House of Lords
Wednesday, 5 March 2008.
The House met at three o’clock: the LORD SPEAKER on the Woolsack.
Prayers—Read by the Lord Bishop of Chester.
My Lords, the Government have a package of measures to support households vulnerable to fuel poverty. Spend on energy efficiency measures for those on low incomes for the period 2008 to 2011 will be in excess of £2.3 billion. This is in addition to the winter fuel payments payable to all pensioners. Energy companies have recently increased the support that they provide to vulnerable customers, with overall funding of £56 million this winter.
My Lords, I thank the noble Lord for that Answer. Does he accept that fuel poverty—where more than 10 per cent of total income is spent on heating—which fell to 2 million in 2004, has now risen to more than 4.5 million? That represents nearly 20 per cent of all households in Britain. Can he confirm that it is still the Government’s intention to eliminate such poverty in the most vulnerable groups by 2010, eradicating it altogether by 2016-18? In those circumstances, in addition to the measures that he has already mentioned, will the Government contemplate taking further measures, such as adding to the Warm Front funding?
My Lords, we have achieved substantial reductions in fuel poverty since 1996, with more than 4 million households removed from fuel poverty, although the noble Lord is right that in the past few years the numbers have begun to go up again. The reason for that is largely the increase in energy prices. We stand by our commitments with regard to 2010 to 2016 and I tell the House openly that, although this is a tall order, we will do our very best to ensure that those targets are reached. As far as additional action is concerned, we are in ongoing dialogue with suppliers and Ofgem. We would like to see more progress and we do not rule out the need for legislation in the future on social tariffs. However, legislation may not be the answer here.
My Lords, I welcome my noble friend’s encouraging declaration on social tariffs. However, the Government, like many of the energy companies, have been the beneficiary of the increase in value added tax revenues, because the price has gone up, the tax take has increased accordingly and the Government therefore have more money to spend on helping the poor. Under these circumstances, can he give an assurance that in the Budget next week proper weight will be given to the needs of the fuel poor in our country?
My Lords, a group that suffers very much from cold weather is the disabled. Is there a case for the Government to increase the range of people who get the winter fuel payment to cover those who are in receipt of a full disability allowance? In that way, the numbers would be limited. These people need to be kept warm perhaps more than most other people who are under 60.
My Lords, I understand the noble Baroness’s point. As I understand it, there are no plans to extend winter fuel payments to that group of people, but of course I shall take back her suggestion. Winter fuel payments have been a terrific improvement for everyone over 60 for many years.
My Lords, as we have heard, the latest estimate has suggested that the number of households in fuel poverty is now 4.5 million, which is the highest since Labour came to power. While we understand that the noble Lord, Lord Jones, has an enthusiasm for selling Britain, is it not time that he stayed home to concentrate on the wretched poor in this country?
My Lords, if that question had been asked from almost anywhere else in the House, I would have taken it seriously. What the noble Baroness’s Government did for fuel poverty can be written on the back of a postage stamp. We have done a huge amount. We have been frank with the House; the numbers have gone up in recent years because of a rise in energy prices. However, the number of people who are now helped but were never helped when the noble Baroness’s Government were in power is huge.
My Lords, on Monday we had a Question about energy efficient housing and a supplementary question was asked about upgrading inefficient boilers. As many of those boilers will be in the homes of elderly people, what assistance is available to those people to improve their boilers?
My Lords, the Minister will be aware of the CBI’s recent report, Climate Change: Everyone’s Business, which concluded that more energy efficient buildings could make the biggest single contribution to reducing carbon emissions by 2030. To achieve this, 15 million homes need better insulation. I did not hear the Minister respond to the question asked by the noble Lord, Lord Ezra, about Warm Front payments. Will the Government commit to reversing the recent cut in the Warm Front budget and possibly even, as the noble Lord, Lord Ezra, suggested, to extending it?
My Lords, the spend for the next three years on energy efficiency measures to enable homes to be kept warm more cheaply will be in excess of £2.3 billion, which is £680 million more than in the previous spending period. The Warm Front programme is, as the noble Lord rightly says, being reduced from £869 million to £810 million, but £1.5 billion will be spent in the next three years by suppliers under the carbon emissions reduction target. The overall increase is £680 million over the next three years.
My Lords, the Minister has said in detail how much the Government have spent on trying to help people to keep their homes warm, but does he recognise that, although we are one of the richest nations, we have the greatest number of excess winter deaths in the civilised world? I hear what he says about talking to his friends in another place and to the Minister, but should this not be higher on the Government’s agenda, particularly given rising fuel prices and where we stand as a rich nation?
My Lords, I can tell the noble Baroness that this is very high on the Government’s agenda and has been since we came into office in 1997. The number of people who die, tragically, during cold periods in the winter because they cannot heat their own homes is very much lower than it used to be, but of course there is room for improvement.
Afghanistan: UK Forces
My Lords, I am sure that the whole House will join me in welcoming the noble Lord back to his rightful position on the Front Bench.
The United Kingdom Armed Forces continue to receive the full support and co-operation of the Afghan authorities as we work together to expand the writ of the Government of Afghanistan, to increase the capacity of the Afghan national army and to dismantle the insurgency.
My Lords, I am grateful to the noble Baroness for those kind words. I am also, of course, very grateful to the paramedics who saved my life and the wonderful doctors and nurses who looked after me so well in East Surrey Hospital.
Does the Minister agree that it is rather dispiriting for our troops, who, after all, are fighting and dying in Afghanistan, when President Karzai rejects the noble Lord, Lord Ashdown, as the UN special envoy and publicly denigrates our Armed Forces and their achievements, even though their departure would inevitably see the return of the Taliban?
My Lords, there were remarks attributed to President Karzai that received significant publicity, remarks which I think none of us would wish to see anybody in that situation make. However, when President Karzai visited this country at the end of January, at a press conference he restated his respect and his gratitude for the British development and military assistance that we were offering in Afghanistan. He has also said that he was misquoted in some of the remarks.
My Lords, we were very sorry indeed about the blackballing of the noble Lord, Lord Ashdown. However, on a separate matter, may I ask whether the Government’s intention is to deploy the Eurofighter Typhoon into Afghanistan? If so, what is the likely timing, and how many aircraft are likely to be involved?
My Lords, at present there are no plans to deploy Typhoon to theatre. So far as that aircraft is concerned, we are focused on developing its air-to-ground capabilities in order to optimise its potential. It is a world-class aircraft, and we think we can make further improvements. The Harrier is there at the moment and is performing well. Close air support is very important to our operations and we will continue to assess what capabilities can best achieve it.
My Lords, I cannot say that my knowledge of the Indian Empire is perhaps what it should be, but I can say that the assistance being given to the Afghan national army has been very significant. In the recent operation in Musa Qala, the Afghan national army took the lead. It was able to do so because of the training and assistance it has been given by a wide range of nations.
My Lords, the reply given by the noble Baroness was much more optimistic than I had expected; she is obviously talking to different people from those I am talking to. Is there nothing she thinks President Karzai and his Government could do to help the British Armed Forces in Afghanistan?
My Lords, I think that my reply was realistic; I was simply reporting what President Karzai said when he was in this country. However, I think that the Afghan Government have to face some significant issues and challenges, in particular the extension of good governance throughout the country. That is one of the areas on which we are trying to assist, because we are very well aware that there is still a great deal to do in that respect.
My Lords, we have enough helicopters to do the key tasks but we would always like more. We recently had an agreement with NATO that it would supply provide significant helicopter lift in Afghanistan. That would be very helpful to us, particularly in southern Afghanistan, because we think it will free up some of our helicopters for operational use. However, this is one of the areas where we are continuing to try to make improvements.
My Lords, at the moment 76,000 people have been recruited into the Afghan national police, another area in which much of the work we have undertaken on training and reorganisation has been very important. Some of the countries that are not willing to perform in other operations are willing to undertake training and mentoring in areas such as this one. That mentoring is important and ongoing and a wide range of contributors are helping with it.
My Lords, can the Minister say what steps the British Government have been taking to encourage the Afghan Government to impress upon other nations the need to make a contribution—in addition to those of the United States, the United Kingdom and other countries—in the defence of their own country?
My Lords, it is correct that the International Security Assistance Force’s operations in Afghanistan are conducted at the invitation of the democratically elected Government of Afghanistan and with the authority of the United Nations. It is incumbent on those who stand by that organisation to try to do what they can. We have been trying to use our influence within NATO to get greater contributions. We have had a degree of success but would certainly like more.
My Lords, the Government consider the decision to drink bottled water to be a matter for consumer choice. However, this may be influenced by a number of factors, including cost and the impact on the environment. The Government and their agencies have a role in informing such consumer choice.
My Lords, given the efforts that successive Governments and the EU have made to ensure safe, healthy water from our taps, and given, too, the environmental costs involved in the transportation and packaging of bottled water, would the Government none the less look at possible ways of discouraging the consumption of bottled water, either through green taxes, labelling or just simply heightened public awareness of the issues? In particular, will the Government add their voice to prevent restaurants denying customers the option of tap water when they request it?
My Lords, is not one of the more delightful results of our EU membership that we have been forced to spend some £64 billion on pointless European water purification directives when there was nothing wrong with our water? Is it not logical for Brussels to issue a regulation now banning bottled water?
My Lords, some of the carbon in carbonated water may be natural; some of it is not, of course. I have found that I cannot get Malvern sparkling or Badoit out of the tap. Eighty per cent of the water is still water. Bottled water can have 300 times the amount of carbon footprint than tap water. That point has to be put across because that is a part of the environmental cost. That is what the Government and their agencies will deploy as part of informing consumer choice.
Then they have a choice, my Lords. I am not sure whether the noble Lady is referring to tap water in the United Kingdom being disgusting; if so, I hope she has made a complaint to the relevant authorities. It is properly inspected by the Drinking Water Inspectorate and the local authority environmental health officers.
My Lords, to carry on from what the noble Lady, Lady Saltoun, said, is the Minister aware that last week in the south-west of England I drew water from a tap and it was opaque in colour? It may well have been perfectly fit to drink, but I did not try it.
My Lords, that matter should be reported to the Drinking Water Inspectorate, which monitors tap water. The Food Standards Agency is responsible for bottled water. The Government are setting an example: by the summer of this year, most government departments will not be using bottled water in any shape or form in meetings.
My Lords, is it not regrettable that bottled water costs much more than milk? Perhaps, in their promotion, the Government might consider telling members of the public the value of drinking milk. Our ordinary tap water in this country is of a very high standard, but there seems to be a lack of knowledge about the value of drinking good milk, particularly British milk.
My Lords, I cannot be the UN in these circumstances. Noble Lords have to work it out for themselves. Your Lordships have time for two questions, if one noble Lord will give way to the other now.
Thank you, my Lords. Will the Minister do more to inform people how they are being ripped off when they drink bottled water? Will he confirm that the cost of tap water, which is very pure these days, is about 80p per tonne, which breaks down to 0.4p per gallon and 0.08p per litre? Why would they go out and pay 80p for bottled water in those circumstances?
My Lords, it is free choice. In the past five years there has been a 43 per cent increase in the consumption of bottled water. People have a choice, and the Government should not be in the position of removing it from them—but it should be an informed choice, both on the cost economically and the cost to the environment.
My Lords, will the Minister agree that in many parts of upland Britain new enterprises have started by bottling water that is of very high quality? I endorse what he said about choice. It is very important that those people who want to drink bottled water should be able to do so and not be denied it.
Israel and Palestine: Negotiations
My Lords, we are concerned about the escalation of violence in Gaza and southern Israel. The rocket attacks against Israel are terrorist acts seeking to undermine the peace process. The leaders of the Palestinian Authority need support in their search for peace. We are concerned about their decision to suspend negotiations with the Israeli Government, and hope that the talks will be swiftly resumed. Peace will be brought to the region only through the political process.
My Lords, I thank the Minister for that Answer. Is he aware that the strongest condemnations of Israel in the past few days have often come from many worthy NGO and other groups in Israel itself, and that a recent poll in Israel showed that 65 per cent of respondents were in favour of opening talks with Hamas? Will the Government now please have an urgent discussion with their US partners to remind them solemnly that if they persist in vetoing every UN resolution, as that country has done over 30 times since 1967, Mr Olmert naturally has no need to obey international law and the Geneva conventions forbidding attacks on civilians, and the hapless Palestinians will never get the independent state that George Bush promised them four years ago?
My Lords, what really matters is that we should go on working closely with our international partners to support the US-led process that was initiated at Annapolis. The visit of Secretary of State Rice to Israel and the occupied Palestinian territories, which ends today, demonstrates continued US support. All our efforts must be to ensure that this is a year of progress.
Of course we are committed to Israel's security and its right to self-defence but we agree that measures taken in response to rockets must be in accordance with international law, minimising the suffering of innocent civilians and maximising the scope for political negotiations to be restarted.
My Lords, does my noble friend agree that the rockets that were fired at Israel were fired at civilians and that the attacks were on civilians? If there is to be peace in the area, negotiations towards a peaceful solution should be restarted as soon as possible, because they are the best way of ensuring the continuation of the state of Israel in peace and a sovereign Palestinian state alongside it. The 60 rockets that were fired last week were not good for that peaceful solution. Do Her Majesty's Government agree that the Government of Israel have been left with no choice but to act out of self-defence when there are such attacks, and that it is an intolerable situation that cannot last? Hamas must renounce violence if there is to be peace.
My Lords, we agree that the rocket attacks from Gaza into Israel, which have increased very much in number in the course of the last week with more powerful rockets than have been used before, are a matter of huge concern to the Israeli civilian population. We are committed to Israel's security and its right to self-defence. But, as I have already said, measures must be in accordance with international law. We want to get the parties back to the peace table as quickly as possible because only there can a peaceful future be decided.
My Lords, does the Minister agree that now is the time to reconsider with our European colleagues our policy of refusing to deal with Hamas? We should use those contacts and our contacts with the Israeli Government to persuade both sides to stop this deplorable round of retaliatory military action and to revive the proposal made by Hamas a long time ago for a truce, which was supported by the Arab summit in Mecca and rejected by the Israeli Government.
My Lords, the key to making progress is to support the US-led process. All our efforts are behind that. We will not do anything that might undermine that process. That includes, I am afraid, talking to Hamas unless there is some significant movement in relation to the three quartet principles. Those principles were not set unreasonably high. They are accepting non-violence, accepting recognition of Israel and accepting previous agreements and obligations. It is not asking a lot to agree to those principles. If Hamas accepted them, it should be brought into the process.
My Lords, at the time of the Annapolis conference some months ago, many of us urged that it was no use seeing it as a one-off conference which would then produce a peace development out of a hat: it had to be part of a sequence of conferences building to a greater understanding between Israel and Palestine. Are the British Government pursuing that line of thought? We try to be balanced in this House; I sometimes admire the way that people such as the noble Lord, Lord Janner, speak up against a hostile attitude and opinion all round, but we must be balanced. In this case, could the noble Lord, Lord Janner, and many others who admire Israel—as I do in many respects—please convey to the Israeli Government the doctrine of proportionate response rather than the idea that the only way to deal with an attack on Israel, which is utterly illegitimate, is a response so violent that it is out of all proportion, which leads to violence and misery all around?
My Lords, while condemning the rocket attacks on Israel it is important that we also acknowledge the real ferocity of the Israeli response, which many people believe was disproportionate. The role of the Arab League in trying to persuade the parties to come back to the negotiating table is enormously important. Many admire the role that Jordan and Egypt have played in particular. What can my noble friend tell us about their attitudes?
My Lords, I am afraid that I cannot assist the House as regards the Arab League’s statements made since last week’s events began. However, we very much welcome its work to take forward the Arab peace initiative. Frankly, the history of the Middle East shows that without active engagement and support from Arab states the momentum for progress cannot be maintained. The international community has a key role to play in moving forward the peace process, and that is particularly true of the Arab League.
Child Maintenance and Other Payments Bill
My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the amendments for the Report stage be marshalled and considered in the following order:
Clauses 2 to 13
Schedules 2 and 3
Clauses 14 to 16
Clauses 17 to 19
Clauses 20 to 44
Clauses 45 to 57
Clauses 59 to 63.—(Lord McKenzie of Luton.)
On Question, Motion agreed to.
Criminal Justice and Immigration Bill
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved accordingly, and, on Question, Motion agreed to.
House in Committee accordingly.
[The LORD SPEAKER in the Chair.]
Clause 128 [Reasonable force for purposes of self-defence etc.]:
137A: Clause 128, page 88, line 30, at end insert—
“except that this section does not apply in cases to which section (Protection of persons exercising lawful powers) applies.”
The noble Lord said: Those of us who were lucky enough to be here late on Monday night were treated to an hour or so of education on the law of self-defence, courtesy of the noble Lords, Lord Neill of Bladen and Lord Elystan-Morgan. I learnt a great deal from that. It is possible that the Minister learnt something from it too, although he did not give that away.
This amendment, and Amendment No. 142A with which it is grouped, are a small coda to that discussion concerning the law of self-defence as it applies to bailiffs. As far as I know, for a very long time both the bailiff and the debtor have been entitled to the protection of the law of self-defence. The encounter between a bailiff and a debtor is always fraught and can naturally lead to the use of violence in some circumstances.
As explained to us on Monday night, the law of self-defence in this country is a very good combination of limitations on what violence can legitimately be used and a proper understanding of the circumstances; that is, where violence erupts in these circumstances one cannot afterwards, in the cold light of day, take too fine a view of the degree of violence that was used and whether it was exactly proportionate to the occasion. That seems an extremely civilised and sensible way of going on and has always been the arrangement regarding an encounter between a bailiff and a debtor. However, in the Tribunals, Courts and Enforcement Bill the Government proposed that this should be altered and that the bailiff should be given a right to employ violence against the debtor. That right is to be enshrined in regulations that we have not yet seen but which I am told are in the course of preparation. I want to use the opportunity of the Bill and the light thrown again on self-defence to ask the Government to think again. Should not the existing situation continue to prevail?
We allow agents of the state to use violence on occasion. The police are the obvious example, but they are a well-trained body of men and women and the complaints and supervision procedures work well. Although things go wrong from time to time, by and large it is an extremely satisfactory process and has been for a long time. But the police deal with criminal cases and bailiffs deal with debt. Bailiffs are not well regulated. The system of regulation is extremely loose in practice. Although there are many effective, efficient and well-behaved bailiffs, we all know that a good number do not follow the rules and that the current arrangements do not curb them. That is why the Government intend to put in place better controls, but they are not in place at the moment.
By and large, we are dealing with small amounts of money. This auto-justice that we have got used to, where small fines are handed out in very large quantities and quickly find their way into the bailiff system, is creating a large pressure of work in that area. Individual London authorities are putting tens of thousands of their residents into the hands of bailiffs every year. The figure in Camden is 40,000 per year and rising and other local authorities are not far behind. These are very large numbers of people and very small amounts of money; the people are often vulnerable and it is a civil debt. Under those circumstances are we really right to allow bailiffs, as they are, to employ violence against the debtor as a means of getting repayment of the debt? That is what the Government propose. It was in the Tribunals, Courts and Enforcement Bill when it first came before us this was in the Bill and it will now be in regulations.
I am arguing that they should be in exactly the same position. The Government propose to give bailiffs the right to employ violence against debtors. That is in the Tribunals, Courts and Enforcement Act, not in this Bill. They are able to bring in regulations that will describe to what extent bailiffs are allowed to employ violence against the person. I argue that the Government should refrain from bringing these regulations into effect. That would be the simple thing to do; I am proposing to do it by means of an amendment that would prohibit the regulations from being brought into effect.
We know little about the rules under which bailiffs operate. There is a code of conduct—a set of guidance—but the Government refuse to publish it. It was requested under the Freedom of Information Act and appeared with two-thirds of it blanked out. I presume that that will again be the case if bailiffs are allowed to use violence; we will not allowed to know the rules under which they are allowed to use violence against debtors.
When the Tribunals, Courts and Enforcement Act went through, we were promised that there would be a process of consultation, that the results would be published and that we would know who the Minister consulted and what had been said. I do not know how many bailiffs the Minister comes across, I am happy to say that I come across a large number. I chair the Enforcement Law Reform Group and this year I am the chair of the judges for the Civil Enforcement Awards. I have enjoyed meeting them, and they are a fine body of men and women. None of them has asked for this power. When the Tribunals, Courts and Enforcement Act was going through Parliament, they argued strongly against it, and they continue to argue strongly against it either individually or in their organisations. I have not come across one of them who wants this power, so why are the Government doing it?
I hope that the Government will back away from this, but if they are still committed to going ahead, can they at least name one or more organisations that want this power and give us some idea of how they intend to employ it and why? I beg to move.
I very much support the amendment. It is interesting that the powers of bailiffs have been changed for the worse for the first time since 1603. If they managed between 1603 and now without wanting the powers to be increased and are still not wanting the powers to be increased, why on earth are the Government giving another body more powers of estate over individuals? This has been a general creep from this Government from the day they got into office, to boss people about and restrict their individual liberties. The list is long and legion. My noble friend Lord Lucas, who is on most issues on the side of the angels, especially on individual liberty, should therefore be supported up to the hilt on this.
I thank the noble Lord, Lord Lucas, for bringing the attention of the House back to these important issues relating to debtors, in particular vulnerable debtors. Like me, he has spent two evenings here waiting for this amendment to be called, but he has now moved it in the full light of day. I pay tribute to him for the work that he does in this field. The contents of Amendments Nos. 137A and 142A will be familiar to many noble Lords who followed or took part in the debates held in the previous Session during the passage of the Tribunals, Courts and Enforcement Act, in particular the debates on the powers available to enforcement agents, or bailiffs, as they are more commonly called.
