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Lords Chamber

Volume 691: debated on Wednesday 25 April 2007

House of Lords

Wednesday, 25 April 2007.

The House met at three o’clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of St Albans): the LORD SPEAKER on the Woolsack.

Conventions: Joint Committee Report

asked Her Majesty’s Government:

Whether they have assessed the extent to which the report and recommendations by the Joint Committee on Conventions, Conventions of the United Kingdom Parliament (HL Paper 265, Session 2005-06), endorsed by both Houses of Parliament, are being observed.

My Lords, the Government welcomed the report of the Joint Committee on Conventions when it was published in October last year. Both Houses approved the report unanimously in January. The Government believe that it is too soon after the publication of the report to make any full assessment of the operation of the conventions.

My Lords, will my noble and learned friend reflect on why, having voted for the report of the Joint Committee on Conventions and then for an all-appointed second Chamber, your Lordships’ House should be regarded by others as reliable, given that it in quick succession rejected a government Bill at Second Reading and opposed a statutory instrument? Is your Lordships’ House not playing with fire to the potential detriment of its role, as described by the report of the Joint Committee on Conventions?

My Lords, naturally, I reflected on the fraud Bill. I looked at the Joint Committee’s report, which said:

“In addition the evidence points to the emergence in recent years of a practice that the House of Lords will usually give a Second Reading to any government Bill, whether based on the manifesto or not. We offer no definition of situations in which an attempt to defeat a Bill at Second Reading might be appropriate”.

So it might be regarded as unusual. I also reflected on the casino order. The report concluded, on the basis of the evidence, that:

“The House of Lords should not regularly reject statutory instruments, but in exceptional circumstances it may be appropriate for it to do so”.

One of the exceptional circumstances is when special attention is drawn to an instrument by the Lords Select Committee on the Merits of Statutory Instruments, so it might be okay. However, I am worried that there was a fatal Motion supported by the Liberal Democrats on 11 December 2006, another one on 9 January 2007, another one on 21 January 2007, another one on 27 March 2007 and another one on 28 March 2007. It is quite difficult to see that as being exceptional. The Liberal Democrats continue to exercise power without responsibility in this House—the prerogative of the noble Lord, Lord McNally, throughout the ages.

My Lords, does the noble and learned Lord agree that this House should reject a Bill at Second Reading only in the most unusual circumstances and only after a great deal of reflection? Can he confirm that what happened with the jury trials Bill did not break the Salisbury convention in any way and that the excellent Cunningham report did not say that a Second Reading should be given every time a Bill is presented to the House? Furthermore, on the casino vote, was it not the case that the business management between the House of Commons and the House of Lords was not done as wisely as it could have been, with the vote in this House coming before that in another place? Is it not also true that the majority of three would have been reversed if all Members of the government Front Bench had voted?

My Lords, on the first point, I agree on the excellence of the Cunningham committee’s report. I am sorry that my noble friend is not in his place today to be congratulated on it yet again. Secondly, I agree, as I said, that the conventions report allows, in exceptional cases, for there to be a defeat at Second Reading. Whether a defeat is exceptional, in relation to Bills and to statutory instruments, cannot be looked at in isolation; it has to be looked at over a long period. That is why I draw attention to the number of fatal Motions that are currently being proposed. Finally, it could not be said that anyone was acting irresponsibly not to vote at all, let alone not to vote for a fatal Motion, which appeared to be the implication of the noble Lord’s last question.

My Lords, does the noble and learned Lord the Lord Chancellor not find it faintly sad that so distinguished a parliamentarian as the noble Lord, Lord Tomlinson, should in the autumn of his years see it as his job to play nightclub bouncer to this authoritarian Government? Does the noble and learned Lord not recall that one of the Cunningham report’s key recommendations, without which I would not have signed the report, was that the House of Lords should retain the right to say no? Is he aware that we on these Benches will exercise that right every time civil liberties or good governance are in question?

My Lords, I would regard the noble Lord, Lord Tomlinson, as being not in the autumn of his years but in the spring of his years. I thought that the noble Lord, Lord McNally, had signed up to a report that said that there were certain exceptional circumstances at Second Reading and with statutory instruments where it was quite legitimate for this House to say no. I completely agree with that. As I understand it, every time the Liberal Democrats disagree with something on civil liberties grounds, they will regard that—despite what the noble Lord, Lord McNally, signed up to—as a legitimate reason to say no. The critical aspect of the Cunningham report on conventions is that disagreement in this House is not of itself sufficient reason to say no. I am worried about what the noble Lord, Lord McNally, is prepared to sign up to, when he then does something different.

My Lords, does the noble and learned Lord recognise that the report says that neither House should regularly reject secondary legislation but that it may be appropriate to do so in exceptional circumstances? Surely the test is how often the House has rejected secondary legislation, not how often the Liberal Democrats have put down Motions. We all know that most Liberal Democrat Motions stand no chance of getting passed anyhow.

My Lords, I have always understood that Motions are rejected or not by people either voting against them or in favour of them. The critical step in rejecting things is people voting against them. You cannot distinguish, as the noble Viscount seeks to do, between people voting against a Motion and the Motion being defeated.

My Lords, if it is anticipated that the second Chamber is to be elected in the future, is it not unsurprising that it starts to flex its muscles? On the other hand, if we were to be assured that the second Chamber will be appointed in the future, would it not be more likely to resume its habit of deferring to the authority of the democratically elected House of Commons?

My Lords, that is for others to judge. All that I thought we had agreed to in January was to comply with what was said by the conventions committee of the noble Lord, Lord Cunningham. The House made that commitment in January. I make it clear that I am not saying that the House has broken that—we must look at it over time—but it must be clear that we stand by our commitments.

Prisoners: Mental Health

asked Her Majesty’s Government:

What plans they have to handle mentally ill people in prison, in light of the Prime Minister’s review of the criminal justice system.

My Lords, the Prime Minister’s review provides a valuable framework, through which we will continue to develop and extend health services to mentally ill offenders in prison and other parts of the criminal justice system. We have already taken many important steps: transferring prison mental health services to the NHS; increasing investment; introducing mental health in-reach services; increasing staff awareness; and improving transfers to the NHS of those prisoners who are most severely mentally ill.

My Lords, I thank the Minister for that encouraging reply. I am sure that she welcomes, as do I, the Government’s commitment to get mentally ill people who should not be in prison out of there, as expressed in a number of recent statements. In the light of these statements, can she confirm that the Government plan to provide another 8,000 prison places, costing £1.5 billion in capital expenditure and more than £3 million a year to run? Why are the Government spending this money on prison places, rather than on places of treatment for the mentally ill people who they agree are wrongly placed in the prison system?

My Lords, I can confirm that we intend to build 8,000 more prison places, but that is not in any way to undermine the efforts we are making for mental health provision. I join the noble Baroness in congratulating the efforts made. She will know that we have made a significant improvement. By next year, we will be spending almost £200 million on health in prisons; and about £20 million is available for mental health in-reach services in each year from 2006-07.

My Lords, will the Minister tell us how many court diversion schemes are now in operation, and confirm that these are a very good way to ensure that severely mentally disordered people do not arrive in prison at all?

My Lords, I cannot give the noble Lord the exact figure. I will undertake to see whether we can get it. He will know that various areas have various ways of delivering the schemes. I confirm the importance of early identification of mental illness and risk, and diversion, as appropriate, to meet those needs prior to entry into the criminal justice system. We are doing everything possible to ensure that takes place.

My Lords, while welcoming the transfer of responsibility for health services from the Prison Service to the NHS, do not the figures on reoffending in the review suggest to the Government that unless and until we separate out those large numbers in the prison system with severe mental illnesses we will not make any impact on them? Does not that underline the point the noble Baroness made; that we need separate specialist treatment because prison officers are not trained to deal around the clock with the large number of people in prison with mental illnesses?

My Lords, I agree with my noble friend that we need to do as much as we can in that regard. Therefore, I am delighted to say that we have made significant improvements. Prison officers are being trained in mental health awareness; and £600,000 has been invested over three years in mental health training for prison staff, which has ensured that we have a better provision. We are moving more people than ever before out of prison into secure and appropriate mental health treatment. That inures to the benefit of those individuals; it also enables us to meet better targets on reducing reoffending.

My Lords, is there not a greater problem with the dual problem of mental illness and drug and alcohol addiction?

My Lords, that is a very significant problem. The noble Baroness will know that is the reason we have created specific programmes to deal with both issues. She will be aware that for many the abuse of alcohol and drugs masks an underlying mental illness. Therefore, we have to deal with both issues. We are making real progress, which gives, I know, a number of people in this House a lot of pleasure.

My Lords, the Government's review on security, crime and justice, which we welcome, mentions and proposes hybrid prisons and mental health courts. What is a hybrid prison, and what would be the function of a mental health court?

My Lords, the noble Baroness will know that that was a suggestion in how we better handle the issues of those with mental illness but who are still in need of security. We intend to explore the issue. The noble Baroness will know that it is part of the review, and we will look very hard at it with our mental health colleagues. The real issue is to get the right placements for people, so that any mental illness can be addressed appropriately.

My Lords, I am sure many here would agree that the word “asylum” needs to be rediscovered in the sense of it being a place of safety, compassion and wholeness. Given the very high proportion of people in prison suffering from identifiable mental illness, can the Minister tell us not only what provision is being made for their timely transfer to more appropriate secure accommodation, but also whether in providing that accommodation the spiritual needs of such patients and prisoners will be taken with the utmost seriousness?

My Lords, I can certainly reassure the right reverend Prelate that spiritual needs are taken with the appropriate degree of seriousness. He will know that we have enhanced our chaplaincy work and are doing outreach work not only in prisons but in the community. Further, I hope the House will be reassured that all prisoners are now assessed at the point of reception into prison, and those at risk of having a mental health issue or a vulnerability to suicide are referred for a mental health assessment. There are also new systems to monitor and support those at risk of harming themselves. Together with the in-reach teams, we have 360 extra staff employed on mental health in-reach provision to ensure that we bear down on that very difficult problem.

My Lords, the Minister referred to the Government's intention to get mental health prisoners into hospital. Can she tell us how many of the severely mentally disordered people in prison are awaiting transfer to a hospital and how long is the average time that prisoners spend waiting to be transferred?

My Lords, we have made significant improvements in that regard. The noble Viscount will know that in 1997, 757 prisoners were transferred from prison under the Mental Health Act and delays were common. We have made significant improvements. In 2006, we moved 961 prisoners. The timing and the numbers have greatly improved, and I should be very happy to provide specific details for the noble Viscount.

Armed Forces: Equipment

asked Her Majesty’s Government:

Whether the Armed Forces have all the equipment they need to minimise casualties in armed conflict.

My Lords, first, I am sure that the whole House will want to join me in offering sincere condolences to the families and friends of Corporal Ben Leaning, Trooper Kristen Turton and Kingsman Alan Joseph Jones, who have died in the past week during operations in Iraq.

As my right honourable friend the Secretary of State for Defence has made clear, force protection is our top equipment priority on operations, but operations can never be made risk-free. Our overriding aim is to ensure that the Armed Forces are successful on operations and that they have the equipment to achieve that.

My Lords, I thank the noble Lord for that reply. Will he comment on reports that the refurbished fleet of Nimrods in Afghanistan will have the same fuel system as caused the disaster with the loss of 14 personnel last year?

My Lords, the noble Baroness will understand that I am not able to comment on that because the board of inquiry into the loss of the Nimrod has not reported; of course, I will be able to once that has taken place.

My Lords, in practice, what financial limitations are imposed on the Defence Science and Technology Laboratory in respect of its excellent and valuable work on ballistic protection for armoured vehicles?

My Lords, the issue of the development of ballistic protection for armoured vehicles is a top priority for us for research and development. When that leads to a solution that we believe can be fielded to meet an urgent operational requirement, there is absolutely no limitation. All operational requirements have been met.

My Lords, we on these Benches join in offering our condolences to the families of the three servicemen.

Presumably, the Fulton inquiry into the hostage-taking by Iran, which is considering equipment, will be able to give some insights into the Question asked by the noble Baroness, Lady Sharples. Yesterday’s Statement did not provide a full set of terms of reference; it described what was going to be looked into. I regret that, but I gather that no more details are to be made available. Can the noble Lord tell us what will be the composition of Lieutenant-General Fulton’s inquiry, just as the Government tell us about the media inquiry? Can he also tell us what progress he is making with forming a group from your Lordships’ House to look at the results of the inquiry in full?

My Lords, on the composition of Lieutenant-General Fulton’s inquiry, I am happy to write to the noble Lord and place a copy of the letter in the Library. On the review by this House of the outcome of the inquiry, I would welcome feedback from opposition spokesmen on what they want the composition to be. I am open to suggestions from noble Lords on what they think would be the appropriate composition of that team in the circumstances.

My Lords, will the Minister assure the House that all transport aircraft operating in and out of airfields in Iraq and Afghanistan are now fitted with appropriate defensive aids?

My Lords, I can give the noble and gallant Lord the assurance that he seeks that all the transport aircraft have the appropriate defensive aid suites for the missions on which they are engaged.

My Lords, we on these Benches also send our condolences to the families of the soldiers killed. The Secretary of State has said that the full complement of Bulldog armoured vehicles will be in Iraq by May. Is the Minister confident that this will happen?

Yes, my Lords, I am confident. The provision of protected patrol vehicles such as Bulldog, Mastiff and Vector is a top priority for me. The progress that we have made—for example, fielding Mastiff from start to finish in under six months—shows the priority that we give to this.

My Lords, does the Minister recognise that the more information comes out about the Army’s Bowman radio system, the more unsatisfactory it looks? Not only is there the basic problem of the infantry sets being too heavy for them to carry with their other equipment, but there is more and more evidence that the software is not working. Will the noble Lord now put someone into the Ministry of Defence who is in total charge of Bowman, reporting directly to him to get the right results from this vital bit of equipment?

My Lords, I understand the noble Lord’s concern. I do not accept the picture that he paints of the Bowman system, which has appropriate management that reports to me as the Minister responsible for the equipment. The issues to which he refers relate to the complexity of fielding the Bowman system and the fact that it needs to be continually upgraded in the future. Much as we are used to loading computer systems with the latest software—version 2, version 3, version 4—this will be the future of communications systems in our Armed Forces. It is part of the development of modern technology.

My Lords, the noble Baroness’s Question asked whether Her Majesty’s Armed Forces have all the equipment that they need to minimise casualties. As many of the casualties are suffering from PTSD, what preparation do Her Majesty’s Armed Forces have to protect them from the consequences of what they see and feel in the field of battle?

My Lords, I assure the noble Countess that, alongside the investment that we put into force protection equipment—physical assets such as body armour and so forth—we invest equally in medical care. Some of the innovations that we have used, such as technologies to control heavy blood loss, have made a real difference to outcomes and survival rates. Mental health is also very important. We have learnt that the key to that is giving soldiers the opportunity to decompress together after deployment on operations. This is something that they now do regularly in Cyprus and on other bases, and we have found that this has worked effectively.

Iraq: Death Penalty

asked Her Majesty’s Government:

What is their response to the report by Amnesty International on the increasing use of the death penalty in Iraq.

My Lords, Amnesty International’s report on the increasing use of the death penalty in Iraq is of the most serious concern. The British Government are firmly against the use of the death penalty in any circumstances and in all cases. Since the Iraqi Government reintroduced the death penalty in 2004, the United Kingdom, together with the European Union, has repeatedly raised our policy of opposition to the death penalty at the highest level, including with the Iraqi president and prime minister.

My Lords, I warmly welcome my noble friend’s reaffirmation of the Government’s opposition to the use of the death penalty in all circumstances and his endorsement of Amnesty International’s report. Does he agree that the report’s most damaging findings, apart from the fact that Iraq is now executing more people than any other country, with the exception of China, Iran and Pakistan, are that many confessions are being secured under torture, that the accused are not being given access to defence lawyers, and that a lot of people are being made to confess on television and are then identified in court by witnesses who have seen them do that? Are we not entitled, as one of the guarantors of the Iraqi regime, to ensure that a rather better standard of criminal justice operates there? I hope that my noble friend will reiterate and reinforce the points that he has made to the Iraqis.

My Lords, the points that I have made are being reiterated regularly and frequently. Perhaps I may say that my noble friend’s figure is a per capita figure rather than an absolute figure. When we discover cases of abuse in detention, we raise them immediately with the Iraqi authorities. We urge them to act to bring those responsible to account and to prevent such abuses from recurring. In our view, there is no evidence that access to defence counsel is being systematically denied, but that is a matter that we would always investigate and draw to their attention. We are also providing practical support to local and national authorities to build their capacity to ensure that minimum human rights standards are always met.

My Lords, can we have an honest assessment of just how much influence the British Government any longer have over the Iraqi Government? I am not quite clear of our status and links now that we have withdrawn from three of the four provinces for which we were previously responsible. Yesterday, I noted from the report by the Secretary of State for Defence that we have resumed patrolling in the Gulf. However, the Iraqi Government appear to listen mainly to the US Administration, who as we know are actively in favour of capital punishment. I recall a senior member of the Bush Administration saying that they were in favour of more capital punishment. Do the Iraqi Government listen to us on these or other matters?

My Lords, the Iraqi Government most certainly listen to us, but they do not always agree. Even if I thought that they were not listening as attentively as I or this House would wish, I would be determined to continue to make the points that I have described. Capital punishment, torture and abuse are unacceptable, as are convictions secured by torture and abuse. We will continue making that point.

My Lords, given the situation described by the noble Lord, Lord Faulkner, why do we continue to provide military support to the Government of Iraq?

My Lords, the answer to that is plain in a wider context. We are trying to secure a peaceful and stable outcome in Iraq, whatever the difficulties that there are. In a country that was ruled by an absolute dictator who, over the years of his power, managed through his own state apparatus to butcher what is thought to be in the order of 400,000 people, there are bound to be grave difficulties. That is the nature of the job that has been undertaken.

My Lords, will my noble friend elaborate on the point about per capita figures? Will he confirm that the absolute numbers in China, Pakistan, Russia, Iran and the United States are higher than those in Iraq? Sometimes some people—not my noble friend Lord Faulkner—raise the question of Iraq for reasons other than concern about capital punishment.

My Lords, I have sometimes detected that. Perhaps I may make the point about the figures completely clear. Footnote (2) of the Amnesty International report states:

“Iraq was among the countries with the highest number of reported executions per capita in 2006. The annual rate of reported executions in Iraq in 2006”—

on that per capita basis—

“was estimated at 2.7 per one million of the population”.

The absolute figures in the countries with which comparisons have been made are very much higher.

My Lords, I am sure that we all welcome the clarity of the Minister’s response. Does he accept that, in a culture in which human life is treated with such contempt and there are such extraordinary levels of loss of life, this is deeply corrupting to the whole of Iraq’s political culture? It is like a disease that spreads. Does he also accept that it is rather easier to dismantle human values than to reconstruct them?

My Lords, it is hard to create and sustain human values in the way that we would wish. However, I say to the right reverend Prelate that, if you look over the savage history of that country, you will see that respect for human values and lives was not its foremost characteristic. It is not surprising that we are still struggling with the legacy of that and with some of the things that have happened in the most recent past.

My Lords, although I agree fully with the concerns of the Minister and indeed of the noble Lord, Lord Faulkner, is there not at least a positive sign in that the Iraqi Government have said that the reinstatement of the death penalty, which they introduced themselves, is only temporary during the present hideous security situation, with slaughter on all sides? Ought we not to draw some encouragement from that? Further, does the Minister agree that we should concentrate entirely on ensuring that trials are not rushed, biased or coloured by any kind of rough justice, but are fair and uphold proper due process?

My Lords, I strongly agree with the tenor of those questions. That is why we are putting resources into the training of the judiciary and of senior lawyers involved in cases of this kind. There are real reasons why we should be optimistic that the period during which the death penalty is being used to this extent is passing, not least the fact that the president of Iraq is himself opposed to the use of the death penalty. The prime minister of Iraq takes a different view, but powerful forces are pulling in the direction of ending the death penalty.

Human Tissue and Embryos Bill: Joint Committee

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

Moved, That it is expedient that a Joint Committee of Lords and Commons be appointed to consider and report on any draft Human Tissue and Embryos Bill presented to both Houses by a Minister of the Crown and that the Committee should report on any draft Bill by 25 July.—(Baroness Amos.)

On Question, Motion agreed to; and a message was sent to the Commons.

Serious Crime Bill [HL]

Report received.

Clause 1 [Serious crime prevention orders]:

1: Clause 1, page 1, line 6, after “satisfied” insert “beyond reasonable doubt”

The noble Lord said: My Lords, we had a lengthy discussion on these amendments in Committee. We said then that we would listen to the Minister’s arguments and come back on Report. Needless to say, we are still concerned about serious crime prevention orders, which are probably the most contentious proposal in the legislation. We have been assisted in our amendments by Liberty, which objects in principle to the imposition of serious crime prevention orders on people who have not been convicted of any crime. We doubt seriously whether they will work in practice and consider them to be an unacceptable legal shortcut that goes against basic British values like the presumption of innocence and the right to a fair trial. We seek to address some of the most unjust and dangerous aspects of this proposal.

At this point, I want to say how delighted I am that the noble and learned Lord, Lord Lloyd of Berwick, has joined us with his Amendment No. 36A, which is grouped with our Amendments Nos. 1 and 2. Further, this morning I received the relevant report of the Joint Committee on Human Rights, and I may use some of its observations. The Minister will have an opportunity to comment on what the committee had to say.

Amendments Nos. 1 and 2 clarify that in serious crime prevention order applications, the criminal standard of proof will apply when establishing whether the conduct justifying the orders took place. They would not affect the standard of proof applied when a court determines whether an order would protect the public. What is our argument? It is a key principle of the English legal system that more rigorous standards are applied to criminal trials than to civil proceedings. A civilised and democratic state can justify using greater force to punish an individual and restrict their rights only if it has been established beyond reasonable doubt and on the basis of reliable evidence that the individual has committed an offence deserving of such punishment. The Government have insisted that these orders are not punitive but preventative, and that civil rather than criminal fair trial standards are therefore appropriate.

Neither Liberty nor those of us on these Benches are convinced. The orders would impose severe restrictions on individual rights and freedoms, including a restriction on with whom a person can communicate and where they can live, work or travel. They would enable criminal sanctions to follow from doing something that was not itself a crime, and would attach the stigma of serious criminality to their recipients. It is difficult to see how such severe restrictions on an individual’s freedom of movement could be characterised as anything but punitive. No amount of dressing up of the language will convince us otherwise.

