it, to racial hatred is dangerous and ill conceived in a single statutory framework dealing with both racial and religious hatred. Religion is a matter of opinion and freedom of expression and belief could be compromised. In that context, the anomalies to which the Attorney-General just referred are not understood.

At the end of Report stage your Lordships—by excluding religious hatred offences and retaining religiously aggravated offences—devised a new structure to resolve the essence of the problem as identified by the right reverend Prelate the Bishop of Birmingham and accepted by the noble Lord, Lord Rooker, on 15th October. The right reverend Prelate said that in this country, Islam is generally perceived as an Asian religion. Therefore, attacks on Islam are used as a cover for incitement to religious hatred against people of Asian origin.

The House achieved a viable structure and on Third Reading, I sought in vain to persuade the Government to accept it. Such remains my respectful endeavour.

If the record of enforcement of racial hatred offences under extant law were to increase from the 47 cases over 15 years to which the right reverend Prelate the Bishop of Oxford referred, what would be the need for a new Bill? I beg to move.

Moved, as an amendment to the Motion that the House do not insist on their Amendment No. 23 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 23A in lieu thereof, leave out the words after "House" and insert "do insist on their Amendment No. 23".—(Lord Campbell of Alloway.)

My Lords, we return to a theme to which we have devoted considerable time. The House will be relieved to hear that I will be suitably brief.

There is a fundamental difference of opinion between noble Lords on these Benches, Liberal Democrats, Cross-Benchers and many government Members. Even in another place last night a considerable number—I can give the precise number if need be—voted against the inclusion of this clause in the Bill.

I am extremely grateful to the noble and learned Lord the Attorney-General for taking the trouble to ensure that a copy of the guidance notes—they relate to the provisions that would come into force if the proposal were agreed to—was available to all of us. However, the difficulty is that the guidance notes and the amendment do not address the fundamental division of view between us. That division of view is not about the content of the provisions or the way in which problems should be dealt with; it is about whether such provisions should be in the Bill at all.

I do not intend to repeat the ground that we have gone over so many times in that regard. This is a piece of emergency legislation; it is an anti-terror Bill with a few connotations added to it. The inclusion of religious hatred offences is not appropriate in a Bill of that sort. So far as I am concerned, that is the beginning and the end of the argument. The mills of this House grind slowly and they grind exceeding fine. That is superb in its way. I do not propose to waste more time on this matter—much time has already been spent on it. I simply say that we for our part will support my noble friend Lord Campbell of Alloway.

My Lords, we on this side of the House insist on the amendment that was considered on Report and which proposed leaving out Clause 39. It is for that reason that we support the amendment moved by the noble Lord, Lord Campbell of Alloway. There is a fundamental difference between what the Government are proposing and what we believe is the case. The amendment to the words proposed by the Commons does not meet our concern that provisions concerning incitement to religious hatred are inappropriate as part of the Anti-terrorism, Crime and Security Bill.

We were aware on Report that the Attorney-General intended to issue guidance on matters on which he will not issue proceedings on the ground that the conduct consists of the legitimate expression of belief. I am grateful to the noble and learned Lord for supplying such guidance but it makes little difference to the arguments that we advanced previously. The chances of him succeeding on the basis of the guidelines are very limited. It will make very little difference to the cases that come before the courts. I do not for a moment doubt the wisdom and the wise counsel of the noble and learned Lord, but I question whether his department is qualified to interpret cultural and religious beliefs that are held by the many diverse religions that are part of our multi-religious society in the United Kingdom.

If it is any consolation to the Government, I make it clear that we do not dispute the purpose behind the legislation. We would argue—the number of letters and telephone calls that most of us have received confirms this—that the matter requires detailed consideration and should take into account not only incitement but also matters involving religious discrimination. Creating new offences will never on its own protect members of racial or religious groups from violence and abuse.

I invite noble Lords to look at the record of incitement to racial hatred, which was cited by the noble Lord, Lord Campbell of Alloway. In the past 12 years, only 42 defendants have been successfully prosecuted, and in 1999 only three prosecutions succeeded. We kid ourselves if we believe that once the Bill is enacted, we will round up those who perpetrate religious hatred. Extremists have successfully circumvented the incitement to racial hatred legislation. Ask the police, the CPS and the legal profession—they will confirm that. In reality, the guidelines from the noble and learned Lord the Attorney-General are not going to solve the problem. So why the hurry?