Let me make it clear that we remain behind our stated policy position, which goes back as far as the launch of the enforcement review, initiated by my noble and learned friend Lord Irvine of Lairg when he was Lord Chancellor in 1998. It will be supported by the Committee that legitimate creditors who have proven their case and are owed a statutory or judgment debt or a criminal fine should be able to have those debts enforced by the most appropriate and effective means available. As the noble Lord, Lord Lucas, knows, Schedule 2 to the Tribunals, Courts and Enforcement Act outlines the new procedures and powers to be used by enforcement agents when enforcing a criminal fine, judgment or statutory debt by way of taking control of goods.
As the noble Lord and I both heard on Monday night in the expert exposition by my noble and learned friend Lord Davidson, Clause 128 only clarifies and restates the existing common law and does not confer any new powers. There can therefore be no principle reason for disapplying it from the proposed new clause. We think that it would be illogical to have two separate regimes that meant that the use of force under the common law of self-defence was subject to the clarification in Clause 128 in some situations but not in others.
The common law right of self-defence already exists, and it is not necessary or desirable to restate in statute that such a right exists. The proposed deletion of the provisions in paragraphs 24(2) and 31(5) of Schedule 12 to the 2007 Act would remove the ability to make regulations in relation to the use of reasonable force against persons by enforcement agents.
I reiterate briefly what was said during the passage of that Bill—the noble Lord, Lord Lucas, will remember it well—and repeat the assurances given at that time by the Leader of the House, my noble friend Lady Ashton, and by my ministerial colleague in the other place, the honourable Vera Baird MP. The power to use force against persons, either in premises or on the highway will be authorised only in line with regulations upon which we have already promised we will consult, and which will need to be approved by both Houses of Parliament. That consultation has not yet begun. It has not yet taken place. If, after consultation with representatives of all sides, including the advice sector, the enforcement industry—that is, the bailiffs—the judiciary and other government departments, such powers are felt to be unnecessary, we will not bring regulations forward.
I openly restate that commitment today and I hope that that will reassure the noble Lord that these powers will be introduced only if they are felt to be necessary. My advice to him, if I may be so bold, would be that when the consultation begins, he puts in his two-pennyworth, as it is sometimes called, about this issue and encourages others to do the same.
I should make it clear that if such regulations were brought in, the use of force would be allowed only in a restraining capacity to enable enforcement agents to go about their lawful duty without being hindered by physical interference, but stop short of actual physical harm being caused to them. These regulations are not about self-defence when an enforcement agent is being physically attacked, because the existing laws of self-defence would still apply in those circumstances.
Some examples of where the powers may be required include, perhaps, removing someone who drapes themselves across the bonnet of a car in an attempt to physically stop it being taken, or moving aside someone who is deliberately standing in front of a door to physically prevent a locksmith forcing a lock. It does not legitimise the use of violence; it will not allow, for example, the use of physical body searches or the removal of items of clothing or jewellery.
The powers in the Tribunals, Courts and Enforcement Act 2007 were a culmination of many years of consultation, research and hard work to try and get into one place a comprehensive set of powers that would allow for effective enforcement of unpaid criminal fines, judgments and statutory debt. We would not wish to see those powers diluted or removed before they have even had a chance to take effect.
I hope that that reply gives some satisfaction to the noble Lord. I repeat, the consultation has not yet begun.
I will give the noble Lord an opportunity to rise to his feet if he can answer two questions that come out of what I have said. When is the consultation going to start and can he actually name anyone who wants this power other than the Government themselves, for reasons unnamed? Is some outside body or someone involved in the industry asking for this power? I would really like to know, because I have yet to meet them. I would like to understand what is motivating the wish for this. I am not going to get anything today, so I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
138: Clause 128, page 88, line 37, after second “to” insert “all the circumstances, including”
The noble Lord said: Last September, as we were expecting an election to be announced, the Lord Chancellor, Mr Straw, announced to the Labour Party conference that he was, indeed, seeking two regimes for the law of self-defence, with a separate regime for householders. The points he put forward at that time were taken up and expounded on Monday night by the noble Lord, Lord Kingsland, on behalf of the Conservative Benches, and we had an excellent discussion about it.
The government Benches and ourselves were ad idem that the law of self-defence should be the same, whether it concerned a householder, a person in the street or any circumstances such as that.
Therefore, what emerged in the Bill was an attempt by the Government to codify the common law of self-defence, regardless of any other matter relating to the law of assault, the law of murder or anything of that sort. This was simply a codification of self-defence but, if that is what it is supposed to be, I have some criticisms with which I do not propose to weary your Lordships for very long.
In a very thoughtful speech on Monday, the noble Lord, Lord Elystan-Morgan, referred to the case of Gladstone Williams, where the Court of Appeal held in 1987 that a defendant charged with assault could plead self-defence successfully if she honestly but unreasonably believed that she was being attacked. The rationale of that unreasonable belief is that, in order to commit an offence of assault, the defendant requires an unlawful intention, and an individual who honestly believes that he is acting in self-defence against a perceived attack does not have such an unlawful intention, regardless of how unreasonable his perception may be of the risk that is advanced towards him. Lord Lane, the Lord Chief Justice at the time, said:
“The reasonableness or unreasonableness of the defendant’s belief is material to the question of whether the belief was held by the defendant at all. If the belief was in fact held, its unreasonableness, so far as guilt or innocence is concerned, is neither here nor there. It is irrelevant”.
The Government have sought to put that principle into this codification section, but subsection (8) states:
“For the purposes of references in this section to what D believed, it is immaterial whether—
(a) any belief of [the defendant’s] was mistaken—
that is fair enough—
(b) (if it was mistaken) the mistake was reasonable”.
That is directly contrary to the sentence of Lord Chief Justice Lane’s judgment that I read out—that the reasonableness or unreasonableness of the defendant’s belief is material to the question of whether the belief was held by the defendant at all. In other words, the jury is entitled to look at all the surrounding circumstances when it tries to come to a conclusion about what the defendant really did believe, as opposed to what he said he believed. That is the purpose of one of our amendments to this clause.
The other aspect is perhaps best encapsulated in short terms in the judgment of the noble and learned Lord, Lord Woolf, the Lord Chief Justice in the case of Martin in 2002. Your Lordships will recall that that case, in Norfolk, received a great deal of publicity at the time. The noble and learned Lord, Lord Woolf, described the law of self-defence in these terms:
“When this defence is raised, the prosecution has the burden of satisfying the jury so that they are sure that the defendant was not acting in self-defence”.
Therefore, the burden of proof is on the prosecution to satisfy the jury that it was not a case of self-defence. On Monday, the noble Lord, Lord Elystan-Morgan, pointed out that the wording of the clause is defective in that it refers to a defence of self-defence. There is no such thing as a defence of self-defence; it is for the prosecution to prove that self-defence does not arise. The noble Lord, Lord Elystan-Morgan, in a speech with which I agreed, said that it should be made explicit in the Bill where the burden of proof lies. In his judgment, the noble and learned Lord, Lord Woolf, went on to say:
“In judging whether the defendant had only used reasonable force, the jury has to take into account all the circumstances, including the situation as the defendant honestly believes it to be at the time when he was defending himself”.
So when the jury are considering whether the force used in self-defence was reasonable, according to the then Lord Chief Justice, the noble and learned Lord, Lord Woolf, it must look at all the circumstances, including the honest, even if unreasonable, belief of the defendant.
However, Clause 128(3) makes no reference to “all the circumstances”. It reads:
“The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be”.
In other words, the jury must only look at the honest, if mistaken or unreasonable, belief of the defendant in considering whether the degree of force was reasonable, whereas, in the case of Martin, the Court of Appeal held that the jury must look at “all the circumstances” of which the belief of the defendant was only one. This may sound like a bit of a legal quibble but, when a person can be faced with a serious charge such as murder, it is important that the law is clear. I submit to the Committee that if the Government are seeking to encapsulate the common law and do no more, then they have failed in the aspects to which I have referred. I beg to move.
I have no objection to the addition that the noble Lord suggests; it is correct. However, I do not agree with what he said about the two judgments that he cited, the last being that of the noble and learned Lord, Lord Woolf, in the Martin case. I sought to demonstrate to Members of the Committee on Monday evening that there are two different and distinct currents of authority. The case of Palmer, from the Privy Council judgment of Lord Morris in 1971, is cited in the 2008 edition of the leading textbook on criminal law, Archbold, at paragraph 19/41:
“If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary, that would be most potent evidence that only reasonable defensive action had been taken”.
That is different from the approach of standing back, which the cited passage of the noble and learned Lord, Lord Woolf, leads to. Looking at it with cool detachment, you take the circumstances as he believes them to be; as an easy example, he thinks he is being attacked by three people when there is in fact only one. You also take account of what he thought that he had to do to protect himself against the peril which he thought existed. For that purpose you look into the mind of the accused. Unless I am getting it wrong, my learned friend the noble Lord, Lord Thomas of Gresford, would not look at it that way.
One particularly does not want to rehear the Martin case here, but the fact is that psychiatric evidence was tendered in the Court of Appeal to the effect that the defendant was particularly sensitive to the danger of being attacked owing to his circumstances, life and mind. He had a heightened degree of awareness—or fear—of such an attack; indeed, his premises has been attacked six times. However, that psychiatric evidence was ruled inadmissible for self-defence. It was, however, treated as good evidence for an entirely separate purpose: to show that the accused had diminished responsibility and was therefore not guilty of murder, only of manslaughter.
The practical effect of the case was that with a verdict of manslaughter the tariff was five years’ imprisonment, and as Martin had already been in for four years, he got out after one year. If the evidence had been held admissible and applicable in the law of self-defence, that would have constituted a complete defence for the whole charge and he would have walked out of court immediately as an innocent man. Therefore, which test is applied makes a difference. In agreeing with the language of the noble Lord, Lord Thomas of Gresford, I would not like any future reader of the report of this debate to think that he was right in what he said about the operative test.
The operation of the law on self-defence is an area of genuine public concern justifying the sensitive and detailed consideration that ministerial colleagues have given to it in recent months. I acknowledge that noble Lords also wish to consider carefully the Government’s proposal and have expressed a desire to subject it to greater scrutiny than was possible at Second Reading. I welcome such interest and am pleased that we are able to continue discussion here today.
I would like to address an important question raised at Second Reading and in the amendments tabled by the noble Lord, Lord Thomas of Gresford. Having had the benefit of prior notice of his thinking, I welcome further reflection on the valuable points that he raises and I thank him for his contribution to the debate. The noble Lord’s first concern and the related Amendments Nos. 138 and 139 respond to a view that the Government’s clause may have moved away from a formulation used in the well known Tony Martin case. The formulation contained in the judgment of the noble and learned Lord, Lord Woolf, could appear at first sight to stipulate that the defendant’s belief be considered as just one of several factors to be considered when assessing all the circumstances. The noble Lord fears that the Government’s clause thus departs from the existing common law position by providing that the question whether the degree of force used by the defendant was reasonable in the circumstances is to be decided by reference to the circumstances as the defendant believed them to be alone.
I am pleased to allay, I hope, the fears held by the noble Lord, Lord Thomas. At this point, I shall also adopt the view held by the noble Lord, Lord Neill, of the judgment in Martin by the noble and learned Lord, Lord Woolf. My contention is that in the Martin case matters went further than the noble Lord, Lord Thomas, suggests. We believe that the common law test of reasonable force is faithfully reflected in the Government’s clause, which sets out the key test that the defendant is to be judged according to his own perception of events. The noble Lord, Lord Thomas, shared with noble Lords a quote from the noble and learned Lord, Lord Woolf. The noble and learned Lord went on to say:
“It was for the jury … to decide the amount of force which it would be reasonable and the amount of force which it would be unreasonable to use in the circumstances in which they found that Mr Martin believed himself to be in”.
Similarly, in the case of Owino, Mr Justice Collins, sitting in the Court of Appeal, explained that the test required the jury to decide whether the force used was reasonable in the circumstances as he believed them to be. The Judicial Studies Board made the same point in its specimen direction. That requires a jury,
“to consider the matter of self-defence in the light of the situation which D honestly believed he faced”.
The direction goes on to indicate that a defendant who is labouring under a mistake as to the facts must be judged,
“according to his mistaken belief of the facts”.
In summary, although I welcome the intention of the considered Amendments Nos. 138 and 139 tabled by the noble Lord, Lord Thomas, I suggest that they are not necessary. Clause 128 and its handling of the circumstances is, I submit, a faithful reflection of the common law position. Nothing in case law suggests that the reference to “all the circumstances” in the Martin judgment should be elevated into an element of the established common law principle that the degree of force used must be reasonable in the circumstances as the defendant believed them to be. I therefore ask the noble Lord to withdraw his amendment.
Connected to the noble Lord’s concern is the question first raised by noble Lords at Second Reading, which has been discussed again today. At Second Reading, the noble Lords, Lord Thomas of Gresford and Lord Neill of Bladen, and the noble Baroness, Lady Kennedy of The Shaws, all expressed concern that the Government’s proposals appear to be changing the test applied to the degree of force permissible from an objective basis to a subjective one. I can confirm that that is not the intention; I understand that my noble friend Lord Hunt has written to noble Lords accordingly. Clause 128 makes it clear that a person using force is to be judged on the basis of the circumstances as he believed them to be, but—and it is an important but—within the context of those circumstances the force used must have been reasonable, which is an objective test. I hope that that satisfies the concerns of noble Lords.
The second set of amendments tabled by the noble Lord, Lord Thomas, Amendments Nos. 140 to 142, relate to force used in mistaken belief. They raise an interesting question: does Clause 128 suggest that the jury must pay no regard whatsoever to the reasonableness of the defendant’s mistake? As it stands, the clause allows a defendant to use an objectively reasonable degree of force in the circumstances as he honestly, albeit possibly mistakenly and unreasonably, believed them to be. Although the reasonableness of the defendant’s belief is immaterial as long as it is honestly held, the court should still be able to take into account the reasonableness of a professed belief when deciding whether his belief is to be believed in the first place. The defendant has to have held that belief and, if the jury rejects his evidence on that account, he will not enjoy the protection of the defence. Of course, the more fantastical and unbelievable the defendant’s account of his belief, the less likely the jury is to give it credence. Common sense would indeed prevail and is, I submit, reflected in Clause 128.
We are, however, always open to suggestions that might improve the clarity of the legislation and are actively looking to see whether a revision might usefully reflect the noble Lord’s observation. We will therefore consider Amendments Nos. 140 to 142 further, and I thank the noble Lord, Lord Thomas, for raising the matter.
Reference was made to the case of Williams (Gladstone). It is perhaps helpful to look at another case, the case of Oatridge, wherein Lord Justice Mustill, as he then was, made reference to Williams (Gladstone) and considered that the test might also benefit from development in that regard. I will come on to that.
In the light of the explanations provided and the undertaking to consider important aspects of the amendments, I ask the noble Lord to withdraw his amendment. I understand that the noble Lord, Lord Neill of Bladen, also has an amendment in this group, but I am not sure whether he intends to move it.
I am not going to move it. I have said what I wanted to say on the topic and I shall refer to a later amendment to be moved by my noble and learned friend Lord Lloyd. That will suffice for the afternoon.
Can the Minister confirm that the Government are still standing by subsection (5)(b), which is a statement of the Palmer test of Lord Morris,
“that evidence of a person’s having only done what the person honestly and instinctively thought was necessary for a legitimate purpose”—
that is, for self-defence—
“constitutes strong evidence that only reasonable action was taken by that person for that purpose”?
I am grateful for that clarification. I confirm that the Government intend to stand by the test in subsection (5)(b). Accordingly, if there is no additional point, I renew my request to the noble Lord, Lord Thomas, that he withdraw his amendment. I said that I was going to make some reference to Oatridge in relation to Williams (Gladstone), but perhaps it is sufficient to leave this for the moment. I was referring to Lord Mustill in the Court of Appeal in relation to the development of the questions.
I make these points about Amendment No. 140. Although I appreciate everything that noble Lords have said so clearly and eloquently about the development of the law from Palmer in 1971, I submit that there has been a creative, progressive and significant development as a consequence of the cases of Shannon, which was decided shortly after Palmer, if I remember rightly, of Williams (Gladstone) in 1987 and of Beckford in 1988. This development is more than just a gloss; it is an extension of Palmer. Lord Morris of Borth-y-Gest in Palmer did not spell out specifically that a mistaken and unreasonable, albeit genuinely held, belief was nevertheless exculpative of the defendant. The Beckford and Williams cases, however, clearly state that. I therefore ask the noble and learned Lord to confirm that nothing in the clause in any way casts doubt on the validity of Williams (Gladstone) and of Beckford.
If that is the situation, I respectfully submit with regard to Amendment No. 140 that it is not necessary to spell out anything further with regard to this situation. The law can simply be put in this way. There are two tests: an objective test and a subjective test. The objective test is whether an unseen bystander looking at the situation would say, “Yes, clearly the force that has been used by the defendant in that case was manifestly excessive”—not marginally excessive, but clearly, fundamentally and manifestly so. The second test is that the jury must look at the situation through the eyes and the mind of the defendant and, unless the jury is satisfied that the defendant did not genuinely hold such a belief, the second limb will not have been overcome and the defendant will be entitled to be acquitted.
In so far as the Government are considering the situation—I am grateful to them for their chivalry and, indeed, their common sense in this—I ask them to bear in mind that it might be better not to restrict the jury or to try to lead it by the nose to the conclusions that it should reach. I therefore commend for their consideration the principle enshrined in Section 3 of the Criminal Law Act 1967, which considers a person’s intention and foresight in relation to a situation. It is of considerable value to consider the approach enshrined in that provision, which states:
“A court or jury, in determining whether a person has committed an offence,
(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reasons only of its being a natural and probable consequence of those actions; but
(b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances”.
A jury should therefore look at the generality of the circumstances in their totality. To lead the jury by the nose to a certain approach and a way of reasoning might not be altogether helpful.
I thank the noble Lords, Lord Neill and Lord Elystan-Morgan, and the Minister for their replies. I respectfully disagree with the noble Lord, Lord Neill, and agree with the noble Lord, Lord Elystan-Morgan, that the common law has developed since Palmer and that the statement of the law, as set out by Lord Chief Justice Woolf, is the more developed and up-to-date statement of the law of self-defence.
Those noble Lords who are anxiously awaiting the abolition of the common law offence of blasphemy will perhaps appreciate that, if we ever got around to codification of the criminal law, European legislation would seem minute in comparison. Even without legal aid, we have had a very interesting debate, which I shall need to study at some length. The Minister has given an undertaking and, in the light of his undertaking, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 138A to 142 not moved.]
On Question, Whether Clause 128 shall stand part of the Bill?
I am sorry to add my voice at this stage of the proceedings and I am sorry to have missed, in particular, the debate on Monday on the Conservative amendment. I should now like to say something on the Question whether the clause should stand part. I would not have been in favour of the Conservative amendment for all the reasons given by the noble and learned Lord, Lord Davidson of Glen Clova. To substitute the words “grossly disproportionate” for the word “reasonable” would, as he said, be wrong in principle. It would tilt the balance too far in favour of the householder without adding anything of clarity to the existing law. Moreover, it would have created a false dichotomy between force used in self-defence and force used in prevention of crime under Section 3 of the Criminal Law Act 1967, where no such distinction exists in reality.
On the broader question whether Clause 128 should stand part, I found myself not for the first time in agreement with the approach of the noble Lord, Lord Thomas of Gresford. I can see no good reason to restate the existing law. As far as I know, only two reasons have been suggested. The first is to fulfil the pledge given by the Lord Chancellor at the Labour Party conference. However, it now appears from the letter written by the noble Lord, Lord Hunt, to the noble Lord, Lord Thomas, that the Government have no intention of changing the existing law, so that reason fails. The second reason is to send what is called,
“a clear and unambiguous signal to the owners of homes that the law will be on their side”.—[Official Report, Commons, 9/1/08; col. 351.]
That was the language used by Mr Nick Herbert in the other place. To paraphrase, I would say that it is to get as many votes as possible.
The point was put in more graded language by the Minister, as one would perhaps expect. He says that it is necessary to put the existing law on a statutory basis because,
a nice understatement, on which I congratulate him—
“has the time or the inclination to research the position across the case law”.—[Official Report, 3/3/08; col. 968.]
He says that we must therefore send out a “positive message” to the public at large, which appears to be the intention of Clause 128.
Does the noble and learned Lord really believe that the public at large will study Clause 128 in any great detail? Does he really believe that householders up and down the country are waiting anxiously for Clause 128 to become law so that they can know where they stand? If the Government really want to send out a message, I suggest that they cannot do better than repeat the message already sent out by the Crown Prosecution Service and the Association of Chief Police Officers as recently as February 2005. Surely too many messages—assuming that they are ever received by anyone at all, which I doubt—can create only confusion, coming as they do on top of the message sent out by the Lord Chancellor at the Labour Party conference.
In any event, the Minister seemed to undercut his own argument on the need to send out the message when he said later in the debate, in answer to a point made by my noble friend Lord Elystan-Morgan that one should have something in the Bill about the burden of proof, that:
“One assumes that the public and the police are fully seized of where the balance lies in these matters”.—[Official Report, 3/3/08; col. 970.]
That is entirely inconsistent with the main basis on which this clause has been put forward: the need to send a message to the public.
There is a more fundamental reason for opposing Clause 128 standing part. Some years ago there was a proposal to codify the whole of the English criminal law. A code was prepared by that wise and very learned academic, Professor Sir John Smith, now alas no longer alive. I was in favour of codifying the criminal law on the basis of his proposals, but it came to nothing because the Government did not have the time or the energy. In contrast, what we are getting now and what we are seeing in this and many other clauses is the codifying of little bits of the criminal law—taking little bits of judgments from here and there and giving them statutory force, in some cases, as here, verbatim. That is the worst of all possible worlds. It is almost certain that the little bits now being put on the statute book will be shown to be inconsistent with one another in a very few years.