For that reason, the amendments would make it clear in the Bill that the criminal standard of proof applies and requires the criminal rules of evidence to be adhered to. We believe that the appropriate standard of proof to apply in establishing whether the conduct justifying the orders has occurred should be the criminal test of “beyond reasonable doubt”, rather than the classic lower civil test of “on the balance of probability”. The Government and the courts appear to agree with this. I quote the noble Baroness, Lady Scotland, when she indicated at Second Reading that in practice the courts are likely to use the version of the civil standard that is similar to the criminal standard:

“where serious assertions are made, the civil standard can be virtually the same on certain issues as the criminal standard. Recent case law has stated ... that in proceedings like these the court will look at the civil standard as a sliding scale, with the likely standard of proof for these orders being very close to the criminal standard of ‘beyond reasonable doubt’”.—[Official Report, 7/2/07; col. 729.]

She did not suggest that this was a concern for the Government. The only difference between us and the Government on this point, therefore, seems to be whether this should be stated in the Bill or left to judicial discretion. We see no reason why Parliament should not make the applicable standard clear in the Bill and thereby increase legal certainty.

I now come to the report of the Joint Committee on Human Rights, published this morning. The committee makes two major observations and they are very useful points which support the amendments we have put forward. It says:

“In our view, however, a combination of the implication that a person has been ‘involved in’ serious crime, the severity of the restrictions to which they may be subject under a SCPO, and the possible duration of such an order (up to 5 years and indefinitely renewable) means that in most cases an application for a SCPO is likely to amount to the determination of a criminal charge for the purposes of Article 6 and therefore to attract all the fair trial guarantees in that Article”.

It goes on to say:

“In our recent work on counter-terrorism policy and human rights we have drawn attention to the unsustainability in the long term of resort to methods of control which are outside of the criminal process and which avoid the application of criminal standards of due process. We are concerned that the introduction of SCPOs represents a similar step in relation to serious crime generally. In our view, the human rights compatible way to combat serious crime in the long run is not to sidestep criminal due process, but rather to work to remove the various unnecessary obstacles to prosecution, for example by relaxing the current prohibition on the admissibility of intercept material, lowering the charging threshold, allowing post-charge questioning and the drawing of adverse inferences (with appropriate safeguards), and enhancing the incentives to give evidence for the prosecution”.

This issue will not go away. There is still time before Third Reading to resolve it, and I look forward to the Minister’s response. I beg to move.

My Lords, in Committee, the noble and learned Lord, Lord Mayhew, who I am glad to see is in his place, described the amendment as being of great importance, and he was surely right. It is important because a person should not be subject to the prohibitions and restrictions on their personal freedom which are set out in Clause 5, unless the case against them is established on a criminal standard of proof.

I listened very carefully to the Minister’s reply in Committee and I have read it in Hansard. She made two main points; first, that in civil cases, the more serious the allegation, the higher the standard of proof. As a general statement, that is true. She said that the civil standard would suffice here because it can come very close to the criminal standard—so close as to be virtually identical. But, with great respect, that argument will not do. This very point was decided unanimously by the House of Lords in the case of McCann. It concerned an ASBO. The House of Lords did not say that in an ASBO case the standard of proof came very close to the criminal standard of proof or was virtually identical to it; the House of Lords said that it was the criminal standard of proof. That is the purpose of the amendment.

The Minister invited me to read again the McCann case lest I had misunderstood it. I have done so, but I repeat what the noble and learned Lord, Lord Hope, said in the case at page 825, 2003 1 Appeal Cases:

“Given the seriousness of the matter, the court should be satisfied to the criminal standard”.

The noble and learned Lord, Lord Steyn, said at page 812 of that report that magistrates,

“must in all cases … apply the criminal standard”.

That could hardly be clearer. Although the Minister’s arguments are often very plausible, she cannot plausibly argue that the standard of proof should be less in serious crime cases than in ASBOs, nor surely can she argue that we should depart from the law so recently laid down unanimously by this House in McCann. I suggest with diffidence that it is sometimes helpful in legislation to call a spade a spade. If the standard of proof is going to be the criminal standard, as it should be, let us call it just that.

The Minister’s second argument in Committee was that there are two separate stages under Clause 1. At stage 1, the court must be satisfied that the person is involved in crime; at stage 2, the court must have reasonable grounds for making the order. She is right: there are two separate stages. As she pointed out, stage 2 involves a question of judgment and it does not make sense, when one is concerned with a question of judgment, to talk about a standard of proof, whether civil or criminal. I agree. However, the amendment does not touch on stage 2; it touches only on stage 1. It is all the more important that, at stage 1, the criminal standard of proof should be applied because of the extraordinary width of the definition of being involved in serious crime contained in Clause 2(1)(c). I have never seen anything like that provision in a criminal or quasi-criminal statute. I am very doubtful whether it would pass the test of legal certainty. But no amendment to Clause 2(1)(c) is proposed, so I say no more about it. On the question now before the House, I submit that the case made out for the criminal standard of proof is overwhelming.

My Lords, the report of the Select Committee on the Constitution set out clearly the challenge that faces the House today in our scrutiny of Part 1. It said:

“A broad question for the House is whether the use of civil orders in an attempt to prevent serious criminal activity is a step too far in the development of preventative orders”.

That is what has guided us on these Benches in how we have approached our consideration of Part 1. In these amendments we reach the core of the objections of the noble Lord, Lord Dholakia, to Part 1.

I have always made it clear that it is vital that the Government—any Government, indeed—should protect the British public from those who do everything they can to encourage serious organised crime, profit from it and yet ensure that their own hands do not appear dirty in public. They keep in the background but profit from it by millions and billions of pounds and cause destruction to people’s lives. We know that it is difficult to take measures to protect the public from people like that, but we also know that we must try to do so. However, the methods that we adopt must be proportionate and effective—the two go together—without undermining our own system of law and justice.

The Select Committee’s report makes it clear that we should consider whether the Government’s proposals in Part 1 would undermine that system of law and justice. The best weapon against serious criminals is, of course, to track them down, charge them, prosecute them and hope to secure a conviction to put them behind bars for a very long time for the protection of the public. That is what prison should be about; we remain firmly of that view.

In Committee, I tabled a large number of probing amendments to give noble Lords the opportunity to examine the whole range of the impact of the provisions in Part 1, and particularly to examine the principle and practice that should underpin the imposition by our courts of these new serious crime prevention orders. My objective was to give noble Lords the fullest opportunity in Committee to determine whether the new civil injunctive orders were a step too far or whether there might be grounds on which they should be tolerated. The Minister gave careful and detailed explanations in her responses in Committee. We did not agree with everything that she said; we did not believe that all of her responses were satisfactory; but we certainly recognise that amendments tabled by the Government today make improvements to the Bill that may be sufficient for us to accept that Part 1 should stand part of the Bill, although we remain seriously sceptical about the effectiveness and the range of the Government’s proposals.

I am very grateful to the Minister for meeting my noble friend Lord Henley and me last week to discuss the proposals in the Bill and for her subsequent telephone conversations and meetings this week regarding potential government amendments, some of which we and other noble Lords saw only at the last minute. They do make improvements, and the Minister was able to develop further the Government’s position regarding the justification for the proposals in Part 1. She further explained the protections that she believed would be in place. Those meetings and explanations have been helpful and I invite the Minister today to put on record clearly the effect of the reassurances that she gave.

We would certainly prefer the criminal procedure to be adopted for applications for serious crime prevention orders if it is at all possible—we are at one with the noble Lord, Lord Dholakia, on that. However, we recognise that that would scupper the very attempt that the Government have made in introducing serious crime prevention orders. The Government have made it clear in the past that they expect criminal prosecutions to proceed wherever possible, that applications for serious crime prevention orders should be used as a last resort and that it is anticipated that the number of such applications should be low—perhaps about 30 a year. We hope that that would mean that it is not a case of a lack of resources but that they are being properly targeted. I hope that the Minister will take the opportunity to be robust on all those matters today.

We have considered our position extremely carefully between Committee and Report as to whether we should join the noble Lord, Lord Dholakia, in attempting to remove Part 1 from the Bill. Let us be in no doubt that the result of these amendments would be to render the effect of Part 1 null and void. That is what we are about when we consider these apparently innocuous and reasonable objections of the noble Lord, Lord Dholakia.

We have concluded that we shall not support these amendments. We wish to give the Government the opportunity to prove that serious crime prevention orders can operate without undermining our system of justice and can trammel the activities of those around the world who profit from crime in such an evil way.

I realise all too well that the resources of our police and law enforcement agencies have been extremely stretched over the years as they have struggled to bring these people to justice. We have seen a recent example where it has taken about 20 years to nail somebody, and not necessarily on the offences with which the police would like to have seen that person charged if they had had the evidence to bring before a criminal court. None of us underestimates how important it is for the security of this country to bring such people to justice. With such examples in mind, on this occasion we are prepared to go that extra mile—for us it is a very hard extra mile—and not support these amendments.

My Lords, I disagree with the noble Baroness, Lady Anelay, that these amendments would nullify Part 1. These Benches would have no objection to an order of this type being introduced in circumstances where a person had been convicted of a criminal offence of a like nature to that which the order is designed to prevent in future, but that is not the purpose of the SCPO that is proposed here.

The Government had an idea some years ago that it would be rather a good thing to avoid the protections and guarantees of a fair trial contained in Article 6 of the European convention, which they themselves made part of the law of this country. In order to do that, they say that these are to be civil orders requiring a civil standard of proof, and permitting the introduction of hearsay evidence in a way which would violate Article 6.1 protections in relation to a fair trial of a criminal offence. It is true that, when it considered the effect of an ASBO, the House of Lords determined that the court could not make an order of that nature unless the criminal standard of proof was applied. If orders are made under Part 1, I have not the slightest doubt that the first thing that will happen is that an application will be made to the court and, if necessary to the Court of Appeal and beyond, to make it absolutely clear that the criminal standard of proof of involvement in a serious crime is a necessary precondition of making an order of this sort.

We seek to avoid the necessity of future litigation of this type, which can have only one result, and to put in the Bill the requirement that the involvement in serious crime must be proved beyond reasonable doubt. If it is not in the Bill, the courts will very quickly seek to put it there. So, far from removing Part 1, or its effect, as the noble Baroness, Lady Anelay, suggested, we would be in exactly the same situation in any event. Indeed, I imagine that is the precise answer that the noble Baroness, Lady Scotland, will give us—that it is unnecessary to have this amendment because of the McCann decision and that when these orders are considered by the highest court of the country the criminal standard of proof will be required in any event. Why do we have to go through that process? I support the amendment and I hope that the Conservative Benches will support it too.

My Lords, I deeply apologise for arriving late. I am a member of the Joint Committee on Human Rights. We have looked at this matter and have decided, as has the House of Lords Constitution Committee, that it is against the European Convention on Human Rights. If people sign conventions, saying that they will stick to them, they should not then go around passing Acts of Parliament to avoid doing so. I shall vote with the Liberals on this occasion and I regret to say that I am deeply upset that my own party is not taking the libertarian stance that it should—history dictates that it should do so. However, I am not in the slightest bit surprised that the party opposite is bringing in yet more illiberal, unconstitutional measures that affect the liberty of the subject.

We all know that heavy men in Marbella with gold chains around their necks and who drive Bob Marley wagons are not the most popular people on earth. We may think that they are guilty of something, but we have to prove it. Their rights need protection in the same way as anyone else’s rights. This Bill does not do that. The noble Baroness opposite obviously thinks that that is funny. I do not. It is disgraceful that we should be considering yet another piece of legislation that takes away the rights of the British subject and I shall, therefore, with relish, vote with the Liberals.

My Lords, first, I thank the Minister for organising the meeting last Monday that was attended by me and a number of other colleagues in the House. It was an extremely useful opportunity to listen to what the chairman and chief executive of the Serious Organised Crime Agency had to say. I recognise also that in the later stages of the Bill the Government have moved considerably towards meeting the serious objections voiced in Committee. I talked then about the resources for that organisation. It is in its early inchoate stages and I would welcome hearing from the Minister exactly what resources the Government propose.

On the amendment standing in my name and in the names of my noble friends Lord Dholakia and Lord Thomas, I look forward to hearing a compelling response from the Minister to the cogent points that have been made by my noble friend Lord Dholakia, the noble and learned Lord, Lord Lloyd, and my noble friend Lord Thomas of Gresford. They are difficult points and, if the Bill is to go through—it looks like it will go through without our amendments, given what the noble Baroness, Lady Anelay, has said—let us hope that it is not a busted flush. Perhaps we should hope that it will be a busted flush, but let us hear what the Minister has to say.

My Lords, my noble friend Lord Onslow castigated my noble friend on the Front Bench for the position she has taken on these amendments. It is a finely balanced, difficult issue. My noble friend Lord Onslow said that the measure would take away the right of British citizens to a fair trial. The British citizen also has the right to be protected from what we learn are the many threats building up in our society that can be very damaging to our people.

It remains to be seen whether this measure will work, whether there will be miscarriages of justice, and whether we shall know that there have been miscarriages of justice. I do not know, but I understand the position of my noble friend on the Front Bench. I am glad that my party, which I support, is prepared to give this a go and to see whether we can stop some of these threats. I will support my noble friend with a fairly heavy heart, because we are eroding the protections that we have under the law, but there are times when we are forced to take measures such as this. On this occasion, I will go along with what my party wants.

My Lords, I thank the noble Baroness, Lady Anelay, for the way she expressed her cautious support for these amendments. I endorse what she said about them. I concur with her about the situation in which we find ourselves. The noble Baroness, Lady Carnegy of Lour, is right to emphasise the need to protect the individual and society from the pernicious impact of serious and organised crime. I hope that, from the way in which the Government have presented the Bill, the House accepts that we have not rushed to do this, but have done it in a proportionate and balanced way. I thank noble Lords who not only participated in the meetings but also participated in Committee in order to fashion a way forward that would be acceptable to all.

The noble Earl, Lord Onslow, must forgive me if I smile at him. He will know that it is a habit I have fallen into over the past 10 years. It is not because I think that the issues are funny, but because I cannot help but be affected by the vim with which the noble Earl presents his case. It in no way detracts from it.

I want to reassure the noble Baroness, Lady Anelay. I agree with her that it is of critical importance that we do everything possible to catch, fairly prosecute, convict and apply the appropriate sentences to those who engage in this extremely serious type of offending. That will always be our first port of call. I also reassure her that we intend to target the use of these orders to interdict serious crime in the most effective manner.

On the issues that arise in relation to the standard of proof, I say to the noble Lords, Lord Dholakia and Lord Thomas of Gresford, that I understand their anxiety. It is for that reason that when we debated this issue in Committee I referred on a number of occasions to the importance of the McCann judgment. The noble and learned Lord, Lord Lloyd, is right to identify the comments made by the noble and learned Lord, Lord Hope, and others in that judgment. He will know that in so doing they referred to the sliding scale and set out how, when dealing with matters of such importance as anti-social behaviour orders, the court should view the standard of proof. I do not intend to reiterate all the arguments that were made in Committee because they still hold true. I am very grateful for the fact that, in opening his remarks on this amendment, the noble Lord, Lord Dholakia, put the Government’s position very clearly and fairly.

Amendments Nos. 1 and 2 change from the civil standard to the criminal standard of beyond reasonable doubt the standard of proof to be discharged in relation to the first limb of the test in Clause 1. Introducing such a criminal concept would be inappropriate in the context of the civil order. The noble Lord, Lord Thomas of Gresford, is right to say that we see these as preventive orders, not punitive ones. Amendment No. 36A deletes Clause 33(2), which provides that the applicable standard of proof before the High Court is the civil standard. We have included this statement to provide clarity on the standard that is to be applied by the High Court. We discussed at some length the case of McCann and the impact that it will have on proceedings in relation to these orders. We believe, as the House of Lords made clear in the case of McCann, that the civil standard of proof is flexible and has a sliding scale from on the balance of probabilities at the lowest to beyond reasonable doubt at the highest. In case anyone misunderstands, I believe that the House should be confident that McCann will apply to the first limb.

I also thank the noble and learned Lord, Lord Lloyd, for accepting, as I do, that in relation to the second limb it would be impossible to apply the standard of “beyond reasonable doubt” because that is a matter of judgment. Both the first and second limbs need to be proven. If we have a civil standard, the court will be able to apply McCann in relation to the first limb but the balance of probabilities will be applied in relation to the second limb in the usual way. As I have said before, case law shows that the court is likely to require a high standard close to “beyond reasonable doubt” in relation to the first limb of the test for obtaining an order, and therefore we believe that the amendments are inappropriate and unnecessary.

It may be helpful at this stage if I outline the procedure that I believe is likely to be adopted before these orders are made. I know that it is more usual to take such an approach in Committee but I shall explain why I think it might be helpful. Many questions have been asked about how the orders will come about, what evidence will be called in support and what procedural rules will apply. That confusion has caused a great deal of concern and contention, and a number of people have invited me to set out what the procedure is likely to look like. Therefore, with the leave of the House, in order to frame our subsequent discussions it may be helpful, unless anyone indicates that it is not, if I set that out now.

The first step will be for one of the relevant applicant authorities listed in Clause 8 to decide whether to make an application for an order. They will make the decision on the basis of advice from law enforcement, such as the police, Her Majesty’s Revenue and Customs and the Serious Organised Crime Agency, and on the basis of their own experience of whether the case is suitable for an order.

Guidance will be issued to the relevant applicant authorities to assist them in this work. Paragraph 4 of Schedule 2 specifically provides that the Code for Crown Prosecutors can include guidance on the general principles to be applied by Crown prosecutors in relation to serious crime prevention order proceedings. Paragraphs 9 and 18 of Schedule 2 make corresponding provision for the Director of Revenue and Customs Prosecutions and the Director of Public Prosecutions for Northern Ireland respectively. There is no corresponding provision in relation to the director of the Serious Fraud Office because he does not have a statutory power to issue guidance to his staff, but he will issue non-statutory guidance. Furthermore, the functions conferred on the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions and the director of the Serious Fraud Office must be expressly delegated to their staff. We discussed that in Committee. This will ensure that only those with suitable training and expertise will deal with serious crime prevention order cases.

Once the decision to make an application has been reached, the relevant applicant authority will make an application to the High Court. This will be by way of an application notice under Part 23 of the Civil Procedure Rules. Those rules will apply to all applications for orders in the High Court. They contain extensive and detailed guidance for the court on the conduct of proceedings for court orders. The rules will apply to applications for serious crime prevention orders, as they apply to any other application for a court order. In particular, the overriding objective will apply: the court must deal with all cases justly.

As I have explained before, as an additional safeguard in relation to serious crime prevention orders, the applicant will be required to include information in the application notice about the possible impact of the order on third parties. This will help to ensure that the court has all the relevant information when making its decision and determining what is reasonable and proportionate.

The application notice will be served on the respondent and a hearing date will be set. At the hearing, the applicant authority will present its case for the order being made and the respondent will be able to respond to that case. The applicant will need to provide the court with evidence to persuade it that the test for making an order has been met and that the terms of the order are appropriate. It is hard to predict what evidence might be needed, but it is likely to include testimony from law enforcement officers, in the form of either oral evidence or a witness statement and documentary evidence, such as proof of any convictions that are relied on. In addition, Clause 9 of the Bill makes express provision for third parties to make representations to the court to ensure that their rights are taken into account.

Having heard both sides of the case, and any third parties, the court will proceed to decide whether to make an order. The court is a public authority within the meaning of the Human Rights Act 1998, which means that it must act compatibly with the convention rights. So the concerns of the noble Lords, Lord Thomas of Gresford and Lord Dholakia, about the Human Rights Act can all be dealt with by the High Court at an appropriately high standard. As a consequence, any order that it imposes must be compatible with the convention rights. An order could not include a requirement for house arrest, because such a measure would be incompatible with Article 5 of the European Convention on Human Rights. If a proposed obligation engages a person’s rights under Articles 8, 10 or 11, the court would have to be satisfied that the interference was necessary and proportionate.

If an order is made, Clause 10 of the Bill ensures that it will take effect only if the respondent was represented at the hearing or if he is served with a notice in person or by recorded delivery. The respondent may appeal to the Court of Appeal against the High Court’s decision, as set out in Section 16 of the Supreme Court Act 1981 or, as the case may be, Section 35 of the Judicature (Northern Ireland) Act 1978. Clause 24 also provides rights for third parties to appeal. Once any order has been made, an application for variation or discharge can be made by the subject of the order, the relevant applicant authority or a third party. That will ensure that the necessity of the order can be kept under review.

I have focused on the process in the High Court because that is where we expect most orders to be dealt with. However, the same principles will apply when the Crown Court is asked to make an order. The only significant differences are, first, that the Crown Court will not consider whether the person has been involved in serious crime, because he will have been convicted of an offence, and, secondly, that special rules of court will need to be made, because the Civil Procedure Rules do not apply automatically in the Crown Court. It is that normal civil process, as set out in the Civil Procedure Rules, together with the enhanced safeguards that we have included, such as the provisions relating to third parties, which will ensure that the orders are reasonable, proportionate and used appropriately.

I certainly hope that the noble Earl, Lord Onslow, will agree that that is all compatible with what we would like to see in our good British courts. It does not really give rise to alarm or concern that we shall go off on an illiberal frolic that would enable us to interfere improperly with the rights of our citizens.

My Lords, is the Minister’s objection to these amendments procedural or substantive? I had the impression that it was procedural when she said that it would be inappropriate to have the criminal standard of proof because the purpose of making an order of this character, or of applying for one, was not punitive but preventive. If one is on the receiving end of such an order and one is told that one cannot go there, live here, or have dealings with so-and-so, it does not make much difference whether it is one or the other. If, on the other hand, the objection is substantive, how does that stand up to her concession to the noble and learned Lord, Lord Lloyd of Berwick, that, in any event, the courts will, in a case of this character, apply the civil standard of proof so toughly as to be virtually indistinguishable from the criminal standard? Is it one or the other?

My Lords, it is both. The whole point is that, to persuade the court to make this order, one has to persuade it of both limbs; they are conjoined. First, one has to satisfy the court to the appropriately high standard on limb 1; if the court is so satisfied, it has to turn to limb 2, which is an issue of judgment. The process through which the court will undertake that exercise will be part of the civil process. The noble and learned Lord, Lord Lloyd of Berwick, accepts—as, I understand, does the noble and learned Lord, Lord Mayhew—that one simply could not apply the standard of “beyond reasonable doubt” to the second limb. If one looks at the amendment simpliciter, one would have to have beyond reasonable doubt for the first limb and a balance of probabilities for the second.

My Lords, does the noble Baroness not recognise that that is precisely what Amendment No. 1 does? Her point may answer the noble and learned Lord’s Amendment No. 36A, but this time around, as opposed to last time, the draftsmen of Amendment No. 1 have been careful to apply it only to proof of the actual crime. I suggest that her point therefore has no relevance.