I had a quick glance at the debate in the other place last night. Again, the arguments that were advanced by the Minister in the Commons were no different from those that were advanced on Report. Of course there have been attacks on the Muslim community since September 11th, but attacks have also been perpetrated against other racial and religious groups. I congratulate our police forces, which have adopted a high-profile presence and prevented many ugly situations. But what is stopping the Minister from using the Public Order Act or harassment legislation? I know that the noble and learned Lord dealt with that matter, but he has not given a satisfactory answer. That legislation is on the statute book and could deal with many of the situations that were referred to on Report.

Let me quote one of the noble and learned Lord's colleagues—Diane Abbott, who is the Labour MP for Hackney North and Stoke Newington. In an intervention in the other place, she said: "My hon. Friend"—that is, the Minister in the other place—

"has been challenged about what the clause is doing in a Bill on terrorism and up to now she has not given us a satisfactory response".

She went on to suggest the motivation in that regard. She said:

"The clause has been tacked on as a sop to certain sections of Muslim opinion that have long wanted such protection. It is an anomaly and it should not be in the Bill; wrong clause, wrong Bill. The Lords were right to strike it down".—[Official Report, Commons, 12/12/01; col. 934.]

I hope that we shall do so again.

We do not doubt that there are gaps in the legislation on ethnicity and religion. Equally, fundamental gaps exclude the Muslim community from discrimination on religious grounds. Events in Bradford, Burnley and Oldham have demonstrated why it is important to look at the subject in its totality; the Government should not simply pick and mix what suits them.

We insist on what we said previously in your Lordship's House. The Government would have our full support if such legislation were separate from the anti-terrorism legislation. A law is more effective if it commands the respect of all our citizens.

My Lords, it would not be very helpful if I rehearsed once more why I believe that all of the clauses in Part 5, including Clause 39, should remain in the Bill. I simply say that I believe that the outlawing of incitement to religious hatred should be a basic protection that is given to people of all faiths, particularly those in minority groups. The draft guidance, particularly paragraph 5.3, helpfully clarifies the offence.

Noble Lords have been patient on previous occasions in listening to my arguments; the majority vote then went the other way, as it might well do this evening. I hope that noble Lords will not support Amendment No. 23B. The noble Lord, Lord Campbell of Alloway, quoted my friend the right reverend Prelate the Bishop of Birmingham who suggested that an attack on Islam is an attack on Asian people. That may often be the case, but it is not always so. On Report, I referred to the way in which white racist groups were using attacks on Islam—and on Sikhs and Hindus—to divide minority ethnic communities. The perception of mainline Islamic leaders is that Islamophobia is a real factor in British society, and that it has intensified since September 11th.

Many noble Lords on all sides of the House argued that religious hatred and religious discrimination should be tackled thoroughly and tackled soon. I do not hide from noble Lords the fact that those mainline faith leaders—of all faiths—who have argued long and hard for many years for just such legislation will take some convincing of the fact that refusal to support the legislation on the basis that better legislation could be produced in future might not be a way in which to avoid dealing with a difficult and delicate issue. That issue will be of increasing importance in years to come. A bird in the hand is worth many promises of innumerable and beautiful birds in future bushes.

I hope that Part 5 of the Bill, in its entirety—

My Lords, in an earlier speech, the right reverend Prelate made those points and asserted that he speaks for what he calls mainline leaders of all faiths. I hope that since he made those assertions he has learnt from the leaders of a number of Christian Churches in Scotland that they profoundly disagree with him and do not believe that he has the right to claim such authority.

My Lords, the authority that I claim is simply my own. That applies to every Member of this House. The members of the House of Bishops may not agree with it, and that may be the case in relation to other noble Lords.

My Lords, my understanding is that this part of the legislation will not apply in Scotland.

My Lords, nevertheless this is a serious intervention and I wish to deal with the point. For the past 10 years I have represented the Church of England on the Inner Cities Religious Council. That council is a bridge body between the mainline Churches and main faiths in Britain and the Department of Environment, Food and Rural Affairs. I suggest that over those 10 years the people elected to those bodies have represented better than any other body the main feeling of the faiths in this country, including religious denominations. I am also the co-chair of the Inter Faith Network for Britain, including Scotland. We meet regularly with leaders from all the main faiths in this country. Before taking part in this debate, I checked with all those faith leaders to ensure that they thoroughly support the legislation before your Lordships' House. I said that in an earlier debate.