As I have said before, surely it is better not to use politics as the basis of law reform but to rely instead on judges directing juries in accordance with the standard directions of the Judicial Studies Board, a point made by the noble Lord, Lord Thomas, and thereafter relying on the jury to get the right result. The good sense of the jury is a much better defence for householders than anything in Clause 128. If I were a politician, that is the message that I would wish to get across to the public. I hope that between now and the Report stage there can be a measure of agreement between all parties so that the Conservatives will drop the amendment that they have threatened to bring back and the Government will drop this clause.
I should like to make a brief point, which backs entirely what the noble and learned Lord has just said. Recently a shopkeeper killed his assailant with a knife. The police said that the gentleman would not be prosecuted because he had acted reasonably under the circumstances. Those circumstances were completely different from those in the Martin case. If I remember rightly, the chap was running down the stairs in front of Martin. However much you might sympathise with Martin’s predicament—it was a very unpleasant one, because he had been burgled several times before—you still do not shoot teenagers in the back when they are running downstairs. It seems to me that the law is perfectly all right and need not be changed. I am not a lawyer but that is what, looking at it from the outside, I think. There has been a lot of froth in the press about this, so we should be defrothing if we possibly can.
I feel privileged to be able to say that I support completely the wise and authoritative words of the noble and learned Lord, Lord Lloyd. Perhaps I may return to one matter that I raised a few days ago: the absence in Clause 128 of a clear statement that this is not a defence, and the fact that there is no onus whatever on the defendant to raise the defence. For those in the Chamber who are not lawyers, I am sure that the point is well appreciated in any event. In some cases where the prosecution is able to prove the outlines of an offence, it is for the defendant to establish his innocence on the balance of probability; otherwise he will be convicted. This is not such a situation, but that is what lawyers usually mean by a defence in those circumstances. I therefore do not believe that too much emphasis can be laid on the point that this is not a defence.
I shall not repeat what I quoted from the judgment of Lord Justice Winn in the Wheeler case in 1967, but I would ask the noble and learned Lord the Lord Advocate to study those words carefully. They show that—if that judgment was correct, and I believe it to be as correct as any judgment could be—it is sailing into danger to suggest to a jury that there is any question of a defence such as self-defence and the judge must immediately correct himself or herself in that regard. In those circumstances, although my submission did not find immediate favour with the noble and learned Lord the Lord Advocate on Monday, will he be so gracious as to reconsider the matter?
Despite the illuminating instruction that we had fairly late on Monday evening, it seems a pity that we had to have it, when I would respectfully agree with every word that the noble and learned Lord, Lord Lloyd of Berwick, has said. Clause 128 should not stand.
I know that every second I occupy keeps the Committee from blasphemy—and I tender my apologies to certain Benches in particular—but I entirely agree with the noble and learned Lord, Lord Lloyd. This is codification of one tiny bit of the law. It leaves out various things.
The first thing that it does not do is state what the defence is. It is most extraordinary. The noble and learned Lord, Lord Woolf, does in his judgment. In one sentence he says, “This is what the defence is, whatever you call it. This is it”. Here it goes straight on to tell you all about the “reasonable” element in it. You never get there. You do not have anything in this about the onus of proof at all. I am afraid that I thought the Minister’s theory on Monday night—that the man in the street is well aware that the defence of self-defence is not really a defence but something the prosecutor will have to prove—came from cloud-cuckoo-land. No one who is not a lawyer could conceivably know the law’s position on this. There is nothing in this about whether action in defence of property is covered by self-defence. Forget about the 1967 Act, what does the common law say? The common law was fairly clear on that point.
In other words, this is tinkering. Let me give a classic example of tinkering, and then I will sit down. Subsection (4)—on which I concentrated my fire earlier, before it was withdrawn, but I can say it here—states:
“The degree of force used by D is not to be regarded as having been reasonable in those circumstances if it was disproportionate in those circumstances”.
“Disproportionate” and “unreasonable” are exact synonyms. I looked this up in Roget’s Thesaurus, which, against “disproportionate”, has “not reasonable” or “unreasonable”. This is just tinkering by taking a familiar and well known word, altering it and putting it into statute. It is not worth doing. The whole clause should be abandoned.
For once in my life I entirely agree with the noble and learned Lord in his submission. The burden of proof falls unmistakably on those who advocate a change of words, and I do not see that they have yet met it. I shall not expatiate at length because the case has been put forward admirably by the noble Lord. We would be well advised to think again about the issue.
A mischief of this provision is that self-defence operates not only in one criminal offence but across a whole range of criminal offences; it has a different character depending on the context. The Government are codifying a component of what may appear in many trials of many defendants in different offences. It is quite wrong to do that.
The noble Lord, Lord Neill, referred to the fact that it does not refer to defence of property. That instantly brought to mind a case in which I was involved where a defendant, from his bedroom window, shot a person who had thrown a brick through the fanlight above his door. The person was retreating down the path, laughing his head off. The defendant shot him with a .22; he was a warrant officer. That particular individual had chosen the wrong man. As the defendant was completely acquitted, defence of property was sufficient in that case. The clause says nothing about that.
That is just one example of how taking a component and trying to put it in a crystallised form for all time is quite contrary to the common law—which, as we discussed earlier, develops in accordance with changing circumstances and the changing society in which we live. The critical point is that for 700 or 800 years it has been the common sense of the jury that has ultimately determined guilt or innocence, something else that the Government are always chipping away at.
I have a clarificatory comment to make. Although I have had the pleasure of being Advocate-General for Scotland for getting on for two years, I have never at any stage been the Lord Advocate. The Lord Advocate, who is a devolved Minister, is very obviously a lady and might take it somewhat amiss if it were thought I was usurping her role.
Of course the Government adhere to the notion that the common sense of the British jury is one of the strongest guardians of our freedoms in this country. I am grateful to the noble and learned Lord, Lord Lloyd of Berwick, for identifying the difficulty with the Conservative amendment, where it seeks to bring in notions of “grossly disproportionate”, as being an area in which it would be an unhelpful addition were it ever to be advanced.
In his criticism of Clause 128, the noble and learned Lord questions the utility of the clause. The notion underlying that, with which the Government seek to push the clause forward, is the purpose of clarifying and reinforcing what the law is, as it is broadly understood. That has a clear utility. True it is that the householder will not be anxiously wishing to scan a Bill, and that the leaflet produced by the CPS and the Association of Chief Police Officers is extremely useful; we do not in any way step away from the utility of that leaflet. I repeat that we are seeking to reinforce and clarify the law that provides meaningful and real protections for those in the difficult position of having to deploy self-defence.
To be clear, I am not saying that. The law, when one traces it through the various cases, can be divined. The proposals here contain clarification and reinforcement by bringing together the parts of the existing common law. I am supported in that view by the opinion of the Joint Committee on Human Rights, which welcomed the clarification that Clause 128 was to provide. That also establishes why what has been described as codification is in fact of high utility, because it permits one to find in one place the essentials of the law of self-defence. This is not, I would respectfully suggest, a bringing together of little bits of the law on self-defence; it is the most important area in which that area of the law is created.
The noble Lord, Lord Elystan-Morgan, made the point clearly and forcefully that what one is dealing with here is self-protection rather than self-defence. One very much takes that on board. I would submit that that may be the area in which the judge can give direction to the jury; it may not be necessary for it to be incorporated here.
The noble and learned Lord, Lord Neill of Bladen, raised a number of points, including the defence of property. What one is seeking to do in this legislation—the noble Lord, Lord Thomas of Gresford, picked up this point—is to apply a broad understanding of self-defence not just to the householder but also to the person in the street, the woman who has to fight off an attempted rapist and the Armed Forces, which also have to guide themselves by these important principles. That is why one is seeking to put in place this broad setting-out of the precepts of self-defence.
The noble Lord, Lord Clinton-Davis, inquired why one is seeking simply to change words. We are not seeking to do that, because many of the words in Clause 128 are drawn from the exact words used by Lord Morris of Borth-y-Gest in Palmer. Overall, the Government see this as an important and meaningful way of putting forward clearly the basis of self-defence.
I am very grateful to the former Advocate-General for giving way. As he will know better than any of us, this clause applies only to England. If it becomes statutory, what will be the position in Scotland, where the law of self-defence will continue to be on a common law basis? Will he refer the matter to the Scottish Law Commission so as to bring the two jurisdictions into line with each other?
I do not wish to be drawn into discussing my own personality, but I was formerly the Solicitor-General for Scotland. I have never been, and never intend to be, Lord Advocate. I fully appreciate the noble and learned Lord’s point. I should perhaps point out that I am a UK law officer; I am not some Scot who is simply down here to tell you what to do with your own law, which I would never dream of doing.
One of my fellow countrymen may occasionally have offered some guidance in that area, and no doubt it was very welcome. Scotland has faced certain difficulties in relation to the extent of self-defence, and at this moment it is, as I understand it, considering the way in which it has been developed in this particular area. So the noble and learned Lord, Lord Lloyd, should perhaps not be excessively concerned that a Scot is living in ignorance of what is happening in this Chamber; this is a matter with which they, too, are concerned.
I am conscious that there is academic argument in this area. As matters stand, the Government are reasonably confident that Clause 128 reflects the common law as it currently stands.
Clause 128 agreed to.
[Amendment No. 142A not moved.]
Clause 129 [Imprisonment for unlawfully obtaining etc. personal data]:
143: Clause 129, page 89, line 37, leave out “and 55” and insert “, 55 and 55A”.
The noble Baroness said: I am conscious, especially with five right reverend Prelates on their Benches, that I am detaining the Committee before the debate on blasphemy. However, I am afraid that I have to underline why Clause 129 is important.
The Government have, for various reasons, dropped clauses from the Bill. We are anxious to underline why we think Clause 129 is particularly important and should stay in the Bill.
The clause increases the penalties for unlawfully obtaining personal data. At the moment, the penalty is a pretty derisory fine, and the serious and organised nature of data crime is such that an adequate legislative response is now necessary. As it stands, the clause implements proposals put forward by the Information Commissioner as part of the solution to the enormous problems that he exposed in his report, What Price Privacy? He exposed an extensive and lucrative illegal trade in confidential personal information. There were networks of middlemen, often involved or associated with the private investigation industry. Their clients ran from private individuals to financial services companies, insurers, journalists, law firms and even local authorities. It was all set out in his report.
The suppliers and, in many cases, the customers involved in the trade, were committing an offence under Section 55 of the Data Protection Act 1998. I will not detain the House by giving many examples, but a private investigator passed on address details obtained by deception from a medical centre to an abusive husband who was trying to track down his wife who had moved on to start a new life. There are very serious issues here.
The Information Commissioner discovered that there was a tariff of prices that were charged for obtaining confidential information such as telephone information, vehicle and other records—there is a real catalogue of difficulties here. The report demonstrated that, although it has been a criminal offence for years, the current penalty regime is too weak and needs revision. Those conclusions have been backed up by numerous committees of both Houses. In your Lordships' House, the Science and Technology Committee’s report, Personal Internet Security, urged the Government to introduce measures such as this and recognised that existing penalties for offences were quite inadequate. Your Lordships' Constitution Committee report into a surveillance society came to a similar conclusion. Several other committees in another place, including the Home Affairs Committee, were also of that opinion. Fundamentally, the low penalties devalue the offence and mask the seriousness of the crime.
Some of the concerns raised about the way in which this clause is currently framed have come from the media. Media concerns stem from the fact that, at the moment, there is no definition of public interest. A journalist who obtained information that was in the public interest would, if this clause were not amended, be liable to prosecution under a considerably increased penalty, which we would be fully supportive of in other circumstances. The Government need to revise this along the lines of the amendment that I have tabled—which I am sure is imperfect and the Government could introduce a much better one—to defend the position of journalists who are genuinely working in the public interest. I urge them to do that.
Our Amendment No. 146 refers to the recent catalogue of personal data disasters in which so many government departments have been involved in the loss of data, whether through gross negligence or mere carelessness. Our amendment addresses that. The data controllers referred to in the amendment are a key group in ensuring that procedures and practices governing personal data are well thought-out and well practised. They must ensure that there is no room for sloppy practice at the least and intentional disclosure at the worst. Our Amendment No. 146 would strengthen Clause 129 in an important way. I beg to move.
We have tabled Amendment No. 148A in this group. Like the noble Baroness, Lady Miller, I appreciate that the House is filling up and many would prefer to discuss blasphemy. However, I should first say a few words about data protection and, as the noble Baroness mentioned, data retention. The Government are in a mess in this regard. Therefore, I shall very much welcome hearing the Minister’s comments on the amendment. I understood that the Government wanted to remove this clause in the interests of speeding up the Bill’s passage. They have now said that they will retain it, but I understand that if they cannot reach agreement with all parties concerned it may be withdrawn at a later stage. Perhaps the Minister will confirm that.
In the mean time, we think it is important that the Government consider not only the Liberal amendment but our own amendment which concerns knowingly or recklessly causing the loss of personal data. The Government know a great deal about that. The noble Baroness, Lady Miller, rightly referred to the recent loss of child benefit data from HMRC, which affected some 26 million people. Only today we read in a newspaper article that, according to written ministerial Answers in another place, something of the order of 1,000 laptops have been lost or stolen from government offices over the past few years and that figure does not even include those that have been lost from the Home Office, the Foreign Office, the Department for Transport or the Department for Business, Enterprise and Regulatory Reform. No doubt many more have been lost about which the Government will let us know in due course. But that is an aside to the issue before us at the moment which relates to the unlawful loss of data. Our amendment refers to recklessly or knowingly losing data on the part of a Crown servant or a person acting in pursuance of a government contract. That is something we think the Government ought to address.
At this stage, it is best for me to await the Government’s response so that they can clarify the issue and let us know their thinking on this. We may want to pursue this matter further on Report, as I am sure will the noble Baroness, Lady Miller. I make it clear that, as the noble Baroness put it, we are generally in favour of Clause 129 being included in the Bill. However, we may want to see the introduction of certain safeguards; for example, a public interest defence. But no doubt the Minister will address that.
One of the problems of present society is the immense spread of data retention. For instance, the police now undertake number plate recognition of motorway traffic and in inner cities without any statutory authority whatever. There is a DNA base relating to children, with a disproportionate amount of data on black children. The amount of data collected on everybody is generally unsatisfactory. If you have a very large database with a lot of people having access to it, it is automatically insecure. We have a very serious problem with regard to these databases, which have grown like Topsy and without people noticing. There has been a perfectly good, sound reason for this, that and the third thing, but we have grown into a surveillance and data-bloated society. Something must be done to reduce this practice and to ensure that data are properly controlled. In a free society, the state should not be able to hold all this information on everybody as that is open to tyranny. It is a very serious problem and this is but a first effort at addressing it.
I reinforce what the noble Lord, Lord Henley, said about retaining Clause 129. I think that it is very important, as I sat on the House of Lords Select Committee on Science and Technology on personal internet safety. The committee recommended it for important reasons which I will not bother to go into.
However, I am afraid that I disagree with the Liberal Democrat Amendment No. 144A to exempt journalism. There are bad people in every occupation, vocation, profession or whatever and journalism is no exception. There have been examples of journalists obtaining information that is not in the public interest but will increase their newspaper’s circulation. Journalists have also bought information from public databases, for example, on the friends and families of celebrities.
It is important not to make such exemptions. In fact, I might take the position that the noble and learned Lords who surround me took on the previous clause and say that we should leave it up to a sensible British jury to decide whether the journalist had acted for good public interest purposes.
I do not support Amendment No. 144A and I would leave Clause 129 in the Bill. It is very important that it stays. As the noble Earl, Lord Onslow, said, we have an enormous amount of data sharing. We have to give some information to the Government and it is important that the public have trust and confidence that it is secure. Unless the Information Commissioner has powers to start checking that it is, I am afraid that things will get worse.
I support the thrust of Amendments Nos. 146 and 148A, although, on balance, I favour the wording of the latter. I have little to add to what has been said. As has been pointed out, the Government appear to be presiding over a systemic failure to secure the sensitive and personal data that they hold about us in trust, and have an inexplicably cavalier attitude about data security and privacy. In recent years, a number of us have sought to alert a series of Ministers to the seriousness of this; for example, on the Children Act, which provided for ContactPoint, and on the Identity Cards Act. I cannot help feeling that, for all our efforts, the stock response to our concerns has tended to be platitudinous and complacent. In those circumstances, I can but hope that the Minister makes a better fist of his response than those that I have sat through in the past.
The new offence enumerated in both amendments has the great virtue of acting both as an incentive to establish best practice in data security and as a deterrent to those who would seek to abuse, knowingly or recklessly, the position of trust in which we place them. I wholeheartedly support the amendments.
Blasphemy approaches, but this is an important discussion which I am sure that we will come back to at Report. I understand exactly what the noble Earls, Lord Onslow and Lord Northesk, are driving at when they raise concerns about where information is going and the impact of information sharing. They will also expect me to say that there are many advantages to that sharing of information, both in the benefit that we, as individuals, get from a joined-up approach to services, for instance, and in the protection of the public from criminal activity. The noble Earl, Lord Northesk, referred to legislation and information kept on children. I refer him to the tragic death of Victoria Climbié and the report that came from it. If I recall, it showed that there were eight or nine different agencies involved and that if only they had shared some information, they may have saved her from the tragic consequences. There is a balance and there are many advantages. Equally, I accept that we cannot have a cavalier approach and that we have to have rigorous safeguards in place that assure the public that information is shared only where necessary.
It is a serious matter, which is why a number of pieces of work are now being undertaken by the Government in the light of the general concerns that the noble Earls have raised and in the light of the particular issue in relation to HMRC, which noble Lords have referred to. Of course, the clause can be seen as one component of the various matters that are being taken forward. In introducing her amendment, the noble Baroness, Lady Miller, referred to the Information Commissioner’s report. I am not going to repeat what she said, but it highlighted the extent of the illegal trade in personal data and the corrosive effects that that has on society. That is why the Government were sympathetic to the argument that the existing penalties were not sufficient and it is why the clause is in the Bill.
In relation to the other amendments, which call for additional sanctions and provisions, on 17 December the Cabinet Office published an interim progress report on data-handling procedures in government. That confirmed our commitment to take legislative steps to enhance the ability of the Information Commissioner to provide external scrutiny of arrangements. We have already announced our intention to institute spot checks on central government departments and we are committed to consulting shortly on extending that to the entire public sector. There is also the Kieran Poynter review on HMRC procedures. We have had an interim report, which set out a number of measures that are to be taken, and a full report is expected in spring 2008. Sir Gus O’Donnell, the Cabinet Secretary, has also undertaken a review, and there is likely to be a consultation shortly on a number of the issues that he raised.
Clearly, we take this matter seriously. We are committed in principle to the introduction of new sanctions under the Data Protection Act for the most serious breaches of principles. The proposals that we will bring forward will be part of a consultation paper that is being written at the moment. I am sympathetic to the intent of the amendments proposing new sanctions under the Data Protection Act, but we should await the result of the consultation before considering what legislation should be taken forward.
Let me make it clear that the Government have no wish to curtail legitimate and responsible journalism. Obviously, we have listened with great interest to the debate and to the views of the media. Of course, I understand the points made by the noble Earl, Lord Erroll. The concern that has been raised is that the Bill’s current provisions would have what is described as a “chilling effect” on responsible investigative journalism. This is not a straightforward issue and we have to be careful to get the balance right. As my right honourable friend the Prime Minister said in a speech on liberty on 25 October last year, we need to,
“make sure that legitimate investigative journalism is not impeded”,
while safeguarding personal privacy.
The proposed penalties in the clause are intended to strengthen the protection of individuals’ rights and respect for their privacy. We think that the current definition of the offences in the Data Protection Act strikes the right balance between freedom of expression and privacy, but we want to put the matter beyond doubt.
Noble Lords are already well aware of the time pressures on this Bill, as the noble Lord, Lord Henley, implied. That is why I want to give notice that we intend to withdraw this clause on Report unless a satisfactory solution balancing these objectives can be identified by all the parties involved. We will of course seek to do that between Committee and Report, but it is important that we get this right and that we get the balance right. That is more important than anything else in consideration of this clause. I hope that that has given the Committee a clear view of the Government’s commitment to the importance of these matters.
This is about the Data Protection Act, which is about personal data. Therefore, I would have thought that the journalism issue was not enormous, because normally journalists will be chasing things on which the state has erred, which is not personal data. This is about people infringing the security of personal data, which I would have thought should be legitimately protected in most instances from journalistic intrusion. In cases where infringement could be justified, that could be done quite easily through the courts. As regards other journalistic investigation, I am afraid that the Government will have to look after themselves, as personal data are not the issue.
I am grateful to the noble Earl for that intervention, but the point relates to Section 55(2)(d) of the Data Protection Act 1998, under which subsection (1) does not apply when a person shows,
“that in the particular circumstances the obtaining, disclosing or procuring was justified as being in the public interest”.
The point that has been put by media representatives is that that is not sufficiently broad. That is the matter that we will discuss with them.
Can the noble Lord help me on one matter? He has confessed that the Government have slight problems regarding time on this Bill, which seems rather odd, given that the Bill was introduced in another place as long ago as last July. He says that unless we can come to some agreement he proposes to withdraw this clause on Report, although presumably we would have a chance to debate it before he withdrew it and we could table amendments to it. Just how much time does he think that he will save by withdrawing it?
Of course I cannot answer that question because I cannot anticipate the time that noble Lords will spend on the Bill in your Lordships’ House. However, I confirm that, if we were to withdraw it, that would require me to table an amendment, which would be open to debate.
I thank all noble Lords who have spoken. I must say to the noble Earl, Lord Erroll, that the Press Complaints Commission report on subterfuge and news gathering recognised that there was a substantial problem, as in the case of the News of the World journalist who snooped on the royals and subsequently sold the information. So the problem has been fully recognised by the press.