My Lords, this is within the context of civil proceedings. I am repeating the arguments that I made in Committee and today. This is an appropriate way to allow the High Court to determine the standard. It is still a civil standard; the court can look at different elements and decide which standard in the civil palette it is most appropriate to apply. These are preventive, not punitive, orders. This is therefore the most appropriate response.

For the reasons that I have given, the Bill provides an effective way of preventing serious crime, and the harm that it causes, while protecting the rights of individuals. However, that is not to say that we have not listened to noble Lords’ concerns and how they have been expressed. The second limb of the test is a question of judgment. Consequently, there would be no standard of proof as such; it would be a matter of a court making a judgment on how to deal with it.

The noble Lord, Lord Burnett, asked about cost. As a whole, the department has severe pressures on it, of course. In 2006-07, funding for SOCA was around £20 million, less than the provisional figures in the business plan. However, we believe that there are sufficient funds to enable SOCA to discharge its responsibilities with propriety.

We have taken note of the careful scrutiny that the Bill has received from your Lordships’ House, prompting us to bring forward a number of amendments. They will be discussed in their place, but it may assist noble Lords to know that Clause 5(7)—giving discretion to law enforcement officers to determine some parts of an order—is to be deleted and replaced with a much more tightly drafted provision. It may also assist the House to know that we propose to add a new clause to protect those who are subject to restrictions on the disclosure of information, such as a duty of confidence that would be breached by complying with an order.

I must resist these amendments for the reasons that I have set out, but I hope that the House feels that I have been able to provide some reassurance on the process that will take place in making an order and how that will give effective protection to the rights of the subject of the order.

My Lords, I apologise to the House for coming late and therefore, perhaps, asking a stupid question, but I must ask it. As we are discussing serious crime, I am not perfectly clear whether the reference to intercept evidence would then lap over into terrorism trials. Do terrorism trials come under serious crime, or are they in a class by themselves? If the latter, I reiterate what I have said many times: we should take the advice of Sir Swinton and others not to use intercept evidence. As I say, however, perhaps this point has been covered. I was not entirely clear whether the implications for terrorism trials lapping over from this are what I fear.

My Lords, it may be that because the noble and learned Lord, Lord Lloyd, was speaking the noble Baroness naturally assumed that we were dealing with intercept. We will be dealing with it later. These offences are restricted to serious crimes but do not include terrorism. The terrorism legislation is separate and apart from this. I know that the noble Baroness will, if the noble and learned Lord has his way, have an opportunity to assist the House with her views on intercept in due course.

My Lords, I thank the Minister. I shall look very carefully at the process that she has taken so much trouble to explain. I have not had the opportunity to discuss the amendment with the noble and learned Lord, Lord Lloyd, and ask what he had in mind. My intention at this stage, as was made very clear by my noble friend Lord Thomas of Gresford, is not to scupper Part 1 of the Bill. There seems to be fairly little disagreement between the Minister and us about what should be in the Bill. It might be helpful to look carefully at what the Minister has said today in the light of a number of the amendments put forward and have a discussion with the noble and learned Lord, Lord Lloyd of Berwick. If we are not satisfied, I am sure that we will have a further opportunity at Third Reading to table amendments. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 2 to 4 not moved.]

Clause 2 [Involvement in serious crime: England and Wales orders]:

5: Clause 2, page 2, line 26, after “has” insert “conducted himself in a way that was unreasonable in the circumstances and, by doing so, has”

The noble Lord said: My Lords, we discussed these amendments at length in Committee. Your Lordships will recall that the Bill provides for a person to rely on a defence that he was acting reasonably in all the circumstances. The problem is that the Bill places the burden of proving that he acted reasonably on the defendant. In other words, it reverses the ordinary burden of proof that applies in the vast majority of criminal offences. All these amendments would do is put on the prosecuting authority the requirement to establish that a person was acting unreasonably before an order could be made.

The matter that must be established is whether the actions in question were reasonable in the circumstances. That is not a test of whether the actions were reasonable in the defendant’s mind. Because the words “in the circumstances” are used, it is clear that an inquiry is required into whether the actions were objectively reasonable; the defendant’s state of mind is not determinative of that in any way.

As we have found in many areas of the criminal law, objective reasonableness is a vague concept that is difficult to establish. Moreover, we are dealing not with a jury but with applications made to a single High Court judge. The problem is that it is the High Court judge’s view of what is reasonable, rather than what the defendant considered at the time he performed the actions, that is likely to rule. We do not believe that it is fair to impose this burden on the defendant.

I hope that I have the support of the noble Baroness, Lady Anelay, because she made the apposite comment in Committee that it was not possible to see,

“any justification for applying the reverse burden of proof”.—[Official Report, 7/3/07; col. 279.].

We entirely agree with her and bring forward these amendments accordingly. I beg to move.

My Lords, the amendments would require the applicant authorities to prove something of which they can only ever have a limited knowledge or ability to adduce evidence. The Bill provides that, when the court is deciding whether a person has acted in a way that facilitated or was likely to facilitate a serious crime, it must ignore any actions that the proposed subject of an order can prove were “reasonable in the circumstances”. An order cannot be imposed on the basis of such reasonable actions.

To go back to my earlier comments on process, and as a result of our earlier discussion on this point, I would like to make clear what happens to the burden here. As I noted in relation to the first limb of the test in Clause 1, it is for the relevant applicant authority to prove that a person has been involved in serious crime. The standard of proof will be the civil standard but, as I hope I have made clear, given the seriousness of the conduct alleged, the standard that the court will expect to be reached is likely to be very close to “beyond reasonable doubt”.

It is then for the potential subject of the order to assert in response, and then to prove, that his actions were reasonable and should not form part of the court’s decision on whether his actions facilitated or were likely to facilitate a serious offence. The standard of proof here will also be the civil standard but—this is a good example of the flexibility to which I have referred previously—because the burden is on the respondent, we would expect the court to apply the lower standard of “on the balance of probabilities”.

That approach strikes an appropriate balance. The respondent will always be in a far better position to know the full circumstances of his actions and whether or not they were reasonable. To expect the applicant authority to prove unreasonableness would, we respectfully suggest, be inappropriate.

To sum up, I emphasise that the Bill already provides for the same end result as the amendments would. Only unreasonable behaviour can form the basis of the court’s decision on whether a person has facilitated or acted in a way likely to facilitate a serious offence. As a result, the amendments are unnecessary and, for the reasons I have set out, inappropriate. I therefore hope that the noble Lord will feel able to withdraw his amendment and resist any temptation to bring these amendments back on another occasion.

My Lords, I will certainly resist the temptation to bring them back on another occasion; I shall test the opinion of the House.

[Amendment No. 6 not moved.]

7: Clause 2, page 2, line 36, leave out paragraph (b)

The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 12, 15 and 20. I tabled these amendments in Committee but I have brought them back for further clarification because I am still dissatisfied on this point. I thank those on the Liberal Democrat Benches who give their support. The amendments challenge the Government’s proposition that the definition of serious crime can be changed on what appears to be a day-to-day basis. They would remove the element of judicial discretion imposed by Clauses 2 and 3 in the determination of the definition of serious crime within the context of applications of serious crime prevention orders.

Schedule 1 lists a range of criminal offences to be treated as serious crimes; we will return to which crimes should be listed when we consider a later group of amendments. The schedule provides the parameters that the Government maintain will guide a judge’s considerations as to whether a crime is serious. At our meeting last week, I was grateful to the Minister for going into some detail on how she expected the parameters to operate. But as I said then and put on the record now, I have always understood parameters to be limiting factors within which one works—they serve to define the scope of a function. Since I was not sure of that, despite the years that I have been on this Earth, I actually looked in the dictionary, which seemed to agree with me, so it must be right.

However, the Government will allow judges to go beyond the parameters set by Schedule 1 because the Bill provides that a serious offence includes any that,

“in the particular circumstances of the case, the court considers to be sufficiently serious to be treated for the purposes of the application matter as if it were so specified”.

Even if an offence is not listed in Schedule 1, a judge can treat it as if it were. Whatever our faith in the ability of our judges to acquit themselves impeccably in the application of this new law—and, as ever, I declare an interest as the wife of a part-time judge, a recorder—it will still lead to a lack of clarity and certainty. That is where my concern lies. What consistency does the Minister expect to be applied to the power in Clause 2? Earlier, she gave us a helpful explanation of the process and procedures that are applied, but she took care to talk about court procedure rules; she may wish to refer to those in more detail again.

I am also aware that not all High Court work is carried out by those who are permanently appointed to the High Court Bench. Some who sit in the Crown Court are ticketed. This is a minor point, but do the Government expect those who are ticketed to carry out High Court work to be given the same Judicial Studies Board training on this Bill as those who are permanent High Court judges? I beg to move.

My Lords, I am anxious not to repeat too much of what has been said so compellingly by the noble Baroness, Lady Anelay. At present the Bill allows the court to decide that any involvement in a particular offence warrants a serious crime prevention order even if that offence has not been specified by Parliament as a serious offence in the list set out in Schedule 1. That will do damage to the principle of legal certainty; it will be impossible for a person to ascertain in advance what the likely legal consequences of their actions will be. There is a lack of clarity and certainty. A prosecutor may believe that a particular offence is serious and that involvement in it warrants a serious crime prevention order, even though the legislation does not specify that the courts should consider that offence to be serious. When that is taken together with the provision that the prosecutor has no legal obligation to prove that the person’s actions were unreasonable, this casts the net far too wide. The result will be that many innocent individuals could have to incur the distress and cost of being brought before the court and required to produce a defence.

In response to these concerns, the Government use the now all too familiar argument that times change, legal flexibility is needed, and the courts can be trusted. Given the impact that a serious crime prevention order could have on a person’s reputation, rights and freedoms, such arguments are not satisfactory. The proposal would deny members of the public the right to know when their behaviour might lead to them being subjected to a serious crime prevention order. Parliament should not abdicate its responsibility for making laws clear and intelligible, and it should not leave people in a legal limbo where they cannot predict the likely legal consequences of their actions.

My Lords, I am bound to say that Clause 2(2)(b) causes me concern, and I should like to underline the arguments put by the noble Lord, Lord Burnett. Uncertainty in the law is not usually considered a good thing. It is best that people minded to commit crimes should know what might be the consequences of their actions. It is usually accepted that people should know that if, for example, they commit rape, they might be subject to life imprisonment. Surely people should also know whether certain conducts would result in the making of an order under this Bill. It is as simple as that. I do not see what is to be gained from people not knowing and from the scope of what constitutes serious crime being left up in the air. It is far better that they should know right from the start what might be the consequences of their actions. Therefore, I support this amendment.

My Lords, with Clause 2(2) the Government are having their cake and eating it in a remarkable way. If you commit an offence that is specified in Schedule 1, however trivial that offence on that occasion, it is none the less a serious offence. However, the Government also say, “If we haven’t specified it but the judge thinks it’s serious, then you can have it, too”. Either one should say that the provisions can apply only to offences that in the particular circumstances are deemed to be serious, or the Government must delete paragraph (b). At the moment, as I say, the Government are having it both ways, and they should not be allowed to do so.

My Lords, I agree with what has been said. I do not think that this is any part of the judicial function. It is not as though the terms of Schedule 1 are terse; they extend from page 45 to page 52, setting out in considerable detail the offences that the Government consider ought to be there. By what criterion is the court supposed to judge whether the offence is sufficiently serious to attract these provisions, notwithstanding that it does not fall within the items specified in pages 45 to 52? It is quite wrong to give this sort of responsibility to the judges, and I am sure that they would do their very best to avoid it if it were carried.

My Lords, I read from the report of the Joint Committee on Human Rights:

“The House of Lords Constitution Committee in its report on this Bill had grave concerns as to whether the Bill as currently drafted is compatible with the constitutional principle of the rule of law and legal certainty, because of the lack of clarity about both the circumstances in which SCPOs might be made and their ambit when they are made”.

It then says:

“For the reasons we have summarised above, we have very similar concerns about whether the power to interfere with various human rights by imposing a SCPO is sufficiently defined in law to satisfy the requirement of legal certainty which is also a fundamental feature of human rights law, including the ECHR”.

Further on, the report says that,

“the Bill should be amended … to remove the power of the court in clause 2(2)(b) to treat an offence as if it were specified in the Schedule of offences to which the Act applies because the court considers it to be sufficiently serious”.

We must do that. I think that there is something in Alice in Wonderland about the mad Queen saying, “If what I say is right, it’s right”—I cannot quite remember the exact quote, and if I had had time to look it up I would relish repeating it to your Lordships.

Was it? I thought that the Government were the Queen of Hearts, but they now appear to be Humpty Dumpty. The Minister may laugh this time, because I am making a joke, so I am delighted that she does. But I hope that she will pay attention and that the Government will listen, because there are deeply worrying things in the Bill, and this is one of them.

My Lords, like the White Rabbit I have no time, so I will not take your Lordships’ time other than to lend my voice to those of other noble Lords who have spoken in this debate. It is much better that the offence should be added to the schedule and then be subject to parliamentary scrutiny in the usual way, than for us to have the very loose form of drafting that we see here.

My Lords, I have not the slightest doubt that the procedures under the Bill will be held to be criminal procedures and that all the requirements under the Human Rights Act will have to be fulfilled. Will the Minister explain how Clause 2(2)(b) can possibly be compatible with the requirement of certainty in a criminal cause or matter?

My Lords, we discussed these amendments in Committee and I do not want to tire the House by repeating everything that I said then. However, I appreciate why the noble Baroness, Lady Anelay, has tabled them again, and I hope that my earlier explanations of the practical process for dealing with these orders will have reassured her as to our intention.

The noble Baroness asked about deputy High Court judges. I should declare myself both as a recorder and as being ticketed to sit as a deputy High Court judge. We have worked hard with the judiciary and the Judicial Studies Board throughout the process of implementing the legislation to try to assess the training requirements for ensuring that there is sufficient capacity in the High Court to deal with the limited number of orders that will be sought. The noble Baroness will know that deputies are used judiciously to meet need.

The noble Baroness spoke about consistency. High Court judges will have regard to one another’s decisions and to whether offences should be treated as being sufficiently serious as to fall within Schedule 1. There will also be opportunities for appeals. The Court of Appeal’s decisions will be binding on the High Court and Crown Court judges. However, whether an offence that is not in Schedule 1 should attract an SCPO is likely to depend on the circumstances of a particular case. We do not intend to create an order that can be used against all offenders. Orders will target those who are engaged in serious criminal behaviour that causes real harm to people. That is why the noble Baroness was right to remind the House when we were talking about Amendment No. 1 that it is expected that about 30 of these orders will be made per year.

The discretion on conviction of the High Court or the Crown Court to treat offences other than those that appear in Schedule 1 as serious offences is important. It is necessary to ensure that the courts can impose an order where it is appropriate and where the order will prevent harm to the public. We have sought to include in Schedule 1 a list that sets out the majority of offences in which we believe serious criminals engage. However—I know that the noble Lord, Lord Dear, will have had great experience of this—it is very difficult to constrain what serious criminals will choose to do from time to time. They constantly look to adapt their operations to avoid innovative approaches by law enforcement agencies when they become aware of them. Senior law enforcement figures have described this to me as “the criminal market”. As soon as law enforcement agencies are able to make involvement in an area of the market too high risk, serious criminals do exactly what a good businessman would do and diversify. With that in mind, we think that it is not a good idea to restrict the ability of our senior judiciary to identify and deal with serious criminal behaviour reasonably and within the bounds of convention rights.

The provision does not create uncertainty. A framework is provided by virtue of the way in which Clause 2(2) is structured. It provides clearly that it will be for the court to determine whether a serious offence has been committed and that, for it to do so, the offence must be specified, or fall within a description specified, in Part 1 of Schedule 1, or must be, as Clause 2(2)(b) states,

“one which, in the particular circumstances of the case, the court considers to be sufficiently serious to be treated for the purposes of the application or matter as if it were so specified”.

This is not saying to the court, “You can go off on a frolic of your own”. This is the framework, and the court would have to justify why it came to the conclusion that the offence should, in the particular circumstances of the case, be so specified, bearing in mind the nature and the mischief that the order seeks to address.

It would be inappropriate to include offences such as assault in Schedule 1, as we do not want these orders to be available against all forms of assault. However, when, for example, the assault is being used to extort money, as a part of a pattern of serious criminal behaviour, we should be able to use these orders.

The schedule provides certainty as to the majority of the offences to which we intend these orders to apply. It also provides the guidance necessary for the courts in exercising their discretion; they can treat an offence as serious for the purposes of the orders only if they consider, in the circumstances of the case, that it is sufficiently serious to be treated as if it were specified in the schedule. The offences in the schedule provide the court with guidance as to what is “sufficiently serious”.

We believe that the approach of the schedule in providing a significant element of certainty and guidance, teamed with a limited discretion, which will be exercised by the senior judiciary, provides an appropriate and effective means of defining what constitutes a serious offence for the purposes of these orders. As a result, we resist these amendments. I hope that I have been able to say enough to satisfy noble Lords that the concern that they have, properly, about how the powers will be used is not actually based on sound evidence. We believe that the powers will be proportionate and appropriately targeted and honed by the court in a way that will enable us to see justice done both for the individual and for those upstanding members of the community who are badly affected by serious crime.

My Lords, I am grateful to the Minister for her response but I am particularly grateful to all noble Lords who have expressed a concern similar to mine about Clause 2(2)(b). My noble friend Lord Waddington emphasised the importance of certainty in the law and of people knowing the consequences of their actions under legislation that is passed. The noble Viscount, Lord Bledisloe, said that there should be either Schedule 1 or Clause 2(2)(b)—that one should have one or the other but not both. That is very much behind what the noble Lord, Lord Dear, was saying; it might be better to add offences to the schedule than to leave a wider discretion.

The Minister responded by saying that we need the flexibility—and flexibility is the mantra of any Government, of course. The example that she gave was assault, which is a clear example of an offence in which there can be a whole range of seriousness. The noble Lord, Lord Thomas of Gresford, pointed out that, under criminal procedure, we would not have to worry so much, because in sentencing one would consider the range of assault to judge how serious it was. But we are in civil procedure—and here we are stuck with Clause 2(2)(b). There are considerable concerns. I can see why the Minister wishes to keep that flexibility, but my noble and learned friend Lord Mayhew pointed out that this is really not a judicial function and Clause 2(2)(b) goes too far, and I want to consider further what he said.

I am minded to consider further before Third Reading what appropriate measures I should take and whether I should bring the amendment back in a different form or bring it back at all. The killer blow in a sense was given by my noble friend Lord Onslow, who referred to the report from the Joint Committee on Human Rights. I have done a speed read of that report; it was not vastly long, but neither has been the time between its publication and our debates this afternoon. Today, at lunchtime, we have also had the publication—

My Lords, the noble Baroness talks about bringing the amendment back at Third Reading. Can she explain how within the rules of procedure she can possibly justify bringing it back for the third time at that stage rather than testing the opinion of the House now?

My Lords, I do so gladly. Like the noble Viscount, I am a keen observer of the rules at Third Reading. I did not say that I would bring the measure back; I said that I would consider whether I should do so. As part of that consideration, I shall discuss with the Public Bill Office whether my reasons for bringing it back are proper. If I am told that they are not, I shall not bring it back. Even with last year’s changes to the wording in the Companion, I understand that it would be in order to bring the measure back provided that recent changes had occurred that made further consideration appropriate. I was about to explain that those recent changes arose in the report of the Joint Committee on Human Rights. It is right that we should consider that properly. The noble Viscount shakes his head but I consider that the Joint Committee’s report should be properly considered.

I am also concerned about the report of the Delegated Powers and Regulatory Reform Committee, which did an amazing job turning round between Tuesday morning and lunchtime today a report on other government amendments to Part 2, which at first might not look too much of a problem but which may pose difficulties. If information comes to light two hours before one comes into the Chamber, our procedure gives us the opportunity to consider whether we should bring back an amendment at Third Reading, which is why I do not wish to press an amendment today that I have not had the opportunity to consider fully on Report. That does not mean that I shall bring it back, but I shall do so only if it is permitted by the rules of the House, none of which I have ever either broken or sought to break. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 8 to 12 not moved.]

Clause 3 [Involvement in serious crime: Northern Ireland orders]:

[Amendments Nos. 13 to 20 not moved.]

21: After Clause 3, insert the following new Clause—

“Involvement in serious crime: evidence

(1) In considering for the purposes of this Part whether a person is involved in serious crime, the High Court may take account of any evidence admissible under the Regulation of Investigatory Powers Act 2000 (c. 23).

(2) Schedule (Intercept evidence) (which makes provision for the admissibility of intercept evidence in cases involving serious crime) has effect.”

The noble and learned Lord said: My Lords, this amendment was also considered at considerable length in Committee. At the end of her reply the Minister, with her usual courtesy, offered us the choice of what she called either her short reply or her long reply. The record shows that I was in favour of the short reply, but the Minister chose otherwise, no doubt because of the strong support for the amendment from the noble Lord, Lord Dholakia, on the Liberal Democrat Benches, the noble Lord, Lord Henley, on the Conservative Benches and my noble friend Lord Dear on the Cross Benches.

I am glad that the noble Baroness chose as she did because it means that we know the full extent of the government case for not admitting intercept evidence in criminal prosecutions—something which, as I have said so often in the past, is permissible in every other country of which I am aware. It simply does not make sense that we alone should exclude this evidence.

Towards the end of her reply the noble Baroness said that if she could find a way to admit intercept evidence safely, it would be,

“a consummation devoutly to be wished”.

In other words—I do not aspire to her Shakespearean quotation—it would serve a useful purpose. It would enable prosecutions to be brought in at least some cases of serious crime where they cannot be brought at present. I do not think that anybody now suggests otherwise.

So the desire is there on the part of the Government. Why, then, do they not do it? I suggest that the clue is to be found in a sentence or two of the noble Baroness’s reply. At the very end of her reply, she said:

“Neither we nor anyone else have found a way of enabling us to use the material safely. If we could, we would”.

A little later she added:

“I assure the noble and learned Lord that, if we can find a way to do as he proposes, he will be the first to hear”.—[Official Report, 7/3/07; col. 313.]

She said that neither we nor anyone else had found a way of admitting such evidence safely, but I found that very hard to reconcile with our experience gained from other countries.

In Committee, I referred to the report recently published by the independent organisation Justice, Intercept Evidence: Lifting the Ban. Starting at paragraph 115, it set out the current experience of five other common law countries around the world where intercept evidence is used regularly in cases of serious crime. Those countries are Australia, Canada, New Zealand, South Africa and the United States. Australia is a particularly relevant case in point, because the Minister has been kind enough to write to me since Committee to correct an impression that may have been given inadvertently that in Australia intercept evidence is used hardly at all. That is not the case. In her letter to me of 23 April, she pointed out that the most recent figures, to June 2005, showed that in Australia intercept evidence has been adduced in 2,363 prosecutions, of which 1,533 have resulted in convictions. She kindly attached the table explaining how those totals were arrived at.

