Skip to main content

Coroners and Justice Bill

Volume 499: debated on Monday 9 November 2009

Consideration of Lords amendments

I draw the attention of the House to the fact that financial privilege is involved in amendments 12, 14, 28, 54, 66, 131, 145, 149, 150 and 185. If the House agrees to any of these amendments, I shall ensure that the appropriate entry is made in the Journal.

After Clause 5

Information for Requests

With this it will be convenient to discuss the following: Lords amendment 2, and Government motion to disagree.

Lords amendment 216, and Government motion to disagree, and amendments (a) and (b) in lieu.

Lords amendments 112 and 127.

Lords amendment 128, and amendment (a).

Lords amendment 129, and amendment (a).

This group of amendments concerns an extremely important issue. It relates to the question of whether an investigation into the cause of death can take place within the coroners system, and in compliance with article 2 of the European convention on human rights, in circumstances involving highly sensitive information, such as intercept material, which cannot be made public. It is only in a very small number of inquests—fewer than 2 per cent. of all inquests—that the coroner has to sit with a jury. Those are often the most controversial cases, where someone has died potentially at the hands of the state. Of that 2 per cent., there are only a tiny number where article 2 is engaged and there is sensitive material that should not be publicly disclosed.

I should say right at the beginning that every effort is made by this Government—and will be by any Government and by law enforcement agencies—to push for the standard coronial system with a jury in this kind of case to ensure that, if humanly possible, it is a normal coroner’s inquest with a jury that holds the investigation. There was some suggestion with the de Menezes case that it would not be possible, because of the sensitive material, to hold such an inquest, but in the event it was, as ways round the problems were found. That was to the general approbation of everybody—not least and above all to the families and the community concerned. There is no intention whatever—by the agencies, by the police, by the Government, by the Law Officers—that any provisions in this Bill should ever be used as an alternative to a normal inquest where such a normal inquest can, by stretching the envelope as far as possible, be used. Where intercepted evidence is available, every effort is made to gist that material and if the coroner is satisfied that the gist provides a fair summary of the evidence, that is regarded as satisfactory.

For those of us who are not distinguished lawyers and who come to the debate as lay people, will the Secretary of State please tell us what arrangements exist so that highly sensitive information can be discussed or divulged in camera? Is there not already provision that would cover most of the cases that he refers to?

In a sense, my hon. Friend makes my point. There is potential for any tribunal—with a small “t”—to go into camera. In many cases, that provides the answer. For sure, there are long-established rules so that in cases where human intelligence is involved evidence can be given by the staff of the security and intelligence agencies from behind screens—or otherwise their identities can be withheld. In most cases, that is satisfactory. There is, however, a tiny number of cases—there is one we know of at the moment; only one—for which the central evidence arises from intercept. There is a grave anxiety—this is a central issue in the whole question of the disclosure of intercept—that if that evidence were made available as intercept transcriptions in closed court, it would have to be made available to those present, including many who had not been cleared for these purposes.

This issue was examined in great detail by the Chilcot inquiry. As I will explain, it came forward with nine conditions in which intercept material in our environment —not in other people’s environments—could be made available to the court. I am glad to see in their places today the right hon. and learned Member for Folkestone and Hythe (Mr. Howard) and the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), both of whom sat on the Chilcot inquiry and the subsequent advisory panel, so they know a huge amount about this issue.

This assessment must have been made so will the Secretary of State please tell us how many inquests—shall we say in the last five years—he estimates would have been affected by this Executive intervention?

As far as I know—if I am wrong, I will try to correct the record before the debate is concluded—there is one outstanding case, the Azelle Rodney case, which goes back four years. We are dealing with a tiny number of cases, but the problem is that unless we find a way through this problem, there will be no satisfactory investigation into the cause of death in an equivalent case —I make no prejudicial remarks about that particular case.

The original proposals for so-called secret inquests came from my right hon. Friend the Member for Airdrie and Shotts (John Reid), when he was Home Secretary. They did not find favour and were withdrawn, as it was the Secretary of State deciding on whether an inquest should be held without a coroner. It was thought inappropriate—I understand the arguments and agree with them—for the decision in such a sensitive matter to be made by a Home Secretary alone. After much consideration and discussion, I proposed a different scheme that found its way into clause 12 of the Bill as it left the House: a Home Secretary would form a view that a non-jury inquest was required, and the Lord Chief Justice would nominate a senior judge to hear it, but a prior hearing by that judge would determine, on application by the Secretary of State and on hearing the other parties, whether to accede to that application on clear criteria.

Will the Secretary of State also confirm that clause 13, as originally drafted, allowed the use of intercept evidence?

Section 18 of the Regulation of Investigatory Powers Act 2000 also allows the use of intercept evidence in certain cases, but the difference is that in neither scheme was intercept evidence to be made available to a wide variety of parties in the courts, or to a jury. We are not digging in—we never have—and saying that in no circumstances should intercept evidence be available to a court, prior to the Chilcot recommendations being implemented. I was the Home Secretary who introduced, in 1999-2000, the Regulation of Investigatory Powers Act. The central issue is how to ensure that such sensitive material, and all the techniques behind it, are protected.

Everybody who has been in the position—as have I, the right hon. and learned Member for Folkestone and Hythe, and the right hon. Member for Berwick-upon-Tweed as a member of the Chilcot committee and the Intelligence and Security Committee—of operating or supervising the system is alive to the dangers and invites others to take on trust the nature of the dangers. I hope that colleagues will accept, from a wide variety of sources, and from right hon. Members who do not necessarily agree on everything, that a serious issue needs to be addressed. If I felt otherwise, I would say so, as would the other right hon. Gentlemen involved.

There is another complication to the problem, which is not just awareness of the dangers, but certainty that a particular step will not necessarily lead to others that expose the dangers. Although it might prove entirely reasonable to use intercept in particular circumstances, the rules to make that possible do not have to create a situation in which intercept is used in circumstances in which that would be dangerous to national security.

I accept that, and in our debates about intercept some people have taken the view that we should just make it available. The Chilcot committee looked in some detail at the systems in other countries, but our system is much more adversarial, and the rules relating to the disclosure of unused material, and the police techniques behind it, are much tougher in most cases than those in other jurisdictions. That is fundamental to the problem that Chilcot was trying to deal with.

We have to find some way of achieving a solution when there has been a death at the hands of the state and article 2 is involved, as are the requirements that, in every other circumstance, a jury inquest would take place. There can be a satisfactory finding of fact about the cause of death. There is a fundamental difference between such an investigation into a death, and any investigation leading to a criminal trial. In extremis—this has happened—the prosecution have the discretion to withdraw a prosecution, as they can balance the public interest if they think that they are being required to disclose material that would damage national security. In the context of an inquest or an investigation of a death under article 2, that is not an option, because it is the death that triggers investigation in the circumstances. There is no discretion. The investigation must be held. The only issue before the House—and it is an important one—is what the environment of that investigation should be.

When clause 12 failed to find favour, I announced, along with my right hon. Friend the Home Secretary, that as an alternative he would use the provisions in the Inquiries Act 2005 to establish an inquiry. That had been suggested to us informally as an alternative. Provisions introduced in the other place make it clear that the matters before any such inquiry must be those matters which would have been before any inquest, as an irreducible minimum. There is also provision, in schedule 1, for the inquest itself to be formally adjourned while an inquiry takes place, and general provision for it to be resumed. In some cases it may be decided that there is no need for it, while in other cases it will be resumed.

In earlier debates, I put to the Secretary of State the possibility of introducing public interest immunity certificates into the whole scenario, thereby excluding the detail of intercept evidence. To this day I am not sure what the explanation is, whether it holds good, and whether it could apply. Will the Secretary of State please address that point?

Public interest immunity certificates are used to withhold from a jury information that would otherwise be disclosable, but not in a case in which it could lead to an injustice. The right hon. and learned Member for Folkestone and Hythe signed plenty of PIIs, and I signed plenty of them both as Home Secretary and as Foreign Secretary. The difficulty in this instance is that if we leave it to a jury to consider the matter—as even those who support the idea, such as Lady Miller and certain interest groups outside, will accept—the finder of fact, the jury in this case, will be expected to find the facts when some of the key facts are being withheld. Surely that is far less just than allowing a senior judge of High Court status or above to examine the issue.

Schedule 1(3)(2) to the Inquiries Act states:

“The coroner need not suspend the investigation if there appears to be an exceptional reason for not doing so.”

Will my right hon. Friend confirm that an exceptional reason might be that the inquiry did not comply with article 2 of the European convention on human rights? If a coroner took the view that it did not, would he be within his rights if he refused to suspend the investigation, and would my right hon. Friend support him in that decision?

With great respect to my hon. Friend, I think that the idea of inquiries is that they should comply with article 2. There would be scarcely any reason for proceeding if they did not. I shall say more about this when I sum up the debate, but if that were the case, the matter would fall to be resolved in the normal way, and it might well be for the court to decide whether the inquiry was compliant with article 2.

As I shall make clear in a moment, I am conscious that the Secretary of State has a real problem, and that it is for us in the House to try to help rather than hinder him. Will he confirm, however, that there may already be all sorts of trials—inquests and, indeed, criminal trials— that might be helped by the admissibility of intercept evidence?

Let us be clear about this. The category of case to which the Secretary of State is referring is not a category of case in which intercept evidence might be available that would help but, I assume, a category of case in which intercept evidence goes to the very heart of the decision of an inquest or inquiry. That already narrows it down considerably.

Yes, it does. Typically, the intelligence agencies or the police have available to them intercept evidence which is highly incriminatory. That is, indeed, the argument in its favour, and the reason for its use in cases abroad. It has been judged to be in the wider public interest not to make it available up to now. Chilcot has come forward with his nine conditions, but on the whole we manage to find other means of ensuring that evidence is found.

I should just point out to the House—this is not remotely a theological issue—that it has long been accepted that evidence obtained through recordings, such as hidden microphones, is adducible in court, and that is often used. The point here is that the compromise of techniques is far less. The balance in respect of public interest lies in favour of disclosure. We therefore put forward these proposals, and we sought to strengthen them in the interests of the parties not least by ensuring that a senior judge should be appointed to hold such inquiries.

A series of amendments were put forward in the other place, which I am inviting the House to reject today. They propose that this evidence should be made available to a normal inquest court, save in certain very limited circumstances where the court has a power to withhold it from the inquest jury. The difficulty here is that under the amendments the coroner could disclose the material to the interested parties even if that could cause very considerable damage to other parties. I say with respect that this is where I identify the central flaw in the argument of Baroness Miller and her supporters, such as Inquest, Liberty and Justice, with whom I have talked and for whom I have great respect—and my clause 12 is an attempt to square this circle. Those three supporters have said that

“it will remain possible for a judge conducting an investigation to ban or restrict the jury’s or public’s access to material that would be contrary to the interests of national security.”

If that is so, we return to the central problem here: in these cases, where the evidence from the intercept is key to the cause of death—because if it were not, it would be possible to offer other information—we are expecting juries to come to a decision based on facts that have not been disclosed to them. Baroness Miller inadvertently made the same admission herself. On Report, she said of the Chilcot inquiry conditions that

“it must be possible for the Government and all their advisers to work out a way to put those nine conditions into the Bill in such a way…that they can stay within the inquest system and the conditions can be fulfilled.”—[Official Report, House of Lords, 21 October 2009; Vol. 713, c. 733.]

I have two things to say about that. First, some very assiduous and imaginative individuals—including two in this House—are sitting on the advisory panel on the implementation of Chilcot, and achieving this end is very difficult. Secondly, I say, with respect to Baroness Miller, that I do not believe that she had read Chilcot’s nine conditions. The second of them, for example, says:

“Intercepted material originating from the intelligence agencies shall not be disclosed beyond cleared judges, prosecutors, or special (defence) advocates, except in a form agreed by the originator.”

There are various other restrictions on disclosure, too, so we are back in the same box. In a criminal trial, even where there are PIIs, it is fundamental that the trial judge ensures that there is a fair trial in every circumstance, and if he thinks there will not be a fair trial, including in respect of taking account of material he has seen under the PII, he can abort the trial. I say again that that is not a possibility in an inquest, which is an investigation into a death that has taken place.

Is the Secretary of State saying the following? On the one side, there is some risk—although presumably a very remote one—that a coronial judge might reveal information to the parties the revelation of which would be damaging to a party, or that a jury that contains people who are not secure might receive certain information. On the other side, there is a risk that sometimes information will not be disclosed to the jury which it would need to make a perfect decision on the facts. Surely the problem is that that is making the best the enemy of the good. There is no perfect solution to this, but surely a system that allows, in general, the disclosure of intercept evidence will, in general, produce the best results.

The issue of whether and, if so, how intercept evidence can be used in our trial system has exercised senior politicians and senior members of the judiciary for a long time. It is not for the want of trying that we have yet, finally, to pin down a solution. That is the purpose of Chilcot’s report and we have got closer to a solution through it than we have ever got before. I am extremely grateful to those who have been burning their brains out on how to ensure that we arrive at the correct solution.

However, we cannot suddenly say, in a rather blasé way, that we are just going to adopt Chilcot’s approach for coroners’ inquests, without having a proper scheme for every other circumstance. Precisely because of the fact that there is no discretion about whether or not to proceed with an investigation into a death whereas there is that long-stop protection of discontinuing a prosecution in a criminal trial, we have to ensure that the inquests system is more robust than any other—that is so by definition, because it has to be used in every case where there is a relevant case; there is no alternative but to hold an investigation. That is the point I make. I should say, as I was about to say in a moment, that what I have done, and so my right hon. Friend the Home Secretary has to have done, is ask the advisory panel on intercept evidence, which includes hon. Members here, whether they will particularly examine the issue of evidence in coronial matters, because we need to find a specific way forward.

I wish to illustrate the point some more for the benefit of the House. Amendment 2, which I am proposing to delete, includes a subsection that states:

“A coronial judge shall not order a disclosure…except where the judge is satisfied that the circumstances of the case make the disclosure necessary to enable the matters required to be ascertained by the investigation to be ascertained.”

It does not say, “Save where they believe that national security considerations apply.” That simply makes my point; if this material is necessary for the finders of fact—the jury—it will go to the finders of fact. The amendment provides absolutely no protection for national security, notwithstanding the fact that the outside pressure groups have accepted that there should be, as has Baroness Miller, in this kind of throwaway line.

I hope that I am not intervening at the wrong moment, but the Secretary of State may have noticed from the amendments that have been tabled that there appears to be an acceptance by those who have tabled amendments in lieu that the principle of the problem that he identifies about the use of intercept evidence may well be widely accepted across the House. The question then arises: what safeguards can the Government offer that the inquiry process will not be used in a way that would undermine the coronial process and be seen to be unfair? On that, may I simply remind him that in Committee, Lord Kingsland—before he died—provided a good steer as to the sort of protections that ought to be in the inquiry process to ensure that it would command confidence? The Government have not adopted all of those. The Secretary of State may comment about this in a moment, but I should say that they might go to the heart of being able to resolve this issue. At the moment, the problem we face is that the situation remains unsatisfactory and that confidence in the inquiry process as it appears in the Bill is not sufficient.

I have been up hill and down dale on this, as I know others have. I thought that clause 12 was a way of resolving this, because it would have placed in the hands of the senior judge the decision as to whether or not to proceed with a certain investigation, they would then have run the investigation and it would have been within the coronial system. That was parodied as a secret inquest, and we have now gone down the route of an inquiry under the Inquiries Act 2005. We have sought to ensure that only a senior judge can sit on this—other clear criteria are set down.

This matter has gone round and round for two years now and I am certainly ready to promise the House—Members will have to take it on trust, but there is no reason not to trust me—that the inquiry will be used only in exceptional circumstances. The facts speak for themselves—there is only one extant case in which it is likely to be used, and that is a very rare case. Secondly, I will ensure that my right hon. Friend the Home Secretary and I bring forward a protocol to set out the circumstances in which such an inquiry would take place. They would be very limited, too.

It might be useful to deal with amendment (a), tabled by the hon. and learned Member for Beaconsfield (Mr. Grieve), to Lords amendment 128. It suggests that any appointment by the Lord Chancellor of a senior judge should be made with that judge’s consent. First, there could and would be no appointment without the consent of the Lord Chief Justice. It is important that I should say that, and it goes without saying that I have to ask the Lord Chief Justice from time to time to nominate a judge; if he or she were to decide that no judge were to be nominated that would be the end of the matter. That power is quite important. The Lord Chief Justice can speak for himself, but I suggest that he would wish to be satisfied about the conditions under which any inquiry were to take place and about what the level of judicial discretion would be for such an inquiry before he made an appointment.