The Information Commissioner is working on a draft prosecution policy in relation to journalism and a solution has almost been arrived at, because there is a substantial public interest defence that all genuine journalists can claim. I have had the same detailed briefings from Antony White QC as I am sure the Minister has had, and I am sure that they will be helpful in reaching a conclusion on this.
I urge the Government to consider not dropping a clause in which the public have belief. One thing that the Information Commissioner’s work has discovered is just how concerned the public are about the protection of their data—and rightly so. The fact that the Government do not regard this as a serious issue will be a bad message for them to send out. We have just debated a clause on self-defence that I heard the noble and learned Lord say is not really necessary and now the Government are considering dropping not that but a clause that the public really believe in. I urge them not to do that. I look forward to hearing from them on Report and, in the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 144 and 144A not moved.]
Clause 129 agreed to.
144B: After Clause 129, insert the following new Clause—
“Blasphemy and blasphemous libel
(1) The offences of blasphemy and blasphemous libel under the common law of England and Wales are abolished.
(2) In section 1 of the Criminal Libel Act 1819 (60 Geo. 3 & 1 Geo. 4 c. 8) (orders for seizure of copies of blasphemous or seditious libel) the words “any blasphemous libel, or” are omitted.
(3) In sections 3 and 4 of the Law of Libel Amendment Act 1888 (c. 64) (privileged matters) the words “blasphemous or” are omitted.
(4) Subsections (2) and (3) (and the related repeals in Schedule 38) extend to England and Wales only.”
The noble Baroness said: It is always rather alarming to bring forward an amendment that is looked forward to so avidly in your Lordships’ House, and it falls to me to introduce it on behalf of the Department for Communities and Local Government—the department that promotes social cohesion and matters of faith.
Amendment No. 144B and consequential Amendments Nos. 180D and 184A fulfil the commitment made on 9 January, at Report stage in another place, by my ministerial colleague Maria Eagle that, following a short period of consultation, we would abolish the common law criminal offences of blasphemy and blasphemous libel. The noble Lord, Lord Lester of Herne Hill, has added his name to the amendment. Unfortunately, he cannot be with us today but I pay tribute to the work that he has done over the years, particularly in the JCHR, on this continuing and long debate. Indeed, that is the burden of much of what I want to say: it has been a very long debate.
The Government are of the view that it is now time that Parliament came to a settled conclusion on this matter for two key reasons. First, the law has fallen into disuse and therefore runs the risk of bringing the law as a whole into disrepute. Secondly, we now have new legislation to protect individuals on the grounds of religion and belief. In setting out these reasons, I will also aim to reflect on the words of the most reverend Primates the Archbishops of Canterbury and York in their joint letter to my ministerial colleague, Hazel Blears. They say:
“Having signalled for more than 20 years that the blasphemy laws could, in the right context, be abolished, the Church is not going to oppose abolition now”—
with the rider—
“provided we can be assured that provisions are in place to afford the necessary protection to individuals and to society”.
I shall address those points in some detail as I go through the argument.
First, it is important to point out that the blasphemy offences are offences of strict liability—that is, the intention to commit an act of blasphemy is not required. That contrasts with the incitement to religious hatred offence, where an intention to stir up religious hatred needs to be demonstrated. All that matters for an offence to have been committed under the blasphemy laws is that a person published material that is the subject of prosecution. It follows that a person might commit such an act inadvertently, but it would not be a defence in law to say that there had been no intention to be blasphemous.
I believe that it is crystal clear that the offences of blasphemy and blasphemous libel are unworkable in today’s society because they do not protect the individual or groups of people, they do not protect our fundamental rights—indeed, they may conflict with them—and they do not protect the sacred. That last point is very much reinforced by the recent judgment in the Jerry Springer case. I again quote the Archbishops’ letter to Hazel Blears:
“The real purpose of the offences is the preservation of society from civil strife, rather than the protection of the divine or any particular religious beliefs”.
I also remind noble Lords that this is the fifth time that this House has considered this issue. It was previously considered in 2005 during the passage of the Racial and Religious Hatred Bill, in 2002 during the Religious Offences Bill, in 2001 during the Anti-terrorism, Crime and Security Bill, and in 1995 during the Blasphemy (Abolition) Bill. At each stage, Parliament has had the same information before it and has been able to draw on the results of serious parliamentary scrutiny.
That the law has fallen into disuse is evident from the fact that there have been no public prosecutions in almost 90 years—since 1922—and it has been more than 30 years since the last private prosecution. In fact, coming new to this debate, I asked my officials to go back a little further. There was hardly a rash of prosecutions before 1922. I have been able to find only two cases. The first was in 1676, when a Mr Taylor was made to stand in the pillory “in three several places” and had to pay a 1,000 marks fine for,
“uttering of divers blasphemous expressions horrible to hear”.
Hard on the heels of that event, there was one in 1841, when a Mr Haslam, in a pamphlet castigating the clergy of all denominations, described the Old Testament as “wretched stuff” and a “disgrace to orang-utans”. That was 20 years before the great Oxford debates on belief, religion and science. I am assured by my noble friend Lady Hollis, who knows about these things, that that case was probably something to do with the secularist movement and the Chartists. I am sure that she is right. Its author was described as a random idiot and he was held guilty of blasphemous libel and of appealing to the wild and improper feelings of the human mind—I suggest, anticipating notions of civil strife. It was 80 years before the law was invoked again.
I am making this excursion into history not to be flippant—far from it—but simply to illustrate that, when we say that the law has fallen into disuse, perhaps we should really say that the law has never been found to be usable. The recognition that the offences appear to be moribund was reinforced by the High Court’s decision on 5 December 2007 in the case of Stephen Green v City of Westminster Magistrates’ Court and others, which was a private prosecution for blasphemous libel. The court’s primary judgment was that the Theatres Act 1968 and the Broadcasting Act 1990 now already prevent the prosecution of a theatre, the BBC or another broadcaster for blasphemous libel.
Noble Lords will know that this is part of a long and complex history. Over 20 years ago, the first recommendations were made to change the law, when, in 1985, the Law Commission considered the scope for reform of the law in this area. Since then, Parliament has made its own inquiries. In 2003, the Select Committee on Religious Offences, on which the noble Lord, Lord Avebury, was a leading light, spent a year gathering evidence. Its report contains an extensive discussion of the legislative options available.
When the Joint Committee on Human Rights reported on this Bill in January, it concluded that,
“the continued existence of the offences of blasphemy and blasphemous libel can no longer be justified, and we are confident that this would also, in today's conditions, be the view of the English courts under the Human Rights Act and the Strasbourg Court under the ECHR”.
As the JCHR makes clear in its report, this was on the grounds of both an ongoing risk of violations of the right to freedom of expression and of the right not to be discriminated against, on grounds of religion, in the enjoyment of the right to freedom of thought, conscience and religion.
I certainly understand some of the concerns that have been expressed and the deeply felt beliefs of many noble Lords. However, I hope that the Committee will agree that 22 years of gathering evidence—four cases in 300 years—and debating the issues and implications, as we have done time and again, suggest that the steps that we are taking today to respond to the words of the most reverend Primates’ letter are not taken lightly; they are being taken after long consideration.
The question why we are doing this in this Bill and this context also merits an answer, particularly in the light of the questions raised by the most reverend Primates in their letter in relation to the recent High Court judgment on 5 December. That set out very clearly that the offence of blasphemous libel set the bar for prosecution at public disorder:
“There is therefore ample basis for the common ground before us that the gist of the crime of blasphemous libel is material relating to the Christian religion, or its figures or formularies, so scurrilous and offensive in manner that it undermines society generally, by endangering the peace, depraving public morality, shaking the fabric of society or tending to be a cause of civil strife”.
Within that context, we believe that the opportunity that we have in this Bill to resolve the matter is appropriate, timely and should be taken. It is right that we should consider these questions within a Bill that deals in some way with hate crime and public order offences and which makes further provision about criminal justice.
The most reverend Primates raised a further point about the existing protections. While the debate on blasphemy has a long history, what has changed is the fact that, whereas the offences of blasphemy and blasphemous libel do not protect the individual or groups of people from harm, the new offences of incitement to religious hatred and discrimination on the grounds of religion and belief—in the provision of goods, services and employment—do. In doing so, they afford the necessary protections that the most reverend Primates were seeking assurance on.
Members of the Committee will be aware that in 2001 the Government introduced legislation that specifically affords protection to religious as well as racial groups in the form of religiously aggravated offences. We have also brought forward wide-reaching legislation to protect people from discrimination on the grounds of religion or belief, both specifically within the workplace, as I have mentioned, and in society more generally, with protection against discrimination in education, in the work of public authorities, in the management and disposal of premises and in the provision of goods, facilities and services.
Perhaps most centrally in this context, we introduced new criminal offences outlawing incitement to religious hatred in the Racial and Religious Hatred Act 2006. The church made it clear in 2002 that, if such an offence were enacted and proved effective, it would provide the context in which the current offence of blasphemy could be safely repealed. This context of stronger legislation weakens any argument to keep the status quo. The offence of blasphemy also brings additional difficulties with it. For example, the provisions within legislation on incitement to religious hatred protect all parts of all our communities. Whereas blasphemy seeks to protect Christianity and the Church of England—although some would argue that it covers all faiths—it certainly does not cover those of no faith; it does not cover atheism or humanism. However, these groups are protected within the incitement provisions. This legislation recognises a more complex and diverse society, which respects those of faith and those of none.
There is a further and more important argument driving this timetable. As long as this law remains on the statute book, it hinders the UK’s ability to challenge oppressive blasphemy laws in other jurisdictions, including those used to persecute vulnerable Christian minorities. As signatory to a number of international conventions that commit us to tackling discrimination in all its forms, the UK is regularly criticised by international bodies for having these laws. As recently as February this year, the UN special rapporteur on freedom of religion expressed concern at the continuing existence of the blasphemy offences in this country. As such, their presence represents a blemish on what is otherwise an excellent record on combating discrimination and promoting human rights. It is therefore right that we should seek to abolish them without further delay.
The Government are both respectful of and grateful for the fact that the Church of England has indicated that it will not oppose abolition at this time, with the support of a number of other churches. I hope that I have made our reasons as clear as possible in what I have said, but let me quote again from the Secretary of State’s recent letter in response to the concern of the churches. She made it clear that, in speaking to the amendment, the Government,
“will take the greatest care to explain fully its case for taking this step, and in particular its belief that abolition of these laws should not in any sense be interpreted as being further indication of a drift towards a secularisation of society”.
The amendment is about removing offences that have long been recognised as unsatisfactory and unworkable. It is not an attack on the sacred in our society. I quote again from the Secretary of State’s letter:
“Neither should it be viewed as a licence for the expression of disrespect towards faiths or those that hold them”.
In my personal view, the decision by the churches not to oppose the amendment reflects the resilience of Christian belief in this country and its significance in our history, culture and character. We have a strong tradition in this country of respect for others, justice, the right to freedom, the right to belief and a sense of right and wrong. The Christian tradition has had a profound effect on the way in which these freedoms and traditions have been shaped. It continues today in the role that it plays in contributing to and shaping the life of our communities.
I make the point of saying that because, in thanking the churches, I have to stress that the Government are well aware of concerns expressed particularly, but by no means exclusively, by members of the Christian community that abolition would represent further evidence of a drift towards secularisation. Let me reassure noble Lords that we have been at pains to emphasise that the proposal is in no way an attack on those beliefs and values or on the church, let alone on Christians themselves. Indeed, I believe that, by removing a law that has fallen into disuse and some disrepute, we are demonstrating confidence rather than the reverse. We do not need to rely on such a law to remind ourselves that the sacred still has a role to play in today’s society. I would go further and remind noble Lords of the response that the Government made in 2003 to the report from the Religious Offences Committee:
“We particularly welcome the report’s reflections and conclusions about the role religion plays in people’s lives in the UK today. We entirely endorse its view that changes to society in recent years have not resulted in the ebbing of religious values and the consequent emergence of the United Kingdom as a ‘secular state’. Religious values do indeed still play a significant part in shaping social values, perhaps increasingly so”.
The proposal has already attracted broad cross-party support in another place. Such representations as we have had on the issue have been broadly supportive. I know that some noble Lords have tabled similar amendments but I hope that, given the Government’s amendment, they will not move them.
I shall conclude by quoting the right reverend Prelate the Bishop of Southwark, who spoke in “Thought for the Day” on the “Today” programme yesterday. He said:
“The possible removal of what is now generally recognized as being a not very workable law should not be interpreted as a secularising move or as a general licence to attack or insult religious beliefs. It should spur us all to work harder to respect and protect the common good”.
I say amen to that and I hope that noble Lords are able to join me. I beg to move.
I rise to speak to the amendment that I tabled. The noble Baroness, Lady Stern, and I both sit on the Joint Select Committee on Human Rights. I give the Minister the undertaking that we will not move our amendment, even though it is shorter and makes exactly the same sense. However, the Government like to have their own way and put down longer amendments. It struck me that it is deliciously new Labour that the Minister with responsibility for local authorities should remove the blasphemy clauses, aided by Hazel Blears. You could not ask for anything better.
On the question of blasphemy, it has always struck me that if Jesus Christ exists, and if Jesus Christ in his Godlike form was capable of creating the universe, then he could quite easily hack the bit of left-wing obscurantism and b-mindedness that writes things such as “Jerry Springer: The Opera”. If he does not exist, nothing will happen; if he does exist, it is up to him to get hold of the chap who wrote it and make sure that he does time in the diabolical house of correction. The offence is unnecessary.
It also seems that the provision applies only to the Church of England, not to the doctrines of the Roman church, as far as I can gather. You can be just as rude and insulting as you like about the doctrine of the Assumption of the Blessed Virgin Mary, papal infallibility, or what the Church of Rome says about contraception; you can be blasphemous about those without any possibility of being prosecuted.
Blasphemy is a crime that is open to intense mockery. As the Minister said, something that is open to mockery and has been used only four times since 16-something-or-other has no place on the statute book.
The Church of England is quite capable of looking after its own; it is a great and wonderful institution which has been a great influence on our society from the Reformation onwards. It has on the whole been an influence for the better, but, like all human institutions, it has on occasion—unlike another church, which claims infallibility—been fallible. That is why I like the Church of England, even when it does nasty things to the Book of Common Prayer. Please let us now get rid of the crime of blasphemy. It is unnecessary and otiose.
I rise to speak to the amendment in my name and to thank the noble Baroness, Lady Andrews, for her succinct and helpful summary of the law of blasphemy and of the history of the attempts to abolish it during the past few years—to which I made a small contribution in 1995, again in 2001, and, as she said, in a year's work on the report of Select Committee on Religious Offences, which I commend to your Lordships as a useful summary not only of the state of the law as it was then but of the arguments both for and against abolition. I pay tribute to the distinguished chairmanship of the noble Viscount, Lord Colville, whom I am very glad to see in his place. I hope that he may feel inclined to contribute to our discussion before we dispose of the amendment.
The Minister said that the last successful prosecution for blasphemy in England was the Gay News case 30 years ago and that the arguments for abolishing the offence were helpfully set out in the Law Commission's working paper, published in 1981, followed by its paper, Offences against Religion and Public Worship, in 1985. It concluded then that there was no argument sufficiently powerful to justify the derogation from freedom of expression that any such offence must occasion. The Select Committee on Religious Offences found that it would be extremely unlikely for any prosecution to get under way today. As the noble Viscount, Lord Colville, suggested when the committee's report was debated in your Lordships' House,
“there will be no more prosecutions for blasphemy. Any such case, if launched by a private individual, would be taken over by the Director of Public Prosecutions, and he would put paid to it. I do not think that he himself would allow the Crown Prosecution Service to bring such actions of its own accord”.—[Official Report, 22/4/04; col. 444.]
As the noble Baroness said, there was a recent attempt to launch a private prosecution by two members of the radical group, Christian Voice, which confirmed the prediction of the noble Viscount. They applied to a district judge for summonses against the producer of “Jerry Springer: The Opera”, which has been mentioned, against the director-general of the BBC, which had broadcast the work on 8 January 2005. The judge found that there was no prima facie case and that the application bordered on the vexatious.
Christian Voice applied for judicial review of the decision. In the High Court, Lord Justice Hughes recited the history of the offence and, following a reference to Lord Scarman's judgment in the Whitehouse v Lennon case, said in paragraph 16 of his judgment that there was common ground on the gist of the offence—that the material had to be,
“so scurrilous and offensive in manner that it undermines society generally, by endangering the peace, depraving public morality, shaking the fabric of society or tending to be a cause of civil strife”.
It seemed to Lord Justice Hughes that,
“the necessity for this essential ... element in the crime is also consistent with the requirement ... that any such crime be compatible with Article 10 of the European Convention on Human Rights”.
He went on to outline the provisions of Article 10(2), concluding that insulting a person's deeply held religious beliefs did not affect his right to hold or practise his religion. Although, because of the way the application was put to the magistrates in this case—perhaps a tribute to the skill of Christian Voice’s legal advisers—it was not necessary to decide on consistency with Article 10, it was significant that Lord Justice Hughes emphasised the point, which would have been central if the case had been allowed to proceed. If I may say so, it might have been helpful if the Archbishops had acknowledged this in their letter to the Secretary of State for Communities and Local Government last week.
If Christian Voice had succeeded in launching this case, or a similar one, as the Select Committee on Religious Offences in England and Wales predicted, and as the most reverend Primates might like to be reminded, it would be likely to fail on grounds either of discrimination or of denial of the right to freedom of expression. Article 10(2) of the European Convention on Human Rights requires that any restrictions placed on this right must be prescribed by law, which means that there must be certainty about what is or is not permitted. The common law of blasphemy fails that test, and although in the Wingrove case the European Court of Human Rights upheld the decision of the BBFC not to grant a certificate to the film “Visions of Ecstasy” on the grounds that it was blasphemous, that judgment was based on the false assumption that what Lord Scarman had said in his judgment on the Gay News case defined the actus reus of blasphemy in common law.
The Select Committee also examined the suggestion made by some witnesses that the abolition of the offence of blasphemy would open up the floodgates to masses of scurrilous and offensive books, pamphlets, cartoons or films—a bogey now raised again by the most reverend Primates when they tell Hazel Blears in the letter that has already been mentioned that this amendment,
“should not be capable of interpretation as a general licence to attack or insult religious beliefs and believers”.
There is nothing in the law to stop publications of this nature against any religion other than Christianity now, and it is this discrimination that is one of the most objectionable features of the present law. It is clear that a great deal of the material that is offensive to Christians is already published without attracting any legal penalty.
In their response to the Select Committee report of December 2003, the Government said that the Home Secretary was attracted to repeal but saw the need for full debate to inform the way forward. That ignored the many debates in both Houses over the years, as well as the huge volume of comment in the print media and in broadcasting ever since the Gay News case. Perhaps we should be thankful that now their anxiety to make progress with this legislation has persuaded the Government to table their own amendments 24 years after these were first recommended by the Law Commission and five years since the Select Committee went into the matter so thoroughly, taking evidence from all the major religious organisations and dozens of other people. My regret is that no Government have had the stomach to face up to the vociferous minority since the Law Commission reported, and I doubt whether it would have happened now if it had not been for the sterling efforts of my honourable friend the Member for Oxford West and Abingdon in another place.
The statutory religious offences were also examined by the Law Commission and the Select Committee. I thank the Minister for getting rid of blasphemous libel in the Criminal Libel Act 1819, and for eliminating the reference to blasphemy in the Law of Libel Amendment Act 1888. It appears that Section 3 of that Act had already been repealed—a small defect in the amendment, which may be remedied at a later stage. The Government have unfortunately neglected the opportunity to repeal the other ancient statutory religions offences, which were covered by the Select Committee’s report in 2003. Briefly, the main one that is still used occasionally is Section 2 of the Ecclesiastical Courts Jurisdiction Act 1860, which forbids,
“riotous, violent or indecent behaviour in any Cathedral Church, Parish or District Church or Chapel of the Church of England ... or in any Place of Religious Worship”.
The Select Committee discussed that at some length, and it was noted that the Law Commission had recommended its repeal.
In the last couple of years for which the figures were available to the Select Committee—2001 and 2002—three and six prosecutions had been brought under that Act, leading to no convictions and one conviction respectively. For the three years 2003 to 2005, there were 15 prosecutions and seven convictions, but those figures must be interpreted with caution, as the noble Lord, Lord Hunt, emphasises in a footnote to the figures. Apart from transcription errors in extracting data from the large administrative data systems generated by the courts and police forces, the statistics do not tell you whether there were multiple charges or whether the conviction was obtained under some other statute.
No evidence was received by the Select Committee of acts of desecration dealt with under the ECJA which did not constitute offences under some other Act such as the legislation on criminal damage or public order. We received no evidence that the Act had ever been used against riotous behaviour in a non-Christian place of worship. The best-known case which everyone remembers was that of Mr Peter Tatchell, who interrupted a sermon by the then Archbishop of Canterbury in Canterbury Cathedral. After a two-day trial he was fined £18.60 by the magistrate, thereby showing, by the reference to the 1860 Act, what he thought of the charge.
In their response to the Select Committee, the Government said that it was—
I think I deserve my day in court, having been at this for some 20 years, if you do not mind.
In their response to the Select Committee, the Government said that it was,
“unclear whether the ECJA in practice really addresses a form of conduct which is not covered by other criminal offences”.
But, in the event of an opportunity arising from the reform of the law, they said that they would,
“look … carefully at the case for retaining or updating the ECJA”.
In order to be able to do that, it would be necessary to scrutinise individual cases to see whether the conduct in question was or could have been dealt with under other legislation. Having given that undertaking, I hope that the Government will produce that analysis now for the benefit of the Committee. When we have discussed these matters in the past, those who want to retain the ECJA have said that there were cases where a church was desecrated without a person other than the offender being present, which is an essential ingredient of Sections 4 and 5 of the Public Order Act 1986, without which a prosecution could not have taken place.