In the light of those figures from Australia alone—and no doubt there are similar figures from all the other countries referred to in the Justice report—the Minister has to answer this simple question. If Australia has found a way of admitting intercept evidence safely, why cannot we find such a way ourselves? The Australian figures are also useful, indeed critical, for another purpose, because they bear out the experience of our Director of Public Prosecutions, Sir Ken Macdonald. A year or so ago, he visited three countries—Australia, Canada and the United States—to find out how they dealt with intercept evidence. He found it being used everywhere he went. It was being used safely everywhere, and he found disbelief everywhere that we could do without it in our country.

Sir Ken Macdonald recently gave that evidence at a hearing of the Joint Committee on Human Rights and made an extremely powerful case for admitting such evidence now. I can say that that case was powerful, because I heard it myself. I suggest to the House that we should take his advice very seriously, especially as it confirms the advice of his predecessor, Sir David Calvert-Smith—now Mr Justice Calvert-Smith. They are not the only people to have expressed such a view. In Committee, I listed a number of others who had done so. It would be tiresome to repeat that list now. But many other people who are in a good position to judge say that the time has now come for intercept evidence to be admitted.

Despite all of that experience world-wide, and despite the views expressed by so many people who are qualified to express views on this matter, I accept that some people say that it cannot be done safely, that we risk too much and that, sooner or later, the secret processes that we are so anxious to protect will come out in court. No doubt, some noble Lords will express that view this afternoon, although there is a notable absentee—but she may come later.

To those who still believe that admitting the evidence cannot be done safely, I say two things. First, they should look elsewhere. It has been and is being done safely in all the countries that I have mentioned, not to mention all the European countries—France, Germany, Italy, Holland and so on. Secondly, they underestimate the power of the court under the public interest immunity procedure, which is now clearly set out in black and white in Part 25 of the Criminal Procedure Rules 2005, and appendix 1 of Blackstone. I assure the House that there is no prospect of any judge of the High Court ordering the disclosure of material that would damage the public interest by revealing sensitive matters that ought not to be revealed. If any judge did so order, there would be an immediate appeal to the Court of Appeal.

It comes to this: the Minister says that she would admit the evidence if a way could be found of doing so safely—that the desire is there. I hope that I have demonstrated to the House that a way has been found of doing so safely in all the other countries to which our system is most similar, and many others to which I have not referred. I am left with the thought that what is lacking is not the ability to make the evidence admissible, but the political will to make a decision after all these years. I hope that this House will now make that decision for the Government. I beg to move.

My Lords, in the absence of the recognised expert in the House on the issue, the noble Baroness, Lady Ramsay—I am sorry to see that, because she really understands the sophisticated inner workings of all this—I must yet again oppose the noble and learned Lord, I am afraid. I am concerned that if we use this evidence in the case of serious crime, that precedent will lead to its use in terrorism cases, where the police and security services necessarily work extremely closely. I remain convinced that the dangers to sources and to highly sophisticated methods are incontestable. We are not just talking about conventional telephone taps, which is largely what is used in other countries—there is no risk there. We are talking about something that, once lost, will be extremely difficult to replace.

I do not think that it is understood that when those who deal with this material lose a case and a method, it is extremely difficult to replace it. The time lost will be very serious. In terrorism cases, that is also a serious issue. We know that Sir Swinton Thomas and the noble Lord, Lord Carlile of Berriew, have been unwilling even to release details of the numbers of such operations, let alone their content, to the Intelligence and Security Committee, and they seem rather well placed to know the risks. They understand the extreme sensitivity of this intelligence. Like the noble Baroness, Lady Ramsay, I am concerned about the immense weight of work in intercept operations; if we lose one, we have to start again way down the hill.

I plead with the House to take note of this. I greatly respect the noble and learned Lord, Lord Lloyd of Berwick, but in this case he underestimates the danger in a special area. This country is more exposed to highly sophisticated operations of this kind than many another. I doubt whether, in New Zealand, we have al-Qaeda and the support for terrorism that there is here. We should recognise that. We are in a rather special situation.

I know that the noble and learned Lord will refer to the United States but, there again, the workings of the NSA and the FBI and so on are rather different from ours. It is not easy to make a straightforward comparison, so I beg that these issues should be taken into account.

My Lords, I have only one thing to say. If the use of intercept evidence puts sources at risk, the Crown does not have to use it. If there is no risk and the evidence can be used safely, it should be used. It seems to me as simple as that. If the concerns expressed by my noble friend Lady Park are real, the security services will listen to what her equivalent says and they need not use the evidence. This is a permissive, not a mandatory, power. That seems to me to be the crux of the matter, and I think that we must introduce it.

My Lords, I have dialled this telephone number before and it will be no surprise to your Lordships to hear that I support the amendment. I, too, find it amazing that we are the only major developed country in the world not to use this sort of evidence in court. I am of course very sensitive to the fact that the government agencies which procure this type of evidence and those who assist them are, for understandable reasons, very cautious in protecting some of their methods. But, as the noble Earl, Lord Onslow, has just said, this is a permissive power. If highly sensitive sources are used, there is no need to put them at risk in any trial.

The noble Baroness, Lady Park of Monmouth, made an impassioned plea and I recognise the depth of feeling that she evinces. However, I am not a stranger to the inner workings of security operations, and, as the noble and learned Lord, Lord Lloyd of Berwick, said at some length—I shall not repeat it, save to align my views with his—if current-serving very senior law enforcement officers who are in touch with those agencies support the amendment, I think we should listen to them. He mentioned the DPP but he could have mentioned the current Commissioner of the Metropolitan Police and previous commissioners; he could have gone through a litany of those who, in other debates in your Lordships’ House, have been paraded. I believe that the amendment would lead to a measure which we seriously need, and I support it.

My Lords, it is some time since I was officially concerned with the business of interception. Then, from time to time we reviewed whether we should seek the ability to use intercept material as evidence in criminal trials. I can well understand the potential attractions of being able to use such evidence in those trials. I recognise that, in proposing that this should be allowed, my noble and learned friend has included a number of safeguards in the amendment, but I do not know whether those safeguards are 100 per cent proof. Unless things have changed very greatly, I believe that the conclusion that we reached when I was in the business should be unchanged. I agree with the noble Baroness, Lady Park, that the risks and disadvantages of allowing the use of intercept material in criminal proceedings greatly outweigh the potential benefits. It is with regret that I am unable to support my noble and learned friend Lord Lloyd, but I cannot and I hope that the House will not support the amendment.

My Lords, the objections raised by the noble Baroness, Lady Park, are remarkable if one looks at the schedule that goes with the proposed new clause. Under that schedule, an application to introduce intercept evidence can be made only by the prosecution. It seems a little unlikely that the prosecution will try to introduce evidence that the security services say must not be introduced, but let us assume that the prosecution does so. The Secretary of State would have to apply to the court for the evidence to be withheld. Obviously, the successor of the noble Baroness, Lady Park, would, in certain suitable circumstances, ensure that such an application was made. Will the court really overrule the Secretary of State when he says that the evidence, if admitted, would damage our security services? With the greatest respect to the noble Baroness and the noble Lord, Lord Armstrong, their objections are fanciful. I cannot understand, and the noble Baroness has given no example, how this procedure is all right in other countries, particularly America, but not here. She can hardly say that we have greater trouble with al-Qaeda than the Americans do. If the Americans, Australians, Canadians and others can manage, it is totally possible for us to do so.

In spite of the powerful character of the objectors, therefore, I hope that the House will recognise that they have not advanced any argument other than to say, “It never happened in my day and it ought not to happen now”. Everyone accepts that the amendment would solve a lot of the problems with the Bill. Most of the justification for making these strange orders is, “We can prove it but we cannot prove it in court”. If we allow the evidence to be produced in court, that problem will not arise.

My Lords, until 1993 the idea that the prosecution should have private communication with a judge and disclose to him evidence not available to the defence was simply unknown. In 1993 public interest immunity procedures were introduced in England and Wales for the first time. I had experience at that time as a prosecutor, so I was aware how the procedures were to be used. Since then, they have been developed and refined.

My Lords, I am very surprised that the noble Lord believes that PII procedures were first introduced in 1993. They had been going long before that and were carefully considered at a very high level.

My Lords, I was referring to the particular procedures followed in a criminal trial, not to public immunity certificates, to which I think the noble and learned Lord refers. These procedures were introduced in 1993. I have never come across a single instance where confidentiality between the prosecutor and the judge has been broken. I would be surprised if any noble Lord present who has experience of the criminal court had come across any such instance either.

It follows that the fears expressed by the noble Baroness, Lady Park, and the noble Lord, Lord Armstrong, perhaps relate to a different era, when those procedures were not in place. We have discussed this matter on many occasions. I find it remarkable that we are discussing the criminal procedure for obtaining serious crime prevention orders in a context where these orders can be obtained on hearsay evidence—that is precisely what a later clause, which we will discuss, says—but not using evidence out of the mouth of the defendant who is before the court, proving what he said, with whom he has conspired and so on. It is extraordinary that rumour and hearsay are enough but what the defendant actually says is not.

My Lords, until October last year I was closer to this argument and debate in government than I am now. As the noble and learned Lord, Lord Lloyd of Berwick, will know, I have not been persuaded of the arguments in favour of his amendment. We went through this ground at length during the Second Reading of his Private Member’s Bill, so I will not detain the House by going into detail. I wish to make three points.

First, my understanding is that, in comparison with other countries, the relationship between intelligence agencies and law enforcement agencies is much closer in the United Kingdom than it is in virtually all the other countries that have been discussed. As the noble Baroness, Lady Park, said, we are not talking about conventional telephone tapping but about techniques that are far more sophisticated in the intercept of all kinds of electronic communications. As I understand it, that close proximity gives the character to the present debate, in particular about whether it is right to admit intercept evidence.

My second point is that the use of intercept evidence in court will produce a high volume of material in many cases because intercepts are often left to run for considerable periods of time. That will place a heavy burden on intelligence agencies, law enforcement and the prosecution because the material will have to be gone through, sometimes in minute detail, in order to ensure that material that properly ought to be kept secret is blacked out or marked in some way so that that can be done. If it is an intelligence agency tap, intelligence agents will have to do that, and I would prefer them to be used for intelligence, not as disclosure officers.

My third point is that, in moving his amendment, the noble and learned Lord concluded that the issue is a lack of political will. I assure him and the House that, from my observation of this matter, that is not the case. A considerable amount of work has gone in at high levels in government and in the associated agencies to try to produce a model that will meet the proper concerns of the intelligence and law enforcement agencies. All the models that have been produced have had an aspect which has meant that they could not go ahead. I can say with complete candour that it is not a lack of political will. Many of us would love to see the result that the noble and learned Lord wishes, but the report from the commissioner, to which I have no doubt the Minister will refer in her reply, made clear that there are serious concerns about whether this is the right way to go. I hope that this matter will not be pressed.

My Lords, in moving the amendment, the noble and learned Lord, Lord Lloyd of Berwick, referred to our debates in Committee on this subject. He failed to mention that this is the fourth time that we have covered this subject in the past two months because it featured very largely in the Second Reading debate and the Committee on this Bill and was the subject of the noble and learned Lord’s Bill that we debated the other day. We are now debating this matter again, and I understand that the Minister has debated it on a number of earlier occasions. She is now looking at me with pursed lips, if I can put it in that manner, and I offer her my commiserations for having to debate it yet again. However, after all this time, it may be that she will come to see the merits of the arguments in the noble and learned Lord’s case and of the arguments put forward by speakers from around the House. On the reaction from the Government, I hope that this debate might prove to be the exception. On this occasion, perhaps I may suggest a shorter response from the Minister, as requested by the noble and learned Lord. The noble Baroness could simply say that she accepts all the arguments that have been put forward.

The noble and learned Lord has put his arguments very well. It is not for me to reiterate all that he and others have said. I underline only one point—a point made by the noble and learned Lord and others—that in a great many other countries, outside the United Kingdom, intercept evidence has been used in the past. I refer to a trip made by my right honourable friend David Davis to North America only last month when he saw that in action. As the noble Baroness will be aware, outside the United Kingdom intercept evidence has been used to convict al-Qaeda cells in the United States following 9/11; it has been used to convict various serious criminals—the so-called five godfathers of New York crime—and it has been used before the International Criminal Tribunal for the former Yugoslavia at the Hague to convict war criminals.

The Minister noted various omissions of intercept evidence in her response to the noble and learned Lord's Private Member’s Bill, which we debated two or three Fridays ago. I direct her to those examples and I reiterate the request made at the time for the figures on using intercept evidence in serious drugs cases. I expect she will find that the issue is not as cut and dried as she then seemed to think.

On that occasion, the Minister mentioned safeguards and I would like to direct her to the evidence gathered by my right honourable friend David Davis in America last month. In America, they make essential use of classified information procedures. The safeguards are solid and the benefits are overwhelming, yet still, unfortunately, they are over there and not over here. In literally thousands of organised crime cases, intercept evidence has been the key evidence on which the verdict has turned. Often, if intercept evidence is permitted, the accused accepts a plea bargain. It is also vital in enterprise cases. Where big organised crime is involved, intercept evidence can be used in plea bargains to get minor players to give evidence against the bigger fish.

The noble Baroness may be interested to hear a little about the safeguards surrounding that procedure. As I understand it, first, a judge must authorise the use of intercept, which would be in camera, and the defence would have an opportunity to challenge that if it wished. Further, judges and defence lawyers involved in the procedure must have particular clearance to deal with intercept material. In support of those measures, evidence may be edited or summarised to protect the sources and to allow the defence to challenge it in open court.

Again in summary, to repeat what has been said by a great many noble Lords in this debate, the United Kingdom is the only country in the common law world to refuse the admittance in court of evidence gathered on home soil. Furthermore, as I understand it, evidence gathered in the United Kingdom can be admitted for use in the United States. Therefore, on this occasion, after so many earlier opportunities, we hope that the noble Baroness will consider this and, in the light of evidence in the United States of the proven effectiveness of their safeguards, be tempted to offer, dare I say, the short and sweet response to the amendment of the noble and learned Lord.

My Lords, I can certainly make this much short and sweet: I accept without qualification the arguments of the noble Baroness, Lady Park, the noble Lord, Lord Armstrong, and my noble and learned friend Lord Boyd. That could perhaps suffice, on the basis that this is the seventh time the noble and learned Lord, Lord Lloyd, has made his intercept-as-evidence proposals in the past two years, and the third time during the course of the Bill.

However, it is right for us to bear in mind what has been said so eloquently by my noble and learned friend Lord Boyd in support of the comments of the noble Baroness, Lady Park, and the noble Lord, Lord Armstrong. It has been suggested that the noble Baroness and the noble Lord are perhaps no longer in touch, or up to speed, with the current position. Of course, the noble Lord, Lord Dear, also has real experience in this field, but that cannot quite be said about my noble and learned friend Lord Boyd or fairly said about those who now put forward this argument on the Government’s behalf.

Given the history of these debates, I can do no better than refer the House to the comprehensive and detailed response I gave on the Government’s behalf on 7 March, Hansard cols. 308-314, and again on 16 March, Hansard cols. 990-995. We concluded then—as on every occasion we have considered and responded to the proposals in detail—that we are unable to utilise the material as the noble and learned Lord has sought. The proposals are not only seriously flawed but actually dangerous because, as I have explained, they provide none of the safeguards that we and others have recognised as crucial and have been working so hard to develop. Our position reflects that of the key stakeholders in the debate, which is measured and sensible. Until we find a method of delivering change in a way which protects our ability to fight terrorism and serious crime effectively, the Government cannot support a change in the law. Again, therefore, we oppose the proposals.

My response to the noble and learned Lord, Lord Lloyd of Berwick, in our previous debate was to the assertion that intercept as evidence would be particularly effective against terrorism. I gave figures from the Australian Telecommunications Interception Act 1979. The most recent, for the year ending 30 June 2005, showed that intercept was not adduced in any terrorist prosecution. As the noble and learned Lord rightly said, I then went on to deal with these other figures.

My Lords, it was good of the noble Baroness to provide those earlier figures she sent to me. How many terrorist cases were there in the relevant year?

My Lords, I do not have the table from which those figures were adduced, but I can certainly find them. The important thing is that this goes to the noble and learned Lord’s point that this sort of evidence is useful and should be used. He suggested that Australia was an example of where intercept evidence had been used to that purpose. Therefore, I thought it was important for us to have the facts about the accuracy of that assertion. We now do so.

The Australian figures of course were of interest. But we know that overseas jurisdictions have, as the noble Baroness, Lady Park, indicated, a different structure from our own. Their use of intercept evidence, and the way in which they protect sensitive capabilities, differs. They wall off the more sophisticated work of their intelligence agencies, which is not produced in evidence, from the more straightforward interception work conducted by their law enforcement. We could do that, too. We have not done so because in the United Kingdom our intelligence agencies work hand in hand with law enforcement and the access to sophisticated capabilities this promotes has served us very well. Once you dismantle the protections on intercept material, you dismantle the protections for all intercept material. That requires replacement safeguards to be put in place, and that is what we are working really hard to try to develop.

I take up the issued raised by the noble Viscount, Lord Bledisloe. It has been said that if only the prosecution can decide whether it can in each case provide intercept evidence, surely that will suffice. That song has been echoed by the noble Lord, Thomas of Gresford. It is not likely to be ECHR compatible because there has to be a right to a fair trial. That—I hope the noble and learned Lord would think—would undermine the efficacy of that as a way forward.

I had wanted to keep my speech short because these issues have been trailed so often. However, it is only right to say that in many of our previous debates on these proposals I have explained why intercept evidence would not be effective against terrorist targets; why it would not obviate the need for control orders; why it is very different from eavesdropping evidence; why any gains against serious crime would be modest and time limited; why our country is different from others which do not use intercept evidence; and why technology changes, in communications and the ability to intercept, is so crucial.

I have also set out why the Government's view is and continues to be that we have to work on the issue. I do not propose to go through all the fine details. I know that the noble and learned Lord has been invited to come and see the work we are doing. I really want to underline what was said by my noble and learned friend Lord Boyd. This is not because of any lack of will. Considerable efforts are being undertaken on a continuous basis to address the issue, and we are determined to pursue the matter.

I now come to a stage where I am almost going to beg the noble and learned Lord, Lord Lloyd, to accept our bone fides on this issue. This is not implacable hostility. This is not obdurate or obstinate opposition for opposition’s sake. There is no resistance to doing this—and I reassure the noble Lord, Lord Henley, of that—because we are antipathetic to this move as a matter of principle. That could not be further from the case. But I have to tell the House that this Government will not move to introduce information on intercept which is likely to cause damage to the security of our nation. We will not move.

Unless and until we determine a way in which that can be safely used, from this Dispatch Box the House will receive the same response. If, through ingenuity and hard work, we are able to resolve the problem, I will with joy return to the Dispatch Box to explore how it has been done. Until that stage, I invite the noble and learned Lord to withdraw his amendment and to be content that he has ensured that our efforts will continue at a heightened level.

My Lords, of course I accept the bona fides of the noble Baroness and the Government, but she has not explained why it has been found possible to do what I seek to do in so many other different countries with systems similar to ours. In those circumstances, I wish to test the opinion of the House.

[*The Tellers for the Contents reported 182 votes; the Clerks recorded 183 names.]

Clause 4 [Involvement in serious crime: supplementary]:

[Amendment No. 22 not moved.]

23: Clause 4, page 5, line 6, leave out from “intentions” to end of line 7

The noble Baroness said: My Lords, I shall speak also to Amendment No. 24A. I wish to make it clear that I have brought these amendments back in order to give the Minister the opportunity to carry out a commitment she gave in Committee. These amendments probe the relevance of a person’s mental state to the ability of a court to impose a serious crime prevention order on them. They ask the Government to define what is meant by the term,

“any other aspect of his mental state”,

which is not clear in the Explanatory Notes.

Clause 4 appears to treat those with mental incapacity or mental ill-health inappropriately. It supplements Clauses 2 and 3 and contains further provisions for a situation where a third party is accused of facilitating the commission of a serious crime by another person, in some circumstances even where that offence is not actually committed. Subsections (2) and (3) require the court to ignore the intentions and other aspects of a respondent’s mental state at the time of the act in question. The court must ignore the person’s mental state.

When I moved these amendments in Committee, the Minister stated, at col. 763 on 14 March, that the reference to mental state is a reference to intention, not to mental ill-health or incapacity—that one does not need to intend the consequence of that which is sought. The Minister said that she would be happy to write to me, with copies of the letter to Members of the Committee, setting out the examples of how the provision should be implemented. Despite the welcome confetti of Home Office letters and e-mails in the past 24 hours, I have not yet received a letter referring to this specific point. Therefore, I left this amendment on the Marshalled List and invite the Minister to give further clarification. I beg to move.

My Lords, I realise that we did not go into the detail of this amendment when we discussed this clause in Committee, for which I apologise. I also apologise that the issue seems to have slipped through the net among all the other issues that the noble Baroness and I have tried to address. Perhaps I may take the opportunity to explain why such an amendment would be unwelcome.

The clause is drafted with separate references to the intentions of the subject and,

“any other aspect of his mental state”.

For the reasons I set out in some detail in Committee, we do not want the applicant authorities for these orders to have to prove that the proposed subject has a particular mental state such as intention when deciding whether they have acted in a way that has facilitated or was likely to facilitate serious crime. Clause 1 expressly sets out that these orders can be granted only where they are preventative of serious crime. The terms of the order must be reasonable and proportionate, and in this context there will be instances when the need to prevent considerable harm will mean that an order is appropriate where it would be almost impossible to show an element of intention or other mental state such as recklessness.

The effect of the amendments would be to remove the reference to other aspects of his mental state. If the court is to ignore the proposed subject’s intentions at the time, it would seem odd that it should be able to take into account those elements of his mental state which would fall outside “intention” such as recklessness or knowledge. Further, while the court will ignore the mental state of the proposed subject, it will also ignore any action which the proposed subject can show was reasonable. As I outlined earlier when discussing the process for the making of these orders, the court will make an order only where the applicant authority has proved that the proposed subject has been involved in serious crime, where the applicant can convince the High Court that the order is necessary to prevent, restrict or disrupt further such involvement, and where the terms of the order are reasonable and proportionate. Within this context, we do not think it would be appropriate for the court to be able to take into account, for example, whether the proposed subject was reckless as to their involvement in serious crime. We must, therefore, resist the amendments. However, I am grateful to the noble Baroness for her patience because it has given me an opportunity to explain why her concern here is not merited and why her amendments would undermine what I know both she and I seek to achieve.