I hope that Part 5 of the Bill survives in its entirety, including Clause 39. I hope that tonight it survives the machinations of votes in this House and in the other place. If, however, at the end of the day the legislation on religiously aggravated offences alone remains as part of the Bill, that at least will be a modest gain and will provide something on which we may build in the years to come. However, I hope that Parliament will do better than that this evening and also preserve the outlawing of incitement to religious hatred.

Therefore, I shall vote against Amendment No. 23B, although I shall probably be in a minority. But noble Lords who intend to vote for it are honourable people who, I trust, will honour their words which have been placed on record during the various stages of the Bill. I trust that a new Bill concerning religious discrimination will be brought before your Lordships' House next year. There will indeed be support for such legislation, as promised by Conservative, Liberal Democrat, Labour and Cross Benches in this House.

My Lords, in relation to what the right reverend Prelate says, for the avoidance of doubt there is no promise of such a Bill. There is no prospect of any legislation on this issue in this Parliament. I must make that clear. Such a promise has not been made. It may have been implied in various speeches, but I can assure the right reverend Prelate that, so far as concerns the Government, there will no space for such legislation in this Parliament.

My Lords, that is helpful clarification. I believe that it intensifies my earlier expressed view that a bird in the hand is worth two promised birds in bushes. Voices from all sides of the House have indicated or anticipated that such a thought-out Bill would be introduced within the next 12 months or so if we did not deal with the issue this evening. I am not totally surprised that that may not be so. Therefore, we may have to wait many years before we ascertain the cash value of some of the promises of support that have been made for such a Bill. Certainly, tonight or in the future we on these Benches would wish to continue to play an active and constructive part in all such deliberations.

My Lords, whether a bird in the hand is worth more than two in the bush depends very much on what the bird does when it is in one's hand. The point that I want to make to the right reverend Prelate is that those of us who urge caution at this stage are not against legislation but we are against bad legislation. We were advised 48 hours ago, I believe, that we should repose our confidence in the guidelines that were to be brought out. I have them in my hand.

Your Lordships will remember the concern expressed that this legislation should not be used maliciously to persecute people who were evincing legitimate religious views and silencing them. We were told that the guidelines were a protection against that. Presumably the complaint by the person who wishes to harass the person making the genuine religious point is made to the police. In paragraph 3.1 of the guidelines we find that:

"Certain steps can be taken by the police, for example to investigate, to arrest and even to charge, without the need to obtain prior consent from the Attorney General".

Therefore, the guidelines give no protection whatever from that type of harassment.

I have had the guidelines in my hand only for four or five minutes. They cause me to remember that I was in the Home Office for three years during which time an intelligent section of the staff was busy making a permanent search for an interpretation and legal definition of the word "religion". They did so without success. I believe that that has persisted long since. In paragraph 5.6 we find that:

"Some have speculated whether particular named groups could be said to be defined by a religious belief".

I leave out some words. The paragraph then goes on to say that,

"a difficult decision may have to be taken by the Attorney General when deciding whether to grant consent. Such cases will have to he considered on their merits as and when they arise".

In other words, it will be subjective.

I wish to demonstrate only that there may be a myriad of points which we cannot possibly discover in the process we are now going through. That is what I am trying to say to the right reverend Prelate. I am not opposed to the protection that he wants to give, but I do not believe that this is necessarily or, indeed, likely to be the right means.

My final point is that we were given an emotive and touching example by the noble Lord, Lord Rooker, I believe at Report stage, of an unfortunate Muslim woman who had the horrific experience of being harassed on the grounds of her religion. But I find in paragraph 5.5 that,

"victims of the conduct, against whom the accused intends to stir up hatred or against whom hatred is likely to be stirred up, must be a group defined by their religious or lack of religious belief".

Therefore, it seems that here again there is a lacuna in a document which, if it were to be dealt with in Committee in this House, might emerge effective but, I submit, will not do so in the process in which we are engaged. I believe that we should remove this clause as proposed.

My Lords, I should have much more sympathy for the speech of the right reverend Prelate if, after the Law Commission recommended it many years ago, he and his colleagues had decided that the offence of blasphemy should be abolished. Had that been the position, it would have made it much easier to consider this offence.

My Lords, I thank the noble Lord for giving way. I made clear on Report that, if this legislation saw the statute book, we on these Benches would be more than ready to see the disappearance of the law on blasphemy.

My Lords, I am grateful to the right reverend Prelate. The difficulty about that is that the Minister indicated just now that he does not anticipate that there will be any further legislation in the foreseeable future.