Mr Tolson, of National Churchwatch, who I consulted on this, was not able to give me details of any case since 2002, and none has been reported in the print media to my knowledge. There may have been cases in mosques, but not many are registered under the Places of Worship Registration Act 1855, as they would have had to be for the charge to be used. I hope that the Minister will ultimately agree not only that the ECJA should now be repealed but that, given this opportunity, the other minor offences which are hardly if ever used should also be repealed.
My Lords, in the light of what the noble Earl, Lord Onslow, has said, perhaps I may attempt to give a definition of “blasphemy” provided in Stephen's Digest of the Criminal Law and adopted by Lord Scarman in a 1979 case which states:
“Every publication is said to be blasphemous which contains any contemptuous, reviling, scurrilous or ludicrous matter relating to God, Jesus Christ, or the Bible, or the formularies of the Church of England as by law established”.
Jesus Christ and the Bible, I submit, are for all Christians and not just for the Church of England. He continued:
“It is not blasphemous to speak or publish opinions hostile to the Christian religion or to deny the existence of God, if the publication is couched in decent and temperate language. The test to be applied is as to the manner in which the doctrines are advocated and not as to the substance of the doctrines themselves”.
There is little doubt that such a definition is unworkable. On that, at least, there should be common agreement. It is more difficult to reach for an understanding that replaces the common law of blasphemy with a law that essentially provides for a protection not exclusively of the Christian faith but of the fabric of society, as the case in December decided.
In the letter to the Secretary of State for Communities and Local Government, the most reverend Primate the Archbishop of Canterbury and I said that it is not our intention to oppose abolition now, as the Government propose, provided—and it is a big proviso—that we can be assured that provisions are in place to afford the necessary protection to individuals and society. The offences against incitement to religious hatred are new on the statute book and have yet to be tested in the courts. So we are not quite sure, and we are still in uncharted waters.
It is extraordinary that at a time when religion and religious identity have come to dominate global and domestic concerns, parliamentarians seek to stick their heads in the sand by attempting to relegate considerations of religion and faith from matters of public policy to the private sphere. The mover of the motion in the other place seems to assume that religion no longer matters and as such there is no need for the law of blasphemy in a society which he believes is very secular. I want to ask this: where is the spirit of magnanimity which shaped this nation? Perhaps I may employ another analogy. This is akin to saying that because a child is consistently late for school, there is no need to have a clock. Persistent lack of punctuality does not do away with the need for time.
The place of Christianity in the constitutional framework of this country as governed by the Queen in Parliament under God is not in question, but some Members of the other place seem to question that reality. The relationship between the church and the state, reaffirmed by the Government in July in The Governance of Britain, will not continue to provide a context in which people of all faiths and of none can live together in mutual respect in this part of the realm, where again the governance is by the Queen in Parliament under God.
However, it is apparent from the debate in the Commons on 9 January that a number of those calling for the repeal of these offences misunderstand both what the existing law is intended to achieve and the extent to which, in doing so, it protects society against civil strife. That is what it is all about. A recent High Court decision made it clear again that the law works against civil strife.
Finally, I am compelled to comment on the inherent link between the
“damage to the fabric of society”,
mentioned in the recent judgment, and the nature of that fabric, which has been formed through the operation of the Christian faith in this land. Of late, the Government and others have concerned themselves in trying to discover what it means to be British and what the essential elements of Britishness might be. While we may agree that virtues such as fair play, kindness and decency are part of the nation’s make-up, do they qualify as those things which make us quintessentially British?
It is my belief that such virtues and those associated with them which form the fabric of our society have been woven through a period of more than 1,500 years of the Christian faith operating in and upon our society. The Christian faith has woven the very fabric of our society just as the oceans around this island have shaped the contours of our geographical identity. While it is of course true to say that the virtues of kindness to our neighbours, fair play and common decency are not unique to the Christian faith, just as they are not unique to Britain, it is equally true to say that these virtues have become embedded into our social fabric and heritage as a result of the Christian faith and its influence on society. Without wishing to appear syncretistic, I say that these virtues are found in all other faiths, but the background against which they have been shaped has been quintessentially a very Christian understanding.
It was the Venerable Bede in his Ecclesiastical History of England who wrote of the way in which the Christian faith played a major socialising and civilising role by uniting the English and conferring nationhood on them, turning this land from a nation of warring tribes into one of united purpose. That is why it is particularly important that the Government should provide clarity over precisely why the common law offences are being abolished and what the implications of their removal are for the position of the Christian religion as by law and statute established.
We may go on to a lot more conversation and discussion on this, but I come to my concluding remarks. The common law offence of blasphemy could be said to serve the four following ends: the protection of society in the sense that it is important that religion, or at least the Christian religion, be treated with respect; the protection of public order; the protection of the bonds that hold society together in a more general sense; and signalling the fact that the Christian religion holds a special place within the social and constitutional fabric of the nation. Were the current offence to be abolished, no other single offence could clearly achieve all these ends. What are the Government doing to ensure that they protect them?
I finish by saying that the protection of society is achieved by ensuring that the Christian religion is treated with respect and by signalling the fact that the Christian religion holds a special place in the social and constitutional fabric of the nation governed by the Queen in Parliament under God as understood by the Church of England by law established. How are we going to guard this? I shall listen eagerly to the Minister to see whether we are given further assurances.
I greatly respect the noble Lord, Lord Avebury, because he has been a trenchant defender of human rights, but, nevertheless, I hope we shall see off his amendment. Like a gigantic Christmas tree it has attracted discordant baubles—that is, other offences—that have nothing to do with the law of blasphemy. If nothing else, your Lordships’ House must resist it for the sake of keeping in play the issue of protection of places of worship raised by Section 2 of the Ecclesiastical Courts Jurisdiction Act 1860. Social strife must be avoided.
My Lords, I oppose government Amendment No. 144B, together with Amendments Nos. 145 and 148.
The Minister, in a beguiling manner, led us to believe that the government amendment is a mere tidying up and that repealing the blasphemy law is not a measure for descending into a secular state. We have heard the history of blasphemy from my noble friend Lord Onslow; we have heard the history of the attempts of the noble Lord, Lord Avebury, to get the blasphemy law repealed; and I would like now quickly to give the history of the amendment. It is not as it seems.
The amendment was not in the original Bill. Some 70 MPs were led by Dr Evan Harris, who sent us an e-mail today giving the history of what happened in the other place. He wrote:
“I am writing as a Member of Parliament who sponsored the cross-party blasphemy abolition amendment to the Criminal Justice and Immigration Bill at Report stage in the Commons which prompted the Government to pledge to introduce its own abolishing amendment in the Lords after a short consultation with the Church of England”.
At the end of the covering note, which was received by me on my computer—I am sure many other noble Lords received it as well—he said:
“I thought it might be helpful to provide a critique of the Archbishops’ letter, which is attached, as well as a copy of the all-too-brief debate in the House of Commons on January 9th”.
Your Lordships will be relieved to know that I am not going to read through it all. But, the Minister having said that she does not believe that this is directed towards secularisation of the state, perhaps I may read from the critique. The letter from the most reverend Primates stated that abolition is not a sign of secularisation. Dr Evan Harris said in response:
“It should be seen as a secularising move, and with pride”.
I rest my case.
The Government have been reactive to a proposition by the secularists and are trying to beguile us into saying, “Everything is going to be all right. It is nothing at all”. I am afraid—I do not like to say this because I am a member of the church—that I believe the Church of England has been duped.
As many will remember, a recent census found that 72 per cent of the UK population identified themselves as Christians. Following these figures, even the Guardian newspaper admitted on 28 February 2003 that:
“This is a Christian country simply in the unanswerable sense that most of the citizens think of themselves as Christians”.
Amendment No. 144B sweeps that view of the public aside and can only undermine social cohesion in our increasingly fragmented society.
I remind your Lordships that the Coronation Oath, the Monarch as defender of the faith, the establishment of the Church of England and the Church of Scotland, together with the blasphemy law, constitute an explicit denial that Britain is a secular state.
As I have said before in debates on this issue, evidence for that is all around us. Parliament begins each day with prayer. National events are marked by church commemoration services or memorial services. State-funded church schools throughout the country provide a high quality education and are much sought after by parents who do not profess any faith but understand that the values that are present in those schools are the values they wish their children to aspire to.
It is essential that we step back and put this issue in its true perspective. Of course there are people who want to see the establishment of Britain as a secular state, and they are certainly vocal. For them, abolishing blasphemy law is an important step in that direction. I have already referred to how that happened. When the Government yielded to demands for repeal, they believed that abandoning the blasphemy law would not give us a secular constitution overnight, but there is no doubt that it paves the way for a much greater assault on our Christian inheritance. That is how it is seen by many people who do not know anything about the history of the blasphemy law, about the work of the noble Lord, Lord Avebury, or about the workings of Parliament, but who have written to us by the letter-load. They believe that once something like this is pulled away, the whole edifice will collapse.
I wholly accept that there are Christians who do not agree with me. They argue that it would be better if they saw a more liberal approach. However, abolishing the blasphemy law does not demonstrate neutrality; rather, it contributes to a wider campaign for the adoption of a secular constitution, which, despite what the most reverend Primate said, would actually be hostile to religion. There is no neutral ground here. Every society has some cherished beliefs that it protects in law. The Government are about to remove blasphemy law at the same time as they are increasingly adopting hate-speech laws, which are, in a sense, a form of replacement.
The effect of Amendment No. 144B would be to legalise the most extreme and profane blasphemy. A bona fide expression of opposition to Christianity has not met the legal criteria of blasphemy for centuries. The offence requires the publishing of contemptuous, reviling, scurrilous and/or ludicrous material relating to God, Christ, the Bible or the formularies of the Church of England—as quoted from Lord Scarman. It extends to cover Christian beliefs beyond the confines of the Church of England, despite what has been said, as shown by the 2007 High Court decision concerning the decision on “Jerry Springer – The Opera”. That same judgment also affirms that the blasphemy law is compatible with the European Convention on Human Rights, as demonstrated by the 1996 Wingrove case. Notwithstanding those points, the High Court found that the blasphemy law could not be used against “Jerry Springer – The Opera” because the performances and broadcasts were protected by the Theatres Act 1968 and the Broadcasting Act 1990. However, in what I think noble Lords will agree is a most unusual move, the judgment has been strongly criticised in a 2008 Criminal Law Week critique of the decision, which says:
“The court’s extravagant interpretation of the legislation was no doubt convenient, but is devoid of any legal merit”.
The editor goes on to show that those Acts provide protection against obscenity prosecutions but do not concern blasphemy or blasphemous libel.
Let us be clear. The amendment before us proposes to legalise the most intense and abusive attacks on Christ, who is the central figure in our history. As the Bible records, God has exalted Him to the highest place and given Him a name beyond every other name. The fundamental question is this: should we abolish Christian beliefs and replace them with secular beliefs? As long as there has been a country called England it has been a Christian country, publicly acknowledging the one true God. Over the centuries the Christian world view has given us individual liberty and parliamentary democracy. Christians have been at the forefront of humanitarian endeavours; we need only call to mind Wilberforce, Shaftesbury and Josephine Butler. Noble Lords may cry “freedom” in support of Amendment No. 144B, but I urge them to pause and consider that the freedom we have today was nurtured by Christian principles and continues to be maintained and guarded by them. I urge noble Lords to oppose Amendment No. 144B.
The amendment has been tabled rather late in the passage of the Bill. Although I cannot quarrel with what the Minister said about the blasphemy Act and its history, those arguments could have been advanced when the Bill was first proposed—I wonder why they were not.
I agree that the content of the Act remains and may be dormant or in disrepute, as was described by the Minister, but I am concerned not so much with the content of the Act as with the abolishing of it and the perception, perhaps suspicion, that will be generated as a result. I recall a dormant clause in another Act concerned with promoting homosexuality in schools. The Act had not been applied, but when we went to abolish the relevant schedule, mayhem broke out. I wonder whether we should not leave the Act as it is, as I think was the Government’s intention when they framed the Bill—otherwise, they would have put in the clause then. They are now doing it at a late stage, perhaps because of what the noble Baroness, Lady O’Cathain, has said.
I support the amendment, although in so doing I respect greatly the deep sincerity and total commitment with which the noble Baroness, Lady O’Cathain, spoke. It is not a question of seeking to remove something from statute that has any real significance or life at the moment. If I felt that it had, I may well have taken a different approach. It is a part of the law that has essentially fallen into desuetude. It begs the question, therefore, whether one should allow it to clutter the statute book and the concept of our common law.
If I am wrong, and it is still a live and relevant law, one has to look very carefully at the situation. There are many old laws that never end in prosecution because the practices that they condemn do not occur, or occur perhaps only once every half-century. That is not the situation here. I have read within the past few weeks The God Delusion by Professor Dawkins. I ask noble Lords to listen to the following passage. The author speaks of the God that we as Christians worship and states that He is,
“a petty, unjust, unforgiving control freak; a vindictive, bloodthirsty ethnic cleanser; a misogynistic, homophobic, racist, infanticidal, genocidal, filicidal, pestilential, megalomaniacal, sadomasochistic, capriciously malevolent bully”.
If that law counts for anything at all, it is clear that it will encompass a comment of that nature. I do not suggest for a moment that the learned professor, who is professor of philosophical studies at Oxford, should be prosecuted, but if one prosecuted people for expressions such as those, thousands of persons would be prosecuted year in, year out.
I do not for, a second reason, believe that it is right for the law to remain as it is, and applaud the amendment for this reason: I can remember some 30 years ago some excellent programmes on television on a Sunday night, when various propositions of immense weight and substance were debated in a jury/courtroom format. I remember Lord Hailsham appearing on behalf of those who supported the existence of God. After a brilliant cross-examination and a splendid address to the jury, his party carried the day. I cannot remember who the acting judge was, but he asked Lord Hailsham, “Do you ask for costs?”. Lord Hailsham, bouncing up and down like an electrified blancmange, as was his wont, said, “No, my Lord, my client does not require costs”. May I suggest that the second and most profound reason here is that the good Lord does not require this defence? I do not know what my forebears, many of whom were non-conformist ministers, would say of that. Perhaps I shall have to meet them on the Day of Judgment, but I suggest that I will have far graver things to worry about on that particular occasion.
The presence of a number of right reverend Prelates this evening should not fill your Lordships with a sense that we are not interested in the rest of the Bill, because we have been watching it very carefully as it has grown and contracted. I would have been in my place last week if I had not had a heavy cold. Perhaps I should declare an interest as a member of that Select Committee, with the noble Lords, Lord Avebury and Lord Clarke, and others whom I see here, which met under the eagle and twinkling eye of our chairman, the noble Viscount, Lord Colville of Culross.
I shall provide a little background from these Benches. The Archbishops’ letter has been referred to by both the Minister and, briefly, by the most reverend Primate the Archbishop of York, with all the humility he could muster as one of the authors. A limited timescale was involved—we are not griping about that—and therefore a limited consultation. There was fairly comprehensive consultation, but not everybody could be consulted—that is a game that we all know in modern life: running any organisation. For example, his Eminence the Cardinal Archbishop of Westminster was consulted; hence, the letter that emerged.
Part of our work on the Select Committee was to take evidence from the other faiths. It is interesting to note that the Muslims were keen on the retention of a blasphemy law, but that the Sikhs, Hindus and Buddhists were not. Those were the groups that came to us; I make no pretence to speak for all members of those faiths.
The Archbishops were quite clear that they would not oppose repeal. It has been said already by a few speakers, but it has also been misunderstood outside this place. But they had three reservations. The first was that the process had been tacked on to an already complex Bill. The noble Baroness, Lady O’Cathain, too, has drawn attention to that, and perhaps put the knife in a bit, with some justification. Secondly, the new religious hatred law has not had enough time to be tested, which is a very understandable caution to be registered at this stage. They were also concerned, as has been expressed by some speakers, about the possible secularising perception. I am glad that the most reverend Primate, the Archbishop of York, referred to the census, because it is frequently forgotten. The assurances that the Minister has given will obviously be important, but we may need to hear a little more on that front—40 per cent of the population went to a carol service of some sort or another last Christmas, which is not generally appreciated in public comment. One of the nice things about becoming a bishop is that you do not have to go to as many carol services as a parish priest.
I now turn to the amendment of the noble Lord, Lord Avebury. We find most of it acceptable except subsection (2)(d), which repeals Section 2 of the Ecclesiastical Courts Jurisdiction Act 1860. We cannot accept that amendment unless and until something comparable and more comprehensive is put forward: on that, we are quite adamant. In any case, the argument about absence of prosecutions may suggest the success of the law and not necessarily argue against it.
We have heard several histories of blasphemy. Let me add my own. I do not want to compete with the noble Earl, Lord Onslow, but here is mine. It is a Greek word that comes from ancient Greek society and is defined as,
“the profane speaking of God or sacred things”.
It entered the Latin Bible. Jerome was responsible at the end of the 4th century. He did not like using Greek words, and that is part of the beauty of his Latin text, but on this particular occasion he was stumped and so blasphemia became Latinised. That is how it eventually entered Middle English.
After that enjoyable and irrelevant diversion, I come to the actual Act, having its background in 17th century law and so forth. The unworkability of this Act has to be balanced against its symbolic nature. Although I do not agree with the noble Baroness, Lady O'Cathain, I understand the feeling of its symbolic character. There is nothing wrong with a law that has a symbolic nature, but it is a question of whether it is workable and that is where the balance may tip in the negative direction.
Finally, noble Lords may wonder how we will all vote. I cannot speak for the other Bishops—we are a very independent breed. Not even archbishops can tell us how to vote, least of all the General Synod, and it is a question of which way the balance tips. For myself, having lived through the experience of the Select Committee and listened to all the different evidence, I am quite clear that the blasphemy law should be repealed and be replaced by a law about incitement to religious hatred. That is easier said than done, and I remember long conversations about how “incitement” can be defined, and—in those days, we were perhaps thinking less clearly than we are now—the difference between religious hatred and racial hatred. I am sympathetic to those who want to argue for freedom of speech, but the law of incitement to religious hatred is hardly one that could be equated with some mythical law against the journalistic incitement of archiepiscopal ridicule—I do not think that we are quite into that, although some of us might dream of that possibility in more facetious hours. We have a fairly adequate although not perfect law about religious hatred. Therefore we should repeal the blasphemy law as an act of realism and of generosity, but certainly not as one of secularisation.
The right reverend Prelate the Bishop of Portsmouth is back in bouncing form on the Bishops’ Bench, but could I persuade him that there is another path to take with honour and satisfaction? I was not going to take part until the noble Lord, Lord Elystan-Morgan, rose and trailed the name of Dawkins and The God Delusion. I recommend that he reads a better and more recent book, The Dawkins Delusion?, which I am glad to see he has in his hand. The noble Lord's principal objection to the blasphemy law is that it does not work and is not used and that it is cluttering the statute book. I have yet to discover what harm is done by clutter on the statute book. It may incense people such as the noble and learned Lords, but it does not disturb most of us.
The noble Lord will accept that I referred both to the statute and to common law as it stood. The point that I sought to make, which I may not have made succinctly, is that where you have a law that is seldom used but broken daily on thousands of occasions, and a blind eye is turned to that, you are corrupting the sovereignty of that law and it is better to remove it.
I take that point, but you have to consider the alternative. We have had demonstrated to us very forcefully today by our mail bags, the press and, most notably, by my noble friend Lady O'Cathain, that the law has enormous symbolic importance. The noble Lord mentioned that my late and learned friend Lord Hailsham had said that his client did not need costs. The noble Lord, Lord Avebury, said that the client does not need defence, but that is not what the blasphemy law seeks to defend. It seeks to defend our image of our maker and our concept of our society. What is offended when people bring it into ridicule is our sense of who we are and what this nation is. Therefore, we need to look at this not in the high-flown language of the courts or the acerbic language of theology, but at what is proper in Parliament—pragmatism. The pragmatic situation is that, until very recently, there was no proposal on the Floor of the House to make this change in the law. It will greatly offend a large section of our society as a gesture towards secularism. Even if it is not that, that is how it will be seen. That is troubling the waters of our social life quite unnecessarily. The pragmatic thing is to let that sleeping dog lie, as Walpole would have said.
Surely great faith does not need the protection of blasphemy laws: it is great enough not to need them. That is the point that the noble Lord, Lord Elystan-Morgan, and I were making. If your faith is so dodgy that a few people making obscene jokes about Jesus will upset it, your faith is not as strong as I believe it to be.
I was not talking about faith: I was talking about the perception of the British people of who they are, and our concept of the fabric of our society being woven out of a Christian history. People who fly against that fly against the nature of this country, which is under attack from a whole mass of different pressures. It is simply unnecessary and unwise to add to that now.
I did not intend to speak at any great length about this, but listening to the right reverend Prelate the Bishop of Portsmouth, I was struck by a sermon that was preached in my church, which is a Scottish Episcopal Church, by the rector some months ago in response to the legal judgment that was made on the Jerry Springer case. I remember the sermon very vividly, which I have to say is not true of all his sermons although they are very good. Our church usually has a congregation of about 25 on a Sunday. I often wonder what it is like to work very hard on a sermon, preach it to 25 people and work in a society which is increasingly secular and in which our religion is increasingly subject to attack from the media and other sources. In that sermon, he expressed dismay that no one was prepared to stand up and defend God and the integrity of Christ, and that the ruling which had been made in respect of the blasphemy law was sending out a signal which made it much more difficult to do the work of the church. I sensed anxiety in the right reverend Prelate’s speech about the signal that was being sent.