My Lords, I welcome that further clarification and I beg leave to withdraw the amendment. We shall not return to it at a later stage.

Amendment, by leave, withdrawn.

[Amendments Nos. 24 and 24A not moved.]

25: Clause 4, page 5, line 16, leave out “Secretary of State” and insert “Lord Chancellor”

The noble Lord said: My Lords, I shall speak also to Amendments Nos. 31 to 36, 75, 123 to 125, 127 and 128, 139 and 140. These simple amendments are designed to replace the references to the Secretary of State throughout the Bill with references to the Lord Chancellor.

The Home Secretary has announced his intention to hive off a substantial part of the Home Office and transfer it to the Department for Constitutional Affairs by 8 May this year—by which time it is not likely that this Bill will still be in this House and may not have started in another place—thereby creating a Ministry of Justice. The provisions of the Bill seem to fall within those that we understand will be transferred to the said new ministry. I would be grateful if the Minister could clarify whether I am right. If it is the case, surely the Minister with responsibility will be the figure known as the Lord Chancellor which, we all remember, the Prime Minister tried to abolish by mere executive fiat. Given that, he should be so named in the Bill. I beg to move.

My Lords, has there been any slippage in terms of the transfer of functions, or will it still take place on 8 May?

My Lords, these amendments seek to change references made to the Secretary of State to the Lord Chancellor. I should say to the noble Lord that we do not think that is either necessary or appropriate. The amendments really relate to the power to make changes in Part 1 of Schedule 5, which lists the reference to the common law offence of inciting the commission of another offence. As my right honourable friends the Prime Minister and the Home Secretary have made clear, the focus of the Home Office will be very much on public protection and the reduction of crime. These orders will play an important role in that by giving law enforcement a flexible new tool with which to prevent harm being caused to the public by serious criminals. As a result, the order-making powers in relation to the orders will be exercised by the Home Secretary as the Secretary of State for the Home Department.

During the extensive debates on the Constitutional Reform Bill, this House considered carefully which functions it thought should fall to the Lord Chancellor. Those functions relate to the maintenance of the rule of law and the independence of the judiciary, relations with the judiciary, judicial appointments and discipline, and the support of the judiciary in the execution of their duties. Those are all very different areas from the matters set out in relation to the orders or in relation to Schedule 5, and we suggest that they do not belong together.

I turn to Amendment No. 75. The appropriate person to make the order in the future will be the Secretary of State who is responsible for Part 2. It may be that this is for a future Secretary of State for justice, or whatever title he or she may carry, but that would depend on a future transfer of functions. As things stand, the matter is clearly for the Home Secretary, and even if it was transferred to the person who also happens to hold the office of Lord Chancellor, it remains a function which does not sit with the very clearly defined list of responsibilities belonging to that post. As a result, the reference to “Secretary of State” is clearly to be preferred, and so we invite noble Lords not to insist on their amendments.

There has been no slippage in the timetable, which still stands.

My Lords, I thank the Minister for that response. I take it that some of the amendments cover matters that will be for the Home Office, while some will be matters for—I think I have the quotation from her down correctly—

“the Secretary of State for justice, or whatever title he or she may carry”.

Do I then take it that we are going to see the abolition of the title “Lord Chancellor”, a title, the Minister will remember, that this House fought hard to save on an earlier occasion after the attempt that I have referred to by the Prime Minister to abolish that post by what we might describe as executive fiat?

No, my Lords. The noble Lord will know that at the moment the current Secretary of State for the Department for Constitutional Affairs has two titles. One is in relation to the Lord Chancellor, whose role, which I have described in answer to the noble Lord’s amendment, has been clearly defined with regard to the judiciary, the rule of law and so on. Those functions currently sit alongside the Secretary of State’s other functions, but he has a two-hatted role. The roles that will be discharged by the Secretary of State will not fit within the Lord Chancellor’s role because that role has been clearly defined. These provisions sit outwith that, but within the proper ambit of what will be discharged by a Secretary of State either for the Home Department or for the new Ministry of Justice.

Again, my Lords, I thank the Minister for that response, which I think I understand. I suspect that is as close as she will come to giving us an assurance that at least the historic title of Lord Chancellor will survive as one of the hats being worn by the Secretary of State for Justice, or whatever title he or she may carry. No doubt she will be putting in a job application for that position fairly soon, and we wish her all due luck with that. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 [Serious offences]:

26: Schedule 1, page 46, line 25, at end insert—

“Robbery using an offensive weapon or firearm An offence under section 8(1) of the Theft Act 1968 (c. 60) where it is alleged that, at some time during the commission of the offence, the defendant had in his possession a weapon specified by the Secretary of State under section 141(2) of the Criminal Justice Act 1988 (c. 33), or a firearm or imitation firearm (as defined by section 57 of the Firearms Act 1968 (c. 27)).”

The noble Baroness said: My Lords, with this amendment I shall also speak to Amendment No. 27. Again, these amendments are brought back in order to enable the Government to keep to a commitment that was made in Committee. When I moved these amendments then, I was trying to add to the list of serious offences in Schedule 1 the offence of armed robbery committed with firearms. I tabled the amendments at that stage in probing mode, and my real objective then was to ask the Government to justify the inclusion of some crimes in the list and the exclusion of others. At that stage, the noble Lord, Lord Bassam, made the point that the Government were consulting “stakeholders”, as they call them, to ensure that the schedule should reflect the offences for which it would be appropriate in all circumstances to place an order. At col. 776 of Hansard on 14 March, the Minister accepted that there was considerable merit in my amendments. He said that although he could not accept the drafting of the amendments at that stage, he would give them careful consideration, which is why I have brought them back.

In Committee my amendment did not cover the use of a wider range of weapons, such as knives and machetes. My amendments today do that; they are broader. I have extended the range of the amendments to meet the points that were made not only by noble Lords in Committee but also, prior to that, by Mr John Letizia of the British Bankers Association, to whom I am very grateful for his helpful briefing about the extent of the dangers faced by banking personnel from armed robbery, including with weapons other than firearms.

What are the results of the Government’s further consideration about which offences should be in Schedule 1, and what changes will be made before the Bill leaves this House? Are they intending to bring forward their own amendments at Third Reading to cover this specific offence and any others? I beg to move.

My Lords, I put my name to these amendments for two reasons. First, there is understandable wide public concern about the remarkable growth of the kind of crime covered by these amendments. We have had far too many cases recently, not least in London, of people murdered in the course of crime. It seems odd, when we have a schedule listing serious crime, that crimes which the public probably think are about as serious as anyone can contemplate are not included in the list.

I commented in Committee on the provisions in the schedule to deal with environmental crimes. There was a flurry of contributions about the importance of dealing with prohibited implements for fishing and such matters. As a former chairman of the National Rivers Authority, I had the responsibility for eight years for seeing that that kind of thing was prevented and that if people attempted it, they were prosecuted. Similarly, with some success, we set about preventing the harmful deposit of waste and so on. We never found it necessary to contemplate the kind of provisions contained in the Bill, yet they are in this schedule, as are a number of other matters that no doubt in their way are crimes we should prevent, such as “illicit recording”, but which do not seem to be quite on the level of robbery with knives or guns that is likely to lead to death. If the Government are not going to provide for that kind of offence themselves, we need to have some fairly compelling reasons for including some matters in the schedule that do not appear to be of quite such a serious nature while omitting something that the public might think should be very high up the list of matters covered.

My Lords, I am grateful to the noble Baroness, Lady Anelay, for tabling these amendments. As she said, I made clear it in Committee that we were sympathetic towards them. My notes start with the word “Resist”, but I shall explain in short terms why that is.

We agree that where a person uses a gun or other offensive weapon to commit a robbery, it might be appropriate to use these orders post-conviction in order to prevent a person associating with others who were involved or with those they received the weapon from. As a result, I would like to give effect to the proper intent behind Amendment No. 26, but I cannot accept it without some further work being undertaken with counsel on the amendment to ensure that the means of giving effect to it are the most appropriate ones possible. I am sure the noble Baroness Lady Anelay, will feel able to withdraw the amendment, with that very strong and heartfelt commitment from me to ask parliamentary counsel to try to draft something that produces the end result that both she and the Government are looking for.

We will bring forward amendments to the schedule as are necessary when we have fully and properly considered this before Third Reading and we will of course be willing to discuss them with the noble Baroness before we do so. Perhaps as a courtesy we should jointly sign up to the amendments; that may be the most appropriate way of dealing with it. I am content, if the noble Baroness will withdraw her amendment, to leave it at that. We have a common view here, and a common purpose. The noble Baroness was right in the first instance—all we need to do is go away and perfect it.

My Lords, I am very grateful to my noble friend Lord Crickhowell for his support. I am grateful also to the Minister for his strong commitment to seek the advice of parliamentary counsel to do better than I ever could. I beg leave to withdraw the amendment and look forward to Third Reading.

Amendment, by leave, withdrawn.

[Amendment No. 27 not moved.]

Clause 5 [Type of provision that may be made by orders]:

28: Clause 5, page 6, line 2, leave out from “include” to end of line 3 and insert “—

(a) a requirement on a person to answer questions, or provide information, specified or described in an order—(i) at a time, within a period or at a frequency;(ii) at a place;(iii) in a form and manner; and(iv) to a law enforcement officer or description of law enforcement officer;notified to the person by a law enforcement officer specified or described in the order;(b) a requirement on a person to produce documents specified or described in an order—(i) at a time, within a period or at a frequency;(ii) at a place;(iii) in a manner; and(iv) to a law enforcement officer or description of law enforcement officer;notified to the person by a law enforcement officer specified or described in the order.”

The noble Lord said: My Lords, I know that concerns were expressed at Second Reading and in Committee about the breadth of the discretion in the current drafting of Clause 5(7). Our primary aim is to provide law enforcement agencies with an effective tool through these orders, but we are more than willing to listen to suggestions for improving them which do not compromise that aim.

The noble Baroness, Lady Anelay, suggested in her amendments that to narrow the discretion for law enforcement agencies to specify how certain provisions of an order are to be complied with would be highly desirable. We agreed with the principle behind her amendment and have worked with parliamentary counsel to draft a provision which would give effect to it. I therefore thank her for not moving her amendments in that context.

Amendment No. 28 does precisely what the noble Baroness sought, and I hope that it also provides further certainty and clarity about exactly what we intend. The amendment replaces Clause 5(5) so that it will be possible to require the subject of an order to answer questions, provide information or produce documents, with the following details specified by law enforcement agencies: the timing of such provision, production or answering; the location at which this should be undertaken; the form or manner in which it should be undertaken; and in whose company it should be undertaken. Amendment No. 29 will delete Clause 5(7) as it will no longer be necessary in those circumstances. The discretion proposed in Amendment No. 28 is important as it provides for the practicalities of providing such material to law enforcement officers.

I thank the noble Baroness for her work on this matter. I think that we have reached a position with which we are jointly happy. I thank her again for not moving her amendments earlier. I beg to move.

My Lords, I am grateful to the Minister for moving his amendments, which I support. He referred to the fact that I did not move Amendments Nos. 3 and 4. I made it clear to the Bill team earlier that it would be inappropriate to do so, not just because the government amendments are superior to mine, but also because, had the Government’s amendments been grouped with mine, the Government would have been prohibited by procedure from introducing amendments, answering any questions that noble Lords might have had and then summing up. They would have had only one bite of the cherry, so it was right that the House should have had the opportunity to question them if need be.

It was right that Clause 5(7) should be removed. My noble and learned friend Lord Mayhew of Twysden spoke eloquently on that matter in Committee. The discretion left to law officers in the Bill as it stood before amendment was too wide. On the other hand, I recognise the importance of flexibility, as there is, in any event, when an order is made by a court. There should be an opportunity later to provide the fine detail of what somebody should do. The Government’s amendment appropriately sets out the kind of activity or prohibition that a law enforcement officer should later impose. It provides the court with the power and authority to set out the range of prohibitions that should be imposed. I support the amendments.

My Lords, we are grateful to the Government for moving so far on this issue. We were very concerned about the width of the provision in subsection (7), as my noble friend Lord Dholakia made clear in Committee. At that time, the noble Lord, Lord Bassam, came out with some very emollient words, and he has completely fulfilled the expectations that we had of him, as he normally does.

On Question, amendment agreed to.

29: Clause 5, page 6, line 9, leave out subsection (7)

On Question, amendment agreed to.

Clause 7 [Other exceptions]:

30: Clause 7, page 6, line 33, leave out from “order” to end of line 34 and insert “where—

(a) he is mentally disordered; or(b) he has a learning disability; or(c) he falls within a description specified by order of the Secretary of State.”

The noble Baroness said: My Lords, I moved a broader amendment in Committee and have returned to it to enable the Minister to fulfil yet another commitment. This one was given at cols. 789-790 of Hansard on 14 March. Clause 7 provides that the Secretary of State may, by order, expressly exclude the application of a serious crime prevention order to those people who fall within a specified description, but, at present, the only class of people which is specifically excluded in the Bill are those who are under the age of 18.

Paragraph 8 of the fifth report of the Delegated Powers and Regulatory Reform Committee observes that the House may wish to seek a fuller explanation of the Government’s intentions for the use of this power. It notes that that the memorandum from the Home Office states that,

“there may be certain persons that should not be capable of being subject to a serious crime prevention order because it would not be appropriate for them to be so subject”.

I asked in Committee whether the Government might consider exempting, for example, those who had a history of mental incapacity or mental illness. The noble Lord, Lord Bassam, said that he had some sympathy with my point and that he would take the amendment away for further and perhaps fuller consideration. He made a commitment to return to the House on this issue on Report. As I did not note a government amendment on the matter on today’s Marshalled List, I maintained my own amendment. It invites the Minister to tell the House the results of the Government’s further consideration. I beg to move.

My Lords, I must tell the House that if this amendment is agreed to, I cannot call Amendment No. 31 by reason of pre-emption.

My Lords, the House looks forward to hearing from the Minister, first, why she has not responded in the way that she said she would and, secondly, whether she agrees that an order could not be applied to mentally disordered people and those with a learning disability, whom the amendment would exclude. I think that those were the points that my noble friend was trying to make. I hope that she will receive a precise answer.

My Lords, I, too, have great sympathy with the intention behind the noble Baroness’s amendment. It is vital that those who have severe mental disorders are given the necessary and appropriate treatments for their illnesses rather than simply treated in the same way as others when they come into contact with the criminal justice system. However, I hope that I will be able to explain why I am confident that the intention is met in the way in which the courts will consider the granting of an order without making provision for it in the Bill.

The noble Baroness will know that the clause provides the Secretary of State with a power to make an order that certain persons as specified in an order cannot have an order imposed on them. The reason for this is that the orders apply to organisations, including bodies corporate, partnerships and other unincorporated associations, as well as to individuals. It is not possible to say categorically that there are not, or will not be created, types of body to which it would be wrong or inappropriate to give an order.

From the evidence that we have, the courts will make judgments on whether the proposed subject was in a fit enough mental condition to be made subject to an order. If a person was severely mentally incapacitated such that he could not conduct his affairs it is very hard to see how any order could be justified. That responds to the concern expressed by the noble Baroness, Lady Carnegy of Lour, about those who either lack capacity or have diminished capacity.

For this reason, we believe that the amendment is unnecessary and resist it. However, I assure the noble Baroness that we went back to test out whether our confidence that this was the right way and would work was correct—and we believe that it will. That is why there is no amendment from the Government speaking to the issue.

My Lords, I am grateful for the support of my noble friend Lady Carnegy, whose explanation clarified what I was trying to achieve very helpfully. I accept the Minister’s further clarification and assurance and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 31 not moved.]

Clause 27 [Powers to wind up companies etc: England and Wales]:

[Amendments Nos. 32 and 33 not moved.]

Clause 28 [Powers to wind up companies etc: Northern Ireland]:

[Amendments Nos. 34 and 35 not moved.]

Clause 32 [Overseas bodies]:

[Amendment No. 36 not moved.]

Clause 33 [Proceedings in the High Court]:

[Amendment No. 36A not moved.]

37: Clause 33, page 22, line 19, at end insert—

“(3) Notwithstanding this, the rules on admissibility of evidence to be observed in such proceedings shall be the same as those observed in trials on indictment; and no person shall be required in such proceedings to answer any question or to produce any document which he could not be required to answer or produce in similar proceedings in a trial on indictment.”

The noble Lord said: My Lords, I referred earlier to the fair trial provisions, which in my view will be held to apply to proceedings of this nature. I mentioned two matters: the standard of proof and the admissibility of hearsay evidence. I start by saying that in the case of McCann the House of Lords, while holding that the civil standard of proof for ASBOs should be virtually the same as that in criminal proceedings, nevertheless permitted the use of hearsay evidence in obtaining anti-social behaviour orders. However, we are not dealing with those orders here but with serious crime, and very serious crime as set out in the schedule that we discussed a moment ago.

The two amendments propose that in the applications that will be made by prosecutors for serious crime orders, while the standard of proof should be high, in addition to that the rules as to admissibility of evidence to be observed in such proceedings shall be the same as those observed in trial on indictment. That same provision would apply not only to proceedings in the High Court that start without a criminal conviction but also to proceedings in the Crown Court when the application is made for an order following a conviction. In both instances, we submit that the proper way to prove involvement in serious crime is by proper evidence and not by hearsay evidence, as proposed in the Bill.

The Prime Minister said in a speech to the Labour Party conference some years ago that the hearsay rule is an outdated relic of Dickens’s England. That is a very surprising remark coming from that source; it is not a relic but a living principle applied in every criminal court in this country. I beg to move.

My Lords, we have already discussed in some detail the appropriate standard of proof for the orders and I hope that I have set out with a degree of clarity how the process of how the orders are made will operate. What I said at that point will provide some context for the discussions in relation to these amendments.

Amendments Nos. 37 and 38 would change the rules on admissibility of evidence in proceedings relating to an order from those applicable in civil proceedings to those applicable in relation to trial on indictment. What the noble Lord says is right in relation to the difference in the nature of evidence that could be used. They also provide that in proceedings for an order a person cannot be required to answer any question or produce any document that he could not be required to answer or produce at such a trial.

The court already has a comprehensive power to manage the cases and the evidence before it and will disregard anything that it considers is inappropriate to be taken into account. These are civil orders and we believe it is appropriate, therefore, that the rules of evidence which apply are the usual civil rules, rather than creating an unusual hybrid approach solely for these orders. For these reasons we resist the amendment.

There are safeguards inherent in the process that I have outlined. Specific safeguards are contained in the rules in the High Court, as the noble Lord will know. The proceedings before the High Court will be civil proceedings and all the normal rules of evidence will apply. For example, Clause 34(3)(a) makes it clear that the Crown Court will not be limited to considering evidence that would have been admissible during the criminal proceedings at which the respondent was convicted. This means that hearsay evidence will in principle be admissible during an application for a serious crime prevention order. However, adducing such evidence will be accompanied by the usual safeguards set out in the Civil Evidence Act 1995. These safeguards include the need to give notice in certain circumstances of the intention to adduce hearsay evidence; the possibility of calling the person who made the statement for cross-examination; the application of special considerations when the court determines what weight, if any, to give to the hearsay evidence; and the application of rules relating to competence and credibility.

Noble Lords can, therefore, be assured that the respondent to an application for a serious crime prevention order will be in the same position as any other person facing an application for a court order. In addition, due to the nature of the cases in which applications for serious crime prevention orders are likely to be made, it is unlikely that hearsay will be any more than a limited part of the case that will be presented to the court by the relevant applicant authority. The court is very familiar with attributing weight to evidence depending on its quality and nature. The reason for this is that often law enforcement officers will be able to give evidence of a person’s activities and the purpose of those activities from their own knowledge rather than having to rely on information from members of the public. So we think that there is a very solid base here.

I hope that now that I have spoken into the record all the safeguards that the noble Lord would wish there to be, he is reassured.

My Lords, I am most grateful to the Minister for giving me that comprehensive reply, but it does not satisfy me, as it does not recognise the criminal nature of the proceedings.

The whole purpose of the rule against hearsay is to prevent people being convicted on evidence that they cannot actually cross-examine. Hearsay means that the person on whose statement the prosecution relies cannot be cross-examined or questioned. It is apparent that under the provisions of the Bill it would be possible for a police officer, for example, or a member of the investigatory services to go into the witness box and say, “I was told this by X”, and there is no way in which to challenge that. The consequences on the individual facing the order are, nevertheless, severe: he can be subjected to a serious crime prevention order, which has the potential for enormous restrictions on his freedom of communication, travel and everything else. Whereas the House of Lords was prepared to accept hearsay evidence for anti-social behaviour orders, we are in a completely different league here. It is for that reason that I seek the opinion of the House on this issue.

Clause 34 [Proceedings in the High Court]:

[Amendment No. 38 not moved.]

39: After Clause 35, insert the following new Clause—

“Disclosure of information in accordance with orders

(1) A person who complies with a requirement imposed by a serious crime prevention order to answer questions, provide information or produce documents does not breach—

(a) any obligation of confidence; or(b) any other restriction on making the disclosure concerned (however imposed).(2) But see sections 11 to 14 (which limit the requirements that may be imposed by serious crime prevention orders in connection with answering questions, providing information or producing documents).”

The noble Baroness said: My Lords, as part of the consultation process for and following the Green Paper, my honourable friend Vernon Coaker met several stakeholders, including Liberty, to discuss the planned provisions for the Bill. Liberty raised the concern during that meeting that the subject of an order could be placed in an invidious position by being subject to conflicting obligations—for example, an obligation to disclose a piece of information under the provisions of an order that might conflict with a contractual duty of confidence.

We do not want these orders to affect pre-existing restrictions such as these, but equally we do not want to provide a gap whereby serious criminals could seek to create such restrictions to frustrate the court’s order. As a result, we thought it best to provide a protection for the subject of an order so that he or she would not be liable for any breach of a restriction on the disclosure of information occasioned by complying with an order. The amendment provides for the efficacy of the orders while offering important protections to the subject of the order. I have no hesitation in commending it to your Lordships. I beg to move.

40: After Clause 35, line 3, at beginning insert “Subject to the provisions of sections 11 to 14,”

The noble Baroness said: My Lords, in moving my amendment, I shall speak also to Amendment No. 41. Perhaps I should make it clear that I am delighted that the Government had their discussions with Liberty. I support the points that Liberty put forward; it is right that the Government should have responded to those points and I support what they are trying to achieve in their amendment.