That leads me to my second point. If there really were an emergency or a pressing need for this legislation in the context of anti-terrorism, one could be perfectly sure that the Government would bring forward legislation early after Christmas in order to deal with it. But that is not the position for the following main reason. In so far as we are dealing with victim-orientated crimes, the existing criminal law is more than adequate to cope, as I believe the Attorney-General recognises. Such crimes are covered by Sections 4 and 4A of the Public Order Act and various sections of the Protection from Harassment Act. As the noble Lord, Lord Campbell of Alloway, indicated, the addition of religiously aggravated hatred offences to this Bill will, in some cases, greatly increase, for example, the maximum period of imprisonment. Therefore, as I understand the position, it is only where there is a lack of an individual victim—the Attorney-General gave the leaflet example—that a gap in the criminal law arises.

The third point that I want to raise concerns the guidelines. We are grateful to the Attorney-General for burning the midnight oil and producing the guidelines. I am bound to say with great respect that they beg more questions than they answer. I want to mention two or three examples to begin with, having had them in my hand only for about quarter of an hour. First, the heading to the guidelines includes the words,

"The expression of … religious beliefs".

It does not deal, as it is meant to, with lack of religious beliefs. Secondly, it refers to the expression of "legitimate religious beliefs". For the life of me, I do not understand the difference between a legitimate religious belief and an illegitimate religious belief. Thirdly, it does not make clear in this context the right to freedom of expression guaranteed by Article 10 of the European Convention on Human Rights. The European Court has said over and again that freedom of expression protects not only the views with which most reasonable people will agree, but also those that shock, offend or disturb any section of society.

If one takes that as a guide, it gives a totally different impression from this document, which uses language which I am bound to say leaves more of a question mark in my mind about whether free speech would be effectively protected than otherwise. That is no criticism of the Attorney-General, who had the impossible task of trying to produce, in a hurry, guidance that will comply with Article 10 of the convention. With great respect, I do not believe that he has been able to do that. That is a further reason for wanting to abide by our previous decision.

My Lords, the views of my noble friend the Bishop of Southwark are highly respected among his colleagues within the Church of England, in other denominations and other faiths. However, not all members of the Church of England, other denominations or other faiths agree with everything he says. Nor would he expect them to. He said that we on these Benches are not under any kind of Whip. That is also true.

I agree with many of the comments he made tonight to your Lordships' House. However, listening to the debate and having read the earlier debates in Hansard, it seems to me that, although the intentions of the Government are genuine and well intended, the issues which surround these religious matters are of such sensitivity and complexity that they merit much more careful teasing out.

The Minister made the point that there may be no time in the present Session of Parliament for any such further legislation. Nevertheless, I agree with the noble Lord, Lord Elton: better that than for legislation to be rushed through. Although I hesitate to disagree with my colleague on these Benches on this issue, I feel I must vote against the Government.

My Lords, I do not want to prolong your Lordships' debate, and I do not speak often in your Lordships' House. However, in common with many people outside this House, I have found it frankly incredible that the noble Lord, Lord Campbell of Alloway, and Opposition spokesmen should suggest, or appear to suggest, that there may be no connection between incitement to religious hatred and terrorism. The purpose of banning incitement to religious hatred obviously is to afford protection for minority communities in this country, including the Islamic community. However, it is also a matter of fact that over the past decade and more, a number of extremely radical Islamic spokesmen, mainly clerics, have sought refuge in this country as asylum seekers. They have been granted political asylum, notwithstanding the fact—indeed, because of it—that they were wanted for terrorist offences, and still are, in Jordan, Egypt and Saudi Arabia. Those same spokesmen, who in some cases are avowed Al'Qaeda sympathisers, have used our hospitality to preach Holy War; to seek to raise finance for Holy War; and to recruit people for Holy War.

I find that state of affairs deeply disquieting, as do most people outside this House. So, clearly, do our colleagues in the other place. It is because I believe that there is a connection between incitement to religious hatred and terrorism that I intend to support the inclusion of Clause 39 in the Bill. I hope that others will also do so.

My Lords, I start by acknowledging that it is a good thing that the House has left in the Bill religiously aggravated offences, an extended definition of racial hatred and the extension of the penalty. I was the one who referred emotively on Report to the example of the young woman. The noble Lord, Lord Rooker, should not be accused of that. Unless your Lordships accepted, as they did, after I had made that point that there can be religiously aggravated offences, the additional feature of a religious element in that case could not have been taken into account in there being a new offence.