I shall just finish my comments on Lords amendment 128, if I may. I shall then give way to my hon. and learned Friend and, afterwards, I shall finish my speech, as time is limited.

The hon. and learned Member for Beaconsfield suggests that the judge should consent to the Lord Chancellor’s request, and I understand exactly why. If it is about agreeing to the appointment qua appointment, I can say that, with respect, that ought to be done by the Lord Chief Justice. Perhaps we should have put that in the Bill. We have not, but I give an absolute undertaking on that understanding and anyway, in practice, the Lord Chief Justice has a veto, quite properly, over whether somebody is or is not appointed. Of course he does. He might just say, “I’m sorry, there isn’t anybody available,” or, “I’m sorry, I will not appoint anybody because this is not an appropriate article 2-compliant tribunal and the learned judge will be compromised.”

As the hon. and learned Gentleman would expect, I have looked carefully into whether I could accept his amendment. At first blush, it appears rather similar to the scheme that was in clause 11 of blessed memory, on page 7 of the Bill as it left the Commons, which spelled out that the judge would have to make a decision, based on certain criteria, about whether the application from the Secretary of State was to be accepted.

To some extent, my objection is technical but I promise the hon. and learned Gentleman that it is serious. We are at a late stage in the proceedings on the Bill, and although I had a lovely scheme in mind, there were no takers for it, so if the only proviso in the Bill is that the consent of the judge is required, he or she must work out how to exercise that consent. He or she cannot just say, “Yes, I’m available. I’ll do it,” but will have to say, “I will have to hold a hearing.”

Another matter to consider is which criteria should be used. Clear criteria were set down in my proposals, but now there is only the hon. and learned Gentleman’s amendment to consider. He could simply have pulled out the old clause 11(6) and plonked those criteria in. It is a bit late to do so, although I am not trying to make a point about that. Just so the hon. and learned Gentleman knows, the alternative I considered was whether there was any provision for the court to make rules, but we are not talking about a criminal case, so the criminal rules committee cannot make such rules. There does not appear to be any appropriate rule-making power.

I hope the hon. and learned Gentleman will accept that the point about consent will be dealt with by the clear undertakings I have given in respect of the Lord Chief Justice, but that for practical reasons it is not really appropriate to accept the amendment.

Does my right hon. Friend not understand that it is a question of scale? In any jury system there are always problems with public interest immunity—there always have been—and we get round them by a mixture of evidential routes that has served us extremely well. We now have a problem in one case—just one case in five years—and to rectify that evidential problem the Government propose to hand a massive new power to the Executive. The disproportionate remedy in the circumstances is obvious to everybody. I know there is judicial oversight, but my right hon. Friend will forgive me for saying that he adulates the higher judiciary only when they are being used as a mechanism to withdraw jury trial. Otherwise, he is rather more critical of them and on occasion has described them both as unelected and unregulated and in various other ways. To say that there is a higher judicial role is not an adequate response. Does my right hon. Friend not understand that that is what concerns most of us in the House?

My hon. and learned Friend is an infinitely more experienced criminal practitioner than ever I was—I say that seriously, without condescension. However, there is a very big difference. In a criminal case, the trial judge can say, “I am not going to proceed, because it would be unjust”, or the prosecution can say, “We are about to have crucial evidence that is sensitive and compromised. We will withdraw the prosecution”, and sometimes does so, because there is no option. But with great respect, there will not be a massive new power in the hands of the state; it would be used extremely sparingly.

I feel extremely frustrated, because my scheme was to give the decision to a senior High Court judge, but that did not find favour. We tried plan A. That did not work. We tried plan B and that did not work, so now we have plan C. To those who say they do not like the idea of non-jury inquests, I say that I do not like the idea either, but I am trying to square an extraordinarily difficult circle, and I have not yet found a way of doing so except by a route similar to the proposal.

The Lord Chancellor has told us that he is trying to square an extraordinarily difficult circle. He has indicated that he has a problem and the Opposition spokesperson has indicated that he acknowledges that the Lord Chancellor has a problem, and we have heard about the problems of the intelligence services. Does the Lord Chancellor accept that it is important that the House focuses on the real people who may have a problem, who could be a grieving, and potentially aggrieved, family in the future? It could be a perturbed public, who are concerned and suspicious about the circumstances of a death. Is he not at least a little bit uncomfortable that on a day when the Prime Minister is off in Berlin, celebrating the end of the Berlin wall, and the end of control and secrecy and all it represented, the Government are trying to put such measures through the House?

None of us is comfortable about departing in any case from jury inquests. I hope my hon. Friend will concede that none of us would be going down that route unless we felt that it was absolutely necessary, but as I said, Inquest, Justice and other groups accept that there is material that should be kept from an inquest jury. It may be absolutely central to the case, and the investigation still has to proceed. Baroness Miller accepts that material should be kept back. She referred to the Chilcot criteria, although the withholding would be rather more extensive than she anticipated. In any event, we cannot do it within the scope of the Bill.

The issue is whether we do or do not come up with a scheme that allows an article 2-compliant investigation to take place, where the finder of fact has access to all the relevant facts. The alternative that has been put to the House is a jury inquest from which material would be withheld, but, I suggest, on unsatisfactory grounds. That is not a way of reaching at the truth for the benefit of the parties—above all the aggrieved relatives. That is our overwhelming concern.

In conclusion, I sense from the sombre atmosphere in the House that everybody is addressing themselves to the issue. Even at this late stage, I invite the House to acknowledge that the issues that I have tried to deal with are extremely difficult. They will, I repeat, arise only in rare exceptions. It is in the interest of all of us that those exceptions are kept to a minimum, but occasionally they will arise. The scheme that we propose is a way of achieving justice, not least for the aggrieved parties.

I shall be brief. I repeat what I said: I acknowledge that the Government have a problem. In the other place, amendments were tabled by Baroness Miller. As the Secretary of State knows from my earlier remarks, and as is implicit in the amendments tabled in lieu, there is an acknowledgement that to allow intercept evidence would be very difficult at this stage.

My party is on the record on countless occasions as wishing to see intercept evidence available in criminal trials and at inquests. That is desirable and it is a shift that needs to take place. I regret that the movement on this is so slow. We subscribed to the Chilcot process so that it could be reviewed, and the Chilcot process is not yet complete. Therefore I acknowledge that to ride a coach and horses through that would be unsatisfactory, even though it is an end that I would wish to see, properly arrived at.

The question then is how we solve the conundrum. The Secretary of State is right that the Bill has been up hill and down dale. He wanted to have a provision for secret inquests that could hear evidence secretly. He received universal opprobrium for that, partly because it debased the entire coronial system. As he will recollect, when the matter came to be discussed on Report, I suggested to him that it would be better if we called a spade a spade, and if we could not have an inquest in proper form, it would be better to look at the inquiry route, which already existed, as an alternative. At least the Secretary of State or some other Minister would have to explain to the House why an inquest was impossible, answer the hostile questioning of the House and enable Members to express a view, and then and only then, with probably a great deal of public debate surrounding the matter, would an inquiry go ahead.

It is also true, as I hope I made clear on Report, that when the matter went to the Lords in Committee, Lord Kingsland argued that if an inquiry route were to be pursued where normally an inquest would take place, there were a great many flaws in the inquiry procedure. He tried to rectify that. It was virtually the last speech he ever made. The Government accepted some of what he suggested, including the need for a High Court judge, and some other safeguards concerning the scope of the inquiry. What the Government did not do was to listen to Lord Kingsland’s calls that that had to be a judicial process, not an administrative process.

The Secretary of State highlighted my amendment (a) to amendment 128, and I am the first to accept that it is probably desperately inadequate. The procedures that we have in the House are now so barmy—there is no other way to describe them—that I had to draft the amendment even before the Bill had come back from the Lords. All I could do, with the help of the Clerk in charge of the legislation, and with the anxiety that as an amendment in lieu, anything more would probably not be accepted, was to find some way of bringing back to the House the issue of judicial control. Imperfect though the amendment may be, its purpose was simply to give the House the opportunity to say, “Perhaps if we have to have an inquiry, there should be a judicial lock on it.” Interestingly, that is exactly what the Secretary of State hinted he was minded to grant in the original draft of clause 11(6). I am a little mystified about why he did not pursue the road that Lord Kingsland identified for him, because, if the Secretary of State had, we would not have ended up with the situation that we had in the House of Lords on Report, when everything went in all directions. I hope that I am not being unfair, but the anxiety that their lordships clearly manifested finally expressed itself in allowing intercept evidence.

I did not intend any criticism of the hon. and learned Gentleman’s drafting of his amendment in lieu. As he knows, I spent 18 years in opposition, 17 of them as an Opposition spokesman for one thing or another, and I used to have to draft such amendments. I hope, however, that I have given him a lot of comfort—albeit not in the Bill—about the practice, which will be inevitable, in circumstances where there is an appointment. Of course I accept that the noble and much lamented Lord Kingsland was searching constructively for a solution, and we were trying to find one, but it is also fair to say that some who have objected at each stage to what we have tried to do, not including the hon. and learned Gentleman at all, will object in any circumstances to there not being an inquest jury in full possession of the facts. That is the central difficulty with which we are trying to grapple.

I appreciate the Secretary of State’s comments, but I shall bring my remarks to a close.

It seems to me that the amendment in lieu tabled by the hon. Member for Hendon (Mr. Dismore), which the Secretary of State has not signed, but which would leave out paragraphs (3) and (8) from schedule 1, has this great merit: it would ensure that the Bill went back to the other place, where the issues that I have just raised could be addressed. If we go along the route that the Secretary of State has advocated, and we do not support the amendment, the Bill will effectively go on to the statute book in its present form. That would be unsatisfactory, so with that in mind I intend to support the amendment in the name of that hon. Gentleman and those who have signed it.

We may be at a late stage, but just because we happen to be discussing it on the Monday before Parliament is due to prorogue on the Thursday, we should not suddenly suspend our critical faculties. We are considering Lords amendments, and, if we do not wish the issue to be dropped completely, the proper course of action will be to ensure that it stays in play, so that when the Bill goes back to the other place the Government can take on board what has been said here and, I dare say, what will be said there and come up with a constructive solution that respects its concerns as well as those of Members from all parts of this House.

I shall speak to the amendments in lieu that are in my name and those of other Members who have signed them on a cross-party basis. I, like the hon. and learned Member for Beaconsfield (Mr. Grieve), accept that there is a problem with intercept evidence, and it needs a comprehensive solution. In trying to table sensible amendments in lieu, I was handicapped by the procedures of the House, which meant that the only possibility was to propose the removal of paragraphs (3) and (8) from schedule 1.

On 30 April 2005, Azelle Rodney was in the rear seat of a car in Hale lane, Edgware, in my constituency. A police officer fired eight shots at the car, six of which hit Rodney, killing him. There is no evidence that Rodney was holding a gun when he was shot, although the other occupants were successfully prosecuted, firearms having been found in the vehicle. The suggestion was that it was part of a drugs operation, not, I have to say, a national security issue, and that covert surveillance was used.

The Independent Police Complaints Commission report has not been published, but it recommended no action. Four-and-a-half years on, there has been no inquest and no explanation, and Azelle Rodney’s mother, Susan Alexander, wants, needs and has a right to know what happened to her son. So do constituents, because they were made fearful by the incident having taken place in broad daylight at a busy junction. They, too, would like to know what was going on.

I was pleased when my right hon. Friend the Justice Secretary announced that the secret inquest proposals in the Bill were to be dropped, but I am disappointed that they have been replaced by secret inquiries. This debate seems to be something of a “Groundhog Day” in terms of the issues that we may have to cover. Schedule 1(3), which my amendment would remove, provides for the suspension of inquests

“on the ground that the cause of death is likely to be adequately investigated by an inquiry under the Inquiries Act 2005”.

However, there are no criteria or grounds for superseding an inquest specified in the Bill. On that basis, the proposals before us are worse than those that were withdrawn for secret inquests.

Article 2 of the European convention on human rights provides a positive obligation to provide an adequate and effective investigation when individuals are killed as a result of the use of force, particularly where the death is a result of the use of force by state agents. The person conducting the investigation must be independent of those implicated in the events, there has to be a sufficient element of public scrutiny to secure accountability in practice as well as in theory, and the investigation must involve the next of kin to the extent necessary to protect their legitimate interests.

According to the schedule, the coroner may not suspend the inquest if there is an exceptional reason for not doing so. In an intervention, I asked my right hon. Friend whether, if the investigation was not going to be article 2 compliant, that would justify the coroner’s refusal and whether he would uphold the coroner in making that decision. I was given a rather ambivalent answer. If the procedure was going to be article 2 compliant in the first place, one would not need to use the provision—it is only the implication that something would be missing from the inquest that puts matters in the article 2 questionability arena. If the coroner considers that it is an exceptional circumstance, then presumably he should be able to refuse the request. I canvassed this issue in correspondence on behalf of the Joint Committee on Human Rights with my right hon. and learned Friend the Leader of the House, who was then Minister of State at the Department for Constitutional Affairs. She replied on 22 January 2007:

“the Government does consider that a reasonable belief that the inquiry proposed by the Lord Chancellor would not meet Article 2 requirements because of its scope, would be an exceptional reason which would justify a coroner’s refusal to suspend an investigation.”

I am listening to my hon. Friend with care. Aside from the inadvertent impact that the amendments would have, although I understand the problems about drafting, how would he propose to address the central question at issue, which is how one would deal with highly sensitive intercept material where some of the facts of the intercept—the techniques behind it, as the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) put it—should not, for very good reasons, be disclosed to the inquest jury?

We run the risk of rehearsing debates that we had before on secret inquests. The starting point is that an inquest is not intended to prove something beyond all reasonable doubt. Public interest immunity applies to inquests, subject to judicial review by either side, and the Government can persuade the coroner to withhold sensitive material, as happened and was upheld in the Jordan and McCann cases, for example. My right hon. Friend has already mentioned gisting. Such restrictions are compatible, in principle, with an article 2 compliant inquiry. My concern is that what is being proposed is a secret inquiry at the behest of the Executive.

I cannot allow my hon. Friend to gloss over this issue. There is no question of these proceedings being secret. Most of it would be entirely public, although of course part would be secret. What he says is all true. However, what if we are in a situation, which appears to be so in the case of Azelle Rodney, where these devices are not possible? They were, happily, possible in the case of Charles de Menezes, but what if they are not? What do we do then?

As I have indicated, there are other options. We simply do not know enough about the Rodney case to answer that question; that is part of the problem.

I am sorry, but I must press my hon. Friend. He is coming to some clear conclusions about one option, on the basis of the Rodney case, but the moment I put to him the heart of the issue, he says that we do not know enough about it, although we have to make a decision about it in the next week. I suggest that he is moving away from the central issue. Whenever I put it to him, “This is the heart of the issue—what would you do?”, he says that it would not arise very often. It does indeed not arise very often—it is very rare—but when it does, what would he do?

I think my right hon. Friend is putting a false prospectus before the House in this respect. My main concern is to ensure that there is an article 2 compliant investigation. I have given indications of how that can be achieved in these circumstances; it may well be that there are other ways round it. The hon. and learned Member for Beaconsfield has given my right hon. Friend a way forward by saying that if the amendments in lieu are accepted, the Bill could go back to the Lords with some reassurances to try to deal with some of these problems.

This system has operated before, in Northern Ireland. British Irish Rights Watch has written to Members to say:

“We have monitored the use of the Inquiries Act in Northern Ireland and have found it lacking in its ability to deliver truth and justice to the bereaved, build confidence in the rule of law and to comply with the UK’s human rights obligations.”

So this may not just be a one-off, because it has happened before in Northern Ireland on several occasions, and it has been shown not to have worked in terms of providing article 2 compliance and building confidence in the rule of law.

In relation to the experience of inquiries under the Inquiries Act 2005 in Northern Ireland, were not some of the most critical spokespersons in relation to how those inquiries worked Government Ministers themselves?

My hon. Friend knows far more about Northern Ireland than I do, and I would certainly pray in aid his intervention in my argument.

So far there has been only one case to which this relates—the one that the hon. Gentleman mentioned involving his constituent—and people have had to find their way through the system to be able to hold inquests in all the other cases. Does he share my concern that if there were an opt-out, we might find that under these proposals a larger number of cases were being held in secret?

That is a real fear. My right hon. Friend rightly said that the de Menezes case was dealt with under the inquest procedure. That is because there was no other way of dealing with it. If these arrangements had been available, perhaps the de Menezes case might not have seen the light of day in the same way— similarly with the Dyson case, which dealt with depleted uranium victims from the first Gulf war, or the Mubarak case, where the Government resisted tooth and nail proper inquiries into the death of that young man in Feltham young offenders institution.