Why have I tabled these amendments? It is a bit of a cavil on the drafting. I recall with great affection the work over the years of noble friends such as the noble Lord, Lord Renton, in asking, “Why have you put it in this way?”. On this occasion, it relates to subsection (2) of the government amendment. We are told,

“But see sections 11 to 14”.

Is that new Home Office drafting? I am not accustomed to it. Is “see” a direction that I must take those clauses into account? Will the noble Baroness elucidate? I beg to move.

My Lords, it would be interesting to know whether such a format as “see” exists elsewhere in legislation. It could say, “But please don’t smile”, or “But please do smile”, or anything. The amendment states, “But see sections”. If the Government’s amendment is subject to the provisions of Clauses 11 to 14, they should say so. If it is not, why do they use such wording?

My Lords, perhaps I may apologise to the noble Baroness. Because I thought that we were in agreement, I did not avail myself of the opportunity of dealing with all the technical niceties. As always, the noble Baroness, as quick as a flash, has reminded me that “full and long” often ends up being “shorter”.

Amendment No. 39 makes provision for the protection that I have already described. The second subsection reminds the reader that, while compliance with any requirement over-rides any restrictions on disclosure, there are still restrictions on the requirements that can be imposed. There is now a significant number of such signpost provisions on the statute book and we consider them to be a useful tool to help in the understanding of the legislation.

Perhaps I may provide the noble Baroness with examples of where she can find similar signposting provisions, not just in relation to the Home Office. Provisions similar to subsection (2) of the new clause are to be found in Sections 1(3) and 4(4) of the Companies Act 2006, Sections 1(6), 2(2) and 3(2) of the Income Tax (Trading and Other Income) Act 2005, and Section 5(6) of the Housing Act 2004. There are similar provisions in the Armed Forces Act 2006, the Charities Act 2006 and the Serious Organised Crime and Police Act 2005, the last of which the noble Baroness will remember. This tool has been used with effect in the past and it helps better to understand the legislation.

To make the amendments as tabled would be inappropriate, as they do not reflect the order of events that would occur. The order of events is that a requirement is imposed in an order, a person complies with it and that compliance does not breach any other restrictions on disclosure that might exist. The statement that the compliance does not breach any restrictions on disclosure is not, strictly speaking, limited by the statements in Clauses 11 to 14 about the types of requirements that can be imposed. Rather, the statements in those clauses merely help to set the context within which the statement about compliance operates. Logically, they predate it. I hope that that explanation will help the noble Baroness to understand how the draftsmen have crafted the Bill to do exactly what she would want it to do, as is often the case.

My Lords, I am grateful to the Minister. I accept that my amendments are defective and have put things in the wrong order. That does not mean that the government drafting is perfect—I hope that the parliamentary draftsmen will forgive me for saying that. The noble Baroness gave a long list of Acts which, I confess, I had not read. I shall tease my noble friends with regard to the Companies Act in respect of details that they might not have seen. The noble Baroness mentioned the Serious Organised Crime and Police Act. I suppose the fact that I did not notice “see” in that Bill provides grist to my elbow; I have always argued that we were mistaken to rush that Bill through during the “wash-up” period. I obviously did not read every word as perfectly as I should have done. Ah me! I shall try better in future. I shall wait and see. I beg leave to withdraw the amendment.

Amendment No. 40, as an amendment to Amendment No. 39, by leave, withdrawn.

[Amendment No. 41, as an amendment to Amendment No. 39, not moved.]

On Question, amendment agreed to.

42: After Clause 36, insert the following new Clause—

“Record of serious crime prevention orders

A full and detailed record shall be kept centrally of every serious crime prevention order that is made.”

The noble Lord said: My Lords, this follows a satisfactory correspondence with the noble Lord, Lord Bassam, in which he answered the questions that I raised in Committee as to how it would be possible for noble Lords to find out exactly how these orders had been used. I very much hope that the noble Lord will elaborate on what is proposed, but I seek in the amendment an undertaking that such information will be made available centrally—so that we will not be told that information is not held centrally, as I am told in Answers to some of my Written Questions—and that it will be detailed, so that when, for example, the noble Lord, Lord Thomas, wants to know to what extent the orders have been used in ways that concern him, he may hope to receive an answer. That would not involve disclosing the details of every order, but it should be possible to provide a digest, so that we would know whether or not the orders had been used in certain ways and whether to pursue such matters further if they were of concern to us. I beg to move.

My Lords, knowing the Government’s total, absolute and complete commitment to freedom of information—exemplified by their Freedom of Information Act and the way in which they have operated it ever since, and possibly by how they seek to amend it—I am sure that the noble Lord will be able to give a full, frank and welcoming response to my noble friend’s amendment. I look forward to hearing it.

My Lords, I shall certainly try to be frank, but not too full; I can cut the time that I need to detain your Lordships’ House on this matter by more than a fraction. I thank the noble Lord, Lord Lucas, for tabling the amendment and the earlier draft. I understand that at least part of the intention behind it was a concern to ensure that the orders were not used inappropriately; I certainly side with that. I hope that my noble friend Lady Scotland’s earlier comments about the way in which the process would work in terms of making an order provided additional reassurance on the point.

The High Court provides a more than adequate buffer against any attempt to use the orders inappropriately. However, as I said in my letter to the noble Lord on the subject, following discussion of a similar amendment in Committee we agreed that we needed to ensure that the orders were used and, more appropriately, managed in the most effective way. For example, we need to make absolutely certain that one hand knows exactly what the other is doing. Where SOCA or the Serious Fraud Office is contemplating seeking an order against the same person, they should of course be working closely together. Similarly, it will be very useful to know in several years’ time, when the orders have taken root, what innovative terms and approaches have been used by the courts and have worked best for one area of law enforcement, so that they can be used by others.

For that to happen, there will be a central recording of details of orders. However, we have been looking at exactly how that will be achieved and have not yet bottomed out the exact form in which the register will be undertaken. For example, we will need to consult the Information Commissioner further to ensure that all data protection issues are taken into consideration. No doubt we need to properly examine how freedom of information issues might be affected by that.

I hope that the noble Lord will accept that I have to resist the amendment, but will be reassured by what both the noble Baroness, Lady Scotland, and I have said in relation to our intention in this regard. I am more than willing to listen to any suggestions that he might have, now or later, on how the work can be taken forward. I acknowledge his interest and, moreover, his expertise in the area, and I am sure that we would greatly benefit from some further advice and consideration on his part. We are with him in spirit, and are trying to work out the precise mechanics. We shall gratefully receive any help that noble Lords, including the noble Lord, Lord Lucas, can give us on the matter.

My Lords, I am grateful for that reply. I look forward to taking the opportunity that the Minister has opened up to me, but I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 40 [Encouraging or assisting an offence believing it will be committed]:

43: Clause 40, page 25, line 18, at end insert “; and

(c) his act was unreasonable”

The noble Lord said: My Lords, we are back in the field of reverse burdens of proof, which has exercised the human rights court on many occasions. These are matters that we raised in Committee, but I am grateful to Liberty for focusing our minds on the issues again. The amendments would require the prosecution to establish that a defendant’s act was unreasonable in order to convict him of an offence under Clauses 40 or 41. We also support Amendment No. 63, which would remove Clause 46, under which a person has a defence if he can prove in relation to Clauses 40 and 41 that he has acted reasonably.

In an article in the Criminal Law Review in December 2006 entitled “Inchoate Liability for Assisting and Encouraging Crime—the Law Commission Report”, GR Sullivan said that,

“the belief differs from the intent offence in that it will sweep up persons who have to deviate from normally lawful routines to avoid criminal liability: taxi drivers, fertiliser sellers, weighbridge operators, generous hosts, shopkeepers and so on. If they carry on providing their services or ministrations, knowing or believing that they will assist a crime, they will commit the belief offence. The offence will enlist a mixed cast: there will be sheep and goats”.

The Government themselves acknowledged that the offences in Clauses 40 and 41 would, in principle, inappropriately cover some kinds of activity, giving the examples:

“D, a motorist, changes motorway lanes to allow a forthcoming motorist (P) to overtake, even though D knows that P is speeding; D, a reclusive householder, bars his front door to a man trying to get into his house to escape from a prospective assailant; D, a member of a DIY shop’s checkout staff”—

the defendant—

“believes the man (P) purchasing spray paint will use it to cause criminal damage”.

In each case, the defendant has done nothing criminal himself but believes that what he is doing, which is perfectly lawful, may assist someone in committing an offence—pulling from the outside lane of the motorway into the centre to allow a speeding motorist to go by, and so on.

In its 2006 report, the Law Commission also highlighted how the belief offences could sweep up justified behaviour. In paragraph 3.45, it said that it recognised that,

“extending liability beyond cases where it is D’s intention that the conduct element of the principal offence should be committed, raises the spectre of”,

the defendant,

“incurring criminal liability for ostensibly lawful acts. A protestor may believe that his or her lawful protest will encourage the commission of retaliatory criminal conduct by others”.

You might take for an example someone waving a placard in front of a crowd that he knows will react to it and cause a riot. The Law Commission continued:

“Authors, journalists and publishers may believe that material which highlights what some would consider to be cruel or barbaric practices will encourage others to commit offences against those carrying out the practices”.

An example would be writing a newspaper article highlighting cruelty to foxes, or something of that nature.

Where an action is entirely reasonable and is not intended to encourage or assist in the commission of an offence by another person, we believe that it should not be criminalised. That much is uncontroversial. The question is who should bear the burden of showing that the actions in question were reasonable. At present, the offences in Clauses 40 and 41 cast the net very wide, catching the kinds of behaviour set out above. Under the Bill, the Government expect the defendant to do the work of using the vaguely worded defence in Clause 46 to try to wriggle out of the net. He is the person who has to establish that his actions were reasonable in the circumstances and so should not lead to a criminal conviction. That could mean that the motorist who lets the speeding driver go by, the reclusive householder who bars his front door to a man trying to get into his house to escape from an assailant or the person on the check-out staff might be subject to the stress of being prosecuted and having to defend themselves in court.

Secondly, establishing the reasonableness of one’s actions is a very high hurdle to cross. The defendant has to persuade the jury that his actions were reasonable and that they should not carry criminal liability. I referred earlier to the difficulty of proving the inherently uncertain concept of acting reasonably. We, together with Liberty, believe that the burden of showing the unreasonableness of the defendant’s actions should be borne by the prosecution and that the belief offences in the Bill should cover only actions that are proved by the prosecution to be unreasonable in the circumstances.

In response to this argument, the noble Baroness, Lady Scotland, said that only the defendant is in a position to explain why he acted as he did. She said:

“The particular circumstances that justify their behaviour will be peculiarly within their own knowledge. As in all cases in which the burden of proving a defence is on the defendant, the standard of proof is the balance of probabilities”.—[Official Report, 21/3/07; col. 1245.]

We do not agree with that argument. The matter that has to be established by way of a defence is that the actions in question are “reasonable in the circumstances”—not reasonable as the defendant considers or believes them to be, but objectively reasonable. The question is: would the average person in the street consider the actions reasonable? The defendant’s state of mind is not determinative of this in any way. Objective reasonableness—having to prove when you are a defendant in court that you have objectively acted in a reasonable way—is not a fair burden to impose on a person facing the sort of offences suggested against him. I beg to move.

My Lords, I know that the noble Lord, Lord Thomas of Gresford, has been concerned about this issue but we do not think that that concern is merited. These amendments have been proposed because the scope of the offences committed with belief is potentially wide and could cover activities that are considered to be everyday. The examples given during our Committee debate, in the Law Commission report and, indeed, repeated today of the motorist who moves over to let a speeding driver pass or a salesperson who sells spray paint that he believes will be used to commit criminal damage may be technically possible but, I believe, in the event are highly unlikely to be proceeded with.

As I said in Committee, I agree entirely that these offences should not criminalise conduct that is considered reasonable. However, the Government agree with the Law Commission that it would be better to rely on a defence of acting reasonably in the circumstances, which is included in Clause 46.

It is important to make it clear that the offences do not simply apply where a person carries out an act capable of encouraging or assisting an offence that he believes will happen. The prosecution must also show some awareness on D’s part—belief or recklessness—that the principal offender will operate with the necessary fault element for the principal offence or with any necessary circumstances or consequences. If we accept that perhaps this element would be made out, then the question is: should the prosecution have to prove that D’s behaviour was unreasonable, as would be the case under these amendments, or should D have to prove that his behaviour was reasonable, as would be the case under the Bill?

We believe that it is sensible for the burden to fall on the defendant. As I said in Committee, the prosecution will already have proved that the defendant has done something to assist or encourage an offence, believing that it will be committed. The burden is on the defendant to prove that it was reasonable for him to act as he did in the circumstances that he knew or believed to exist. As I hope I explained, in both cases, only the defendant will be in a position to explain why he acted as he did and why it was reasonable for him to do so. The particular circumstances justifying his behaviour will be peculiarly within his own knowledge. As with all cases where the burden of proof is on the defendant, the standard of proof will be the balance of probabilities. We consider that it is fair and reasonable to impose a legal burden in the context of the reasonableness defence.

The burden of proving all the elements of the offence falls on the Crown, whereas the defence turns on facts which are peculiarly within the knowledge of the defendant and which therefore may well be difficult for the prosecution to disprove. It is well established in case law that there are situations in which it is fair to put a legal burden on defendants where these criteria are taken into account. We consider that this is such a situation and I therefore ask the noble Lord to withdraw his amendment.

My Lords, if the prosecution proves the ingredients of the offence as it stands, the defendant will be found guilty, even though he personally believed at all times that he was acting reasonably. Under Clause 46, his subjective view is neither here nor there; he needs to go beyond proving that he thought that what he was doing was perfectly reasonable. In the eyes of the judge or jury trying him, he has to establish that it was objectively reasonable for him to act in the way that he did. We are imposing a significant criminal liability—

My Lords, it is important for me to clarify how we see this matter. As the noble Lord knows, ultimately the jury will have to determine this and it will be for the jury to decide whether it was reasonable for the defendant to have acted as he did in the circumstances as he believed them to be. That is evidence on which the defendant will be peculiarly advantaged and he will be able to give that evidence to the jury, so I do not think that the fear highlighted by the noble Lord is a real one.

My Lords, with the greatest respect, that indicates the problem. I hope that I am not baffling your Lordships by what I am saying. Clause 46 states:

“A person is not guilty of an offence under section 40 or 41 if he proves—

(a) that he believed certain circumstances to exist;

(b) that his belief was reasonable; and

(c) that it was reasonable for him to act as he did in the circumstances as he believed them to be”.

It follows that the question is not what he thought was reasonable but what was objectively reasonable in the circumstances as he believed them to be. This is not subjective; it is objective, and it is objectionable. However, I shall leave it to the courts to determine at some future date. I am sure that there will be considerable litigation—I never object to that. Accordingly, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 41 [Encouraging or assisting offences believing one or more will be committed]:

[Amendment No. 44 not moved.]

45: Clause 41, page 25, line 31, leave out “charge or”

The noble Baroness said: My Lords, Amendments Nos. 45, 46, 49, 50, 64, 65 and 67 are minor. They remove the references to a “charge” from the offence in Clause 41; that is, encouraging or assisting a number of offences believing one or more will happen but without being sure which. Clause 41(3)(a) sets out that, where a person is charged with an offence under that clause, the charge or indictment must specify the offences that the prosecution alleges D believed P would commit. Using the example I gave in Committee, if the prosecution alleges that D provided a flat to a paedophile believing that any one of rape, murder or kidnap would be committed but he was not sure which, the charge or indictment would have to specify rape, murder and kidnap. Clause 43(5) sets out that “charge” refers to a “written charge” under Section 29 of the Criminal Justice Act 2003. That is a method by which a public prosecutor can initiate criminal proceedings.

We have considered the operation of this clause and do not believe that it is necessary to refer to a charge in Clause 41, as offences under that clause are triable only on indictment, and an indictment will exist in every case. As it is already provided that the indictment must specify the offences it is alleged D encouraged or assisted, we believe that that is sufficient. Amendment No. 45 therefore removes the words “charge or” from Clause 41(3)(a). Amendment No. 50 removes the definition in Clause 43(5). Amendments Nos. 46, 49, 64, 65 and 67 remove all other references to “charge or”. I beg to move.

On Question, amendment agreed to.

46: Clause 41, page 25, line 37, leave out “charge or”

On Question, amendment agreed to.

Clause 42 [Proving an offence under this Part]:

47: Clause 42, page 26, line 36, leave out subsection (6)

The noble Lord said: My Lords, I shall also speak to Amendment No. 48. This is the first time I have spoken on Part 2. I thank the noble Baroness for her letters to my noble friend Lady Anelay on Part 2. One was dated 24 April; the other, in a manner that one gets rather used to with an office as efficient as the Home Office, was undated but sent, I believe, on 17 April. I will refer to it as the long letter, as it is six pages long. A third letter, which opens “Dear colleague”, dated 20 April, also dealt with amendments to Part 2. The Minister will remember that my noble friend Lady Anelay and I met her and her officials to discuss some of these issues. We are broadly content on these matters but I would be grateful for a response on a few further points, in particular so that the Minister can have them recorded in the Official Report.

I wish to make a further point about Home Office correspondence, including letters to my noble friends Lady Anelay and Lady Noakes, one of which is dated today or perhaps yesterday. The Home Office, in its kindness, sent that letter by e-mail, allowing us to print it off. I do not know what it is about Home Office systems, but for some reason its use of Adobe for sending e-mail attachments means that it takes for ever to print them. Perhaps the Minister could ask her officials to look at that.

Amendment No. 47, which was tabled as Amendment No. 96H in Committee, would remove subsection (6) of Clause 42, thereby removing the assumption that D, or the defendant, is able to do the act in question. The Minister stated in her letter that relying on Clause 58(1) as the test for deciding whether an individual is capable of encouraging or assisting, as I had suggested, would cover all the relevant avenues insufficiently. I am content with her response on that, which is covered in the first part of her letter.

Amendment No. 48, which was Amendment No. 98 in Committee, would delete subsection (8) in Clause 42, removing the possibility of an act constituting:

“(a) a failure to act;

(b) the continuation of an act that has already begun; [and]

(c) an attempt to do an act”.

Like Amendment No. 47, this remains a probing amendment. The Minister will remember that in Committee my noble friend asked the noble Lord, Lord Bassam, whether Clause 42 broke the link between prompt and action. For example, were a preacher to encourage another to blow up Parliament but did not commit the offence himself, would the Bill allow his prosecution? The Minister explained in her letter that that was not the case under Clause 42(8) but that the preacher could be prosecuted under the offence in Clause 39 regardless of whether an action followed.

Although I am broadly content with that response, I should be grateful if the Minister could respond to two remaining doubts. First, were a preacher to publish a video encouraging one or a number of persons to blow up Parliament on the basis of religious fanaticism or whatever, at what point would that encouragement cease to be classified as encouragement of racial hatred and begin to be classified as straightforward encouragement? Would the two offences run parallel? Secondly, my noble friend asked the Minister whether the Government had estimated how many people would fall foul of this provision. If the Minister has an answer, I should be grateful if she could give it to the House. I beg to move.

My Lords, I thank the noble Lord for indicating kindly that he broadly supports our position. I am also grateful for his references to the letter. I am conscious that its contents have not been read on to the record, so I shall outline it, with some of the examples given, to clarify why noble Lords opposite are persuaded that what we now have is satisfactory.

As noble Lords know, Clause 42 sets out how the offences in this part of the Bill must be proved. Subsection (5) sets out that D can be convicted if he believed, or was reckless as to whether, P would operate with the required fault element for the anticipated principal offence, and that it is sufficient if P does not have the fault necessary but D does. That would ensure that D could not escape liability by encouraging or assisting an offence by an innocent agent. Subsection (6) of Clause 42, which Amendment No. 47 would remove, provides that where the prosecution seeks to prove a case on that basis, there will be an assumption that D is physically able to do P’s act. As we have discussed before, that would cover a scenario where D, a woman, encourages P, a man, to have sexual intercourse with V. D tells P that V will resist and say to him that she does not want to but that it is all part of a game. P reasonably believes that V would consent to sexual intercourse with him, so he would not be guilty of rape. However, these provisions ensure that D could be found guilty of encouraging and assisting rape, as she intends rape to happen despite the fact that she would not be physically capable of raping V.

In Committee, the noble Baroness, Lady Anelay, queried why this subsection is necessary and wondered whether it would be preferable to rely on Clause 58(1), which was Clause 15 of the Law Commission’s draft Bill, to which the noble Lord, Lord Henley, referred. It sets out that the term,

“being capable of encouraging or assisting”,

can include references to doing so by threatening or putting pressure on another person to commit the offence.

I am also grateful to the noble Lord, Lord Henley, for indicating that he agrees with us that relying on Clause 58(1) would not adequately cover this situation. The Law Commission also took that view. Its draft Bill included a version of Clause 58(1)—Clause 15 of the draft Bill to which the noble Baroness referred—and also Clause 42(6), which was Clause 11 of the draft Bill, because a person may not use threats or pressure in this situation. In the example I gave above, D has simply not told P the truth when she tells him that V enjoys pretending not to consent to sexual intercourse. D has not used threats or pressure. The Government therefore agree with the Law Commission that it is not sufficient to rely on Clause 58(1) to cover this scenario. It is for that reason that I must resist Amendment No. 47. I am grateful for the indication that noble Lords opposite respectfully agree.

Amendment No. 48 also amends Clause 42 and raises another issue on which there was confusion in Committee. Amendment No. 48 removes Clause 42(8) which sets out what is meant by the phrase “doing of an act” and includes a failure to act. It caused some confusion in our debate. It refers to an act by P in which D could be guilty of encouraging and assisting P in a failure to act where that failure to act would constitute the conduct element of an offence. For example, it would cover D who encourages P, his wife, to starve their child to death. So it covers an act of omission. D could be found guilty of encouraging and assisting murder. It is therefore not correct to talk of P “doing an act”. She has not done an act; rather she has failed to do an act. That failure constitutes the offence. This subsection does not impose liability for omissions. That is dealt with in Clause 58 and applies only where D has a duty to act but fails to take reasonable steps to perform that duty, intending or believing that he will assist an offence.

The noble Lord, Lord Dholakia, asked in a previous discussion whether the provision would impose liability for failing to stop a crime in progress or failing to help someone who has been attacked. I can confirm that it would not.