However, despite that, I remain of the view that there will be a gap in our protection for vulnerable parts of our community if we do not include incitement to religious hatred. I know the mood of the House. I shall deal briefly with the main points raised in the shortest of summaries. The noble Lord, Lord Campbell of Alloway, says that the guidance which I have provided is a strange precedent. I have tried to assist noble Lords and another place by indicating certain matters in relation to the offence. It is not a case of the law being set by the Attorney-General. I have made that extremely clear, as does the guidance.

Publishing guidance as to the basis upon which prosecutors will act is not unprecedented. What may be unusual is to include the reference in the Bill. However, again, I am unrepentant about that. Secondly, what is the hurry? The hurry is clear. There is a connection with September 11th. Anyone who has read the appendix to the report of the Select Committee on Home Affairs from another place will see a number of incidents—I referred to some on Report—which show that since September 11th attacks on particular parts of the community have increased. My noble friend the Minister indicates that the choice is now or certainly not soon in order to deal with this.

To argue that there are defects in the Bill without proposing changes undermines the argument that the Bill is wrong as it stands. There is a gap. The noble Lord, Lord Lester, was good enough to acknowledge that the sort of thing with which we cannot deal under existing public order offences which are victim orientated is offensive literature. I have seen some of that—noble Lords may have seen it—directed against particular groups, some on websites. If it is directed against Jews or Sikhs it is criminal. If it is directed against Muslims we cannot prosecute it as incitement to racial hatred.

My Lords, I thank the noble and learned Lord for giving way. The Minister indicated that this is Hobson's choice. It is a government decision not to bring forward legislation. However, as we have proved with the tobacco advertising Bill, there are other ways to bring legislation to this House. In answer to the right reverend Prelate we would bring forward legislation on these matters and defy the Government to frustrate it.

My Lords, I am grateful to the noble Lord for what he says. As noble Lords have rightly said, we have spent time on this provision. From our point of view we have spent time trying to explain why the offence as it stands, using exactly the same formula as for incitement to racial hatred, would not give rise to the problems to which some noble Lords have referred. I am of the view that those who have been concerned about the expression of one's own religious belief and criticism of someone else's religious belief should be—and I hope will be—reassured by what is said in this House and in the guidance. That was the reason.

At the end of the day noble Lords have a choice. I can do nothing better than remind noble Lords of what was said by the right reverend Prelate the Bishop of Southwark. He said that this is an opportunity to provide basic protection for all. The figures may well demonstrate that it will not be an offence which will be prosecuted every day or every week up and down the country. Noble Lords may think that that is a reassurance. It is an opportunity to give a clear message; to give a protection now; and to put a stop to the kind of pernicious message which can incite and result in attacks on the train or in any part of the community. Therefore, I hope that noble Lords will not support the amendment of the noble Lord, Lord Campbell of Alloway.

My Lords, I thank all noble Lords who have spoken on the amendment and, in particular, the right reverend Prelate the Bishop of Southwark. I want him to understand that I am most assuredly anxious not to cause him any offence at all. I simply say that when he says, "Oh, incitement to religious hatred is offensive, therefore criminalise it", that lacks logic. It lacks common sense. I wanted to say that without causing any offence. I am grateful to the other right reverend Prelate for his views, which set the scales more evenly balanced on the spiritual Benches.

On Report I called the Attorney-General's guidelines amendment a fudge. Having seen it, it is a meretricious fudge. It is an absolute nonsense. It is not of the slightest use to anyone. It states what one can pick up from any down town solicitor if one asked him where he would stand on the general principles of a prosecution. In the guidance, what is the nature of the conduct? Paragraph 5.3 states:

"A person does not commit an offence of incitement to religious hatred unless:

(1)) He uses threatening or abusive or insulting words or behaviour",

and so on. There is a packet of offences in the criminal law dealing with that. Then if one has the religiously aggravated situation, which your Lordships were good enough to forge on to the system, one has seven years.

What is wrong with that? Why do we have to fiddle around with an issue which, as the right reverend Prelate said, is enormously sensitive?

My Lords, the original Question was that the House do not insist on their Amendment No. 23 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 23A to the words so restored to the Bill. Since when an amendment has been moved to leave out the words after "House" and to insert "do insist on its Amendment No. 23" to which the Commons have disagreed. The Question is that this amendment be agreed to.

My Lords, before moving to the next amendment, I point out that we still have four important groups of amendments to the Bill to discuss. They all concern subjects that have been discussed in great detail during the eight days allocated to the Bill. We also have the Third Reading of the Office of Communications Bill, two important health orders and an Unstarred Question. We must also deal with the Commons Message. I need say no more—I hope that your Lordships have got the message.