My hon. Friend is a lawyer and understands these things rather better than I do. Does he share the concern and puzzlement of quite a few people that in the de Menezes case, where some of the evidence was clearly related to national security, the existing law worked, whereas in the Azelle Rodney case, where we are told that national security is not at stake, we are also told that there is something so deadly secret that it cannot be disclosed? We should bear it in mind that we were told, not on the Floor of the House but by Ministers, that there was no chance of an inquest in the de Menezes case unless we changed the law—but we did not change the law, there was an inquest, and it was carried out quite satisfactorily.

My right hon. Friend makes his point. The Rodney case was a police operation to try to bust a drug gang. It was a very dangerous gang by the sound of it—firearms were involved—but it was not an issue of national security in terms of intercept evidence.

Given the way that the Bill is currently phrased, there will be secret inquiries at the behest of the Executive. The Executive will set the terms of reference, the Minister will choose the judge, the Minister or the judge can restrict attendance at the inquest, the Minister or the judge can restrict the disclosure or publication of evidence or documents, the Minister can redact reports and recommendations at the end of the inquiry, and the Minister can suspend the inquiry merely on the grounds that it is in the public interest to do so. That is far more broad and generous to the Secretary of State and to Ministers than the original super-inquest proposals were. That is why I am worried that there are no safeguards in the Bill that deal with this issue.

Similarly, if the inquest is resumed after the inquiry, the findings of the inquest are not allowed to be inconsistent with the outcome of the public inquiry, even if the jury comes to that conclusion. So if a judge is conducting a public inquiry and the inquest is later resumed at the behest of the coroner, the jury is not allowed to make a certain finding even if that is where the facts take it. Secret inquests are being replaced by the prospect of secret inquiries, which will not be adequate and effective investigations. They will not be independent or provide public scrutiny, and they will not involve the next of kin in the way that they should.

In the 16th report of the Joint Committee on Human Rights, we particularly considered the use of the 2005 Act and came to the conclusion that

“any Inquiries Act 2005 inquiry specifically designed to circumvent an inquest, in order to meet the Government’s concerns about disclosure of sensitive information would raise the same or similar issues as Clauses 11-12”—

the inquest provisions—

“about the independence and effectiveness of that inquiry for the purposes of Article 2”.

The current proposals will not give closure to relatives or create public confidence that lessons have been learned.

Are families expected to take seriously a secret inquiry chair’s findings as to what happened to their loved one? It is sometimes difficult enough under the existing open arrangement to convince them that justice has been done. Are the public expected to accept the findings of a secret inquiry? We have seen the reaction that there has been to recent inquiries—the public have simply said that they have been whitewashes. That would happen particularly if reports were redacted and the family and pubic excluded from hearings or from seeing documentary or other evidence. The secret inquiries will cover exactly the sort of cases that should be held in the open—those in which the state is potentially implicated and independence is essential.

Amendment (a) in lieu is a consequential amendment to allow for the suspension of a normal inquiry, for example into a big rail accident, in which there will be none of the implications that I have mentioned. The proposals in the Bill cannot be allowed to become part of our law. We have to provide a proper, article 2 compliant process for relatives and the public.

I shall deal first with the amendments tabled by the hon. Member for Hendon (Mr. Dismore), which I support, and then with the Government motion to disagree to the Lords amendment introduced by my noble Friend Baroness Miller.

I have tried to emphasise throughout the debates on this part of the Bill that the question is not whether there are circumstances in which certain things have to be heard out of the public gaze—for example, when important matters of national security arise in the course of a coronial investigation—but whether there should be a jury in important cases of deaths at the hands of state officials. That is the central question, and it is why the hon. Gentleman has to be right that it is no solution at all to move from a proposal to have inquests without a jury to one to have inquiries without a jury. That is just as bad, and as he pointed out, it is worse in many respects.

The key is public confidence. How can the public be confident when someone has died at the hands of a state official—a police officer, a prison officer or an officer of one of the security services—if the investigation into their death is carried out by someone chosen by the Government, with terms of reference chosen by the Government, and in circumstances in which, as the hon. Gentleman said, the process can be suspended by the Government? The Government could also determine the terms of the final report to some extent. The independence of such an inquiry would be suspect from the start, and the public would have no confidence in it.

Would the hon. Gentleman also say that deaths at the hands of state officials sometimes do not take place in public gunfights in broad daylight? They may take place in a cell out of the public eye, or when rendition or a severe form of interrogation such as waterboarding is taking place. Those cases are much harder to bring to public attention, so the safeguards need to be even tougher.

I fully take the hon. Gentleman’s point. The whole purpose of investigations is to make state officials accountable in a way that they would otherwise avoid. To the extent that we do not go along the route that the hon. Member for Hendon suggests, we will allow unaccountable state action of that sort to take place.

The Government talk about national security, but as we have argued all along, there is no reason why an ordinary coroner’s court could not carry out the task of protecting national security. It has the power to exclude the press and public or to issue public interest immunity certificates, and there is no reason why coroners or even juries should not be security vetted, as juries already are in espionage and treason trials. The question is, what is the size of the risk, which the Secretary of State keeps coming back to, that there will be errors by judges or in the security vetting of juries? I believe that he exaggerates it. There must be a risk, but to exaggerate it to justify the removal of a jury from the process is the wrong way to go.

The Government keep coming back to the difference between criminal trials and coroners’ proceedings, and they make the point that there is always the option of stopping a trial, whereas there is no such possibility in a coroner’s inquest. That has never struck me as a particularly strong argument, because if there were a very important treason or espionage trial, how would it be in the public interest for prosecutors to believe that the right thing to do was to let someone they believed to be a spy, or worse, go free? In reality, stopping the trial is an option only in cases in which Government embarrassment is at stake, rather than real problems of spying, or worse. So that option does not really exist in criminal trials, either.

I have the utmost respect for my hon. Friend and his judgment, but I actually think he is wrong about this. A number of cases have arisen over the years in which prosecuting authorities, security and intelligence services and in some cases the police have had to make a judgment that proceeding would cause so much harm to the chance of collecting intelligence in future that it was not the right course of action.

I believe that my right hon. Friend is talking about cases that never start, but I am talking about trials that are halfway through. Perhaps we should study those cases in detail, but the cases in which that has happened have struck me as being more of a political nature than those he describes.

I am reminded of a former Foreign Secretary in the ABC case of the late ’70s, who felt that he had been assured that witnesses would not be exposed. The judge took a contrary view and the Government dropped the prosecution, having maintained that it was essential for national security reasons.

That is the type of case I had in mind. If right hon. and hon. Members have different examples in mind, perhaps they should mention them.

I believe that for the most part, the Government are taking comfort in an illusion. The comfort that they believe they feel does not really exist, because coronial cases and criminal trial cases are much closer than they imagine. In the end, it comes down to their distrust of the jury as an institution. They keep asking themselves, “Who are these people? Where do they come from? We don’t know who they are. We didn’t choose them. We don’t control them.” Yes, but that is the whole point of a jury and it is where the public confidence in using a jury comes from—it is not made up of people under the control of the authorities. The amendments tabled by the hon. Member for Hendon are important because they would re-establish that principle.

The question is one of balancing risks and what the reality is of the risks that the Government keep putting forward. They keep giving worst-case scenarios and presenting them as though they were inevitable and would happen on many occasions. Of course, they also say, “These things very rarely happen”, so it does not strike me as an enormous risk. However, on the other side there is a risk that provisions such as those in the Bill will be used in other cases in which a jury has been used in the past. That is precisely what the debate about the Menezes case is about—the availability of such provisions and their use much more broadly than the single case to which the Government have pointed throughout the debate.

I am trying to follow the hon. Gentleman’s argument, but I am not at all clear whether his strictures are based on the Secretary of State’s reluctance to accept the amendments put forward by the hon. Member for Hendon (Mr. Dismore), or whether they relate to the admissibility of intercept evidence. If he is addressing the latter, I must say that the risk may be small and may arise out of the occasional, rare case, but very significant damage could none the less be done to our national intelligence capability. I am not clear whether the hon. Gentleman has that in mind in the strictures he is making, or whether he is limiting himself to the proposal of the hon. Member for Hendon.

In what I have said so far, I have spoken solely about the proposal of the hon. Member for Hendon, without considering the wiretap point, to which I will come separately. Both situations involve the same sort of judgment, although different levels of risk might be involved, as the right hon. and learned Gentleman says.

I can understand the point made by the hon. and learned Member for Beaconsfield (Mr. Grieve) about waiting for Chilcot, and the Secretary of State’s argument that we cannot just insert the Chilcot criteria into the Bill; in fact, that probably would not produce the result that my noble Friend was looking for. However, some of the things I have been hearing about the legal objections to which Chilcot referred elliptically in his last report do not make any sense to me. If there are human rights objections or any sort of objections to schemes of partial disclosure, how much more do they apply to schemes of no disclosure at all? That is the argument I have been unable to follow throughout the entire debate.

I also cannot understand why anyone on the Government side, as the Secretary of State has rightly acknowledged, says that we must wait for Chilcot, because the original version of clause 13 included a scheme that would allow an inquest—admittedly a juryless inquest—to hear wiretap evidence. There are other examples of wiretap evidence being used by various tribunals—for example, in control order and financial restriction proceedings—so the Government have not waited for Chilcot and have done those things already.

This issue comes down to not trusting jurors—and, by the way, not trusting coroners. The idea is that there is some security risk specifically in the coroner’s court and in the jury. The problems one hears about, such as fishing expeditions and certain information coming out if some forms of wiretap were admissible, already apply in the cases where wiretap evidence is already admissible, and would also apply under the original clause 13. It comes down to whether the Government are right to distrust the jury in the coroner’s court so much, and whether the risks arising simply from the jury are worth taking. The Government have not yet proved their case on that. How do we know that juries are so unreliable?

My view is that the House should support the amendments put forward by the hon. Member for Hendon. I do not want to take up the House’s time with a Division on the Government motion to disagree, because we have already heard that the official Opposition will not be opposing it, so there is no chance of defeating the Government. However, there is a serious chance of defeating them on the hon. Gentleman’s amendments, and I urge all my right hon. and hon. Friends to support those amendments in a few moments.

I will be very brief—briefer than I would otherwise be—one reason being that like many Members of the House, I would like to hear the views of the right hon. and learned Member for Folkestone and Hythe (Mr. Howard), if, indeed, Mr. Deputy Speaker, you were minded to call him at any stage. In that hope, I will be as brief as I can be.

I am grateful to be able to make a contribution in order to deal with what is a grotesquely overstated problem on the part of the Government. My good and right hon. Friend the Secretary of State has always been a master at creating theoretical, if not to say theological, problems with which he is able to torment Labour Back Benchers—he has had a good go at my hon. Friend the Member for Hendon (Mr. Dismore)—and at trying to get them to sort out such problems. The plain fact is that by the Secretary of State’s own admission, the problem that this draconian measure seeks to remedy either does not exist or is so infinitesimally small that it would be a grotesque misuse of the House’s power to hand the Executive such a very large extension of their powers.

May I explain why? Juries know all about covert, intercept, intelligence-based evidence. Let us take for the moment the example of juries in criminal trials. If a jury sits down and hears that a massive police operation nipped a huge bank robbery in the bud, they know perfectly well that covert information and intelligence was behind it, unless they are barking mad and come to the conclusion that the entire flying squad happened to be assembled at that particular point. Of course, if that arrangement is successful, there is no problem. The problem does not arise, and we do not have to worry about public interest immunity in a criminal court if there is a successful operation and people are caught red-handed.

It is exactly the same with a coroner’s inquest. If somebody has been shot by agents of the state because they were believed to be a terrorist, there is no problem if it turns out that the person is a terrorist who was carrying bombs or was in the process of plotting. Such problems do not exist. Coroners will not be asked to investigate that kind of evidence. The problem happens when something goes terribly and demonstrably wrong, which is why it is so rare.

However, when something goes that wrong, and when something goes as wrong as it did the Jean Charles de Menezes case, there must be a public inquiry. Having a private, secret inquiry in those circumstances would be a devastating indictment of our system and of the use of Executive power. Despite the engaging way in which my right hon. Friend the Secretary of State talks about judicial oversight and superior judges—as I said in an intervention, it is always nice to hear him adulating superior judges on the occasion that he wishes to enlist their assistance in taking over jury trial—the measure is no counterweight or counterbalance to a jury sitting in an open inquiry, listening to how something has gone terribly and demonstrably wrong at the behest of the Executive.

My right hon. Friend says that the power will be exercised only rarely, but we have heard that before on many occasions—I am going to stop in a moment to give the right hon. and learned Member for Folkestone and Hythe a decent rein—such as when the House debated giving up jury trial in tampering cases. It was said in this House and in the other place that it would only happen in the rarest of cases, and only when the defence had been heard in full on the basis of all the evidence. That has simply not happened. There are two cases now in which the defence has simply not been informed of the reason why jury trial has been denied.

My right hon. Friend the Secretary of State may believe that it will happen rarely or will never be used, but the power that we would be giving to the Executive should never be given by this House, unless we were told in the clearest possible terms that to do so was a grave and immediate necessity. No one has made that case today, and in those circumstances I will take great pleasure in supporting the ingenious amendment tabled by my hon. Friend the Member for Hendon (Mr. Dismore). I could not get it past the Vote Office, but it is a brilliant idea.

I must first correct the Secretary of State. He said that I was a member of the Chilcot committee, but I was not a member of the original committee. The Conservative representative on that committee was Lord Hurd of Westwell, and I took his place when the committee changed its responsibility and began to supervise the work of the officials in the Home Office who have sought a way to meet the nine tests set out by the original committee. Although we have not yet achieved the objective of finding a scheme that meets those tests, those officials have been carrying out their work thoroughly and conscientiously in their attempt to meet that objective.

I decided that I should contribute to this debate because of my membership of the committee and I am therefore primarily concerned with the question of the admissibility of intercept evidence. Until the contribution by the hon. Member for Cambridge (David Howarth), it looked as if I need not trouble the House with my contribution, because—in sharp contrast to what happened in the other place—there seemed to be a splendid degree of consensus this evening on this subject. Indeed, until this happy consensus descended on the House, I thought at one point that I would be in the very unfamiliar position of voting with the Government against my own party. Happily, that will not be necessary.

It is worth setting out the history of the matter, partly to excuse the fact that my contribution lacks all novelty. I am here to repeat the arguments that I put before the House on the Second Reading of the Counter-Terrorism Bill on 10 June 2008 and the Second Reading of this Bill on 23 March this year. After I made my intervention on the former, the provisions that would have made intercept evidence admissible at coroners’ inquests were removed from the Bill. I do not lay claim to a causal connection between my intervention and the removal of the provisions: I merely set out the facts. I was therefore somewhat surprised when this Bill appeared and those provisions reappeared. Once again, I voiced my opposition on Second Reading, and once again—this time at Committee stage in the other place—the Government removed them from the Bill, and I was happy to see that. It is noteworthy that on that occasion they were removed from the Bill without a Division.

It therefore came as an even greater surprise that, on Report in the other place, those amendments designed to provide for the admissibility of intercept evidence were put back into the Bill, this time against the wishes of the Government but at the behest of both the principal Opposition parties in the other place. I am especially grateful to my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve) for accepting the Government’s view that to put those provisions in this Bill would have damaging and profound consequences for our intercept regime, which makes it unnecessary for me to take the very unfamiliar position of supporting the Government in the Lobby this evening.

It is important that the House understands that I do not take this position because I object in principle to the admissibility of intercept evidence. On the contrary, I have made it clear on numerous occasions, both in the House and outside, that I would very much like to see provision made for intercept material to be admitted in evidence, especially in cases of those accused of terrorism and other serious criminal offences. But things are not as simple as that. They are certainly not as simple as was suggested by the hon. Member for Cambridge.

The work that has been carried out by the officials in the Home Office, and which has been supervised by the Chilcot committee in its present form, has been exhaustive, and it continues. The nine tests that were set out by the original Chilcot committee were necessary if we were to protect a capability of the greatest importance in keeping the people of our country safe. It is one of the frustrating things about the argument that one cannot go very far into the details of justifying the need for those tests without getting perilously close to putting the capability at risk. I am sure that the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), who sits on the committee with me, would agree, although I must point out that I do not speak for the committee. It would be foolhardy to retain in the Bill the provisions that were inserted on Report in the other place. They do not meet the tests of the original Chilcot committee and, if they were to remain in the Bill, they would be a risk to this country’s strategic intelligence capability that no responsible Government should take.