The noble Baroness, Lady Anelay, queried whether this subsection breaks the link between the “prompt” and the “action”—the point on which the noble Lord, Lord Henley, wanted an answer. She gave the example of prosecuting a preacher who released a video inciting others to commit offences even where no such video was found in the possession of the bomber who was arrested. That is not the effect of this clause. In that case, the preacher would not be prosecuted for encouraging the attempted bombing. However, it is important to make clear that there does not need to be a link between an act of encouragement or assistance by D and any eventual offence for liability for any of these offences to arise. The reason is that these offences are inchoate and impose liability regardless of any offence or harm resulting from D’s act. So if a preacher intends to incite a specific offence by releasing a video, he could be prosecuted on the offence in Clause 39 regardless of whether anyone has actually been encouraged or assisted by it. If he is inciting offences in general, he could be prosecuted only on an offence under Clause 41 as he cannot be linked to a specific offence. Even then, a prosecution under Clause 41 would be possible only where the prosecution was able to identify a number of offences that he believed might have been committed as a result.

With that rather long answer, I hope that I have satisfactorily clarified the purpose of these subsections and that noble Lords will agree that the provisions are necessary. I particularly wanted to accomplish that because we have discussed this matter in some detail and for some time. It is not an easy matter. I hope that this explanation will enable those who try to define why we have done this to understand better why we have done so. I hope that that answers all the questions that the noble Lord raised with me.

My Lords, the Minister said that this is not easy, and she gave us a long and detailed explanation of what might be a rather fanciful case. It almost took me back to the days when I was doing my Bar exams. The Minister will probably remember a similar case involving either rape or burglary where the chap climbed up a ladder naked except for his socks. I think the case was called Thomas. I forget the outcome, but I am sure that law students will have just as much fun with it in the future. If the noble Baroness is looking for another job in the months to come, a career lecturing in law might be for her. She can explain the possibilities of these new clauses in due course.

Seriously, however, I thank the Minister for the explanation. I think that I have got it and I am grateful for that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 48 not moved.]

Clause 43 [Proving an offence under section 41]:

49: Clause 43, page 27, line 16, leave out “charge or”

50: Clause 43, page 27, line 20, leave out subsection (5)

On Question, amendments agreed to.

My Lords, I beg to move that consideration on Report be now adjourned. In moving the Motion I suggest that Report begin again not before 8.36 pm.

Moved accordingly, and, on Question, Motion agreed to.

Government of Wales Act 2006 (Consequential Modifications and Transitional Provisions) Order 2007

rose to move, That the draft order laid before the House on 26 March be approved.

The noble Lord said: My Lords, the Government of Wales Act 2006 received Royal Assent on 25 July 2006 and is due to come into effect fully following the appointment of the First Minister after the Assembly elections in May this year. The 2006 Act already makes a number of consequential modifications to other enactments which are set out in Schedule 10 to the Act. It also makes a number of transitional provisions which can be found in Schedule 11 to the Act. This order makes further consequential modifications and transitional provisions under powers in the 2006 Act.

The Select Committee on Delegated Powers and Regulatory Reform considered these powers and reported on them in its 17th report of the 2005-06 Session. The committee was content that the Secretary of State should have the power to make such modifications and transitional provisions. There is a similar power to make consequential modifications in Section 105 of the Scotland Act 1998, which must be read with Sections 112 and 113.

The power in Section 160(2) of the 2006 Act to modify an Act of this Parliament is subject to affirmative parliamentary procedures. The power in Section 162(2) of that Act to make further transitional provision is generally subject to the annulment procedure before this Parliament. However, in cases, such as in this order, where such provision includes amendments to specified paragraphs of Schedule 11 to the 2006 Act, then even the transitional provisions are subject to affirmative procedure before this Parliament, hence our debate here today. Noble Lords can therefore be assured that this order is being subjected to the more rigorous scrutiny of the affirmative procedure in this place and in the other place.

With respect to the Secretary of State’s power to make transitional provisions by order, the committee considered that where that power is used to amend Schedule 11 to the 2006 Act, the affirmative procedure must apply.  The transitional provisions contained in this order amend Schedule 11 and are, therefore, also subject to the affirmative procedure.

In terms of volume, the greater part of this order consists of consequential modifications to other enactments.  These modifications are set out in Schedule 1 to the order. I do not intend today to go through and explain all these modifications individually.  The Explanatory Memorandum explains what each of the modifications does.  However, I believe it would be worth explaining the context in which the modifications are made, and why they are consequential on the provisions of the 2006 Act.

At present, as noble Lords will be aware, the National Assembly for Wales is a corporate body, and there is no legal separation between the Assembly and the Assembly Government.  After the Assembly elections in May, there will be legal separation, so that the Assembly as legislature is formally separate from the Assembly Government, including the Welsh Ministers, as Executive.  In addition, the Assembly will have new legislative powers to pass Assembly measures, and the executive functions that the Assembly currently exercises will transfer to and vest in the Welsh Ministers instead. Those executive functions transfer at the time of separation to the Welsh Ministers under paragraph 30 of Schedule 11 to the 2006 Act. Many of those executive functions are functions that have been given to the current Assembly in or under Acts of Parliament.  As a result of the transfer of those functions, other references to the current Assembly in those Acts often also need to change; for example, references to the Welsh Ministers.

Paragraph 32 of Schedule 11 to the 2006 Act makes provision for such references to the existing Assembly in other enactments, including in other Acts of Parliament, to be construed as references to the Welsh Ministers, or indeed to the First Minister, Counsel General, Assembly commission or new Assembly, as appropriate depending on where the relevant function has been transferred. However, where that general glossing provision would not give the correct result, or where it is thought clearer to make the amendments directly to the legislation in question, these have been provided for in this draft order.

Some of the consequential modifications to other Acts made by this order are required because of the structural changes under the new devolution settlement, in particular the legal separation of the legislature from the Executive, and because of the new roles that the new Assembly and Assembly Government have as a result. An example of this is the modifications to the Local Government Finance Act 1988, which are in Schedule 1, paragraphs 25 to 30 of the order.

Without these modifications, the functions of the existing Assembly in relation to making local government finance reports would merely transfer to the Welsh Ministers, in accordance with paragraph 30 of Schedule 11 to the 2006 Act. However, as a result of the modifications in this order, while the function of making such reports will be a function of the Welsh Ministers, there will also be a role for the new Assembly in scrutinising and approving these reports.  The new Assembly’s scrutiny and approval role is sensible and appropriate, in the context of the legal separation of the legislature and executive.

In addition to the modifications required as a result of the structural changes, there are also modifications required because the mechanism in paragraphs 30 to 32 of Schedule 11 to the 2006 Act cannot operate to achieve the textual amendments which are necessary to take account of the new devolution arrangements under the 2006 Act. For example, Section 21A of the Sex Discrimination Act 1975, as amended by the Equality Act 2006, makes it unlawful for a public authority to carry out a discriminatory act in exercising its functions. However, under the Sex Discrimination Act, this prohibition does not apply to certain listed functions. The listed functions currently include, among other things, preparing and making Bills and Acts of this Parliament and of the Scottish Parliament. This order adds measures, proposed measures, Bills and Acts of the National Assembly for Wales to that list.

The preparing, considering and making of subordinate legislation by the current National Assembly for Wales already appears in the list. However, this order changes the reference to the Assembly to a reference to the Welsh Ministers, the First Minister for Wales or the Counsel General to the Welsh Assembly Government. That is because they, rather than the Assembly, will have the functions of making subordinate legislation under the new devolution arrangements.

Noble Lords may have noted that paragraph 4.6 of the Explanatory Memorandum discusses the National Assembly for Wales (Diversion of Functions) Order 2007, and the relationship between that order and this one. The diversion of functions order was considered by the Assembly in plenary on 21 March, and was made by Her Majesty in Council on 4 April. The diversion of functions order transfers to the new Assembly certain functions that would otherwise be transferred to the Welsh Ministers under paragraph 30 of Schedule 11 to the 2006 Act. The provisions of the diversion of functions order should be read with the consequential amendments made by this order—for example, in relation to the Food Standards Act 1999—to see the full picture in terms of how other Acts will operate in the light of the new devolution settlement in Wales.

I have spent most of my time discussing the consequential modifications aspect of this order, but I would also like to discuss briefly the transitional provisions contained in the order. Schedule 11 to the 2006 Act, as I have already mentioned, contains a large number of transitional provisions, to accommodate the change between the current devolution settlement and the new one. At paragraphs 33 to 35, it tackles the problem of how to provide for legislative procedures—that is, affirmative or negative or even no procedure—to the exercise of Welsh Ministers’ functions of making subordinate legislation.

In future, Acts and Assembly measures that give powers to make subordinate legislation to the Welsh Ministers will also specify the legislative procedure that is to apply in respect of that subordinate legislation, whether it has to be approved by a resolution of the Assembly before it can be made, or whether it can be made without such a resolution but is subject to annulment by the Assembly.

However, the powers to make subordinate legislation that are currently vested in the Assembly—and will in future be vested in Welsh Ministers—are not subject to any specified legislative procedure.  That is because the subordinate legislation is made by the Assembly, a democratically elected body, and it is for the Assembly itself to decide what procedures it will follow in making subordinate legislation.  Therefore, the Assembly’s Standing Orders make certain provision for procedures to be followed in exercising powers to make subordinate legislation.

Now that those powers are to be vested in the Welsh Ministers, provision is to be made for an Assembly legislative procedure to apply to them. Paragraphs 33 to 35 of Schedule 11 provide for that in most cases, but since the 2006 Act received Royal Assent, we have discovered further powers to make subordinate legislation which are not caught by paragraphs 33 to 35, and in respect of which, therefore, no legislative procedure would apply under the new devolution settlement.  We are picking up those powers, along with those conferred on the Assembly since the passage of the 2006 Act, in this order, so that an appropriate procedure applies to them.  The powers and procedures are set out at paragraphs 4 and 5 of Schedule 2 to the order.

As I have outlined, this order, in all its detail, is necessary to implement fully the policy contained in the Government of Wales Act 2006. I commend the draft order to the House. I beg to move.

Moved, That the draft order laid before the House on 26 March be approved. 14th Report from the Statutory Instruments Committee.—(Lord Evans of Temple Guiting.)

My Lords, I am grateful to the Minister for setting out the main provisions and significance of the order before us today. The access to election documents regulations we are to discuss separately are relatively short, but the modifications and transitional provisions order is much longer at 54 pages, including the excellent Explanatory Notes.

Both statutory instruments merit close scrutiny, examination and explanation, which they have had to a substantial extent in last week’s discussion in the other place. However, I welcome the further opportunity for an exchange of views that your Lordships have today. The order is not quite as long as the 277-page behemoth that we had the pleasure of discussing earlier this year, but at 54 pages of somewhat complex detail it remains an arduous read.

At a quick count, the order makes amendments to more than 30 different Acts of Parliament, and covers a vast amount of ground in implementing the Government of Wales Act 2006, the main effect of which, as the Minister said, is to separate the assembly legislature from the Executive: the Welsh Assembly Government. This involves an extensive transfer of functions, mirrored in this order by the frequency of the modification,

“for ‘National Assembly for Wales’ substitute ‘Welsh Ministers’”.

I do not know if I am alone—I doubt it—but I often wonder whether the Welsh electorate or the National Assembly fully realise the magnitude and radicalism of the changes they will face after the election on 3 May, when the new Act’s provisions introduce new-style devolution. Out goes the corporate Assembly, and in come the legislative Assembly and Assembly Government.

Public reaction to the change depends on the conduct of the Assembly Government that follows the election. There is currently wide speculation as to what kind of Government that might be. Almost every conceivable form of coalition is ruled in, and I must not add to speculation in this intensive pre-election period. As noble Lords will be aware, however, we Conservatives are committed to making devolution work successfully in Wales. We recognise that there is no turning back the clock on devolution and want to see it progress and improve people’s lives. The separation of legislative and executive power makes sense and is a real step in the right direction. We welcome the new provision in this order to enable the Assembly to approve or disapprove of secondary legislation, thereby ensuring the accountability of the originating Ministers. We also appreciate the importance of the slightly mystifying diversion of functions order, which again ensures that Ministers are answerable to the Assembly where appropriate, as described in the Explanatory Memorandum.

I said a few moments ago that the people’s reaction to the new powers conferred by the Government of Wales Act 2006 depends on the conduct of the new Government. It also depends a great deal on the conduct of the new Assembly as legislature, holding Ministers to account, scrutinising proposed Assembly measures and parliamentary legislation affecting Wales. If it does this well—I hope that it does—it may be, in the fullness of time, that the electorate will develop sufficient confidence in the Assembly to require a referendum to be held on further legislative powers. I am not opposed in principle to such powers being granted to the National Assembly, but I firmly believe that they should be granted only with the full approval of a referendum of the people affected by the exercise of such powers.

As the Minister has outlined, the order before us makes consequential amendments to various pieces of legislation in Schedule 1, and some transitional provisions in Schedule 2. These provisions are made under Schedules 10 and 11 respectively to the Government of Wales Act, as the Minister told us, and flow from the provisions within the legislation that formally separate the legislature from the Executive in Wales.

I shall not dwell in detail on either the consequential changes to legislation or the transitional arrangements, which have been amply covered in the Explanatory Notes and Memorandum as well as ministerial speeches here and in another place. However, I have a number of particular points and would be grateful if the Minister could address them.

First, can the Minister expand a little on the consultation procedures that have been followed for this order? Paragraph 7.10 of the Explanatory Notes to the order states that there has been no public consultation but that “relevant interested parties” have been consulted. Could the Minister briefly explain why it was felt that no public consultation was necessary, and tell noble Lords which “relevant interested parties” were consulted and how they were selected? Secondly, what are the anticipated costs of the transitional provisions? As I have said, I welcome the separation of the legislature and the Executive and the creation of an administrative commission within the National Assembly.

These are major changes. Life at the National Assembly will never quite be the same again. Of course, there will be a period of bedding in for these new arrangements and it may be difficult to estimate final costs, but are there currently any estimates of what the transitional aspects of the order before us today will cost the National Assembly? Ultimately, we are talking about tax payers’ money and I am sure that noble Lords can all agree that we should aim for the highest degree of transparency where spending public money is concerned.

Finally, can the Minister assure us that there are no hidden or obscure transfers of powers from Westminster to Cardiff, notably in Schedule 2? I have sought to be thorough in my examination of the order but I by no means claim infallibility, and seek an assurance from the Minister that there is nothing recondite by way of a transfer of power from here to Cardiff in this order. Assuming that these points are addressed by the Minister in his usual clear, concise and eloquent fashion, we will be content to let the order proceed.

My Lords, I apologise to the noble Lord, Lord Rowlands, but I think that this is the right procedure.

Given that the Government of Wales Act 2006 succeeds the 1998 Act, this is a necessary order. I am grateful to the Minister for the way in which he presented the explanation of the order and for the Explanatory Notes. As the noble Lord, Lord Roberts of Conwy, said, it is a substantial document. Perhaps wisely, I took a look at it yesterday, and thank goodness I did because it incorporates so much. This is a transition from one piece of legislation to another. It is obvious that consequential amendments must be made for the new Assembly which comes into being after the election results on 3 May.

I am concerned about some aspects of the process being carried out and the origins of some of the opinions and assertions stated in the Explanatory Memorandum accompanying this constitutional law on devolution for Wales and emanating from the statutory instrument. The statutory instrument is substantial. One is tempted to say that it is turgid in length. At the same time it encompasses a great deal. It incorporates the consequential amendments to a multiplicity of existing Acts of Parliament and inserts them into the context of the Government of Wales Act 2006. When one casts the net wide it incorporates the Representation of the People Act 1983, the Mental Health Act 1983, the Race Relations Act and many other Acts of Parliament. One can see why it is necessary to do that. The kindest thing to say is that it is very thorough, and so it should be.

The Government of Wales Bill successfully passed through this House last summer, and it passed the test of democratic accountability as far as it goes. I shall not carp on too much about the statutory instrument, except where it appears to take within it a number of decisions and value judgments on the legislation itself. I shall refer to one or two things with which I agree and others which I question for my party.

I agree with the noble Lord, Lord Roberts of Conwy, and the Minister that the separation between the Executive and the legislature is vital. We discussed that when the Government of Wales Bill was going through this place. The new Assembly is an unincorporated association. We think that is excellent; and so it should be.

During the passage of the original Government of Wales Act there was strong lobbying for committees. Most of us are of a democratic inclination and wanted to see participation by the committees of the Assembly. But there is no doubt that this is a much more businesslike legislature than the one set up by the original Government of Wales Act.

Other factors cause me a little concern. There is a section under Schedule 10 which refers to Ministers of the Crown. It states that,

“when the Minister of the Crown exercises the function, [it] applies to the exercise of that function by the Welsh Ministers. Where there is no equivalent Minister of the Crown function, the Assembly legislative procedure has to be specified or no procedure will apply”.

I think that I gather from what the Minister said that the Assembly would be involved in this piece of decision making.

The National Assembly for Wales (Diversion of Functions) Order requires very agile reading but I think I know what that is about. Some of that has already been achieved by the Assembly. I wish to raise one or two other points. For example, in paragraph 4.8 of the Explanatory Memorandum there is a phrase that occurs twice. It says:

“However, there are a few functions that are otherwise caught by paragraph 30(1) but which it is considered should be functions of the new Assembly”.

Who considered that? I assume it is the parliamentary draftsmen and draftswomen and that it comes from a legal angle. I hope that that is the case. It should be, but I would like the Minister to clarify it. That phrase appears again in the text. I hope I am right in my assumption that it stems from a legal basis.

We agree particularly with paragraph 4.10 of the Explanatory Memorandum that Orders in Council should be a function of the new Assembly rather than transferred to the Welsh Ministers—to paraphrase what is said there. There are other issues which occur. However, I would say that the document threads its way through a fairly tortuous path but I think that I can make sense of it.

Finally, like the noble Lord, Lord Roberts of Conwy, I find rather extraordinary the statement in paragraph 7.10 of the Explanatory Memorandum that,

“there has been no public consultation on this Order when in draft, relevant … parties have been consulted”.

The Act, as the Minister said, received Royal Assent last July. Nearly nine months have passed since then. Why did the document not go out for consultation much earlier? It is very detailed and we have received it nine days before the election and the election results. I have seen this sort of thing happen under various governments. I hope that it is not deliberate and that this is not skipping around a bit and not having proper scrutiny of the statutory instrument. No doubt the Minister will attempt to reassure me on that point.

My Lords, I rise to ask my noble friend for clarification about the consequences and the impact of the order and these transfers on the process of subordinate legislation and the way in which subordinate legislation will be dealt with. I do so because I frankly believed that the first Government of Wales Act, which vested those subordinate legislative powers—because the Assembly was a corporate body—in the Assembly as a whole, led to a very refreshing and powerful degree of scrutiny. Since the establishment of the Assembly, secondary legislation has been good. There has been consultation, the process has gone through committee, there have been the debates and, above all—something we have never had the privilege of doing here or in the other place—there has been the ability to table amendments to subordinate legislation.

As a long-standing former Back-Bencher in the other place I was a great supporter of the right to amend subordinate legislation. This House and the other place were never granted the power to do so. Yet the National Assembly, because those subordinate powers were vested in the Assembly as a whole, has exercised the right to amend subordinate legislation as it has gone through the Assembly. Now, as I understand it—and I think sadly so, but it is a matter entirely, as my noble friend will tell me, for the Assembly itself—under these orders we are transferring the making of subordinate legislation from the Assembly to Welsh Ministers. It is utterly logical that we should do so because now we are abolishing the corporate character and status of the Assembly and returning to a traditional relationship between a legislature and Ministers.

I understand that one decision taken is that the scrutiny of the legislation—subordinate legislation that will be transferred to Welsh Ministers under the order and under the Government of Wales Act—will not be amendable in the Assembly. Therefore, sadly, from what I thought was a rather innovative and refreshing change conducted by the Assembly in the way in which it handles subordinate legislation, it has gone back to our old-style Westminster model of having subordinate legislation that will be approved by either negative or affirmative resolution, but not subject to any form of amendment. I just want to register the fact that that is rather sad and retrogressive in procedure.

My noble friend will say that it is right that the Assembly makes that decision. But in respect of subordinate legislation that flows from framework clauses that both these Houses have passed and granted to the Assembly during the past few years, we have a vested interest in what happens and that legislation is processed and scrutinised. I say that because I can remember a number of occasions here when we have had to fight an understandable queasiness to grant the sweeping framework powers that some of the framework clauses grant. A case that I, and other Members of this House, have made to justify that was that we were handing the framework powers to an Assembly that had the wonderful power of scrutiny and even of debate and amendment.

I think that I have found the answer in paragraph 4.8 of the Explanatory Memorandum, but I want my noble friend to confirm what will happen to subordinate legislation that may flow—I do not think that any has so far—from framework clauses of Bills passed by this House with the clear understanding that they would be subject to the full scrutiny of what was the Assembly procedure, including Members of the Assembly being able to amend subordinate legislation as it passed. I understand that for new legislation which will be made by Welsh Ministers, it is for the Assembly to decide, but for subordinate legislation that flows from Bills that we have passed during the past year or two, such as the NHS Redress Bill, the education Bill and possibly a health Bill we have granted—with all the queasiness that is traditional to both Houses—the Assembly sweeping powers to make subordinate legislation. We did so because we argued that the Assembly had rigorous and vibrant scrutiny procedures, including the power to amend.

I therefore seek assurance from my noble friend about paragraph 4.8, which deals with this aspect of the subordinate legislation that has flown, as it states, from what are known as “framework powers” and contained in the Education and Inspections Act and the NHS Redress Act. The noble Lord, Lord Livsey, rightly mentioned the phrase in that paragraph:

“However ... a few functions ... should be functions of the new Assembly”.

As I understand it—I hope I have got it right—the framework powers that we have granted will remain within the Assembly and the making of that legislation will be an Assembly process. I seek my noble friend’s clarification that what is happening or going to happen is that subordinate legislation flowing from framework clauses in Bills that we have passed will be turned into full-blooded measures. If that is the case, I will be content, because the measures in the new Assembly are subject to the full rigour of scrutiny and debate. Will they be amendable? In that case, I will feel happy and content. I hope that my noble friend can give me that assurance.

My Lords, I start by thanking the noble Lords, Lord Roberts of Conwy and Lord Livsey, and my noble friend Lord Rowlands for their positive contribution to this short debate. A number of detailed questions have been asked. I shall try to answer most of them. If I fail to do so, letters will be dispatched with the answers.

First, the noble Lord, Lord Roberts of Conwy, had three specific points on which he required clarification. His first point was on the consultation procedure followed for the order and why it was felt that no public consultation was required—a point also raised by the noble Lord, Lord Livsey. The order is entirely consistent with the policy already agreed under the Government of Wales Act 2006: the legal separation of the Assembly as legislature and Assembly Government, including Welsh Ministers, as Executive. As the noble Lord pointed out today, as a result of that separation, the roles of the Assembly and of the Welsh Ministers in future will be quite different. The Welsh Ministers will have executive powers in their own right and the Assembly will have new legislative powers and the role of scrutinising the actions of Ministers.