I am the last person to argue that laws should be put on the statute book in order to send a signal. Of course, that would be wrong. But removing them also sends a signal. The noble Lord, Lord Elystan-Morgan, talked about cluttering up the statute book, which is being dealt with. However, there are at least 140 pages in this Bill that will clutter up the statute book in addition to all the other criminal justice Bills that we have had. I do not think the Government should give as a reason for introducing this measure that we should remove from the statute book laws which have not been implemented, far less put into force. That is not a wise stance for the Government to adopt. However, I am very confused by the argument which appears to be that this law is not used, is in disrepute and is unenforceable. If that is the case, why is it necessary to remove it from the statute book? On the one hand, it is suggested that it is a redundant law and, on the other, that it creates particular problems.
For example, I think it is still the case that under parliamentary privilege the Speaker has powers to summon any journalist who is in contempt of the House to the Bar of the House of Commons and can send him to prison. These powers still exist. The Government and no one else have suggested that they should be repealed because they are no longer used. However, they exist because they uphold the standing and status of Parliament. I believe there is a parallel here. No one expects the Speaker, however provoked he may be these days, to use these powers, but no one would argue that they should be removed as that would damage the status and standing of Parliament. I believe that the Government’s last-minute attempt to remove these blasphemy laws causes similar concern and is an assault on the very deeply held beliefs of those within the church. It is quite unnecessary for the reasons they have spelt out; namely, that the law is almost unenforceable and not used. I very much support my noble friend Lady O’Cathain. It is a very sad day for many committed Christians that the Church of England has not argued with an undivided voice for the retention of this legislation on the statute book.
I hope that your Lordships will indulge one more Bishop speaking. These Benches have just been presented with quite a challenge and I hope that we do not respond in the acerbic language of theology. I was not aware that theological language was acerbic, but that is the kind of language one hears in some places. Rather, I think there are more fundamental issues here than have yet been addressed. There is an irony here. Let’s face it, we in this country and in the western world are in the middle of a stand-off between secularism, for want of a better word, and fundamentalism, for want of a better word. When you are in that polarised situation, the danger is that anyone who tries to have something reasonable which is neither of those is shot at from both sides as though they are colluding with whichever side the shooter does not happen to like. The secularists clearly want to abolish the blasphemy laws for the same reason that they want to abolish the establishment and lots of other things. The fundamentalists want to keep the blasphemy laws for the same reason; namely, in my view a mistaken belief that this forms an absolute linchpin of the Christian establishment and that if you pull it out the whole lot will come tumbling down. I simply do not believe that. I defy anyone on these Benches or elsewhere to call me a liberal for it. I think that my friends here would be surprised to know that the Bishop of Durham happened to be a liberal. That may have been the case in times past but I hope that is not the case at present.
As some noble Lords will know, I was invited to give a lecture at the London School of Economics three weeks ago. It is a strange place for a Bishop to lecture in; a sort of high temple of secularism. I argued as strongly as I could that the Christian faith should be considered an honoured, valued and fundamental part of our society and, indeed, argued for the establishment of the church. I just about got away with my life. It was an interesting experience. So I am not going to collude with the secularists for one minute. But here is the paradox and it is the paradox of democracy itself; namely, that democracy has to tolerate some forces which might make for its overthrow, otherwise, it is not being true to itself as a democracy. Likewise, for Christians at the heart of the Christian faith there is a re-evaluation of power which is focused on Jesus himself, who refused to be defended and, indeed, spoke very severely to one of his followers who got out his sword to try to protect him. Rather, he was content to be mocked, spat at and ultimately crucified precisely on, interestingly, a charge of blasphemy, which was then transformed into a charge of sedition.
Edward Shillito, one of the First World War poets, wrote:
“The other gods were strong; but Thou wast weak;
They rode, but Thou didst stumble to a throne;
But to our wounds only God's wounds can speak,
And not a god has wounds but Thou alone”.
It is because I uphold that at the centre of my Christian faith that I find it very odd then to think of mounting laws to say that we must defend Jesus against wounds today. When Christians say, as we do, that at the name of Jesus every knee shall bow—as the noble Baroness quoted from Philippians—that is a statement of sure and certain faith about the future, not a statement of social policy to be enforced by statute. It subverts the normal types of power; it does not imitate them. Therefore, I fear that the existing law, by appearing to defend Jesus—as some Christian groups are insisting it does—is in an odd paradoxical relationship at best with the Jesus of the Gospels. This is a biblical and Christian argument for abolition. I am sorry to have to make it at a time when the head of steam happens to have come from secularism but it is an argument that I have made over the past 20 years whenever I have been asked about it and that happens to coincide with things that have come from the other place with the secularist tag on, to which the noble Baroness drew our attention.
Of course there is such a thing as offensive behaviour. Recently in the BALTIC on Tyneside, in my diocese, there was a deeply offensive statue of Jesus which I shall not even attempt to describe—I was going to say in a family newspaper but I should say in your Lordships' House. If that statue had been proposed of any other religious leader, I wonder whether the museum would have allowed it to be seen. That is a problem but in my view that should not be dealt with by a blasphemy law but rather under other statutes—which we are getting—dealing with offensive and inflammatory public behaviour. Recent legislation has attempted to address that and we are grateful for it although, as my noble friends here have said, we could have wished that this issue had come up after that new legislation had had a chance to be road tested in the courts. We look eagerly to see how the Government and the courts might apply it.
Rather, what we need is protection for groups, communities and individuals who are at risk. We look to this Government to provide that as they have said. Some people are vulnerable in this respect. Public order is vulnerable when there is gratuitous and inflammatory material. Therefore, I hope it is clear that in supporting the government amendment I am not for one minute colluding with the mood towards secularism, liberalism or any such agendas. I am grateful for assurances on this subject. Actually, if paradoxically, I am doing my best to work through the implications of the fact that it is Jesus himself, not some power-hungry demigod of the same name, who stands at the heart of the faith professed by over 70 per cent of people in our country and whose strange presence continues to haunt and challenge our culture in ways that many understandably find disturbing but to which we on these Benches do our best to bear witness.
I did not intend to intervene. However, I strongly support what my noble friend Lord Elton said. We have to remember that the ordinary person out there does not read Hansard and that the press will certainly not report this debate except in some mischievous and irrelevant way. An enormous number of ordinary Christians, some of whom are rather old like me, feel threatened and vulnerable. It is good that the country will have a Bill covering incitement to hatred, but that must happen before any other signal is sent. If you wait for that and you send this signal now, you are abandoning those people, who already feel pretty threatened. They are often surrounded by unfriendly communities. It is true that they have not thought much about this; they probably do not even get to church. However, that does not alter the fact that they are Christians and that they feel that this is a Christian country in which they have a right to some defence and consideration. The Government now say, “Forget blasphemy. It is out of date, very difficult to apply and totally irrelevant”. They must also say, “We will have an incitement to hatred Bill that will protect ordinary people and their faith”.
We also have to remember that we are not alone in the world. There are Christians in Africa and all sorts of places who already feel pretty threatened. If we as a Christian country say, “Actually, it doesn’t matter very much because the blasphemy law is inapplicable and nobody really took it seriously”, that will not help ordinary Christians who are simple and do not say much about their faith, but who care and want to be protected. I beg the Committee to consider that we should not dismiss this lightly unless something positive is said and done to protect people and to make them feel protected and valued. A lot of them feel very undervalued. I hope that the right reverend Prelates will forgive me, but I am sorry to say that those people do not necessarily feel particularly well defended by those who are supposed to be in charge of their flocks.
Occasionally Governments do something that I regard as pointless—I do not mean that it has no point; I mean that it has less point than anything that I can think of—or useless, by which I mean that it is perhaps of some use but I cannot think what the use is. I will speak from a different point of view. The signal that is sent by doing this causes me concern. I refer to my experience of the more difficult things in life, when I was sent on useless and pointless missions after a mistake had been made that was regarded as blasphemous.
I had the unfortunate job, as chairman of the Middle East trade committee, of dealing with “Death of a Princess”, where the true story never came out. At the same time as the play “Anyone for Denis?”, I had to deal with another play in London; I took the Saudi ambassador to see a dress rehearsal of “Goose-Pimples”, which caused a few problems. Another time when things were difficult, I had to go to Libya on my own—as ever, when no visas were being granted. As a hereditary Peer in your Lordships’ House, I was seen as a perfectly justifiable casualty, who should have been put down. It was useful to be able to go there and to say that I was sent because I was worthless.
The final thing was when a particular man wrote a book called The Satanic Versus and I was the only one allowed to go to Tehran, where I sat with great names and prelates. I learnt that the monotheists or the people of the book, as they are called, who believe in one God, were pretty considerable—roughly half the world’s population. I would be there as the Jesus man; there would also be a Moses man and a Muhammad man. We would sit and debate. It is difficult when you have bowlegs to sit cross-legged in the dark smoking hookah pipes with a few people and trying to have a discussion when you are not briefed. In the holy city of Isfahan I was given a team of a couple of lawyers and a couple of mullahs and we had a debate about blasphemy.
There is a big difference between a spiritual and a temporal fatwa—I had the feeling that the noble Baroness, Lady Andrews, was about to issue a temporal fatwa. For example, Ayatollah Khomeini issued a fatwa that said that you could not play chess because it was too secular and you were defending the king. The prelates pointed out that the king was the weakest person on the board and even the queen was more powerful. The king hid behind his castles, knights or bishops. Even the peasants could move two steps forward and attack the king. Another fatwa was that you could not eat caviar anymore because it was not halal. Cousteau, who became a Muslim, worked out that the sturgeon’s backbone was stronger, so suddenly the British embassy, which was flooded with cheap caviar, found that it could eat it again. When you issue a spiritual fatwa, however, which cannot be revoked except by a higher authority, you come to great ground.
In all these areas—and there are other incidents to which I could draw attention—you will find that people get worried and anxious for the wrong reasons. They then turn to blasphemy. I have heard people arguing that the law of blasphemy in this country effectively protects God. We can help when people insult prophets and things of that sort, but it is the same thing. The symbolism of removing this causes me concern. I am not saying that war and religions or beliefs are related or that trade and religions or beliefs are related. People’s desire for their own beliefs is critical and to try to interpret other people’s beliefs is worrying. Has the Minister consulted the other monotheists—those who believe in one God—and the other religions? What is their attitude? Their attitude before was that we should perhaps amend the law on blasphemy to make it applicable to other faiths. This is a very doubtful area in which to tread without having consulted over a wider range than just within Parliament.
I hope that your Lordships will accept a fourth voice from these Benches, but it will be a voice expressing support for the noble Baroness—in the Division Lobby, too, in due course. The words “rock” and “hard place” swim around in my mind as I try to wrestle with these very difficult issues.
I came into the debate not knowing which way I would vote. The reason for my conclusions and why I have been persuaded is partly that, as the feelings that have been expressed suggest, this is a complex subject and one, therefore, that it is not appropriate to introduce into this Bill at a late stage. It is not appropriate to have consultation with the Church of England through the Archbishops, who may have spoken to one or two other church leaders. It raises much more profound issues with other faith communities, as the noble Lord, Lord Selsdon, just mentioned.
Associated with that, I think that there should be a free vote. This is a serious matter; it is a matter of conscience. There has been the decline in the provision of free votes on matters of morality and conscience in Parliament in recent years. We have seen that recently with the Human Fertilisation and Embryology Bill. The original Act went through in 1990 on a free vote, as I understand it. However, the recent Bill was whipped through, time and again, with the majority of people who voted not having heard a word of the argument. If we vote now, as we probably will, we know that the Government will win because the vote will be whipped through, probably with the support of the Liberal Democrats. I say to the Liberal Democrats—perhaps they are not having a whipped vote, but the vote is certainly whipped on the government side—that this is surely a matter of conscience and therefore should not be treated in this way.
I shall refer to my close friend the right reverend Prelate the Bishop of Durham and say that I think that the position that I am advocating is true liberalism. The way in which things are being forced through your Lordships’ House on these sorts of issues is wrong. I think that the right reverend Prelate the Bishop of Durham was arguing more for a replacement of the law than for its abolition; he was arguing for this to be looked at in the round.
We have recently enacted the Racial and Religious Hatred Act. The most reverend Primate said that we were in uncharted waters and my noble friend and kinsman—I am married to his sister—the right reverend Prelate the Bishop of Portsmouth said that the law was adequate. However, it is untested and I have a feeling that it will be just as useless as the blasphemy laws. It is qualified by a provision whereby it shall not,
“be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents”.
With that on the statute book, the recent law might well turn out to be absolutely as hopeless as some people think the blasphemy law is. There is a real sense of uncharted waters and untested law. I suspect that the recent law is utterly useless. We certainly do not know that it is not utterly useless, so I find the timing of this provision unhelpful.
There are issues of deep symbolism here and it would be wiser not to push this through as a late provision in this very unsatisfactory Bill but to delay for further consideration. For that reason, and others, I shall join the noble Baroness in the Lobby.
Will the right reverend Prelate take the opportunity to whisper in his brother of Durham’s ear the question why, since he wishes that there had been a chance for the present law to have been tested for longer, he feels it necessary to assist the mover of the amendment before that test has taken place?
I had not intended to take part in this debate, but I wish to speak briefly in support of the noble Lord, Lord Elton, on the symbolic significance of the amendment. The fact that one has not had a flood for a very long time does not mean that one should destroy the floodgates. My fear is that the removal of this provision will be seen as encouraging people to make outrageous statements that are needlessly offensive to a great many people. They will only do it to annoy, because they know it teases.
Therefore, I align myself with those who would like to see more time for consultation on this matter. I find it paradoxical that in one and the same piece of legislation we are asked to approve a measure that will appear to encourage religious hatred while we are also asked to approve a measure that will discourage sexual hatred. I wonder whether we really have to sort ourselves out on this matter. I very much hope that the Government will take time for more reflection and consultation before introducing this into the Bill.
I was not going to intervene on this, but I support what the noble Lord, Lord Elton, and my noble friend Lord Armstrong said. We should not rush to judgment on this proposal, which comes before us at a very late stage. We need to exercise the quality of humility; we do not immediately have present within us all knowledge and all wisdom.
I was chairman of the Committee on Standards in Public Life. When we looked at the funding of political parties, which was the first task when I was on that committee, we travelled around the country to several places and had hearings with interested witnesses who would say what people in that locality thought about the system. This is part of a Bill with the most amazing history. If only the public knew—they do not, because the papers never report it—the history of the Bill: that great hunks of it were never considered by the House of Commons, that bits had been snatched away and then put back on our agenda and that at the last minute we are having this blasphemy debate. That is absolutely no way to proceed in the 21st century.
The information is not and has not been properly before us. We have not had preparation time for this; there may be a mass of material that we could read, including earlier committee reports. My simple message is: let us not rush to judgment thinking that we are very wise today. There is no urgency about this at all. I have not detected any urgency. Even the learned Professor Dawkins does not say what a scandal these laws are or that they must be repealed immediately. I support earlier speakers on this.
The Opposition are going to have a free vote on this matter. In a way, that puts me in a more uncomfortable position than I would have been in had we had a whipped vote, because I am personally answerable to my noble friend Lady O’Cathain for the way in which I vote. I cannot simply refer her to an instruction from the Whips’ Office.
In a case that has been cited by many noble Lords this afternoon, the Jerry Springer case—more formally Green v the City of Westminster Magistrates’ Court—the court held that what was necessary to make the publication of potentially blasphemous material a crime is,
“that the community … generally should be threatened”,
“will be established if but only if what is done or said is such as to induce a reasonable reaction involving civil strife, damage to the fabric of society or their equivalent”.
If that is what the offence today amounts to, it is a redundant offence, because a very large number of offences on the statute book connected with public order and related matters will fulfil the function of blasphemy just as well as that definition of the crime itself. If this was the only issue in the debate, that would be the end of the matter. But, as so many noble Lords have said, it is not quite as simple as that.
The principle of equality in the eyes of God is the basis of the rule of law in our society, developed by common law judges over the centuries informed by Christian principles. Christianity has been absolutely fundamental to the development of our constitutional freedoms and I worry a little that this is no longer understood in our society. Secularisation will bleach from our memories the inextricable link between Christianity and so much of value in our society and in our system of law and government.
Would keeping blasphemy on the statute book arrest that process, or at least be an enduring symbol that Christianity remains, and ought to continue to remain, at the root of our society? This is a difficult question, which I have found very hard to resolve myself. I have decided, on balance, that things are best left as they are.
Noble Lords will know that these Benches are not empty at Prayers and that there are people of deep religious faith and from various expressions of faith among the Liberal Democrats who sit in this House. I heard the right reverend Prelate the Bishop of Durham say that he was supporting the Government but wanted to make it very clear that he was not a liberal. Neither he nor your Lordships will be surprised therefore that there may be a consensus of views on these Benches on the appropriate way to vote on the amendments.
The noble Baroness, Lady O’Cathain, referred to Mr Evan Harris’s response to the letters from the Archbishops. She quoted only half a sentence and I owe it to him to complete his sentence. In the context of saying that the Bishops should see that the blasphemy law was a general repression on valid free expression, he said this:
“It should be seen as a secularising move and with pride”—
that is as far as your Lordships heard—
“by both religious and secular people—because it removes a layer of religious privilege in, and religious censorship of, society which is no longer seen as appropriate”.
That is Mr Harris’s view. I know him well and know that he would defend to the death the right of any person in this country to express a religious belief of any sort that that person chooses. He is for free expression. This is a free vote on our side of the Committee and it had not crossed my mind that anyone could think that the Liberal Democrats would be whipped through the Lobbies on an issue such as this.
As was predictable, this has been a profound and fascinating debate. I am very grateful to everyone who has spoken, particularly those who supported our amendments. We have seen divisions across the House and, indeed, within the family of the church—literally. I am grateful that noble Lords have been able to air their deep feelings and passions in the way that has happened. We recognise that the consultation period was short, but it has come after 22 years of debate—debate in which many people both inside and outside this House have engaged—and the issues have been thoroughly aired. The opportunity has been taken in this Bill, because it was appropriate and timely to do so. There is integrity in that. This debate has a long history. I do not want to make it longer, but I do want to deal with the amendment of the noble Lord, Lord Avebury, before returning briefly to sum up the substantial debate.
The noble Lord’s amendment goes further than the abolition of the offence of blasphemy. It seeks to abolish the historic offences as set out in his amendment in paragraphs (2)(c) to (f) and in paragraphs (1)(b) and (1)(c). It would abolish two separate and distinct offences of disturbing a religious service and assaulting a clergyman. On the latter amendments, although I completely respect the noble Lord’s conviction that they are necessary, they seem to overlap somewhat with the historic offences. In fact, as the Law Commission itself pointed out, there is some doubt whether these offences exist at all. The last prosecution was in 1765 and even then there was some doubt about whether the offences existed. The noble Lord will therefore not be surprised when I say that we cannot accept his amendment.
Let me turn to the historic offences that the noble Lord specifically wants to remove. Although some of them may appear anachronistic and unnecessary, the evidence suggests that at least some continue to be useful. Their use is infrequent, but we believe they serve a continuing purpose. Their purpose is quite simply to ensure that places of religious worship are treated with respect and that people are free to worship in an atmosphere of peace and dignity. These may be old offences and some may apply only to Christian places of worship, but that is not the case with all of them. The laws are used infrequently but it is important to retain them. In 2003, the Select Committee considered that the evidence on that point was finely balanced. Specific evidence from the Director of Public Prosecutions stated that there was value in the legislation, and the statute has recently been deemed appropriate to use.
That did not stop him saying that it would probably continue to be of value to keep the offence. Very little has changed since then and we see no reason for departing from that position. This provision to ensure that places of worship are treated respectfully has survived the test of time and still reflects commonly held values which are as relevant today as they were when the law was made.
We accept that the offences which the noble Lord proposes to abolish in his amendment may in some cases duplicate provision in the general law, but they do not potentially offend freedom of speech or appear to offer significant special privileges to the established church in the way that the blasphemy provisions do. With respect, I cannot accept those aspects of his amendment.
I turn to the primary subject of debate this afternoon: abolition of the offence of blasphemy. I say to the noble Earl, Lord Onslow, that my department is also the “communities” department and not just the “local government” department. Communities are what we are concerned with in the Bill and in this amendment, not least the way in which communities respect each other’s faiths. It is perfectly appropriate for us to introduce this amendment.
I shall not repeat what I said in my opening speech—it was long enough—except to reiterate three main points. First, it is absolutely appropriate and right for Parliament to take the step of repealing the law on blasphemy and blasphemous libel. The law has proved itself anachronistic; there has been general agreement across the Committee on that. To all intents and purposes the law is unworkable, as evidenced by the fact that very few prosecutions have been brought. It is a law which serves to protect neither the divine nor the individual believer. It is a law which—as many noble Lords have agreed—to be effective, requires that the offence provokes civil disorder and civil strife, a threshold which is virtually impossible to achieve or prove and does not do what those most concerned about the change really want: protection of the individual who holds a deep belief in something which for them is sacred.
We have talked a lot this afternoon about signs and symbols. I would say to noble Lords who are concerned about the perception of a drift to secularism that I do not think that perceptions of the value, sincerity, influence and place of faith in our society are supported or served by such a law. That case has been made by members of the church in this Committee. On the apparent drift to secularism, the right reverend Prelate the Bishop of Durham made an extraordinary and powerful case to the effect that the Church does not need law to defend itself. I do not think that that could possibly be improved on. I rest our case on those words.
Secondly, we have argued, as have noble Lords across the Committee, and members of the church have agreed, that we already have a raft of legislation dating from 2001—as the noble Lord, Lord Kingsland, agreed—that offers far more appropriate and useful protection to those who find themselves victims of religious hatred and violence. I am particularly grateful for the support of the right reverend Prelate the Bishop of Portsmouth on this point. We have specific laws which, for example, protect against specific forms of discrimination in employment and the provision of goods and services.