I hope that the right hon. and learned Gentleman would agree that neither of us wishes to exclude the possibility of finding a way to bring such evidence to bear in cases in which the object is to establish a cause of death. What we have at the moment does not achieve that.

I agree, and as the right hon. Gentleman will know, we have today been invited by the Home Secretary to extend the remit of the advisory committee to look at the possibility of admitting intercept evidence in coroners’ inquests. I cannot speak for the right hon. Gentleman, but I would happily agree to the remit of the committee being widened in that way.

I have listened with great care and interest to the arguments on the amendment tabled by the hon. Member for Hendon (Mr. Dismore). The Secretary of State put a reasonable question to the hon. Gentleman, which he was not entirely capable of answering, but on balance I shall support the hon. Gentleman and my hon. Friends in the Lobby, if only because it will provide another week for the Secretary of State to take the opportunity to answer the question that he posed to the hon. Gentleman and to come forward with a satisfactory regime that would deal with some of the mischiefs that were identified so eloquently by many of the contributors to this debate, not least the hon. and learned Member for Medway (Mr. Marshall-Andrews).

With the leave of the House, I wish to reply to the debate.

I thank the right hon. and learned Member for Folkestone and Hythe (Mr. Howard) for his remarks. I wondered how he would conclude, because I understand his discomfort in abstaining or not supporting those on his Front Bench. He went in for some wonderful casuistry to move from the position that he had adopted to the position that he now supports.

I say to my hon. Friend the Member for Hendon (Mr. Dismore) and others who spoke that I am glad that there is a profound difference between the view of this House and that of the other place. The view from all parts of this House—my hon. Friend added his name to my amendment to delete the additional provisions put forward by Baroness Miller in the other place—is that everybody accepts that there have to be circumstances where intercept evidence is kept from a jury hearing an inquest, so that at least is progress.

Then we hear suggestions that there are ways round that. My hon. Friend the Member for Hendon and my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) say, “Well, we can do it through the existing measures.” We have been through that. There are some cases—I assure my hon. Friend that they are indeed few and far between—where having a jury trial will result in an injustice, because there will be key evidence that cannot go before the jury as a finder of fact. With respect, where he is wrong is in suggesting that an inquiry headed by a senior judge would not be article 2 compliant. What would not be article 2 compliant in those circumstances would be the inquest jury, which would not be able to conduct a proper examination.

There is another important point that I would make to the House, as the Opposition, as well as my hon. Friends, need to apply themselves to that which they seek to vote on in a moment, although I would advise my hon. Friends not to do so. My hon. Friend the Member for Hendon proposes that we delete paragraphs 3 and 8 of schedule 1. Paragraph 3 allows for a suspension of an inquest where there is an inquiry appointed under the Inquiries Act 2005 and where a judge has been appointed to hear that inquiry. I have already made it clear that in practice—I am happy to put this on the record again, and everybody who knows the practice knows this to be true—there could be no such appointment without the consent of the Lord Chief Justice, and his consent would be forthcoming only where he was satisfied about the circumstances and the discretion available to the learned judge. Those undertakings are absolutely clear.

I should also make it clear that if we were to pass the proposed amendments, that would not result in there being no inquiry under the Inquiries Act 2005. Rather, it would simply result in an inquest, which could not hear the evidence, running in parallel with an investigation that could hear the evidence. I suggest that that is the worst of all possible worlds—[Interruption.] I am being told to keep speaking. I am always happy to keep speaking. Although I appreciate his motives, I would ask my hon. Friend to appreciate what exactly he is proposing. He would end up with a muddle, where there would still be a requirement—

One and a half hours having elapsed since the commencement of proceedings on consideration of Lords amendments, the debate was interrupted (Programme Order, this day).

The Deputy Speaker put forthwith the Question already proposed from the Chair (Standing Order No. 83F), That this House disagrees with Lords amendment 1.

Question agreed to.

Lords amendment 1 accordingly disagreed to.

The Deputy Speaker then put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83F).

Lords amendment 2 disagreed to.

Lords amendment 216 disagreed to.

I have to inform the House that it is not possible under the terms of the programme order for the hon. Gentleman’s amendment to be put to the House. That is quite clearly laid down in the programme order and is backed by the appropriate Standing Order, so we have to move on.

On a point of order, Mr. Deputy Speaker. I have to express some amazement that this has happened. If that is indeed the case, it is contrary to my earlier understanding that it would be possible to vote on amendment (a) in lieu. Indeed, the whole reason for that, as you will have appreciated from the tenor of the House, was that we should be able to vote on that precise amendment.

I was all too aware that that was the consequence, but once the Justice Secretary spoke until 6.33 pm, that left the Chair with no option on this matter.

Further to that point of order, Mr. Deputy Speaker. I had no intention of doing that. I think that there ought to be a vote on amendment (a) in lieu, and if it requires me to move it, I will move it.

The right hon. Gentleman anticipates me. The only way in which amendment (a) in lieu can be put to the vote is if he is prepared to move it.

Provided that the House understands that I shall vote against it.

Amendment (a) proposed in lieu of Lords amendments 1, 2 and 216.—(Mr. Straw.)

Question put, That the amendment be made.

Clause 45

Meaning of “qualifying trigger”

The Parliamentary Under-Secretary of State for Justice (Claire Ward): I beg to move, That this House disagrees with Lords amendment 55.

With this it will be convenient to discuss the following: amendment (a) in lieu of Lords amendment 55.

On a point of order, Mr. Deputy Speaker. We had an unsatisfactory end to the previous debate due to the terms of the programme motion. The amendment in lieu, on which the whole House had expected to vote, could be properly considered only if the Lord Chancellor was prepared to move it from the Dispatch Box. Is it not the case that the same will apply with the forthcoming group of amendments, and that the amendment in lieu cannot be taken if the Minister is still speaking when the knife falls? Would it not be in the interest of proper debate if the Minister sat down before that point, or adopted the same principle of moving the amendment in lieu, so that the House may have a voice on the matter?

The hon. Gentleman’s assumption is correct. On the previous occasion we got into a difficulty by accident, but we were rescued in a way that satisfied the House, and enabled the vote to take place. That is the position.

The Government cannot accept the amendment passed in the other place to remove the sexual infidelity exclusion in the new partial defence of loss of control. The history of the partial defence of provocation has led to a commonly held belief that this defence can be abused by men who kill their wives out of sexual jealousy—[Interruption.]

Order. I am sorry to interrupt the Minister. We have moved on to other business, and I must ask hon. Members who do not intend to stay for this debate to leave as quickly and quietly as possible. The noise is quite unfair to the Minister and those who are trying to listen to her.

Thank you, Mr. Deputy Speaker.

The history of the partial defence of provocation has led to a commonly held belief that this defence can be abused by men who kill their wives out of sexual jealousy or revenge for infidelity. This erodes the confidence of the public in the fairness of the criminal justice system. Even accepting that a great deal has been done in recent years to address this problem, and that pleas of provocation generally do not succeed on the basis of sexual infidelity, it is still true that under current law that defence can be raised and could succeed.

The hon. Lady will be aware that, only two weeks ago, there was a case in which a jury came to precisely that conclusion under the existing rules and reduced the offence of murder to manslaughter on the ground of sexual infidelity as part of the provocation. Will she identify from where the outcry came, as a result of that difficult decision for the jury, to suggest that it has undermined confidence in the criminal justice system? Why is she suggesting that we should not leave to members of the public sitting on juries the difficult task of making a judgment in these matters? What is the basis on which the Government wish to withdraw that right from the jury?

The hon. and learned Gentleman is right to raise that recent case, but the reality is that there is still an opportunity under existing law for that defence to succeed. The jury in that case decided that it was not appropriate, but it remains possible that a different jury, in different circumstances, might decide that it could succeed.

The hon. Lady will know that, in 2004, the Law Commission published its report “Partial Defences to Murder” and, prior to that, a consultation paper. I am not aware that either document suggested that sexual infidelity should be removed from the classes of conduct capable of amounting to the defence of provocation, should the jury so decide.

The general issue around provocation, and the change of defence, has been accepted by both Houses. The issue here is in respect of sexual infidelity. In respect of the particular case that the hon. and learned Member for Beaconsfield (Mr. Grieve) mentioned a moment ago, the jury came to a considered view on the attempted use of the defence of sexual infidelity, but that case also specifically referred to diminished responsibility.

The Minister is slightly misunderstanding my point, and that might be my responsibility. The point that I am making is that the Law Commission did not—either in its final report or in its consultation document—suggest that sexual infidelity should be excluded from the classes of case that were capable of amounting to provocation.

However, there is now a commonly held belief that cases exist in which that defence has been used successfully. We want to put the matter beyond any doubt.

I still do not understand why the defence should not be used successfully. Why does the Minister wish to deny to a jury the right to make an assessment as to whether the offence should be reduced from murder to manslaughter on the basis of provocation? In virtually every other area, it will be allowed to make that decision, but apparently not in the case of sexual infidelity. What has the Minister got into her head that is making her want to withdraw that historic right from a jury?

Frankly, we do not think that it is appropriate, in this day and age, for a man to be able to say that he killed his wife as a result of sexual infidelity. That is essentially the reason. If other factors come into play, the court will of course have an opportunity to consider them, but it will not be able to make the decision exclusively on the ground of sexual infidelity. The sexual infidelity exclusion applies in relation to the words and conduct limb of the new partial defence to murder of loss of control.

Let us just take a quick example. A woman is abused by her husband over a long period, at the end of which they are reconciled. He says that he will moderate his behaviour and promises to be faithful to her in future. She comes home the following weekend to find him in flagrante with his lover. He tells her that the marriage is now at end, and she kills him. How is the jury going to be invited to disentangle the elements that went into causing that act? How is it supposed to disentangle the abuse, which it will be entitled to take into account, from the sexual infidelity, which the Minister now tells us that the Government, in their wisdom, have decided to deny it the opportunity to consider?

The court may of course take into account whether there has been abuse, as well as other factors, but it will not be able to take into account a set of circumstances in which the defendant kills someone in an attempt to punish them or carry out some form of revenge purely as a result of sexual infidelity. I am really quite surprised that the hon. and learned Gentleman thinks that it is acceptable, in this day and age, for someone to use the partial defence that sexual infidelity is an acceptable reason for killing.

This is not just my view. Perhaps the Minister would like to be candid with the House about what the Law Commission was advising the Government, even up to a few weeks ago, on the coherence of their proposals. My understanding is that the Government have received the clearest, most unequivocal advice from the Law Commission that this particular proposal—which was never in the commission’s proposals—is nonsense.

The Law Commission has said that such cases should not be left to the jury. Perhaps the hon. and learned Gentleman would like to refer to page 65, paragraph 3.143. Now perhaps I can move on—

It is on page 65, paragraph 3.143. I am happy to take further interventions as I proceed through my speech, which will perhaps give the right hon. and learned Gentleman an opportunity to consider the report.

The Minister knows that the Law Commission’s original proposals were cherry-picked by the Government. They decided not to adopt the commission’s proposals for the categories of murder 1 and murder 2. I say again to the Minister that my understanding is that, at a meeting that took place—certainly not under Chatham House rules—between the Government, their advisers and the Opposition in the Lords, the representative of the Law Commission publicly urged the Government to desist from this course of action.

Perhaps I can refer to page 65 of the Law Commission report. It states:

“In Smith (Morgan), Lord Hoffmann, agreeing with the decision, said:

Male possessiveness and jealousy should not today be an acceptable reason for loss of self-control leading to homicide, whether inflicted upon the woman herself or her new lover.”

That, I think, provides some support across a number of areas.

The sexual infidelity exclusion applies in relation to the words and conduct limb of the new partial defence to murder of loss of control. For that limb of the partial defence to succeed, the defendant must persuade the jury of the following: that he or she killed, or was a party to killing another as a result of losing their self-control; that this loss of self-control was triggered by a thing or things done or said—or perhaps both—that, first, constituted circumstances of an extremely grave character and, secondly, caused them to have a justifiable sense of being seriously wronged. Finally, the defendant must show that a person of their sex and age with a normal degree of tolerance and self-restraint and in their circumstances might have reacted in the same or in a similar way to the defendant.

This is a purposely high threshold designed to narrow the circumstances in which a partial defence to murder can be made out based on anger. However, in order to put the matter beyond any doubt, the Bill as introduced in this House also made specific provision that in assessing whether the things said or done constituted a trigger for loss of self-control, the fact that a thing done or said constituted sexual infidelity is to be disregarded by the jury.

I am grateful to the hon. Lady who has given way very generously. I am not a lawyer, so perhaps we can put this into terms that a layman can understand. The difference between murder and manslaughter is essentially the difference between premeditation and instantaneous reaction. If a man or woman comes home and finds her spouse in flagrante and loses control on the spot—not having premeditated finding such a thing—and hits the spouse over the head with a saucepan, which, instead of merely silencing, kills that spouse, most rational people would say that that was manslaughter, not murder. If we are completely to disregard the sexual infidelity in that situation, it removes a defence that would be reasonable in all other circumstances.

I think that a very important principle is at stake here: whether or not this House believes—it has already put its views on this matter on the record—that when a person commits sexual infidelity they in some sense bring upon their own death at the hands of their partner, husband or wife. That surely cannot be the way in which we should proceed. The reality is that in many court cases, it was decided that that was not an appropriate partial defence, so we wish to make it absolutely clear in the Bill that it cannot be a partial defence in those circumstances.

May I tell the Minister about a case I was involved in not so long ago? A person was bragging about having had relations with a man’s wife. The man who was offended went out, bought a knife and stabbed the other person to death. Would the person using the knife have a defence or not? The man killed had said that he had been with the man’s wife and various rude things, so would the new defence be open to the individual who killed the man immediately with the knife?

I do not think it is a matter for me to set out the circumstances; it would depend on the context, which is what the court would have to consider. We are simply saying that sexual infidelity in itself cannot and should not be an acceptable reason for a defence for murder.

Does not the Minister accept that the sexual bond between two people gives them a greater closeness and involvement than with any other people in their lives, which is why people would use this as a plea—because the betrayal is so much greater and the anger may be so much more than in any other situation?

I do not for a moment deny that passions will be incredibly high when such personal relationships are under pressure in the circumstances that many Members are describing, but surely the hon. Lady would agree that this House and our legislation should not say that dealing with such matters in such a violent way is acceptable. It is not and cannot be acceptable—and we want to make it perfectly clear in the legislation that it is unacceptable.

At a time when we are very concerned about so-called “honour killings”, which in no way involve honour, is it not very important that this House should send out a perfectly clear message, as my hon. Friend has said, that sexual infidelity can never be an excuse—no matter what the links in a marriage or partnership, as described by the hon. Member for St. Albans (Anne Main)—for what is, after all, murder?

I certainly agree with my hon. Friend. Of course we do not believe that fidelity, however desirable, is appropriately or effectively championed by treating the victims of infidelity, who go on to kill their unfaithful partner, more leniently. That is essentially the issue.

I am grateful. May I bring the Minister back to the wording of the Bill? Surely the difficulty here is not that we are asking for new law that would make sexual infidelity of itself and solely a qualifying trigger in this context; rather, the problem is that the Bill provides that a thing done or said that constitutes sexual infidelity is to be disregarded. The Minister would be right if the Bill set this out as solely sufficient for a qualifying trigger, but it does not; surely what is unrealistic is, as my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve) said, that the jury is being invited to take no notice at all of something that must count as relevant circumstances.

We need to look at the reality and at what we believe is acceptable. I have to say again that it cannot be acceptable for a man, for example, who finds his wife in a state with her lover and decides to kill her to use the fact of her sexual infidelity as a partial defence. That is not an acceptable way for our legislation to proceed.

I want to make some progress and deal with a couple of other issues that have been raised in the debate.

The core argument against this provision, as put forward in the other place, centred on the notion that the Government were not prepared to trust the common sense of the jury. I believe that that is essentially the argument put by the hon. and learned Member for Beaconsfield. That argument is simply misplaced. The provision does not reflect a lack of trust in the jury; what it does reflect is the Government’s determination to ensure that the law in this matter keeps pace with the times. In this day and age, it should not be possible for any person, regardless of gender or sexuality, to stand up in court and blame their partner—let us not forget that it is the partner that they themselves have killed—for having brought on their own death by having had an affair.

I am going to make some progress; I will come back to the hon. and learned Gentleman.