The consequential modifications which comprise the bulk of the order in Schedule 1 contain no new policy. Their purpose and effect is to make references to the Assembly in existing legislation work to reflect the roles that the Assembly, the Welsh Ministers, the Counsel-General and the Assembly commission will have. As there is no new policy to consider here, public consultation did not seem appropriate. However, where the modifications affect enactments that are the responsibility of Whitehall departments, those departments have been consulted. There has also been appropriate consultation within the departments of the Welsh Assembly, the Government and the Welsh parliamentary service—the latter on the basis that the staff of the parliamentary service will, in general, transfer to the employment of the Assembly commission following separation. I hope that that explanation comforts the noble Lord, Lord Livsey.

On the transitional provisions contained in Schedule 2, in the main, they provide for an Assembly legislative procedure to apply to subordinate legislation that may be made in future by Welsh Ministers under powers to make such legislation that already exist. Most existing functions of making subordinate legislation already have a legislative procedure ascribed to them under the provisions in paragraphs 33 to 35 of Schedule 11 to the Act. The order merely picks up those functions of making subordinate legislation not picked up in time to make it into Schedule 11 to the Act. The type of legislative procedure—affirmative or negative—has been allocated in accordance with the same principles that were applied to the functions contain in Schedule 11. Again, therefore, public consultation did not seem to be required.

Secondly, the noble Lord, Lord Roberts of Conwy, asked about the costs attached to the transitional provisions contained in the order. I can assure him that the order in itself will not incur any additional cost for the Assembly. As I have explained, the main effect of the order is to ensure that references to the Assembly in existing legislation are corrected to refer to the Welsh Ministers or Assembly commission where that is appropriate, and that appropriate legislative procedures are prescribed for existing functions of making subordinate legislation. Although subordinate legislation procedure in future will be different, it is expected that there will be an increase in the cost of those procedures to the Assembly.

The noble Lord’s final request was for an assurance that the order does not contain any hidden or obscure transfer of powers from Westminster to Cardiff. I can confirm absolutely that there is no such hidden or obscure transfer of powers. I am grateful for the positive reaction to the order.

The noble Lord, Lord Livsey, asked who has decided which functions in the National Assembly for Wales (Diversion of Functions) Order 2007 should be reserved to the Assembly. It was the Secretary of State’s initial consideration, as advised by officials and legal advisers, but it was the Assembly that approved the order. The noble Lord also asked why this order is being laid so long after the Government of Wales Act received Royal Assent. As noble Lords will appreciate from the length of the order, a vast amount of painstaking work in identifying all the references to the current Assembly in legislation has been required. It is vital that this order is comprehensive to ensure that the new devolution settlement in Wales is properly implemented, so it could not have been brought before the House any sooner.

The noble Lord, Lord Rowlands, asked whether the framework powers will be subject to Assembly scrutiny and amendment. Yes, they have been converted into powers to pass Assembly measures. These will be subject to Assembly scrutiny and amendment before being passed by the Assembly. The noble Lord also asked what the level of scrutiny would be in the new Assembly subordinate legislation procedures, especially of powers to amend orders. The Assembly will not have the power to amend subordinate legislation. It will approve or annul, depending on which procedure applies. This principle is a fundamental part of the Government of Wales Act. The Assembly will consider measures, and it is not feasible for it also to amend subordinate legislation. As I said, if I fail to answer any question asked by noble Lords, I will write to them. In the mean time, I thank noble Lords for their positive contribution to the debate.

On Question, Motion agreed to.

Representation of the People (National Assembly for Wales) (Access to Election Documents) Regulations 2007

rose to move, that the draft regulations laid before the House on 7 March be approved.

The noble Baroness said: My Lords, since the National Assembly for Wales was established in 1999, it has been the practice for all election documents, after the completion of the count and the declaration of results, to be forwarded to the Assembly. This was in line with the practice at parliamentary elections, where documents were forwarded to the Clerk of the Crown. In future, documents relating both to parliamentary and Assembly elections will be stored by the local electoral registration officer, which will be more convenient for those who have a valid interest in inspecting them. However, because they contain personal information, it is important that access is limited to cases that can be justified on the grounds of democratic accountability and openness.

Last December, my honourable friend the Parliamentary Under-Secretary of State for Constitutional Affairs made regulations that insert a new Part 7 into the Representation of the People (England and Wales) Regulations 2001, setting out rules for the inspection, supply and sale of the marked electoral register, the marked postal voters list, and other election documents that are open to public inspection after a parliamentary election. As a matter of principle, we intend similar rules to apply to Assembly election documents, so the purpose of the regulations before us is to apply those rules, with appropriate modifications, to Assembly documents. The main objective is to allow registered parties and candidates to request marked copies of the electoral register, the postal voters list, and the lists of proxies and proxy postal voters used at elections in which they have taken part. Those and other election documents will be open to public inspection. This will not extend to ballot papers or completed corresponding number lists, which could be used to establish how an individual has voted, or to certificates of employment of police officers or election staff.

Inspection will be subject to strict conditions. Requests must be made in writing, specifying the documents to be inspected and the reasons for doing so. Inspection can be made only under supervision, and the information obtained can be used only for purposes specified in the regulations, which can be broadly summarised as law enforcement, research, and electoral purposes. Presenting the regulations in this way is the best way of applying similar rules to parliamentary and Assembly elections in a clear and open manner. I commend the draft regulations to the House. I beg to move.

Moved, That the draft regulations laid before the House on 7 March be approved. 12th Report from the Statutory Instruments Committee.—(Baroness Morgan of Drefelin.)

My Lords, we are very grateful to the Minister for her exposition of the regulations. I believe that they have their roots in the Electoral Administration Act 2006, and appear to be uncontroversial and generally welcome. As we have heard already, the regulations bring the arrangements for the availability of documents following elections to the National Assembly for Wales into line with Westminster parliamentary elections. Local electoral administration officers will be required to hold and make available a range of documents relating to the Assembly elections, rather than sending them to be held by the Assembly itself. This is a sensible measure that makes local documents available locally, provided of course that one or two important points are clarified.

First, given that some of the documents will, by their very nature, be somewhat sensitive, is the Minister satisfied that security arrangements will be sufficiently robust in each of the locations where the documents will be stored? I am not suggesting that Fort Knox-like protection will be necessary, but it would be comforting to know that important electoral documents and information will be securely stored across Wales and will not go missing. Secondly, I would like to press the Minister a little on the conditions in which the documents can be supplied and inspected. What do the Government have in mind for such conditions? Will the conditions be uniform and apply similarly and equally to all holding authorities? Why are there no provisions in the regulations for the supply and inspection of the documents? Are further regulations anticipated?

Finally, will the Minister expand a little on the charging regime that local authorities will put in place for access to the documents? As David Jones, my honourable friend the Member for Clwyd West, made clear when the regulations were considered in another place, it must be clarified whether the charges that authorities can make will be set centrally, capped, or left to local discretion. Given the importance of these documents both to political parties and other organisations, there should be some limitation on charges that may be levied. Will the Minister set out her views on this issue? Other than these minor clarifications, we on these Benches are content to see the regulations passed.

My Lords, I, too, thank the Minister for her exposition of the regulations, which was very clear and to the point. We regard the regulations very much as good housekeeping, inasmuch as they lay down the same standards for Assembly elections as there are for parliamentary elections, and quite right too. The fact that they will be made available under certain conditions is also welcome, and I mirror what the noble Lord, Lord Roberts of Conwy, said about security. It is particularly important that these documents can now be located at a local level where registration officers will have responsibility.

Perhaps I may lighten this debate slightly: I have a particular interest in some of these documents because, if I had been a football team, I would have had seven contests, lost two deposits, gained a third and a second place, and would have had three wins. Possibly more importantly, I have had eight recounts, which includes almost every possible type; namely, recounts as to whether I should lose my deposit, whether I was third or second, and whether or not I had won the election. They add up to eight recounts, which can be checked on the record.

I note that the Explanatory Memorandum refers to:

“Statements of rejected ballot papers”,

some of which of course are spoilt. When I was working in Scotland for a brief period, I contested my first election for Perth and East Perthshire when 62 ballot papers were spoilt because people wrote on them that they wanted to vote for Enoch Powell. When the returning officer asked Ian MacArthur, the elected Conservative Member, what should be done with the rejected ballot papers, he said, “Send them down to Wolverhampton” where Enoch Powell was the MP. It is right that they should be kept in secure places and be available because their historical content is very interesting.

My Lords, I am very grateful to noble Lords for their support for this set of good-housekeeping regulations. It is more than fair to say that they are not contentious. None the less, they are necessary to ensure the proper management of access to election documents, especially now that they are to be stored locally, which I am glad is to be welcomed. The noble Lord, Lord Roberts of Conwy, asked about the security arrangements under which documents will be stored, which are extremely important. He rightly pointed out that these documents are sensitive and that voters have a right to expect reassurance that they will not go astray. I hope I can reassure the noble Lord that local electoral administrators already store documents from local authority and European parliamentary elections, so this will not be a new function for them. They are using tried and tested administrative procedures, and will have appropriate and secure facilities which can be used for documents from the Assembly and parliamentary elections. Unless a court orders otherwise, registration officers are required to store documents in this way for one year, after which they are to be destroyed. So systems are in place.

The noble Lord asked whether the same conditions will apply to supply an inspection of documents held by all relevant registration officers. The answer is yes. Following amendments made towards the end of last year, the conditions for access to parliamentary election documents are set out in Part 7 of the Representation of the People (England and Wales) Regulations 2001. These regulations insert a new part into the 2001 regulations, which applies those rules with relatively small modifications to reflect differences in the way in which Assembly elections are conducted. We felt that that was the best way to avoid confusion and to ensure a consistent approach to all elections.

The final point made by the noble Lord, Lord Roberts, related to charges for access to documents. There is no provision for any charge to be made where a person is granted access to inspect documents, but the fee to be paid for a copy of the marked register or list is prescribed in Regulation 120 of the amended 2001 regulations. It is the same as the fee charged for the full register. In data form, the current rate is £20 plus £1.50 per 1,000 entries, or part thereof and, in printed form, £10 plus £5 per 1,000 entries, or part thereof.

I am afraid that I cannot match the election stories of the noble Lord, Lord Livsey, but I am pleased that at least one of the eight recounts resulted in a win for him. The noble Lord referred to these as good-housekeeping amendments and, on that basis, I am sure that with the support of noble Lords here today I can commend these regulations to the House.

On Question, Motion agreed to.

Serious Crime Bill [HL]

Consideration of amendments on Report resumed.

Clause 44 [Supplemental provisions]:

51: Clause 44, page 28, line 1, at end insert—

“(5A) The Secretary of State may by order amend Schedule 3.”

The noble Lord said: My Lords, this group of amendments relates to Schedule 3, which, as noble Lords will remember from our discussion in Committee, contains a list of offences which are statutory forms of incitement or other inchoate offences. The effect of Clause 44(4) of the Bill and inclusion in Schedule 3 is that the offences are disregarded for the purposes of Clauses 40 and 41. It will not be an offence to encourage or assist the offences in Schedule 3 unless a person intends his action to assist or encourage the commission of those offences. This is to ensure that liability for inchoate offences does not extend too far. It follows the scheme of the Law Commission’s draft.

We predicted that Amendments Nos. 52 to 58 would be necessary in Committee. They add offences to Schedule 3 in addition to the original list composed by the Law Commission. The approach we have taken in adding these offences is consistent with the approach taken by the commission in that they are statutory forms of incitement or statutory forms of assistance or encouragement. These offences include, for example, Sections 19 and 20 of the Misuse of Drugs Act 1971. Section 19 is an offence of inciting any other offence under the Act. Section 20 is assisting or inducing commission outside the United Kingdom of an offence punishable under corresponding law. These are statutory forms of incitement and assistance, and we believe that encouraging or assisting other persons to commit these offences should only be an offence itself where a person intended the other to commit that offence. Therefore we believe they should be added to Schedule 3.

The final two amendments, Amendments Nos. 51 and 126, would add an order-making power subject to the affirmative resolution procedure to enable changes to be made to Schedule 3. We have already identified some offences which we believe should be added to the schedule, but it is possible that there will be more. For example, as a result of our trawl we have found some statutory offences of incitement in local government legislation that we think ought to be added to Schedule 3. We are endeavouring to complete this exercise during the passage of the Bill, but are not yet confident that we have a complete list. It is therefore a wise precaution to take a power to amend Schedule 3 subject to the affirmative resolution procedure. The basic purpose of the schedule is to limit rather than to extend liability, and I hope noble Lords will agree that it is sensible to have a power to keep the list under review.

As this is an order-making power, the Delegated Powers and Regulatory Reform Committee has considered the effects of Amendments Nos. 51 and 126. It reported this morning and has drawn the attention of the House to the fact that the power could be used to remove a provision from Schedule 3 as well as add to it. That is correct. At this stage we do not have in mind any offences that we want to remove from the schedule, but it is conceivable that in the future there might be concerns about restricting liability for offences in the schedule. In that case, we would want to avoid the need to pass further primary legislation to extend liability to those who believe that that offence would be committed. The order-making power is subject to the affirmative resolution procedure, so any attempt by the Government to remove an offence from Schedule 3 would need to be agreed by Parliament, and that in our view is sufficient.

In view of my explanation, which I hope has been clear for noble Lords, I beg to move.

My Lords, I thank the noble Lord, Lord Bassam, for introducing these amendments and explaining them to a packed House at twenty to nine on 25 April. I emphasise the date because as the noble Lord made clear, the Government only put down these amendments to the Bill on Monday, 23 April, and it was only yesterday, on 24 April, that a letter from the Minister was sent to my noble friend explaining what the amendments are about. At the same time, the Delegated Powers and Regulatory Reform Committee has managed to have a look at these powers, and I am grateful to the noble Lord for referring to that. I should like to quote from the committee’s 8th report, and in doing so to extend my thanks to the members for their extraordinary assiduity in managing to look at these amendments within such a short timescale. I hope that in future the Government, and particularly the Home Office, can manage to give us slightly longer.

Before I quote from the report, I ought to say that while we will not oppose these amendments now, in the light of what I am about to read from the 8th report, we think it would be more appropriate if the Government withdrew them now and possibly brought them back at Third Reading. If they are not prepared to do that, we certainly wish to reserve our right to come back to them at that stage. Quite frankly, amendments of this sort put down on a Monday, seen by the Delegated Powers and Regulatory Reform Committee on a Tuesday and sent with a covering letter to us, which are then debated on a Wednesday evening are not quite satisfactory. However, if the Government wish to go ahead at this stage, we will not oppose them. But they might think seriously about withdrawing the amendments at this stage in the light of what the Delegated Powers and Regulatory Reform Committee has had to say. Paragraph 4 of the 8th report states that:

“While acknowledging that the power”—

the power the Government grant themselves in Amendment No. 51—

“could be used to remove offences as well, the Home Office does not explain why the Secretary of State should have the power, after the enactment of the bill, to impose by order criminal liability for conduct which Parliament has decided should not be an offence. The Committee is particularly concerned that the subsequent removal of an offence listed in Schedule 3 could, by virtue of Clause 53, expose a person to criminal penalties far in excess of those which normally apply to offences created by subordinate legislation. For example, the power to create new offences by order under the Legislative and Regulatory Reform Act 2006 is limited to offences carrying a maximum penalty of not more than two years’ imprisonment”.

In paragraph 5, the committee goes on to draw the attention of the House to the implications of the power conferred by the proposed new subsection (5A) in so far as it enables the Secretary of State to remove an offence from Schedule 3. It ends by saying—and I think this should always be emphasised—

“the House may wish to invite the Government to reconsider the scope of the new power”.

We will want to look at this in greater detail, and with a slightly longer timescale. I hope the Government might consider that as well. As I made quite clear, if they wish to press ahead with this, we reserve our right to come back to it at Third Reading.

My Lords, I support what has just been said about the report of the Delegated Powers Committee. My concern is that when the noble Lord, Lord Bassam, gave us the information from this report, he must have missed out a vital sentence. At the end of the conclusion, the committee says that,

“the House may wish to invite the Government to reconsider the scope of the new power”.

There is something very serious in relation to Clause 51, and there are implications with regard to Clause 44. My advice is precisely the same as that of the noble Lord, Lord Henley: the Government should take this back, look at it and come back at Third Reading or before so that we know what they have in mind, on the basis of which we can decide whether we want to take any further action. For now, it would not be right to discuss further the contents of this report or the Government’s response. I see that, although the Government produced a supplementary memorandum, which was considered by the committee, there is no further development other than the recommendations contained in paragraph 5.

My Lords, I support everything that my noble friend has said. I take this first opportunity to defend my family name, which the noble Lord, Lord Henley, referred to in the previous debate. I suspect that he was thinking of the case of Stephen William George Collins, reported in 1972, when a young man, who had stripped naked, was at a bedroom window and was beckoned in by a young lady who believed him to be her boyfriend. Over what happened then I draw a veil. I note from the judgment of the much lamented Lord Edmund-Davies—this because the noble Lord, Lord Henley, referred to socks—that he said about the young man that, having seen the girl in bed,

“he descended the ladder and stripped off all his clothes, with the exception of his socks, because apparently he took the view that if the girl’s mother entered the bedroom it would be easier to effect a rapid escape if he had his socks on than if he was in his bare feet”.

The judgment went on:

“That is a matter about which we are not called on to express any view, and would in any event find ourselves unable to express one”.

Clearly the memory of the noble Lord, Lord Henley, of his legal training is very good, but, like me, he cannot remember the name of any case.

My Lords, I have some advice to give on this particular case. It is of such import to our debates that it clearly should be considered fully and properly by the Delegated Powers and Regulatory Reform Committee, which, while it produces excellent reports, would find its proceedings enlivened more than somewhat if it were to consider this case’s implications.

Anyway, I ought to deal with what is front of me. I have listened carefully to what the noble Lord, Lord Henley, has said, and he makes a fair point; amendments were tabled late. It is also fair to say that the Delegated Powers and Regulatory Reform Committee did a first-rate job in considering the implications of those amendments, given the timeframe in which it had to work and the constraints that it would have worked under. In fairness to your Lordships, it would be right for me to commit to taking away Amendments Nos. 51 and 126 and not pressing them this evening, so that proper and full consideration can be given. We can then consider those matters at Third Reading—I am advised that we will be able to do so, and I am happy to do that. That said, we should move the other amendments in this group. However, the noble Lord made a good case. I am willing to be as helpful as I can to the House—it is only proper that I should be—and that will enable us to agree and disagree more amicably on these matters in a way that is of service to all.

My Lords, before the Minister sits down, perhaps I may thank the noble Lord, Lord Thomas, for clearing his family name and for correcting me on R v Collins 1972. I had not even realised that it was a House of Lords case, but, as he put it, it is one of the very few cases that I can remember—sadly, I could not remember its correct name. I thank also the Minister for agreeing not to press ahead with Amendments Nos. 51 and 126, but to go ahead with the others. On that basis, I am perfectly satisfied. It is a reasonable way forward and it will probably make life easier for all of us in due course.

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 3 [Listed offences]:

52: Schedule 3, page 55, line 30, at end insert—

“1A An offence under section 21 of that Act (attempting to choke etc. in order to commit or assist in the committing of any indictable offence) so far as it may be committed with the intention of enabling any other person to commit, or assisting any other person in the commission of, an indictable offence.

1B An offence under section 22 of that Act (using chloroform etc. to commit or assist in the committing of any indictable offence) so far as it may be committed with the intention of enabling any other person to commit, or assisting any other person in the commission of, an indictable offence.

1C But references in paragraphs 1A and 1B to any other person do not include reference to the person whose act is capable of encouraging or assisting the commission of the offence under section 21 or, as the case may be, section 22 of that Act.”

53: Schedule 3, page 56, line 7, at end insert—

“Misuse of Drugs Act 1971 (c. 38)An offence under section 19 of the Misuse of Drugs Act 1971 (inciting any other offence under that Act).

An offence under section 20 of that Act (assisting or inducing commission outside United Kingdom of offence punishable under corresponding law).”

54: Schedule 3, page 56, line 7, at end insert—

“Immigration Act 1971 (c. 77)An offence under section 25 of the Immigration Act 1971 (assisting unlawful immigration to a member State).

An offence under section 25B of that Act (assisting entry to the United Kingdom in breach of deportation or exclusion order).”

55: Schedule 3, page 56, line 23, at end insert—

“Criminal Justice Act 1993 (c. 36)An offence under section 52(2)(a) of the Criminal Justice Act 1993 (encouraging insider dealing).”

56: Schedule 3, page 56, line 23, at end insert—

“Reserve Forces Act 1996 (c. 14)An offence under section 101 of the Reserve Forces Act 1996 (inducing a person to desert or absent himself).”

57: Schedule 3, page 56, line 31, at end insert—

“Prison Act 1952 (c. 52)An offence under section 39(1) of the Prison Act 1952 (assisting a prisoner to escape).”

58: Schedule 3, page 57, line 27, at end insert—

“Prison Act (Northern Ireland) 1953 (c. 18)An offence under section 29(a) of the Prison Act (Northern Ireland) 1953 (rescuing or assisting a person sentenced to imprisonment for life, or in lawful custody for an offence carrying that sentence, to escape or attempt to escape) so far as it consists in assisting a person.

An offence under section 30(a) of that Act (rescuing or assisting a person sentenced to imprisonment for a term less than life, or in lawful custody for an offence carrying such a sentence, to escape or attempt to escape) so far as it consists in assisting a person.”

On Question, amendments agreed to.

Clause 45 [Defence of acting to prevent commission of offence etc.]:

59: Clause 45, leave out Clause 45

The noble Baroness said: My Lords, government Amendments Nos. 59 to 62 make changes to the defences available to offences contained in this part. Part 2 currently contains two defences. These were recommended by the Law Commission. The first is in Clause 45 and would apply where a person claims to have acted to prevent an offence or to prevent or limit harm. He must also show that it was reasonable to have acted in that way. The second defence is in Clause 46 and would apply where a person claims that his act was reasonable in the circumstances as he knew or believed them to be.

Currently, the defence of crime prevention, or prevention or limitation of harm, is a defence to all the offences in Part 2; the reasonableness defence is a defence only to the offences committed with belief. We have looked at the defences closely and believe that it would be simpler to provide one defence to all the offences in the Bill. We therefore propose that it should be a defence to all the offences in Part 2 if the defendant can show that his act was reasonable in the circumstances. That might be because he acted to prevent a crime or to limit harm, but it might be for another reason. For example, a person might commit an act capable of encouraging or assisting an offence to expose wrongdoing or for any other reason. I hope that that explanation will find favour with the House and I beg to move.