Thirdly, in addition to the profound and proud traditions of free speech in this country, we now have the extra protection offered by the European Court of Human Rights and our own Human Rights Act. These protect our right to religious belief and to religious faith, or no faith, and our right to free speech. All of this suggests that we have achieved a balance of law and a protection that is workable—that protects the individual and his personal beliefs while maintaining the value and necessity of free speech.
Noble Lords have asked why we should repeal a law that is redundant. I shall give two reasons. There are two different voices in this, the first of which is that of the church itself. The letter from the Archbishops states:
“At a time of continuing debate about the nature of our society and its values, this change needs to be seen for what it is, namely the removal of what has long been recognised as unsatisfactory and not very workable offences in circumstances in which scurrilous attacks on the Christian religion no longer threaten the fabric of society”.
The second voice is that of the law and the Attorney-General. On 20 February she said:
“If the law is not such that a public prosecutor would have regular recourse to enforcement of it, then the question arises as to whether general uncertainty as to its application should be allowed to persist, or for the clarification of this to be left to the vagaries of private prosecution”.
Those are two very sound arguments for abolishing the law.
The noble Lord has been in government and will know that sometimes opportunities are presented more appropriately in other ways. We took advantage of the opportunity.
I am very grateful for the way in which the debate has been conducted and am particularly grateful to have had the views of the church. I believe that we have a shared understanding and hope that we can therefore put this debate to rest. The noble Baroness, Lady O’Cathain, will probably not be persuaded by me but I hope that she will be persuaded by the most reverend Primate the Archbishop of York. In his final words, he invited the Committee to see this offence off, and I hope that that is what it will do.
British Overseas Territories
asked Her Majesty’s Government what plans they have to act on the findings of the National Audit Office report on the overseas territories.
The noble Baroness said: My Lords, I tabled this Question for Short Debate in November when the National Audit Office report was due for publication. Time has gone by and this first possible slot came at rather short notice, so I am most grateful to all those who are participating and bringing forward their expertise and knowledge on individual overseas territories to enlighten our debate. Due to the early start of the debate I am not sure all the speakers are in your Lordships’ House at the moment.
I had not appreciated that this week the governors of the overseas territories are meeting in London and that the House of Commons Select Committee, which is preparing a report on the overseas territories, is also sitting today. It has been a busy week for officials at the overseas territories department of the Foreign Office and I apologise for adding to their burden, but as yet they are not in the Box either.
Over the years, I have had the privilege of introducing a series of debates concerning the overseas territories and there has been much change and progress in that time. The last occasion was in 2004, which was before the constitutional review process had been completed but subsequent to the Government’s stated aim of building a modern and effective partnership with the overseas territories on the foundation of our shared past, with Britain guaranteeing security and defence to the territories on the one hand and on the other the territories developing further as well governed, small island economies, where the rule of law and internationally accepted standards are observed. This, of course, remains the Government’s broad objective as I understand it.
The National Audit Office report, which I find to be an extremely helpful and useful document, covers all 14 overseas territories, 11 of which are permanently populated. It assesses key risk areas and the Government’s ability to manage the risks and responsibilities in their evolving partnership with the territories. In terms of this debate, the report also gives us a peg on which to hang the broadest possible range of issues. I hope that noble Lords who are taking part will make the most of that.
At the outset I emphasise that, in talking about the overseas territories in general terms, I fully recognise the diversity and differences of each individual territory. As the report puts it, they range,
“from the uninhabited, environmentally sensitive British Antarctic Territory, to Bermuda which is home to over 65,000 people and is one of the world’s leading financial centres”.
Each and every one of them is put under the spotlight in the report. I draw attention in particular to the table on page 27 with its illustrations of the UK’s risks and liabilities in the territories, from the unfunded pensions issue in Gibraltar to the risks of further volcanic eruption in Montserrat, and even to the decline of the stamp sales from the Pitcairn Islands which has destroyed the economic base of the tiny population.
However, because of time constraints I intend to focus on just a few of the main issues. The report recommends, in recommendation 1, a need for better understanding across all government departments and the establishing of a clear contact point within each department. The territories themselves welcome that and so do I. It is not just for the Foreign Office and DfID to be aware of the overseas territories and their status and to illustrate that in the area of education, but I remind your Lordships of the successful campaign that we carried out to exempt students from the overseas territories from paying overseas student fees. It was a case of first convincing the then Department for Education and Skills and then the Treasury. Happily, that is now operating.
Another illustration is biodiversity conservation. I have received some very useful briefing from the RSPB. The rich biological diversity of the territories far outweighs their diminutive size. They are home to more priority bird species than the whole of Europe, including 34 species at risk of global extinction. Many of the territories are important seabird breeding islands and, as a result, the UK has responsibility for a third of the world’s breeding pairs of albatrosses. We already know that over the past few hundred years more than 20 endemic birds have become extinct in the overseas territories, and because the livelihoods of many of the territories’ inhabitants are dependent on biodiversity conservation—for example, revenue from fisheries and tourism—the Department for Environment, Food and Rural Affairs has an important role to play there.
There are healthcare issues involving the Department of Health and pensions updating issues, but my final example is in relation to cultural heritage. St Helena, for example, needs funding to conserve and preserve its unique buildings and to build up its tourism potential. Currently, heritage lottery funding cannot be sought outside the United Kingdom. Therefore, I ask the Department for Culture, Media and Sport to make an exception here for the tiny territories involved, as we did in relation to the education issue.
The report states that measures to regulate financial services in the overseas territories have had variable success in keeping up with rising international standards. Some of the territories are of major importance in the global financial system: Bermuda, Turks and Caicos, Cayman, the BVI and—closer to home—Gibraltar are all well known names in that area. It is essential that they operate robust regulatory regimes. They recognise that and some have made great strides in protecting themselves from, for example, the risk of money-laundering. They all recognise the problems of anti-competitive tax practices and are working with the OECD to develop appropriate standards of transparency and exchange of tax information. That is a complex area and, when one considers that, for example, over 800,000 offshore companies are registered in the BVI alone, it is a huge task. I know that others participating in the debate will be talking on this subject, and look forward to hearing from them and hearing what the Minister has to say.
I just have time to raise one or two matters which the UK Overseas Territories Association has drawn to my attention and which fall outside the scope of the report. One relates to representation at ceremonies such as Remembrance Day. Some territories have impressive war records and now that they all have democratically elected Governments, maybe it would be opportune to enable them to participate with the Foreign Secretary in laying wreaths at the Cenotaph, which is their wish.
The second issue is perhaps more for the House authorities than the Minister: access to Parliament. Representatives currently have to queue with the general public or masquerade as research assistants. Would it not now be more appropriate to issue them with a pass in their own right?
Finally, having received the Foreign Secretary’s recent communication about the Foreign Office’s new strategic framework, I am sorry that the essential services, policy goals and priorities listed in the leaflet contain no reference either to the Commonwealth or the overseas territories. I hope that the Minster will be able to reassure me that they will not be forgotten.
My Lords, it is my pleasure to congratulate the noble Baroness on her choice of subject and the way in which she delivered her speech.
How could one explain the overseas territories to a Martian? They range from Bermuda, with the highest GDP per capita in the world; to the Cayman Islands, where 80 per cent of worldwide hedge funds are based; to Pitcairn, which used to depend on the sale of postage stamps; to areas such as BIOT—the British Indian Ocean Territory—and South Georgia, peopled only by soldiers and scientists. The only nexus appears to be the link to the Crown, and no policy fits all.
The Martian would also be puzzled by the paradox that this Parliament spends much time debating foreign countries over which we have no control and very little time debating the overseas territories for which we have sovereign responsibility. In passing, I should add that a way to remedy this in part would be an agreement that the system under which parliamentarians can visit EU and EEA capitals should be extended at least to Gibraltar, which is within the European Union.
Since the last report of the NAO in 1997, there have been some welcome developments. Obviously, Hong Kong, the most populous of the territories, has become a special administrative region of the People’s Republic of China. However, since 2006, there has been a much happier relationship between Gibraltar and Spain. There have been some dramatic changes. However geographically isolated, no territory is immune from the modern scourges of money laundering, drugs and terrorism, and they need help.
The NAO report has one major omission: it stresses the importance of governance but fails to mention the valuable role of the Commonwealth Parliamentary Association in capacity building of legislators; that is, in assisting them to make the Executive accountable. This week and next, for example, delegates from the Cayman Islands, Montserrat and Turks and Caicos are attending the Westminster seminar in our Parliament.
On details, much is said about the improvement in the quality of governance. It is said that work within the overseas territories is not a mainstream career path. Yet the clearly limited number of posts in the UK administration poses some constraints. It is ambitious to expect specialism in UK departments. Against that, Appendix 4 of the report shows how few governors have any previous experience of overseas territories when they are appointed to their posts. Surely there is a vast difference between the role of a diplomat in a foreign country and that of a governor in an overseas territory. The scale and nature of training must be examined.
Much is said about joined-up government in the UK. A specific contact point in each relevant government department is a valuable suggestion. Perhaps more relevant, since the overseas territories themselves can provide expertise and experience for other overseas territories, is the possibility of examining secondments from one overseas territory to another. I know that, for example, Gibraltar, which has a high-quality administration, has volunteered to assist in this field.
On risk assessment, as the noble Baroness said, there is the potential £100 million on pensions for former Spanish workers in Gibraltar. There is the question of natural disasters such as volcanoes and hurricanes. There is a continuing liability if the appeal is successful for the Ilois to return to BIOT, from which they, the Chagossians, were so shamefully removed in the 1960s.
The Overseas Territories Association draws attention to the case for the uprating of UK state pensions in overseas territories. After all, they are sovereign British territories. The point has surely been recognised by the Government in respect of tuition fees for students from overseas territories. There is concern about the Department of Health’s questioning of the current quota system for secondary healthcare.
Finally, I have two points from the Falkland Islands Government. They acknowledge an excellent relationship with government departments and welcome the report. They also recognise that Her Majesty’s Government have a duty under the Ottawa convention to remove landmines but state that the landmined areas of the Falklands are safely fenced off. There is no call for an expensive demining programme from within the Falklands. Equally, the Falklands Government stress that the Government of Argentina still refuse to lift their unilateral ban on charter flights. However, the Falkland Islands Government will continue to assist the Argentine Families Commission to organise next-of-kin visits, including planning for a large-scale seaborne visit.
Overall, this has been a valuable report. I am only sad that there has been no report since 1997. Indeed, many of the recommendations made should have been tackled earlier. However, we look forward to a progress report rather earlier than 10 years from now.
My Lords, I, too, congratulate the noble Baroness on securing this important debate on the overseas territories. I apologise to her for missing the first five minutes of her speech. I have a good excuse: I was at No. 10 Downing Street with delegates at the Commonwealth Parliamentary Association seminar and had to leave what was promising to become a rather good party.
I shall talk about three of the smaller overseas territories that I have visited in recent years. First, we have already heard something about the Turks and Caicos Islands. One of the delegates across the road whom I spoke to a few moments ago is the honourable Donhue Gardiner MP, who is a senior adviser to the Minister at the Ministry of Home Affairs and Public Safety of the Turks and Caicos Islands. The report mentions that the islands have received many Haitians fleeing economic and civil disorder. He says that this is true. Every month, around 300 Haitians are repatriated. Given the population figures mentioned in the report, this is about 1 per cent of the population of the Turks and Caicos Islands. It is quite a drain on their resources. It does not explain entirely the increase in their overseas debt, but we must keep an eye on it. The honourable Donhue Gardiner’s view is that he needs a bit of help from the UK Government. Perhaps the Minister can take that on board.
Secondly, I shall speak about the Falkland Islands, which were mentioned by the noble Lord, Lord Anderson. I returned from the Falkland Islands a fortnight ago. I went with the CPA delegation, so I hope that I can bring an up-to-date situation report. The report mentions that squid stocks are variable, particularly of the ilex squid. They spawn in Argentinian waters and then come down the coast. The mature squid enter the 200-mile Falklands zone and are an important part of the Falklands economy, but the stocks are variable—people cannot really tell from year to year what they will be—which causes peaks and troughs in revenue. That is something that we need to keep an eye on. Visits from cruise ships are increasing, but there is a lack of capacity to cope with the increasing number of passengers who come off just for half a day to have a look round the island. There is a need for more transport, more catering facilities and other tourist facilities in order to try to increase the average tourist spend. Land-based tourists stay longer and spend more. Both types are increasing, which is good news for the Falklands.
The report mentions oil exploration. There is some evidence that there will be new drilling in the Falklands in the next year or two. Seismic surveys seem to have indicated some areas where drilling might be fruitful, but unfortunately Argentina has sent threatening letters to potential investors warning them off getting involved in oil exploration in the Falklands. That could be tragic because the Falklands are financially well run. If they could find oil, they would be very well off financially. I know that the Prime Minister has invited the President of Argentina to London in April, I think, and it is important that he brings up these issues with her in order to make sure that we try to reach some kind of normal situation with Argentina. We were there for six days and, while we were there, there were three semi-incursions into the 200-mile zone, two by ships and one by a plane, and Tornados were scrambled to see them off. Argentina is not playing ball.
Thirdly, I want to talk briefly about St Helena. Its airport is vital; without it, the economy is unsustainable. St Helena costs the British taxpayer a lot of money at the moment—£14 million a year—and that will only increase. We need to get that airport. I do not know whether how far the airport has got is in the Minister’s brief, but the sooner it is started, the better, otherwise we will have a generation of Saints who have lived off the island and will probably not want to go back and it will be difficult to attract people back. There are 600 Saints—as they call themselves—on the Falklands, and they inquired whether, when there is an airport on St Helena, there will be a flight from the Falklands to St Helena so that they can get back to see their loved ones.
Can the Minister give us a report on Operation Zest in Tristan da Cunha? It relates to the wall of Calshot harbour, which needs urgent repair work. I think that a ship has arrived and that the Royal Engineers are due to start work soon. It would be interesting to get an update on that. Has the fire at the adjacent fish-processing factory had any impact on Operation Zest? The factory caught fire on 13 February; the Valentine’s night dinner had to be cancelled because it knocked out all the electricity. I understand that a new generator is now working properly, but I would like to know what plans the Government have to help to get that fishing industry back on track.
My Lords, the noble Baroness, Lady Hooper, deserves congratulations. She has been consistent in her support for overseas territories over many years. I could almost take the whole of my speech declaring my interests, but I shall confine myself to two points: first, I have been a governor of Gibraltar and, secondly, I resigned with the noble Lord, Lord Carrington, over the Falkland Islands after that foreign policy disaster in 1982. Having been an administrator in Kenya, rather a long time ago, I witnessed at first hand the transition from colonial empire to today’s remaining responsibilities in these 14 overseas territories. Each territory needs to be treated on its own merits, as the noble Baroness rightly said, because each has different characteristics and different problems to be dealt with.
I shall touch first on Gibraltar. History is a governing factor for Gibraltar. The Treaty of Utrecht constrains any aspirations that the people of Gibraltar may have for total independence. Notwithstanding that, Chief Minister Peter Caruana deserves warm congratulations on three major achievements: first, the Cordoba agreement in 2006, which has led to enhanced regional co-operation between Gibraltar and neighbouring Spain without prejudice to the sovereignty issue; secondly, the new constitution, which is non-colonial and reflects today’s reality; and, thirdly, the economy, which has been diversified and strengthened and has moved away from defence to areas such as tourism and financial services with a strong regulatory system. I believe that the chief minister and the people of Gibraltar deserve congratulations on those achievements.
As far as the NAO report is concerned, we need to bear in mind the need of HMG to provide for each territory a clear framework within which it can operate. In the summary, I was struck by the point that there needs to be a balance between the desire of the people of those territories to have maximum autonomy and the need to ensure that the United Kingdom can meet its responsibilities and minimise its exposure to potential liabilities. It therefore makes sense for these overseas territories to negotiate constitutions that provide maximum autonomy and reflect the non-colonial age, but at the same time, depending on their circumstances, it is important that adequate safeguards should be in place. The example has been given today of the growth of offshore financial services, on which there is a strong recommendation that there should be robust regulation. It is good to note that the OECD praised the United Kingdom overseas territories for the way in which they are co-operating in transparency and the exchange of information. There is no doubt that all the time we have to ensure that the regulatory framework is robust and strong.
The second area in the report that needs highlighting relates to law enforcement. My experience will be the experience of any governor. On the one hand, he is responsible for internal security and the police force but, on the other hand, the local government tends to pay for that security, so the relationship between the governor and the chief minister needs to be close. I agree with the report that there needs to be strong local participation and ownership in the security situation. For example, Gibraltar has now set up a statutory police authority.
The point that I shall end on was touched on by the noble Lord, Lord Anderson. It is the reference in the report to the appointment of governors and supporting staff. It is important to stress that there is a big cultural difference between going out to a country as an ambassador with a representational role and being a governor with responsibilities for the governance and administration of that territory in co-operation with the elected chief minister. They are two quite different things. There is always a danger that the Foreign Office will try to nanny its governors. It is not a wise thing to do—I can say that with clarity. It is striking that only 15 per cent of governors, deputy governors or desk officers have had experience of working in overseas territories in previous posts. Most of the governors have diplomatic backgrounds.
I welcome the idea that there should be a distinct specialism and career path, but it is limiting when you have a total population of only about 200,000 in those overseas territories. The Government should not be afraid to look for wider experience in governorship and in administrative support in those territories, not only from politics—dare I say?—because I have had the privilege of being a governor, but also from the Armed Forces, the Civil Service and local government. A lot of skills could be made available. We should not be looking purely to the Diplomatic Service for the support that we give to the overseas territories.
I end with the reflection that, although the Foreign Secretary has plenty of British interests to pursue, that must never be at the expense of our responsibilities for our overseas territories.
My Lords, I, too, thank the noble Baroness, Lady Hooper, for giving us this opportunity. I agree with my noble friend Lord Anderson that it has been long overdue—the last report was issued in 1997. I hope that it is not as long before we get another one.
I first declare an interest in the overseas territories, especially Gibraltar, because I have the freedom of Gibraltar, something of which I am very proud and which I was pleased to receive. It is a great honour indeed.
I echo what has been said by other speakers about the difference that overseas territories, their governors, ex-governors and even the administration in the Foreign Office make. Sometimes that is not appreciated. The 15 per cent level certainly needs to be raised, because it involves specialist knowledge. I am glad that it is recognised by the Foreign Office that it is absolutely necessary to develop more career civil servants, and so on, in future. I realise that a small number of people are involved, but that is an expertise that can lead only to a better understanding between the UK and the overseas territories, which can only be good for all of us.
Another thing that has been referred to briefly is the need for joined-up thinking about overseas territories by all departments of government. I cannot see why pensions are frozen in some of the overseas territories. In Europe, of course, Gibraltar qualifies. Pensions are not frozen there, nor are they in Bermuda, but they are in the other overseas territories. It would not cost an awful lot to address. The most recent Question asked in this House, in June 2007, referred to it costing only £500,000 to unfreeze them and to update those pensions. They are sovereign territories, so I do not see why that could not happen.
I understand that the Department of Health is looking again at the relationship between this country and overseas territories in health. On primary care, there are reciprocal agreements. It is on secondary care that we find a mismatch, because some have quotas; some can send all the cases that they need to do to the United Kingdom; while others have no agreement at all. It is being looked at from the point of view of whether the arrangement could be reciprocal. Of course it cannot be for secondary care, because many overseas territories do not have the facilities. That is why they have to send people to the UK. I do not think that I need to remind the Minister that those who live in the overseas territories are British citizens. They are entitled to a British passport and, if they lived here, they could use the NHS freely, so I do not see why that should not apply for secondary care. There should not be a quota system whereby you must be ill early in the year or you will not qualify because the quota has already been used up. We need to look at that.
Finance centres have been referred to. The fact that those small territories are sometimes worldwide players says an awful lot for them. I join the noble Lord, Lord Luce, in praising Gibraltar for changing over from a territory absolutely dependent on the dockyard and engineering into a financial centre. It recognises that it is important that it is well regulated and that there is transparency. I am very pleased that it is working so well on these matters with the OECD. I was very pleased that the British Virgin Islands got special reference for what they are doing on that. All the overseas territories are well aware that there is a need to track down criminal activity in those territories.
I refer to something mentioned by the noble Baroness, Lady Hooper: the question of the Cenotaph. We all know that, at the Cenotaph, overseas charities are represented by the Foreign Secretary, but they now all have elected Governments, so why cannot they be represented in their own right? Many people from overseas territories have lost their lives defending or fighting on behalf of the UK, and I am sure that that will happen again in future. Why cannot they be allowed to place wreaths on the Cenotaph along with the Foreign Secretary? That does not seem a big thing to ask.
Finally, the noble Baroness, Lady Hooper, also referred to access to Parliament. If you are a high commissioner, you get automatic access to Parliament. These people are representatives of the territories. There is only a small number of them. We, as Members of both Houses, need to have as much understanding as possible of them; indeed, we take a very big interest in them. Why cannot they have automatic access to Parliament in their own right?
I hope that the Minister will take those two points on board as well. My time is up. I again thank the noble Baroness, Lady Hooper, and welcome the report, as, in general, do the overseas territories.
My Lords, I, too, add my thanks to the noble Baroness, Lady Hooper, and all noble Lords who have taken part in such an informative and useful debate.
The Government’s direct responsibility,
“for more of the world’s shady places than any other country”,
was highlighted last week by Polly Toynbee. I hope that she is right about the OECD's determination to end the secrecy that shields the tax havens from proper scrutiny. The NAO states that the small number of reports of suspicious activity indicates that the financial institutions do not know or monitor their customers sufficiently or are unaware of their obligations to report. It cites the IMF assessment of the territories' compliance with global standards of regulation, which finds that in the smaller territories, there is an alarming degree of non-compliance.