In modernising the law in this matter, we have purposely set a very high threshold for the circumstances in which killing in anger could ever be treated as manslaughter rather than murder. The words and conduct limb of the partial defence is the main plank for achieving this, but we also believe that in relation to sexual infidelity, it is important to set out the position precisely and uncompromisingly—namely that sexual infidelity is not the kind of thing done that is ever sufficient on its own to found a successful plea of loss of control so as to reduce the verdict from murder to manslaughter.

I want to express one or two concerns about the amendment in lieu proposed by the hon. Member for Cambridge (David Howarth). There may not be sufficient time at the end of the debate—I hope there will be—so I will say a few words about it now. I think I should be grateful to the hon. Gentleman for an amendment in which I believe he is trying to find an alternative form of words to achieve the Government’s purposes in clause 45. However, the way in which the amendment is drafted is unacceptable, for two reasons. First, the amendment restricts the possible motives to three: punishment, sexual jealousy, or sexual envy. Therefore, in cases where sexual infidelity is involved, if the defendant argued that the action he or she took was due not to one of those motives, but to betrayal, breach of honour, or outrage to morality or decency, they could rely on the partial defence. Therefore, if the intention behind the hon. Gentleman’s amendment is what I would hope it to be, it has a loophole.

Secondly, the terms of the amendment are drafted too widely: punishing a person for any act perceived as sexual infidelity would not qualify for the partial defence. The Government’s amendment would ensure that a partial defence could be used, for example, in the extremely grave circumstances in which a woman killed her husband after she came home and found him raping her child. However, under the hon. Gentleman’s amendment, if the act was perceived as sexual infidelity, even though that might not have been the main consideration in the loss of control, its existence would exclude reliance on the partial defence.

Under my amendment, all such issues would be for the jury to decide. I find it difficult to believe that the jury would find in the direction that the Minister suggests.

The hon. Gentleman would therefore leave in some doubt whether there were circumstances in which sexual infidelity would be acceptable as a defence for murder.

The Minister cannot have it both ways. First she says that my amendment catches more cases of sexual infidelity, and now she claims that it catches too few. I wish the Government would make up their mind.

That is not what I am saying. There are circumstances—the prime example is of a wife seeing her husband having sex with their child or a stepchild—in which sexual infidelity has taken place, but that would not be the primary issue on which the defence would, or could, rely under our legislation. They would rely on the extremely grave set of circumstances of the abuse of that child.

But that is the whole point of the words,

“where D acted principally out of”.

The Minister’s example does not work.

The example does work, because the hon. Gentleman’s amendment would still allow sexual infidelity to be used as a partial defence. [Interruption.] Having looked at the matter carefully, I am afraid that that is the case. Under the amendment as drafted, the moment that a person perceived that sexual infidelity had taken place—as they would if they saw their husband have sex with their child—they would rely on that defence. That would not be an acceptable defence, but there would be an acceptable defence on the grounds of those extremely grave circumstances of sex with a child.

I thank the hon. Lady for generously giving way to me a second time.

I doubt that I am the only Member who is getting very confused. The hon. Lady appears to be saying that sexual infidelity can never be a reason for pleading provocation to murder. We all accept that, but that is also the case with all the other reasons why people might plead provocation. The fact that somebody comes home drunk seven days a week is not a good enough reason to kill them, but we know that sometimes that can happen. What is unique about sexual infidelity that it must be removed from the almost endless list of circumstances in which somebody might be provoked?

The circumstances are quite different. Perhaps the right hon. Lady is suggesting that when somebody sees their husband or wife having an affair, that would be a partial defence for committing extreme violence—killing somebody. The right hon. Lady is clearly not in a position to be convinced, but the Government are clear that that cannot be an acceptable partial defence. Although many juries might disagree, there have been examples in the past in which a court has considered that sexual infidelity was a sufficient provocation to allow murder to be reduced to manslaughter. That is unacceptable.

I have been on my feet for nearly half an hour, and I want to ensure that hon. Members have an opportunity to speak in the debate. If the right hon. Lady has more to say, she will be able to do so if I finish my speech quickly. I hope that the hon. Member for Cambridge will see the flaws in his amendment, in relation to restricting and disregarding sexual infidelity as a partial defence. However, I look forward to listening to his argument for his amendment.

Thank you, Mr. Deputy Speaker.

The first problem is that this is the first opportunity that we have had to consider the matter on the Floor of the House. It is a scandal that our procedures are so rotten, hopeless and archaic that, despite the Government’s so-called modernisation, we were deprived of giving the matter any scrutiny before it went to the other place. From that, in my judgment, stems a great deal of the difficulty that we are experiencing.

The second problem is that the Minister’s arguments this evening are utterly incoherent. Having practised in the courts, I am the first to accept that the vast majority of the partial defences advanced to the wicked act of killing another human being are largely untenable. Every day of the week in our courts, those arguments are trotted out and correctly rejected by juries. I have never been left in any doubt that juries are able to make up their own minds as to what reasonably constitutes the partial defence that may reduce murder to manslaughter on the grounds of provocation, and they have to do it all the time.

For reasons that I find most peculiar, the Government have decided that thousands of years of human history and experience should be jettisoned for a piece of political correctness and proclamation: a declaratory statement that sexual infidelity can never justify violent behaviour. The Minister decided to pick some examples, but in doing so she started to undermine her case very quickly. Most reasonable people might have no difficulty concluding that the fact that one’s partner is sexually unfaithful would not in itself constitute a ground on which anybody should raise a finger against them. However, human nature, and the nature of sexual relationships, shows that, unfortunately, that happens very frequently. Juries have to apply their mind to that, and in my experience they will tend very quickly to put things in different categories. They will take account of the circumstances in order to establish the extent to which a person has been deceived, the extent to which a person has been treated badly, or the extent to which general tenets relating to the reasonable humane behaviour that we owe each other have been violated.

The Minister said that if someone came home and found his or her partner was being sexually unfaithful with a child, that would not matter. What about the circumstances in which someone came home and found that his or her partner was being sexually unfaithful with a sibling, or a parent? Those things could happen, but they would not constitute a breach of the criminal law, unlike the Minister’s example involving a child. I suggest to the Minister that all those examples are of a kind that might lead a jury, particularly if there are other circumstances that merit consideration, to —[Interruption.] The Minister says that that would be incest, but if a sibling were involved and both parties were adults, there would be no breach of the criminal law.

I have no idea whether the Minister has brothers or sisters, but it seems to me that if the Minister turned up and found that the person with whom she was currently having a sexual relationship—her partner—was having a sexual relationship with a close relative, a court would be entitled to take that factor into account. In such circumstances, it would be an aggravating feature because of the breach of trust. [Interruption.] I am sorry if the Minister does not understand what I am saying, but I think that I have made myself fairly clear. [Interruption.] Incest would be a different issue altogether. [Interruption.] The trouble is that the Minister did not listen to what I said. I was referring to circumstances in which someone is not only sexually unfaithful to his or her partner but sexually unfaithful within the context of that partner’s wider family, including close relatives. That can happen without any breach of the criminal law. [Interruption.] I fear that if the Minister has not understood that by now, even an attempt by me to explain it behind the Speaker’s Chair will probably be unsuccessful.

Order. I am sorry to interrupt the hon. and learned Gentleman, but I feel that I ought to intervene on behalf of the Official Reporters. The introduction of matters by Members from a sedentary position may make it much more difficult for them to produce a reliable account of our proceedings.

The Minister said, from a sedentary position, that I was not referring to the defendant. Of course I was referring to the defendant. The defendant is the person who has put the defence forward, and if the Minister has not understood that, it is beyond my comprehension.

Let me move on. The point at issue is this: why should the jury be deprived of the opportunity to take that factor into account? All I can say to the Minister is that it seems to me that the Government’s argument is entirely incoherent. They wish to issue a statement, but I think that in doing so they risk grave injustice in a very small minority of cases.

The second issue that the Minister has not been able to address properly is how a judge will direct a jury in cases in which sexual infidelity is one component of the story, but other components are also involved. How, logically, will juries be able to disregard the sexual infidelity component? It beggars belief that the Minister thinks that that will be easy.

When I intervened on the Minister, I gave an example which I think is worth repeating. One of the good things that the Government have done in the Bill is to enable people who have been battered and abused for many years to advance the partial defence, even in circumstances in which currently they have been prevented from doing so because they did not act in the immediacy of the violence meted out to them. I welcome that—I think it is an important development—but, as I said to the Minister, there will be cases in which the final trigger is the discovery of sexual infidelity in that context. It is beyond my understanding how a jury will be properly directed to put that issue out of their minds, but will be allowed to consider the other issues.

What my hon. and learned Friend has said is, in fact, the considered view of the Law Commission, which eventually decided not to impose the formulae advocated by the Minister, but to leave it to the good sense of the judge to determine what could properly be left to the jury.

I am grateful to my right hon. and learned Friend. Listening to the Minister, I began to think that I must have completely misread the Law Commission’s report—yet that is what she told us, and I must tell her that that does not raise my level of confidence that she actually knows what she is talking about.

Perhaps I can enlighten the hon. and learned Gentleman. Section 3.144 of the Law Commission’s report, on page 65, states:

“Under our approach provocation should not be left to the jury in such a case because we do not see how any reasonable jury, properly directed, could conclude there had been gross provocation or that a person of ordinary tolerance and self-restraint might have acted in the same way as the defendant.”

Perhaps the hon. and learned Gentleman would like to look at the report in a little more detail.

It is the Minister who is being selective. If she turns the page, she will see the precise exceptions—in sections 3.146 to 3.150—which appear to me to undermine everything that she has said. Section 3.150 states:

“Our approach has been to seek to set out broad principles, to rely on the judge to exercise a judgement whether a reasonable jury could regard the case as falling within those principles and then to rely on the jury to exercise its good sense and fairness in applying them.”

Further up the page, the report provides the precise examples that I cited to the Minister.

Let me return to a point that I made earlier. These are the Law Commission’s original proposals. Since then, the Government have cherry-picked those proposals. I understand why they have done so, but, as the Law Commission has made plain, the coherence of its proposals has been entirely undermined by their action. That constitutes a major problem in the way in which the Government have approached the legislation. I think I am correct in saying that for those reasons the Law Commission has indicated to the Government—and the Minister has not answered my questions since then during the passage of the Bill—that it believes that the decision should be left to the jury.

Even if the hon. and learned Gentleman does not accept the Government’s view, there are pretty good arguments on both sides, but given the violence that is perpetrated against women and given that far more women than men are murdered as a result of affairs and sexual infidelity, would it not be right—I speak as a layman, not a lawyer—for the House to convey the message that sexual infidelity must not lead to a manslaughter charge, because it constitutes outright murder? After all, we convey messages on all kinds of issues. That would strengthen the opinion held by so many of us that women should be protected against violence and, obviously, should be protected first and foremost against being murdered.

Order. I realise that the hon. Gentleman has some knowledge of these matters to contribute to the debate, but that was a very long intervention and we have a limited amount of time left.

I am grateful to the hon. Member for Walsall, North (Mr. Winnick), but I wish to bring my speech to a close.

I certainly do not wish to see circumstances in which the House provides an excuse for men to kill women simply because they perceive that the women have been unfaithful to them—or, for that matter, vice versa: I do not want to see women killing men. On that I am sure we can all agree. That, however, does not justify the remarkable step that the Government will take if they decide that this is one of the components that can be entirely disregarded by a jury when it comes to consider the plea of provocation and the partial defence. I simply do not understand the logic.

History suggests—certainly, the cases that I have seen suggest—that although on occasion the defence may be advanced as a mere cover for the violence of one party to another, sexual infidelity is sometimes an important and relevant component of the cocktail of events that combine to make a reasonable person snap. For those reasons, I think it is very dangerous for this House to deprive juries of the opportunity to use their good sense to evaluate that evidence, but I am afraid that that is what the Government have chosen to try to do, and I do not understand the rationale behind that. I am very wary of legislating in a symbolic fashion. Juries are entitled to consider these points and, in my experience, if we allow them to do so, they will come up with the right answers. For those reasons, the Lords amendment deserves to be supported.

First, I agree with what the hon. and learned Member for Beaconsfield (Mr. Grieve) said about this being the first time that the Bill’s murder provisions have been considered on the Floor of the House. It is extraordinary that the business was arranged in such a way that we could not discuss these and many other important issues about the law of murder.

I also associate myself with the hon. and learned Gentleman’s remarks on what has happened in respect of the Law Commission. It was given a very narrow remit in the first place, in that it was not allowed to consider the question of a mandatory life sentence for murder; it then produced the best possible report it could in the circumstances—even though it might not have been what it wanted to do had it been left to its own devices—and then the Government cherry-picked even that. I must say that it is hardly convincing for Members on either side of the debate to cite what the Law Commission said in its reports, as I do not think they reflect in any way what it thinks.

There are three different kinds of reason on offer in this House and the other place in favour of dropping the sexual infidelity provision the Government originally proposed—clause 45(6)(c). I want to make it clear from the start that I do not agree with the major reason given today, which was implicit in what the Lords said, which is that somehow it is all right for men to use sexual infidelity as an excuse for murder. That is unacceptable. However, two other reasons were on offer, and I shall need to talk about them as well.

Some Members have rightly said that it is a matter of fact that there are cases when men especially—although this can happen the other way around—kill in a rage about sexual infidelity. The issue is not whether that is a fact, but whether it is an excuse; it is a question of value, not of fact. On the question of value, I am entirely with the Government. I do not agree that that is a proper reason to offer in defence against a charge of murder, especially given that a charge of murder is one where there is a requisite intention to kill. The defendant is therefore saying, “Yes, I did have that intent. I had all the requisite intention to murder, so it was not that I did not know what I was doing. I did know what I was doing, but the action arose out of these circumstances.” That is an unacceptable excuse.

I have slightly more sympathy with the second reason raised both here and in the other place, which has to do with the jury. I think the jury does have a place in these cases. I do not think the Government have excluded the jury in the current version of the clause in question either, because they do not say that the judge shall tell the jury how to decide any case where there is sexual infidelity. They simply say that the sexual infidelity is to be disregarded. To whom is that clause addressed? The Government are not entirely clear about that.

Are the Government not saying that the judge must direct the jury that it must disregard questions of sexual infidelity?

Precisely, but there is still the judge saying those words to the jury, and it is for the jury to decide what they mean in a particular case. Therefore, even the Government have not succeeded in taking the case entirely away from the jury. What does “disregard” mean? It is for the jury to make that assessment.

There is a point that I should perhaps have made. Ironically, I actually think the impact of these proposals on juries will probably be minimal. I think it will be very easy for a jury to disregard a judge’s direction in this regard if that jury happens to disagree with it, because that direction will usually be merged with other issues that fall to be considered, and it will therefore be impossible to disentangle how the jury arrived at its decision.

One of the most important aspects of the jury system is that the jury gives no reasons, so we never know the answer to such questions.

I agree with the Government that there is no reason in principle why the legislature should not set the criminal law. It is for Parliament to say what the law should be, and Parliament is perfectly entitled to say that certain excuses should not count. That in itself is not an argument against the Government’s position.

Members seem to have missed the point that this part of the Bill already includes another substantive restriction on what can count as a justifiable lack of control. It is contained in clause 44(4), which says that the loss of control defence does not apply where the defendant

“acted in a considered desire for revenge.”

Revenge is therefore also excluded in the same way. Perhaps a jury will think otherwise, and consider that there should have been such a defence in the circumstances before it. No one has yet complained that that provision should be removed simply because it interferes with the rights of the jury. I am not entirely convinced by the jury point, therefore. The Government are entitled to propose changes in the substantive law, as long as they admit that in the end these questions of fact will, even in their own version, be decided by a jury.

The third reason was more persuasive. It has been alluded to here, but it was discussed at great length in the other place. It takes us back to the evidence the Law Commission gave to the Public Bill Committee. It is the argument that the drafting of clause 45(6)(c) was defective—or, to borrow a word used by one commissioner, “bizarre”. That clause said:

“In determining whether a loss of self control had a qualifying trigger…the fact that a thing done or said constituted sexual infidelity is to be disregarded.”

There is an enormous number of things wrong with that formulation. We do not have time to go through them all, but the first thing that is not at all clear is whether it does the job the Government want it to. What is to be disregarded? Is it sexual infidelity? No, the clause does not actually say that. It is merely the fact that something

“done or said constituted sexual infidelity”.

In other words, the infidelity itself is not to be disregarded, but merely the mental process going through the head of somebody else, who comes to the conclusion that something constitutes sexual infidelity—that is what is to be disregarded. It is not clear that that is what the Government wanted. Secondly, how can a thing that is said constitute sexual infidelity? What words constitute sexual infidelity? I cannot see how that works.

Thirdly, what counts as sexual infidelity anyway? The Minister’s examples show the problem is a difficult one to resolve. She put forward lots of examples of what she claimed was sexual infidelity, although it is not clear whether a jury would agree. What about unmarried couples? What about situations in which the couple disagree about the degree of fidelity that is expected in their relationship? This takes us back to the point the law commissioners made, which is that presumably what the Government meant was something like sexual jealousy or envy, rather than infidelity as such. There are other ways of drafting the clause that get out of at least some of these problems. I do not say that the amendment we offer solves all the problems, but I think it solves at least some of them.

On Report, had we been allowed to debate it, we would have offered an even more comprehensive solution that would have separated out the various problems in this entirely unsatisfactory area of the law. One area in which the Bill fails is that it does not distinguish between loss of control through anger and cases of long-term violence where people—especially women—fear repetition of the violence. Those are entirely different cases. The second sort of case is not really about loss of control at all, and should be subject to a separate defence. None of our proposals were discussed, and it is not possible at this stage to rewrite the whole of the murder provisions—although if that were possible, it should have been done.

It is possible, however, to offer a cut down version of what we offered on Report, by way of amendment (a). That amendment deliberately ties the issue of sexual infidelity to a specific part of the trigger provisions, namely that the circumstances should be

“of an extremely grave character”.

It ties it down to how the Bill works, rather than being at large which is how the current drafting works. It avoids the “constitute” problem by concentrating not on the thought processes of the court, but on the actions and intentions, or reasons for action, of the defendant. We hope that it adds more comprehensibility to the sexual infidelity language by referring to “sexual jealousy”, which is slightly clearer.

The Minister said that what was wrong with our amendment was that there were circumstances in which the defendant might “perceive”—she used the language of the amendment—that what was going on was sexual infidelity whereas, in reality, it was not, or someone else might think that it was not. That ignores, first, that this is a jury question in the end—that cannot be got away from; this is criminal law, so the jury decides this kind of issue. It also ignores the fact that the amendment starts with the words

“where D acted principally out of a desire”.

The key phrase is “acted principally”. The jury decides whether someone acted principally out of the various matters referred to in the amendment. The Minister’s problem with the subjective nature of “perceived” does not arise unless the jury thinks that that is the principal reason. No reasonable jury could possible believe that in the circumstances she put forward the principal reason for the action of the killer was sexual infidelity—even the perception of it.

The objections that the Minister raised do not work. I simply add that whatever the problems with our drafting, they are as nothing compared with the problems in the Government’s drafting. Faced with a choice between something slightly imperfect and something plainly bizarre, we should choose the slightly imperfect. Thus, if circumstances arise in which it is possible to vote on amendment (a), I request that we do so.

I think that my right hon. and hon. Friends wish to contribute to the debate, as perhaps do some Labour Members, so I shall be brief and compress my remarks to something shorter than I originally had in mind.

The law of provocation has always been one of the most difficult aspects of the law of homicide, and over the years it has given rise to a great deal of judicial comment and controversy. Broadly speaking, the recommendations of the Law Commission, which are encompassed in this Bill, are to be welcomed, but there is one exception: the proposal to exclude from the triggering event the conduct entitled “sexual infidelity”. I am very much with my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve), who speaks from the Front Bench, in believing that this is essentially a matter for a jury.

Perhaps the House will forgive me if I recount a case that I dealt with some three or four years ago—I was acting for the defendant, who was charged with murder. He was impotent, and he often tried to have sexual relations with his wife and failed because of his impotence. The wife then developed a long-standing sexual relationship with a lover, and that was known to my client. There was then an occasion when my client tried to have sexual intercourse with his wife, but because he was impotent he could not achieve that, at which point the wife began to abuse him, laugh at him and say that he was not a patch on the lover. My client lost self-control and strangled his wife.

Within that cocktail of events, the sexual infidelity of the wife played a prominent part, but if we are to accept the Government’s position, that sexual infidelity would have to be disregarded. I see absolutely no justice in providing in statute law that what was clearly, on the face of it, a relevant fact should be disregarded. My client was convicted of murder—that is to say, the jury in that case determined that the conduct did not amount to provocation within the meaning of the law, and he was convicted of murder. I was very unhappy about that verdict, but that is a wholly different matter. What the case shows is that a jury is perfectly capable of addressing this issue and taking a broad view of what is just.

The Minister has said that her views were in accord with those of the Law Commission, but that is not so. What is correct is that the Law Commission said in its report that male possessiveness and jealousy should not, of themselves, constitute good cause. It relied, perfectly understandably, on the judgment of Lord Hoffmann in the very important case of Smith (Morgan), when he commented on the Australian case of Stingel. If the Minister were to read further on in the report, to the following page—this is the point to which my hon. and learned Friend the Member for Beaconsfield was drawing attention—she would see that it makes it clear that where additional material comes into play—for example, taunting somebody about their impotence—it is right that consideration of that combination of events should be left to the jury.

That is why the Law Commission, in its considered view, held against the Minister’s position of excluding a particular category of event from the triggering events. If she would be good enough—I am sure she will—to examine paragraph 3.168 on page 70, where its detailed recommendations for inclusion in statute law are set out, she will not find a recommendation that sexual infidelity should be excluded from the triggering categories. She will not find it, because that was not the Law Commission’s view. Its view—it happens to be my view, too—is that these are matters best left to the jury. Very often, the jury will decide that the conduct does not amount to provocation, as in the case I told this House about, but sometimes it will decide that it does. If we exclude that fact from the jury’s ability to take account of the matter, we bring about a profound injustice. I believe that the views expressed in the other place are wholly right and that this provision has been added—probably at the suggestion of the Solicitor-General, who is no longer in her place—out of a desire to be politically right. I do not think it just and this House should not go along with it.

What I have been totally unconvinced about tonight is why this particular motivation and provocation should uniquely be removed from a jury’s discretion in deciding whether or not it was, in the circumstances rehearsed, an understandable ground for somebody losing control. The Minister has said that sexual infidelity cannot be, on its own, a cause for killing, and we would all agree with that. However, the whole point about loss of control is that the person does not make a rational assessment at the time of what he is doing and does not necessarily intend to kill, but is provoked into making an attack. On that basis, just about every single reason for losing control would have to be taken away from a jury’s discretion. The Minister has not shown that there is some factor in this one cause of loss of control that justifies its uniquely being taken away from a jury’s discretion.

It is no reason to kill somebody if they get drunk, but let us consider a situation where a man comes home night after night as drunk as an owl. If his wife says to him “Don’t do it again” and then moves towards him, pushes him in her fury at his being drunk as an owl and he falls over, hits his head and dies, she will say, “Of course it was not a good enough reason, but I lost control.” Why somebody—it could be a man or a woman; it does not have only to be a man—coming home and finding his spouse of x years in bed with somebody else shall not trigger a similar loss of control is beyond me.

The fact is that one cannot specify what is and is not a reasonable ground for loss of control for the simple reason that nothing ever seems reasonable when one looks at it from the point of view of somebody who is totally in control and rational. It is for a jury to decide the following question: was the provocation in this incident—whatever that incident may be—sufficient to cause that person, on the spur of that moment, to kill in that way? That is entirely a matter for the jury to decide. The hon. Lady has not made any case tonight for the argument that, quite uniquely, the one circumstance in which the jury cannot make that assessment should be sexual infidelity.

I was racking my brains on this, and got a bit of approval from those on the Liberal Democrat Benches who are better versed on this than I am. I think that the right hon. Lady would find that in such circumstances—if, in her delightful phrase, a man was as drunk as an owl and the woman involved just pushed him and he fell, hit his head and died—since we can infer from what she said that there was no intention to commit either murder or grievous bodily harm, no charge of murder would lie, still less be followed by conviction.

That is the whole point and I am sorry that the Lord Chancellor somehow cannot understand it. The whole point is that an intention to kill is not formed.

Leaving aside the example of drunkenness that has been given, as we are talking about sexual infidelity, is it not true that we are not talking about somebody who intended to kill or who was out for revenge? We are talking about someone who snapped and lost control, and a jury should therefore have all the facts.

The hon. Gentleman sums it up exactly. Somebody snaps and loses control, and whether or not a circumstance is sufficient to cause that snap will be decided by the jury in every circumstance, no matter how trivial, other than sexual infidelity. I do not hear the case made for an exception for that single category of provocation.

I understand the right hon. Lady’s concerns and this is an inherently difficult issue, but let me say that it is nothing to do with political correctness. To say that is to trivialise this difficult issue. She chose the example—I did not—and in that case no charge of murder would lie and, if there were a charge and that was the totality of the evidence, it would not go to the jury.

So, if a woman taunts her husband about her sexual activity with a third party and he, in his fury, moves towards her and shoves her hard and she falls over, hits her head and dies, that is not a provocation because, uniquely, the jury will be told that it cannot take sexual infidelity into account. It is nonsense. I shall not go on repeating the same point, because it has repeatedly failed to be answered and I am aware that we would quite like to vote on the amendment.

The hon. and learned Member for Beaconsfield (Mr. Grieve) has suggested that this is essentially about the Government trying to remove a responsibility from juries simply because juries would find it too difficult to deal with and because it is too difficult for judges to direct juries. I disagree that judges will not be able to direct juries. Judges are perfectly used to directing juries about what they can and cannot consider—they do it every day in court. It is not beyond the ability of judges to tell juries that sexual infidelity cannot be a qualifying trigger for a loss of self-control. If something else is relied on as the qualifying trigger, any sexual infidelity that forms part of the background can be considered but it cannot be the trigger. That is essentially what the legislation seeks to do—to stop the act of sexual infidelity being the trigger that enables people to say that these are extremely serious and grave circumstances.

My reading of clause 45(6)(c) does not match the comment that the Minister has just made about being able to consider it in the background as long as there are other factors. There is a clear contradiction between the wording of subsection (6)(c) and her intention. That is why I urge her to be so cautious about the clause, which I think has been very poorly thought through.

The partial defence for loss of control exists on the basis that there will be certain sets of triggers—things that take place that cause the loss of control. Sexual infidelity is being disregarded as an acceptable trigger that can play into the loss of self-control. We believe that it is acceptable to do that precisely because we do not think that sexual infidelity, in itself, should be considered an acceptable reason for somebody to have killed their partner, husband, wife or whomever the circumstances might involve. The background information might well form part of the case, but sexual infidelity will not be the trigger for allowing the defence of that partial loss of control.

I am grateful to the Minister for giving way. At the risk of taking up more of her time, I point out that she knows that clause 44(1) already does not apply if

“in doing or being a party to the killing”


“acted in a considered desire for revenge.”

That is a very important clause that I entirely agree with, but the fact that it is there means that the examples she has been giving about killing on the ground of sexual infidelity based on a feeling of vengeance could not come into the picture anyway. That is why it is such nonsense to include this provision, and why it will be impossible for a judge and jury to disentangle the facts when they are all mixed up together.

I completely disagree with the hon. and learned Gentleman. The judge and indeed juries are quite capable of considering the information that is available to them as background information. We are saying that it is completely unacceptable that sexual infidelity in itself should be used as the trigger to allow the defence of loss of self-control to come into play. That is essentially what this is about, and I am quite surprised that the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) feels that it is appropriate—indeed, this featured in the case he discussed—for somebody who has committed sexual infidelity to be told by their killer, or for it to be determined in a court case by their killer, that that is essentially just cause. “You have committed sexual infidelity and that is just cause for me to commit murder,” is not an acceptable claim.

That is not what I was saying. I was saying that when there is a cocktail of events—in the case I cited, they included the sexual infidelity that formed the background, together with abuse and taunting of the defendant—the combination is capable of amounting to an appropriate trigger. Incidentally, that is also the view of the Law Commission, and when it took that question out to sample—I think the Minister will find it on page 66 of the report, but I could be wrong—that was also the view of the focus groups to which the question was addressed.

The right hon. and learned Gentleman and I are clearly not going to agree on the issue, and unfortunately the right hon. Member for Maidstone and The Weald (Miss Widdecombe) and I are not going to agree either—whether it is on sets of circumstances, sexual infidelity or drunken owls.

In the remaining time, I want to deal with some of the other points. The hon. Member for Cambridge referred to the issue of whether sexual infidelity is a thing done, a thing said or both. We have used the words “done” or “said” in the provision, to the effect that the fact that a thing done or said constituted sexual infidelity is to be disregarded. By doing so, we are making it clear that the subsection relates back to the earlier subsection, which refers to

“things done or said…which…constituted circumstances of an extremely grave character, and caused”—

the defendant—

“to have a justifiable sense of being seriously wronged.”

Although it might be difficult to understand how “things said” would of themselves amount to sexual infidelity—I understand the point that the hon. Member for Cambridge is making—if we were to remove that term we could leave a loophole that might be exploited in the future. For clarity, and to ensure that the provision is seamless, the provision refers to the words in the original subsection—“things said or done.”

That is precisely why it is important that if there is to be a subsection 6(c), it refers to 4(a), as my amendment does, or to 4(b) rather than to the first words in subsection (4) because those words cannot possibly apply in terms to sexual infidelity.

That is why we are ensuring that there is seamlessness between the subsections with the words “things said or done”. That will ensure that sexual infidelity cannot be relied on in those circumstances.

The hon. and learned Member for Beaconsfield seemed to suggest that there is no support for the amendment, beyond some form of political correctness. I have to tell him that is quite contrary to the reality of the situation. We have received more than 40 representations, from individuals and groups, asking the Government to seek to overturn the vote taken in the other place. Those organisations are significant and varied. They include the Women’s National Commission, Amnesty International, the Eaves group, Justice for Women, violence intervention programmes and a range of other rape crisis organisations and other groups that support women who have been raped.

All the representations we have received have stated clearly that in the killing of a wife or girlfriend by a partner, actual or suspected infidelity has often been used in the past to reduce murder to manslaughter. The law should be clear that that is no longer acceptable. The penalty for infidelity should not be death, and partners who believe it is their right to kill should always go on trial for murder. In this instance, our concern is that men who kill women should not be able to plead the traditional argument that she was unfaithful.

claimed to move the closure (Standing Order No. 36).

Question put forthwith, That the Question be now put.

Question agreed to.

Question put accordingly, That this House disagrees with Lords amendment 55.

Lords amendment 55 disagreed to.

Clause 61

Hatred against persons on grounds of sexual orientation

With this it will be convenient to discuss the following: Lords amendment 119, and Government motion to disagree.

Lords amendment 121, and Government motion to disagree.

Lords amendment 236, and Government motion to disagree.

Lords amendment 239, and Government motion to disagree.

In inviting the House to reject the Lords amendments, we are seeking to complete unfinished business from the last Session. The House will recall that we introduced offences of inciting hatred on grounds of sexual orientation in the Criminal Justice and Immigration Bill. During its passage, the other place passed an amendment that inserted what is now section 29JA into the Public Order Act 1986. That section contains a so-called freedom of speech saving

“for the avoidance of doubt”.

Regrettably, for want of time, we were unable to overturn the Lords amendment, but the Minister of State, Ministry of Justice, my hon. Friend the Member for Liverpool, Garston (Maria Eagle) made it clear that when the opportunity arose, we would return to the issue. To this end, a clause in this Bill sought to repeal section 29JA of the 1986 Act. The House approved that clause by a majority of 152 on Report in March. That was the third occasion on which the House has made it clear, by a substantial margin—202 on 6 May 2008—that there was no need for the freedom of speech saving provision.

The other place has seen fit to strike out the clause, thereby seeking to retain the unnecessary, unwanted and potentially harmful saving provision. We should send a clear message back to the other place that it is ill conceived, ill judged and ill advised. Furthermore, that has been the settled will of the elected House on three occasions to date.

Let there be no mistake: people who stir up violence and hatred against homosexuals are completely wrong. But there is nothing in the Waddington amendment that does that. All the Waddington amendment allows is a

“discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct”.

Lord Waddington is not trying to stir up hatred. He just wants free speech. If people want to say that Roman Catholicism is wrong, let them. That is free speech, and the House should be very careful when it attacks free speech.

The House is not attacking free speech. It is clear that people retain their right to freedom of speech. The clause is unnecessary because the threshold of the offence is already set incredibly high. We introduced these new offences in the Criminal Justice and Immigration Act 2008 to protect a group in our society who are at times the victims of bigotry and hatred. We considered carefully how to formulate the offences, recognising the particular sensitivities about offences that impact on freedom of speech. We believe that we have got the balance right without the so-called freedom of expression saving provision. In introducing those new offences to protect victims of that bigotry and hatred, we looked very carefully before we proceeded.

I have listened carefully to the Minister, and the argument that everything is all right is one to which the House must pay considerable attention. She will be aware that only two weeks ago, under existing law, a case in Norwich gave substantial cause for concern. The right of freedom of expression—the right of people to express views that might appear unpalatable and with which one might disagree—is being visited not with the reply, “I disagree with you,” but with a visit from the police. That must be a subject of concern for the Minister, and the fact that it has happened only recently, following the case in Lancashire some years ago, suggests that there is still a real problem. Individuals are finding that they cannot express themselves with views that are certainly not about hatred, but about freedom of expression and conscience.

There is nothing to prevent freedom of expression, and many of the incidents to which the hon. and learned Gentleman refers, as he well knows, fall under the Public Order Act 1986, in which there is a much lower threshold. Therefore, it is not the basis of the offence under discussion, which involves a high threshold and is exactly the reason why the so-called freedom of speech section is not necessary. It is simply unnecessary and has the potential to remove the impact of the offence itself, and we do not wish to see that. If he accepts that bigotry and hatred on the ground of sexual orientation is completely unacceptable, he should see that we will do nothing to water down that offence. The offence already has an incredibly high threshold.

I am grateful for what the Minister says, and I hope that she will join me in continuing to point to those who raise valid concerns about the Norfolk and Lancashire cases that the problem is the police’s treatment of section 5 of the 1986 Act, which contains an “insulting” provision. Will she say anything more about her Department’s undertaking to review whether she would accept, in some later legislation now, the amendment that I and my colleagues proposed to remove “insulting” from the offence and raise the threshold in that legislation? It would deal with all the mischief in the examples that other hon. Members have given—rightly in that context, although not in this one.

I wish to ensure that we deal with the legislation before us. What is before us is an opportunity to make sure that the will of this elected House, which has had an opportunity on three occasions to state that it does not believe that this so-called freedom of expression section is a necessary or wise addition to our legislation. We have got the balance right already.

We looked at existing models in legislation to decide which way we wished to proceed. The first model is used for race hate offences. In the case of racial hatred, the 1986 Act criminalises threatening, abusive or insulting words or behaviour that are intended or likely to stir up racial hatred—a low threshold. In contrast, the second model, provided by the religious hatred offences, sets a much higher threshold. In that case, an offence is committed only when threatening words or behaviour are used with the intention of stirring up hatred. It is not enough that the words or behaviour are abusive, insulting or merely likely to stir up hatred. We have adopted that model for the offences of stirring up hatred on the ground of sexual orientation.

The Minister refers to the religious hatred provision, but she will be aware that it contained a further protection, which she has not mentioned. That is what we seek in the legislation before us—the same protection as that which is in the religious hatred provision.

And the hon. Gentleman will recall that the Government did not approve the extent of the Lords amendment on that occasion, either.

We have set a very high threshold for the offences, which can be prosecuted only with the consent of the Attorney-General. The reason why the so-called freedom of expression section is not required is that the Attorney-General already has a duty under the Human Rights Act 1998 to consider rights in the European convention on human rights. The provision does not need to be in the Bill, and therefore we must question why those Lords who supported the amendment wanted it made to the Bill. Such freedom of expression already exists.

The right hon. Lady says that it is for the avoidance of doubt, but I am quite sure that in other circumstances, perhaps she, and certainly many of her right hon. and hon. Friends, would say that provisions should not be added to Bills—creating more legislation—simply for the avoidance of doubt. Indeed, I am well aware that they have criticised it when they have believed that it has happened in the past; yet, on this occasion, they think it acceptable to make an amendment that is simply not needed. Even more than that, it has the potential to do harm. It may well result in the offence not being prosecuted, because somebody believes that they can rely on the provision. I hope that that is not the case.

It is true that the section would not change the threshold of the offence, but that is not at all the same as saying that it either has no effect or would not be useful. Would it not at the very least provide a signpost to police and prosecutors, saying that they should lay off innocent people who merely discuss or criticise sexual conduct? That is what we see in case after case. That is the purpose of the section and why we should retain it, and later on I shall certainly seek to catch your eye, Mr. Deputy Speaker, to make those points in more detail.

The legislation before us is not the appropriate place in which to put the police guidance to which my hon. Friend refers. Indeed, legislation is not necessarily the place for it. Guidance may well be the place to put it, and we will seek in due course to look at the guidance. The right hon. Lady said earlier from a sedentary position that the section purports to be for the avoidance of doubt, but in effect it creates doubt where there should be none. In that way, we believe that it is not simply unnecessary, but potentially damaging to the effectiveness of the offence itself.

People with strongly held religious or moral beliefs must of course be free to express their views. [Interruption.] The right hon. Lady says that she does not have the right to express her strongly held religious or moral beliefs. I contend that she certainly does, but not where it breaches the level of the offence, which has an incredibly high threshold.

I probably do have the right, and I regularly use this place to exercise it. But those who do not enjoy parliamentary privilege, and, instead, express the same views on the radio, in letters to their council and in the literature that they give out, find that they do not have that right.

I am afraid that I do not agree with the right hon. Lady. One does not need parliamentary privilege to express one’s views. Freedom of expression is permitted, allowed and encouraged, the difference being when it is intended to incite hatred. There will be people who hold a religious or moral belief and have objections to homosexuality or to certain sexual practices. They are perfectly entitled to hold those opinions, and nothing in the Bill changes that; rather, it ensures that at the point where their words are threatening and their behaviour is intended to stir up hatred, the offence will bite.

I am grateful to the hon. Lady for her customary grace in giving way. I have said in this House that I do not believe that homosexual couples should adopt children. No police appeared on my doorstep. When a children’s author gave exactly the same opinion on a radio programme—under questioning; they did not just volunteer it—the police got involved.

The right hon. Lady is not entitled to express her views on matters only because she is a Member of this House and entitled to parliamentary privilege. Many of the incidents to which she refers come under the Public Order Act 1986, and therefore the threshold is considerably lower than in the Bill. The high threshold in the Bill relates only to threatening words and behaviour intended to stir up hatred. People are perfectly entitled to express their views about homosexuality. Some will find those views distasteful, offensive or even insulting, but there is nothing in these offences that prevents that expression of opinion. Those uttering such threatening words or exhibiting such behaviour intended to stir up hatred should not have the cloak of a so-called freedom of expression clause to protect them. Frankly, I am surprised that so many hon. Gentlemen on the Opposition Benches—and indeed the right hon. Lady, who is sitting there on her own—think that people should be entitled to protection where they have used threatening words that are intended to stir up hatred.

The public record speaks for itself on my position on protecting and standing up for the rights of homosexuals. What does the Minister think would lead to a vicar, for example, or perhaps an imam in the constituency of the Lord Chancellor, falling foul of the legislation that she has put before the House?

In order to fall foul of the Bill, the person’s words would have to be threatening and their behaviour intended to stir up hatred. If they did intend to stir up hatred, I believe, and the Government believe, that they should be guilty of the offence—that the threshold should have been reached. If the hon. Gentleman does not believe that, he is saying that it is acceptable for people to stir up hatred on the ground of sexual orientation and that that is freedom of speech.

I am grateful to the Minister for giving way; she is being very gracious. In order to have clarity, does she think that the Old Testament or the New Testament, the Koran or the Hadith, or the Torah, for example, would fall foul of this legislation?

I think that the hon. Gentleman is trying to find out whether I wish to have a religious and philosophical debate on the holy books. As a Roman Catholic, I can make reference to only one book. The reality is that if somebody uses the words that may be contained in a religious book with a clear intention to stir up hatred, they will fall foul of this offence. Someone may simply express a view that they do not agree with homosexuality or with certain sexual practices—they can have freedom of speech and expression—but that is entirely different from taking it to a level where they intend to be threatening and to stir up hatred on the ground of that sexual orientation.

Does the Minister realise that, if the Bill is passed, it will become more and more difficult in this United Kingdom for a preacher to express biblical standards? Someone could be perceived to be stirring up hatred if they were simply quoting the Scriptures and preaching from God’s precious word. That is a disgraceful situation.

I am afraid the hon. Gentleman is not correct. A person would have to intend their words to be threatening and stir up hatred. That would have to be their intention, not the perception. Nothing in the Bill will prevent a preacher or follower of any religion from expressing their views, provided that they are not intending to stir up hatred. That is quite different.

I want to make it absolutely clear that those who hold views different from mine or those of other Members, and who do not believe that homosexuality is acceptable and have objections to certain sexual practices, are entitled to continue to hold and express them. They may not use threatening words and intend to stir up hatred on the ground of sexual orientation, but that is quite different from the reality of what goes on in churches, mosques and other religious places up and down the country. The hon. Gentleman, and indeed many Opposition Members, may well be doing a disservice to many people of strong religious and moral views on such matters who hold different views but do not intend to stir up hatred. It is a really high-level offence.

I am going to proceed, and then the hon. Gentleman will have a better opportunity to express his views.

If we had set the bar for the offence too low or had not afforded sufficient protection for freedom of speech, I am quite sure that the Joint Committee on Human Rights and the Equality and Human Rights Commission would have been the first to say so. Both bodies have carefully examined the offence and separately concluded that there is sufficient protection for freedom of speech without the need for section 29JA of the 1986 Act.

We should send a clear and unequivocal message to the other place. It made a wrong call in the last Session in passing the so-called freedom of expression saving provision. It has made the wrong call again this Session in seeking to block its repeal. On three occasions, this elected House has rejected the need for it, and I invite it to do so again by rejecting the Lords amendment.

We are certainly revisiting an old topic. I rather disagree with the Minister in her view about the behaviour in the other place the last time this matter came up for consideration. On the face of it, whatever the Government may have felt about the matter, they were prepared to accept the Lords amendment on that occasion. One can only conclude that, in their willingness to do so, they made the evaluation that Lord Waddington’s amendment was innocuous. In my judgment, that is exactly what it was.

The Minister has studiously avoided debating why the offence in question cannot be successfully prosecuted under Lord Waddington’s amendment, because she has no case to make about that. If there were a problem, the Government could at least have allowed the offence to be tested. If it had then turned out that it was causing problems when it got to court, they would have had a greater justification for asking the House to reconsider the matter.

Is it not interesting that the Minister never actually discussed Lord Waddington’s amendment? We all agree that it is wrong to threaten or stir up hatred, but Lord Waddington’s amendment said simply:

“For the avoidance of doubt, the discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices shall not be taken of itself to be threatening or intended to stir up hatred.”

That is all that we are saying—simply discussing the matter is not threatening behaviour or worse—[Interruption.]

I agree entirely with my hon. Friend. I heard from a sedentary position the hon. Member for Oxford, West and Abingdon (Dr. Harris) saying, “Not if it is threatening,” but the words “of itself” make it quite plain that if it were threatening language in that context, the freedom of speech defence would not be open to the individual concerned. Therefore, his anxiety is misplaced.

I say this to the hon. Gentleman, seeing as he is participating in this debate: we have in the past worked together on similar issues regarding religious hatred. One comment that he often made then—indeed, I even remember him conceding in the context of this offence—was that such offences, which the House creates, can have a chilling effect on freedom of speech. He may have been the first person to use the words “chilling effect” in the House. I certainly remember them coming first from him.

The fact of the matter is that there is plenty of evidence, unfortunately, in the context of the Public Order Act 1986, that the offence is having a chilling effect. Its interpretation, based upon a form of political correctness handed down by what is perceived to be the line taken by those in authority, is leading to abuse in a number of circumstances by the police who threaten individuals with prosecution unless they desist from expressing perfectly legitimate views. That causes me great concern, but I am glad to say that that has in no case led to prosecution and that in one case it led to the police subsequently providing an apology for their conduct. Nevertheless, we must bear that point in mind, because the Government intend—I do not think the Minister disagrees with this—the offence to be far more serious, although I accept that the test for it may be different, as she said.

If I catch Mr. Deputy Speaker’s eye, I will respond and show how much the hon. and learned Gentleman and I agree on various points. There has, in fact, been a prosecution along the lines that he hoped there would not be. However, how can the words

“discussion or criticism of sexual conduct”—

and so on—

“shall not be taken of itself to be threatening or intended to stir up hatred”

avoid doubt if what is said in that context is threatening and intends to stir up hatred? It may not be a problem to his forensic mind, but most people out there would see it as totally inconsistent. It is a get-out: as long as a person is threatening and intentionally threatening while discussing sexual conduct, they are okay, but when they discuss other things, they are not.

I must say, it is not only the way I read it, but any sensible person who gives the words their plain English meaning must come to the same conclusion. Clearly, if I make an expression which “of itself” amounts to no more than a reasoned criticism, it cannot be threatening, but it is perfectly plain from Lord Waddington’s amendment—indeed, I have not heard the Government challenge this or suggest otherwise—that if the words constituted threats, anyone standing up in court and saying, “Well, I was justified in making the threat because it was just part of a criticism of somebody else’s way of life or habits,” would not get off the hook. I entirely concur that it would be grossly improper if they did. For those reasons, Lord Waddington’s amendment provides considerable comfort to those who happen to have strong views about how people should conduct themselves, and it does nothing to diminish the ability to prosecute this offence.

On the contrary, this provision gives comfort to those who wish to incite hatred or to be threatening. They will believe that they can do those things if they are given this freedom of expression clause. It is completely unnecessary if they are not threatening or intending to stir up hatred. The hon. and learned Gentleman refers to a range of circumstances that have occurred in the past, but that was not under this legislation. It was under the public order legislation, which is quite different.

I would be more reassured if the Government were taking the public order legislation problems that have arisen more seriously, but there is no sign that they have tabled amendments to try to deal with that problem. As we know from a recent case, the problem is continuing. Indeed, if I understood the hon. Member for Oxford, West and Abingdon correctly, he knows of an instance in which a prosecution was brought, although it was not completed. For that reason, we should be very wary of legislation that fetters freedom of speech.

The Minister cannot have it both ways. On the one hand, she says, “The legislation’s fine; you shouldn’t worry about it.” Then she suddenly starts saying, “Actually, the saving clause will encourage people to commit this offence, not deter them from doing so.” If that is the case, she will have to provide a much better argument than she has done this evening. From what she had to say, it was not apparent how this saving clause would operate to do what she claimed it would. The saving clause, given its plain English meaning, cannot achieve the mischief that the Minister claims. It is noteworthy that when this matter was considered in the other place, it was supported by a large number of lawyers, who would therefore have some understanding of how this clause would be interpreted in the courts.

In the absence of this protection that my hon. and learned Friend and I both support, is it not the case that various examples have been cited by my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe) and, I might add, Sir Iqbal Sacranie and the Bishop of Chester, both of whose collars were felt by the police? The public feel intimidated, and there is nothing in the Government’s line that would remove that sense of intimidation. The Government are resisting the one, modest amendment that would reassure the public. We do not need that reassurance because we are Members of Parliament and we can fight for ourselves, but many of my constituents feel very threatened that if they put a foot out of line, they will lose their jobs.

I agree with my hon. Friend. The other factor that is worth bearing in mind is that as this debate has gone on—the Minister cannot escape this—more people have come forward to express their concerns about this proposal. They include, in many cases, people who may have different sexual orientations from the majority, but think that the provision is entirely unnecessary to provide them with protection. They have also expressed the view that the saving clause introduced by Lord Waddington is a modest and moderate way to provide reassurance that freedom of expression will be maintained. The Government do not help the cause of reducing bigotry and improper or violent behaviour against people of a different orientation by fettering freedom of expression. That is why this House should be so careful before it embarks on such a course of action, and that is why Lord Waddington has been sensible in trying to find a formula that would provide reasonable reassurance that this provision would not be misused—not just in terms of who eventually gets convicted in court, but above all in terms of who is oppressed by those in authority arguing that they have transgressed by expressing legitimate opinions. The Minister cannot get away from the fact that that is a current problem and has not been concocted out of thin air.

My hon. and learned Friend touches on the important point of precedent, and we have already seen that with the public order legislation. I do not wish to put him on the spot, but—given his concern about the public order legislation and the crossover with this Bill—perhaps I shall invite him on to the spot to say what he would do as Justice Secretary should we form the next Government in May.

It is quite plain that the way in which public order legislation has been applied needs to be reviewed. That is something that many hon. Members across the House would agree on, including, I suspect, the hon. Member for Oxford, West and Abingdon. That does not necessarily mean that the legislation needs to be altered, but the guidelines certainly need to be reviewed, because there is a continuing failure to understand what the offences that it is intended to deal with are.

However, I hope that my hon. Friend will forgive me if I bring us back to Lords amendment 59. I wish to bring my remarks to a close, as other Members wish to participate in this debate. We on the Opposition Front Bench will vote to support Lord Waddington’s amendment. We believe that it is innocuous, that it provides much-needed reassurance in a difficult area and above all—I emphasise this to the Minister—that it will not prevent the successful prosecution of somebody who intends to incite hatred through threats.

There is indeed a strong sense of déjà vu about this debate, given that it is the fourth time that we have discussed the free speech clause. We have also discussed a previous attempted free speech clause, as proposed by my hon. Friend the Member for Heywood and Middleton (Jim Dobbin) in January 2008. I do not want to add to the sense of déjà vu by repeating all the arguments that have been made before, but I want to explain why I think the Government are still wrong on the matter and why I wish they would let the free speech clause remain on the statute book, where it has been for the past 18 months.

The other place has voted for the clause three times, most recently in July, by 186 votes to 133, giving a majority of 53. I unsuccessfully moved an amendment in this place on 24 March to retain the free speech clause, so I was obviously pleased with the vote in July. I was especially pleased that more and more Back Benchers in the Lords from my party seemed to see the sense in a free speech clause. They either voted for it in greater numbers or abstained. I had hoped that the Government would start to see the sense in the free speech clause too.

I find it hard to accept that we are again being asked to vote against the free speech clause. I thought that free speech, civil liberties and human rights were exactly the sorts of things that we were supposed to be in favour of. I am sure that they brought my hon. Friend the Minister into the Labour party, among other things, and they certainly did me in North-West Leicestershire. We should say that we support civil liberties. We all quote Voltaire and proclaim our tolerance, but here we have an opportunity to uphold tolerance for people whose views we may not agree with, but who have a right to those views and a right to express them in a reasonable way.

Before anybody intervenes with a dreadful example of incitement to violence against gay and lesbian people that they claim would be protected by the free speech clause, let me remind hon. Members—for the third time, and briefly—what it says:

“for the avoidance of doubt, the discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices shall not be taken of itself to be threatening or intended to stir up hatred.”

The clause does not remove any mention of the context of the remarks. We are not talking about protecting foul rap lyrics or violent rants; we are talking about protecting discussion, criticism or the urging of people to modify their conduct. If someone uses threatening words and intends to stir up hatred, that is of course not mere discussion, but discussion with threats and intent to stir up hatred, which falls squarely within the offence, and so it should.

The free speech clause is irrelevant in one sense. As paragraph 392 of the explanatory notes makes clear, it would not affect

“the threshold required for the offence to be made out.”

The clause would not provide a defence, which is what the Minister implied at one point. It would not narrow or alter the scope of the offence, which is what she tried to say earlier. However, if threats and an intention to stir up hatred are not present, the discussion falls outside the new offence, and the free speech clause simply makes that plain. It is, as it says, for “the avoidance of doubt”, and would help to protect innocent people from unnecessary and intimidating police investigations.

We need that protection, because there seems to be quite a lot of doubt, and as a result quite a lot of unnecessary investigations. In fact, people seem to make complaints to the police as a tactic to silence opinions that they do not like. I am sure that hon. Members from all parts of the House would agree that we should deprecate that. That is not what the criminal law is there for, nor is it what the police are there for. We should make that clear when there is doubt.

Who wants the criminal law to be used to silence discussion or criticism of sexual conduct? Who wants the new homophobia offence to be used against those who merely urge people to modify their conduct or, in religious language, to repent of their sins? There have been countless cases, and several more since we last discussed the matter in the House seven or eight months ago, of exactly that happening.

Andy Robertson is a street preacher. There is a video of him on YouTube, which hon. Members may watch in their offices before the vote. He comes across as an eminently calm and sensible man, and he has preached in the streets of Gainsborough, Lincolnshire for 10 years with no complaints whatever to the police or civil authorities. Yet police officers were sent in by a council employee to move him on, and told him that describing homosexuality as a sin falls foul of section 5 of the Public Order Act 1986. I shall return to that. The preacher had not even mentioned homosexuality, but the police, having failed to move him on by citing irrelevant council byelaws, seemed to seize on unfounded and unsubstantiated allegations of homophobia as a device for shutting him up. If they can do that with section 5 of that Act, which is a general offence covering harassment caused by threats, abuse or insult, who can doubt that they would use the new offence, which specifically covers homosexuality?

I look forward to hearing the hon. Member for Oxford, West and Abingdon (Dr. Harris) if he catches your eye, Mr. Deputy Speaker. He believes that we should remove the word “insulting” from the section 5 offence. I think he probably has a point, and I hope that the Government will listen to it, but that will not solve the problem of how to stop the new homophobia offence being abused in similar ways. Recent cases have shown that a dangerous attitude to gay rights is prevalent among the police and that makes it important to include the free speech clause.

Another example with a little more detail is that of Pauline Howe, which is the most recent case to hit the headlines. She is a 67-year-old grandmother who wrote to her council complaining about a gay pride march at which she says she was verbally abused. She used old-fashioned, politically incorrect words and several biblical references, and I doubt whether many of us in the House would have written a letter in those terms. I hope that the Minister is listening to my comments, and not just to Front Bench conversations. Pauline Howe’s letter certainly did not merit two officers interrogating her in her living room, and apparently frightening the living daylights out of her, but that is what happened.

Will the hon. Gentleman tell me whether he has any comprehension of how merely writing a letter to an official body could constitute an offence against public order?

I am not a lawyer, but merely a humble accountant, if that is not an oxymoron. I cannot explain that, but we have an eminent lawyer on the Front Bench—the Secretary of State—who may be able to explain that in an intervention or in some other way.

Does the hon. Gentleman share my concern that without protection the Bill could be enforced in areas such as home schooling, when some people bring their children up in a particular faith, whether Jewish, Muslim, Christian or another faith?[Interruption.] The Minister may think that that is nonsense, but I am reflecting some of my constituents’ concerns, and I am entitled to do so. If she has something to say, she should say it from the Dispatch Box or from the Back Benches and not from a sedentary position. The point is serious. Does the hon. Gentleman agree that there is concern that the provision could be extended to home schooling, and that people in their own homes could be restrained from teaching their children in a particular faith course?

There is a risk of that—I am not sure that there is any evidence that it is happening yet—depending on the atmosphere within which the police interpret the new legislation, and the pressures to which they will no doubt be subjected.

Pauline Howe has been the subject of a considerable public outcry, and her freedom of speech has been defended by people across the political and philosophical spectrum. I am sure that Ministers have heard or know of Ben Summerskill of Stonewall, who said that the police response in her case was “disproportionate”, although I do not know where he stands on free speech. One minute he is giving evidence to Parliament that he does not mind having a free speech clause in the homophobia offence, but the next minute he is campaigning against it. However, he said that the police response to Pauline Howe was “disproportionate”, and I agree, but in 2007 he said that he was shocked that the police allowed Christians to demonstrate outside Parliament against the sexual orientation regulations. We rightly allow all sorts of demonstrations, some of them pretty unpleasant, outside this place, and I do not think that a few hundred hymn-singing Christians should be deprived of the democratic rights that the rest of the population enjoy. Mr. Summerskill might not be the most reliable guide on the subject of free speech.

We were told in the debate in the other place—and, by inference, this evening—that the Waddington clause says nothing about free speech and that we should therefore not retain it. That is a silly, specious argument. Just because something does not contain the term “free speech” does not mean that it does not protect free speech. We legislate in all kinds of ways to protect free speech without putting the actual term into the text. The Waddington clause protects free speech by defining a range of moderate expressions—discussion, criticism and urging—that already fall outside the offence, and by drawing them to the attention of the police and prosecutors. It is therefore signposted.

My hon. Friend has given a number of examples—albeit from different legislation—to support his concerns. Has he heard any examples from the Minister, or from anyone else in the Government, of how the existing provision on free speech has either confounded or frustrated the basic intent of the current legislation?

No, I have not. We have not heard any convincing arguments at all. We have seen some smoke and mirrors, and some hand-waving, but we have heard no evidence.

The Minister said tonight—I paraphrase slightly—that the clause has no effect and that we can therefore dispense with it. It is true that it does not change the threshold of the offence, but that is not the same as saying that it has no effect. It provides a signpost to police and prosecutors that they must leave innocent people alone if all they have done is discuss or criticise sexual conduct. There is plenty of evidence that there is a real problem with the police’s handling of these cases, and the effect of the clause will be to tackle that problem.

The Minister also said a moment ago that bad people would try to hide their actions behind the clause. I can say, even as a non-lawyer, that they would not have much luck. The explanatory notes make it clear that the clause does not affect the threshold of the offence. If someone breaches the threshold of the offence, the free speech provision will do them no good whatever. I believe that the Minister is demonstrating what psychologists call cognitive dissonance, in that she is holding two mutually conflicting opinions at the same time. She is struggling with the tussle that they are causing in her brain. The free speech clause either achieves nothing or it allows bad people to get away with things that they would otherwise not get away with—she cannot have it both ways. It is either one or the other. It is a binary, black or white, zero or one, yes or no. There is no middle way that the Minister, as part of the new Labour intake into this place, would like to see.

Nasty people who are facing prosecution will always cast about looking for a way to get off. They often falsely cite the Human Rights Act 1998, but I do not think that any hon. Members believe that that is a reason to repeal that Act. Similarly, the fact that people will falsely, and unsuccessfully, cite the free speech clause is not a reason to repeal it. We are told that use of the phrase “of itself” might mean that people can ignore the context of the remarks. That argument did not make any sense to me when the Lib Dems last raised it, and it still does not. I recall that the hon. and learned Member for Beaconsfield (Mr. Grieve) dealt with it fairly deftly at that time, although he did not get the chance to do so again tonight. I do not believe that it strips the context from the remarks that have been made.

We are also told that we can deal with the cases that we are worried about by amending section 5 of the Public Order Act. The Government are apparently consulting on section 5; perhaps the Minister will confirm where we are on that. Perhaps changes will be recommended, but that is not the offence we are dealing with here. We are dealing with the homophobic hatred offence. If a general offence, such as section 5, can be used against people for expressing views on homosexuality, it is inevitable that an offence that specifically deals with homosexuality will be used even more often. So we must pay special attention to the need to protect free speech in this area.

There is a lot of public sympathy for these victims of police heavy-handedness in the area of gay rights, and I think that people would like to see us make provision to try to stop this sort of trampling on people’s civil liberties. The free speech clause does nothing whatever to reduce the level of protection that the Government—quite rightly, and with widespread support—aim to give to gay people.

The Government admit that the clause does not affect the threshold of the offence; it cannot therefore be used to defend actions that fall within the ambit of the offence. It does not remotely affect any of the other criminal offences that can be used to target those who perpetrate or encourage acts of violence towards any members of our society or to target words that cause “harassment, alarm or distress”. We should find the guilty and prosecute them—who would not endorse that sentiment?—but we should not catch the innocent in the crossfire of that approach.

The free speech clause does no harm whatever; it does only good. If we remove this free speech clause, we send out the message that we are quite happy to take a risk with the freedom of people like Andy Robertson and Pauline Howe. I, for one, am not prepared to take that risk: I will vote against the Government and I urge other hon. Members to do exactly the same.

It is good to be back on this subject. I always predicate my remarks on these issues with the words of the late and greatly missed Linda Smith, who said, “I’m not religious; I get on with everyone.” I doubt whether that could apply to me, but it is fair to say that I have a record of protecting free speech. That is true in respect of religious hatred—as the hon. and learned Member for Beaconsfield (Mr. Grieve) will remember, we worked together on curtailing what would have been an overly broad offence. I have also worked on proposing the repeal of blasphemy, on opposing the criminalisation of the so-called “glorification” of terrorism, on calling for libel law reform and, indeed, on proposing an amendment to get rid of the “insulting” provisions in section 5 of the Public Order Act 1986, which we were not able to debate during the passage of this Bill through the House because of the use, yet again, of a preposterous undemocratic programme motion, which denied us the opportunity to provide due scrutiny to Government legislation. I should add that owing to yet another programme motion that has not been consulted on—at least not with Liberal Democrat Members—the provision passed in the other place to repeal seditious libel and criminal libel is one that once again we cannot debate. I hope the House will therefore accept that I have a record of supporting free speech.

I want to make it very clear that I support free speech for homophobes. I believe that people who are homophobic—that will include some religious people who may not necessarily intend any offence, but they are perceived as homophobic by some people—should have the right to free speech without great restriction, albeit within certain limits. It is a good thing that we are discussing homosexuality in the context of free speech rather than the rights and wrongs of homosexuality. I think that that is a sign of how things have progressed during my time in the House.

I have to say to supporters of the Waddington amendment, however, that they are promoting the wrong amendment. If they want to tackle the existing mischief and the future mischief of over-policing of comments that might be taken to be homophobic, they have to ensure that our law does not criminalise insulting speech, whether intentional or not, that is short of threatening—or, in the case of directly causing harassment, distress and alarm to someone, something that is short of abusive. While “insulting” exists in the Public Order Act, inserting this provision into it will, with or without the Waddington amendment, still make people feel that they cannot insult people on the basis of sexual orientation and will still make the police believe—perhaps the police should think much more carefully about this, but the “insulting” provision is on the statute book—that they have to investigate complaints, particularly given the fact that people feel that the police should take seriously complaints about incitement to hatred or insulting behaviour on the grounds of race, sexual orientation or religion. I thus urge the House to recognise that in a sense we are debating the wrong amendment. I will come on in a few moments to the right amendment to remove the insulting provisions from the statute book, but it has been put to this House—although not debated—and is supported by the Joint Committee on Human Rights.

The hon. Gentleman may have heard that I anticipated his bringing up this point. I think that his point should be supported and that the word “insulting” should be removed. Is he firmly of the opinion, however, that that is all that is necessary to improve this particular legislation and that the chance of further over-the-top and heavy-booted action by the police and other authorities would be much less if that one word were removed?

It would be much less, because the police clearly would not investigate in the outrageous cases about which we have heard. The treatment of Pauline Howe, whom the hon. Gentleman mentioned earlier, was not disproportionate but absurd. It was disgraceful that the police wasted their time on such a matter. If the “insulting” provision was not there, I am certain that the problem would be less. We cannot legislate for every over-officious police officer, but we can make a clear statutory change to get rid of that provision. Although we are not debating that provision now, it is relevant.

What the hon. Gentleman says may be true, and the menace may be section 5 of the Public Order Act, but it is not before us tonight, it is not for amendment, and there is no immediate proposal by the Government to amend it. We must therefore use what is at our disposal to try to guarantee free speech. Given the circumstances that we are in—rather than those he wishes us to be in—he should support this amendment.

I am an eternal optimist, and I believe that we should aim for the right legislation, not create the wrong legislation on the way to getting the right legislation. My hon. Friends and I will support the Government in the Lobby tonight, and I suspect that there will be another large majority in favour of deleting the provision, so the matter will go back to the House of Lords. However, their lordships should apply themselves to the specific legislation where the problem lies.

Let me set out the reasons for the position taken by the Liberal Democrats. As the Minister said, the incitement to racial hatred provision currently has a low threshold. However, the religious hatred provision rightly has a much higher threshold—it was important that that was restricted to threatening language, and that “intentional” was a requisite part of the offence. Given the importance of being able to proselytise freely, or to criticise religion, there should be a broad free speech saving that was not about religious conduct or practice but about the arenas in which speech would take place, such as those of political discourse, comedy, performance or broadcast. Clearly, that would not be in the nature of language that was threatening and intended to incite hatred such as when talking to a bunch of skinheads in a pub. The measure that we agreed for religious hatred is therefore the right one.

In relation to hatred on the grounds of sexual orientation, the Government have done what is essential: they have ensured that the measure deals with threatening only, and intentional language only. I can think of no pastor or street preacher who is so extreme that they would seek to incite hatred and use threatening language. They might do one or the other, but it is hard to imagine a preacher who would do both. I do not necessarily have good views of religious extremists, but I cannot think of one who is likely to do that. Some religious extremists incite violence directly, and that is already an offence, but they do not go the roundabout way of intending to stir up hatred using threatening language; they usually talk about measures that incite violence directly. No example has been given of the sort of religious speech that would be covered, without the so-called saving. The saving is unnecessary to protect religious speech.

However, there is a real danger out there of extremist political parties using threatening language about sexual orientation that is intended to stir up hatred, without otherwise breaching another part of the statute. Again, let us imagine the British National party saying something homophobic in the context of paedophilia, which is, of course, a myth about homosexuality. However, if it is inciting, and if it uses the words, “And they’ve got it coming to them,” that adds the threat, and that is the real mischief. We know how child abuse is sometimes dealt with in the popular press, and how that can create the sort of mob mentality that is the execution of the incitement of hatred. That would rightly be caught by the offence.