There cannot possibly be proper, world-class international financial centres in as many as seven territories with hugely variable capacities, as well as in the three Crown dependencies—although I accept the assertion of the noble Lord, Lord Hoyle, about high standards in Gibraltar, and others have referred to the BVI, and so on. The risks have been growing with the development of all the territories as financial centres. In the case of Montserrat, the governor has special powers to limit the development of the tiny financial centre. In the Turks and Caicos, the NAO identifies nine areas of bad governance. We are directly responsible for financial regulation there, as we are in Anguilla, but in the rest of the overseas territories, the dangerous policy is to advise from Whitehall on developing local regulatory agencies, but otherwise to let things rip.
Neither the Government nor the NAO have anything to say about the risks of legal financial activities that result in a loss to UK taxpayers of £25 billion—equivalent to 8p on the standard rate of income tax. I welcome the Chancellor's announcement of preliminary moves towards recovering some of the tax lost to the non-doms, which is estimated to yield £650 million a year. We need to balance these measures with advice to the overseas territories on diversifying their economies in order to replace the revenues that they now derive from tax avoidance.
On the BIOT, which the noble Lord, Lord Anderson, mentioned, the NAO is wrong to say that,
“successive court rulings and Orders in Council have disputed the right of displaced Chagossian natives to return to the Territory”.
The Government dispute the right, but it has been upheld twice in the High Court and again in the Court of Appeal. The Law Lords have now agreed to hear a further appeal on the condition that, whatever the outcome, the FCO pays all costs, which are so far not the £600,000 mentioned by the NAO but £2.17 million, before the Court of Appeal, which the former Governor of Mauritius estimates will have raised the total to £3 million, with the Law Lords hearing still to come.
The islanders had customary title over the land stretching back over five generations, but now they hope to reoccupy only two of the outer islands. The FCO doctored a preliminary report by experts on the feasibility of return, as revealed by the Public Accounts Committee, qualifying the key conclusion in the draft that return was physically possible. The cost of resettlement, estimated by Bill Rammell, the former FCO Minister, at £5 million back in 2004, had ballooned to £22 million by the time the case got to court, and has now almost doubled again to almost £40 million in the next 10 years. The NAO wrongly attributes this figure to the resettlement study, which was expressly prohibited from looking at costs, as I hope the Minister will acknowledge.
The Ascension islanders have also had the roughest of raw deals from the Government. The governor told them that rights of abode, property rights and local democracy would be introduced. An island council was elected in November 2002, and a constitutional adviser went there the following year. The council presented a five-year plan to Bill Rammell during his ministerial visit, and the FCO-appointed Attorney-General produced a timetable for land tenure and rights of abode. All of a sudden, that was all scrapped. The council resigned en bloc, and when the subsequent general election was boycotted, the governor appointed an advisory group, which meets in secret and publishes no minutes. There is no democracy there. DfID said that its objective is to enable all aided territories to reach self-sufficiency, although apparently not Ascension. It justifies its dictatorial treatment of the inhabitants by saying that they are almost all short-term contract workers, although some have lived there for 40 years.
To end on a happier note, the Minister, Meg Munn, visited Ascension at the beginning of January and expressed the hope that the democratic process could be restarted, and the noble Lord, Lord Malloch-Brown, assures me that the views expressed to her by representatives of the people on what the FCO should do for that purpose were now being considered. It is clear that the contingent liabilities that might arise from granting rights to the inhabitants were grossly exaggerated and now need to be spelled out for discussion. If all economic activity in the island were to cease, we would of course have an obligation to evacuate the people. However, the strategic importance of Wideawake airfield makes that most improbable, and with a small and stable community, there is no question of DfID being asked to pay for large-scale public utilities or other infrastructure.
My Lords, I thank my noble friend Lady Hooper for securing this debate. In doing so, she raises a number of important questions to which the findings of National Audit Office report HC4 give rise. She has a great knowledge of the subject, and has illustrated the report’s findings with great eloquence.
Although the United Kingdom currently remains responsible for the 14 overseas territories, each choosing to remain under the sovereignty of the United Kingdom, the territories have full independence and enjoy a large degree of autonomy. Their economic survival currently depends on one or two core industries. Although they are not constitutionally part of the UK, most citizens of these territories have been entitled since 2002 to full British citizenship and the right to reside in the UK. The noble Lord, Lord Hoyle, highlighted this.
The last report by the National Audit Office in 1997 considered the key factors in the relationship between the UK Government and their territorial counterparts. Among the points raised by the report was the effectiveness of UK government departments’ work with the territories’ Governments, and despite the territories being a UK-wide responsibility it appears that much of the burden of responsibility falls on the Department for International Development and to a lesser extent on the FCO. Currently, DfID and the FCO have a total of 60 or so staff between them but maintain separate teams. Yet the need for other departments to take their share of responsibilities must be addressed if individual territories are to put processes in place that will build capacity holistically. My noble friend Lady Hooper spoke of the need to ensure that other departments play a far greater role.
The 1999 White Paper, Partnership for Progress and Prosperity: Britain and the Overseas Territories, laid down the future principles for the relationship between the UK and the overseas territories. These include mutual responsibilities, whereby the UK has the right to expect the highest standards of probity, law and order, good government and the encouragement of sustainable development. Although some of the territories such as Bermuda, the British Virgin Islands, Gibraltar and the Cayman Islands are developing and promoting good governance and implementing sustainable processes, huge improvements need to be made by others such as St Helena, Montserrat and Pitcairn, on which £28 million of the £48 million of UK funding is spent.
Does the Minister agree with the report that, in order to ensure that the British people have confidence in good governance in the overseas territories, all governing authorities must deliver timely public accounts and the legislatures must exercise proper in-depth scrutiny over the acts of the executives? The report found that in some of the territories, standards lagged woefully behind those expected in the UK, due to lack of capacity and the experience of local participants. The FCO and DfID should promote the appointment of ex officio members with relevant skills. Will the Minister say whether the Government will look into this recommendation?
Although the United Kingdom Government remain responsible for the citizens of the territories, it is also vital that the territories do not become financially dependant on the UK. As I said earlier, some are better than others at managing risk, monitoring territory public finance and diversifying economically. Will the Minister say what measures the Government have put into place to foster economic development in the territories such as Montserrat to reduce dependency? In 2005-06, Montserrat and St Helena received £28 million out of the total £48 million spend on overseas territories.
Many of the territories are at great risk from both natural and manmade disasters. Indeed, these have had an adverse impact on the Caribbean territories’ major sources of income, often through tourism. Will the Minister tell your Lordships what plans the Government have to ensure joined-up thinking in disaster planning, particularly with regard to fulfilling all elements of the disaster-management cycle of preparedness, mitigation and response and recovery, and to ensure that local measures in the territories accord with international good practice? The UK’s exposure to risk in relation to the territories is varied, and includes meeting international obligations, funding liabilities and deficits and ensuring that the areas of regulation in sectors such as transport and the financial services are implemented.
Although the report recognises that there has been a degree of improvement in the regulation of off-shore financial services, much remains to be done in centres that have weaker controls. Only 10 per cent of the governors, deputy governors, desk officers and London managers have had any experience of the overseas territories, as has already been mentioned. Does the Minister recognise that this remains a weak link in trying to establish better governance, and that further steps need to be taken to establish a clear career path? Does he agree that the challenges faced by governors and territory officials often have cross-over issues, and that the promotion of shared practices and personnel exchange, such as short-term secondments, could improve the way in which some of the less efficient territories manage themselves? The noble Lord, Lord Anderson, alluded to this.
It is confusing that, while many of the issues cross several governmental departments—for example the Treasury, policing, transport—it remains predominantly a DfID responsibility. As the UK stays responsible for the principal obligations applied through the annexes of the Chicago Convention of 1944, which sets the standards and recommended practices for aviation safety and security, and many maritime protocols and conventions through the International Maritime Organisation, failure on the UK’s part to ensure that the overseas territories are not meeting standards and regulations could have severe consequences for the UK and the territories, particularly through claims by travellers affected by safety or security issues. Will the Minister comment on that?
The report presented an in-depth illustration of some serious challenges for the UK in respect of some of its territories. While some are obviously more proactive in their desire to respond to greater efficiency and economic sustainability than others, your Lordships’ House needs to know what progress is being made by the Government on this. In conclusion, I heartily agree with my noble friend that the Commonwealth and the overseas territories must remain firmly in the Government’s mind.
My Lords, I, too, congratulate the noble Baroness, Lady Hooper, on having introduced this timely debate on an essential and important area of United Kingdom policy. I shall not be able to address all the points raised, many of which were comments rather than questions. If there are matters on which I do not touch, I hope that it will be satisfactory that I write to all noble Lords who have taken part in this debate.
Britain has close and deep historic links with the overseas territories and takes its responsibilities towards each of them very seriously. This unique relationship is based on a partnership with mutual responsibilities and obligations. It is against that background that Her Majesty’s Government warmly welcome the National Audit Office report as a valuable contribution to the management of risk in overseas territories. I am encouraged that the NAO has acknowledged that much progress has been made since its last report in 1997, but more still needs to be done. The report has recognised that there are many challenges for the UK Government and the Governments of the overseas territories. It is helpful to us, and we thank the NAO for it, that the NAO has taken a close look into this important area and has suggested constructive recommendations.
As the debate has shown, the management of risk and the relationship between the UK and the overseas territories cover a multitude of areas which offer challenges on the one hand and opportunities on the other. Unfortunately, the brief amount of time that I have allows me to select a couple of the key themes only arising from this report; namely, first, the UK Government’s approach to risk management in the overseas territories and, secondly, progress made towards managing and mitigating that risk.
The United Kingdom retains responsibility for the territories which have opted to retain British sovereignty rather than follow the route towards independence, but it must be remembered that the territories are not constitutionally part of the United Kingdom and largely administer their own affairs in accordance with their own constitutions. I should emphasise at this stage that the constitutional position of each territory is different, so some of my comments will not be appropriate for all territories.
We have, particularly since the 1999 White Paper, sought to allow the territories to run their own affairs to the greatest degree possible. Indeed, elected representatives in the territories make the overwhelming majority of decisions. That makes good sense for a number of reasons: first, it is desirable on democratic grounds; secondly, it maximises local decision-making, which should increase local governments’ capacity to govern themselves; and, thirdly, it should also in theory, and in practice, result in better decision-making than would result from micro-management from Whitehall.
That said, the UK Government have an obligation to ensure that they can discharge their responsibilities to these territories properly. This is an obligation to ensure security and good governance and to ensure implementation of the UK’s international obligations. Further, it is an obligation to the UK taxpayer to protect the United Kingdom from potential liabilities. Increased self-government does not reduce the requirement for the UK to retain and, where necessary, to exercise these key powers in any overseas territory, should the need arise. Any intervention requires extremely careful consideration. We sincerely hope that, by working with the territories to reduce risks and ensure sound governance, we will find the correct balance.
On the progress that has been made towards managing and mitigating risk, the Foreign and Commonwealth Office and the Department for International Development co-operated closely with the National Audit Office. I am aware that both departments approached the whole review as an opportunity to take stock of risk management in the territories and to identify priority areas on which they could focus future efforts.
The noble Baroness’s Question asked what plans the Government had to act on the findings of the report. I shall highlight a few key areas where work is already started. Since the report was received, the Overseas Territories Directorate in the Foreign and Commonwealth Office has revised its business plan towards the overseas territories to place a much greater emphasis on risk management, so that the areas of weakness identified in the report become the main focus of our work. We have in tandem realigned our funding programme to reflect the new priorities.
The FCO and DfID, which are responsible for the delivery of development assistance, share a close working relationship on many of these issues. For example, they are working jointly to influence European Union funding levels for the overseas territories. More recently, the two departments have worked very closely with the Ministry of Defence to deliver essential medical supplies to the remote island of Tristan da Cunha. Officials of the two departments are also working together to define the future direction of the Montserrat Volcano Observatory to ensure that it can meet the needs of the territory over the next 10 years.
Both departments have also sought greater involvement from Whitehall partners to assist the UK in discharging its responsibilities. The permanent secretaries of the FCO and DfID have written to their Whitehall counterparts to seek greater engagement. A number of departments, such as the MoD and the Department for Transport, already carry valuable work in the territories. The engagement of other government departments will be a key element in our ability to support sustainable development in the territories. It is important for us to remember that the UK’s responsibilities towards the territories are government-wide and concern not merely the FCO and the other departments that I have mentioned.
We also recognise the NAO’s finding that the pooling of resources, sharing of expertise and identification of efficiency savings are equally important to improving risk management in the territories, where capacity constraints often hamper progress. We encourage that approach and are now seeking to identify more areas where territories can capitalise on networking opportunities and linkages. We will focus attention on financial services, which were mentioned specifically, international obligations, public sector accountability and criminal justice.
Risk management practices have been high on the agenda over a number of years, and that needs to continue. We have a rolling programme of capability reviews, and we are engaged in one in St Helena, which was mentioned by the noble Lord, Lord Jones. Great emphasis on the identification and appropriate management of risks and sharing best practice is widely encouraged.
On financial services, we have already provided assistance to the Government of the Turks and Caicos Islands to draft new legislation on proceeds of crime, banking and insurance. We plan to do the same for Anguilla and Montserrat. In addition, we have funded financial intelligence unit workshops for all of the Caribbean OTs and Bermuda and have provided support for establishing a financial investigators’ qualification at University College in the Cayman Islands. With the support of our Whitehall partners, I can report that we are taking forward the NAO’s recommendation that we should develop a financial services strategy.
Where applicable, territories have also been informed of the report’s recommendation to move to full-cost recovery for the provision of aviation safety regulation services. The Government will continue to work closely with the overseas territories to promote local ownership and participation in internal security issues. Work to encourage an integrated criminal justice strategy for them has been under way for a while. Territory officials work closely with our own law enforcement adviser and prison reform co-ordinator, whom we have now co-located in Miami to instil greater impetus to this agenda. They will meet with all key law enforcement agency personnel from the territories at a conference in April to discuss how best to take forward the recommendations. We are also grateful to the Ministry of Justice for its support, in particular that of my noble and learned friend Lady Scotland, who will host a conference of Attorney-Generals in the Turks and Caicos Islands next month. Where appropriate, we need to encourage territory Governments to commit adequate resources to all areas of the criminal justice system
I have a couple of minutes left, so I shall do my best to answer some of the points that were raised. We will pass on to the DCMS the issues raised by the noble Baroness, and it will then contact her. The issues on governance and developing overseas territories administrations were raised by a number of noble Lords. We fully recognise the importance of developing that experience base. All governor positions are now advertised across Whitehall. Two of the three governors appointed in the past 12 months have previous overseas territories experience. All staff deploying to governors’ offices now spend time with the Overseas Territories Directorate for full briefing and attend relevant courses, including specialist disaster management training.
I appreciate the strength of feeling expressed on the issue of access to the House, but in the end it is a matter for the House authorities. OT representatives do not have diplomatic immunity and therefore do not have that access. With regard to the Remembrance Day ceremony, the position is as outlined by my noble friend Lord Hoyle: the Foreign Secretary acts in the capacity of laying the wreath on the Cenotaph, and I do not think that there are any plans to change that. However, because feelings are running high on the matter, I shall take it back to the department.
My time is up. I thank all noble Lords for the experience and knowledge that they have shown in this debate, and I thank in particular the noble Baroness, Lady Hooper, for bringing this matter to the attention of the House.
Criminal Justice and Immigration Bill
House again in Committee.
[Amendments Nos. 145 and 146 not moved.]
[Amendment No. 147 had been withdrawn from the Marshalled List.]
[Amendments Nos. 148 and 148A not moved.]
Clauses 130 to 141 agreed to.
Schedules 28 and 29 agreed to.
Clauses 142 to 147 agreed to.
Clause 148 [Violent offender orders]:
149: Clause 148, page 106, line 34, leave out “the public” and insert “a person or specified persons”
The noble Lord said: Earlier my head was full of blasphemy law and the other matters we have been discussing today, but at around a quarter to one I received a letter from the noble Lord which indicated that very considerable changes are being made to this part of the Bill, covering violent offender orders. As was pointed out earlier, the Bill started its progress last July and has been with us in this House for a number of months, but only now have we received these concessions which have the effect of agreeing to some of the amendments we have proposed, but disagreeing with others. Noble Lords should note that I shall speak to Amendment No. 149A, also tabled in the name of my noble friend Lord Wallace, as well as the other amendments in this group.
Not only has Amendment No. 149A been agreed to, it has been improved upon because the Government are prepared to limit the extent of a violent offender order to five years. The same can be said for the provisions in Clause 149 and therefore to other amendments addressing the clauses in this part of the Bill, but we shall come on to debate those later. However, some of our amendments have not been agreed, and I shall address my remarks to them.
As Clause 148(1) points out:
“A violent offender order is an order made in respect of a qualifying offender which … contains such prohibitions, restrictions or conditions as the court making the order considers necessary for the purpose of protecting the public from the risk of serious violent harm”.
Amendment No. 149 addresses the wording on the basis that a violent offender order should not be made generally to the public, but to a person or in respect of,
“a person or specified persons”.
Our position is that making an order which simply protects the public from the risk of serious violent harm is far too wide. Similarly, Amendment No. 150 addresses subsection (2), which states:
“For the purposes of this Part any reference to protecting the public from the risk of serious violent harm caused by a person is a reference to protecting … the public in the United Kingdom”.
Nothing could go wider than that.
One has to go back to where these clauses came from. A violent offender order is essentially a civil order that derives from the civil procedure which enabled a court order to be made in respect of very specific harm against a particular person. We have been through various manifestations of this type of order. They started off as anti-social behaviour orders, subsequently developed into control orders and on to serious crime orders. Now we come to an order which is made in the widest possible terms, one that seeks to protect,
“the public from the risk of serious violent harm caused by a person”,
where “the public” means the whole of the United Kingdom. Amendment No. 150 would limit that in the way I have indicated. Amendments Nos. 151 and 152 are consequential to the attempt that we are engaged in here to limit the orders in this way. I beg to move.
When we were talking earlier about blasphemy, the noble Baroness, Lady Andrews, prayed in aid the wisdom of the Joint Select Committee on Human Rights. That wisdom is represented in the Chamber today by myself and the noble Baroness, Lady Stern. I sincerely hope that the noble Lord, Lord West, will also take note of the wisdom of the Joint Select Committee on Human Rights on these particular matters, over which we had very considerable doubts.
We doubted whether the power to make violent offender orders is defined with sufficient precision to satisfy the law; we doubted whether violent offender orders met the fairness requirements of Article 6 of the European Convention on Human Rights; and we doubted whether the Bill contained sufficient safeguards to ensure that an individual is not retrospectively punished for an offence committed before the Act came into force.
We are unhappy that the violent offender orders lack legal certainty. We notice that Clause 148 provides the court with an entirely open-ended discretion as to the type of prohibitions, restrictions or conditions that it may attach to an order. In our opinion, violent offender orders should provide the requisite degree of legal certainty. The Bill should be amended to provide, at the very least, an indicative list of the types of prohibitions, conditions or restrictions which may be imposed, although we consider that it would be more appropriate and offer greater protection of individual rights if an exhaustive list was provided.
We also think that before a violent offender order is imposed—which is, in effect, a criminal sanction—the standards of criminal proof should be applied. Otherwise they provide an ability to double punish someone on suspicion of the way in which they might behave and because someone thinks they might do something wrong. I thought that we had habeas corpus and common law to protect us and that we were supposed not to be convicted except by due process of law. Thinking that someone may or may not be guilty of an offence or is likely to commit another offence of a type for which he has already been punished is not in the best traditions—or any of the traditions—of English law.
I hope that we can make the Government think much more than they have about the letter which I received at about 2.30 pm today, although admittedly it was dated 3 March. The Government have come up with a paltry set of amendments which do not address the problems on which some of us have spent a little time in trying to grasp their complexity. This is yet another example of the Government’s cack-handed and high-handed intention to undermine the rule of law and the liberty of the subject. I sincerely hope we make major inroads into this whole process. I would like to see it abolished altogether.
I apologise to the Lord Speaker for entering in an absent-minded way and walking about the Chamber while she was addressing your Lordships. I apologise to her.
I and several other noble Lords have notified our intention to oppose the Question that Clause 148 should stand part of the Bill. However, as the noble Lord, Lord Thomas of Gresford, has introduced his amendments with some general reflections on violent offender orders, this seems an appropriate moment for me to make my contribution. That will save the Committee from the awful threat of having two debates on the same issue.
I, too, have been in receipt of a letter from the noble Lord, Lord West of Spithead, in which he has set out seven separate points that he intends to convert into amendments to the Bill at the Report stage. When the noble Lord replies, I will be most interested to know to what extent the list is now set in stone and to what extent it is representative of continuous thinking by the Home Office about the issues that are addressed. I hope it is the latter. Although it goes some way towards meeting some of our criticisms, it in no way meets all of them.
It is probably worth putting these orders in the context of what the law is at the moment. As I understand it, the law is divided between those who are convicted of violent offences with a maximum penalty of less than 10 years and those who are convicted of a serious specified offence with a maximum penalty of 10 years or more. In the case of those convicted of violent offences with a maximum penalty of less than 10 years, they must be given an extended sentence which comprises the appropriate custodial sentence for their offence and an extended period. They will be eligible to apply to the Parole Board for release at the half-way point of a custodial term and, if refused, released automatically at the end of the custodial period. Once released, offenders are subject to licence supervision for an extended period of up to eight years for sexual offences and five years for violent offences.
Those convicted of a serious specified offence with a maximum penalty of 10 years or more must be given an indefinite sentence of imprisonment for public protection. They will be given a minimum term during which they will not be able to apply for release. After that point they will not be released until the Parole Board considers that it is safe to do so. Its overriding concern when making the release decision is, of course, public protection. Once released, they will be on licence for a minimum of 10 years. After that point, they may apply again to the Parole Board for the termination of their licence. This sentence is similar to life imprisonment, although it differs in that the offender will not necessarily be on licence for life.
So where does the violent offender order fit in? I would say in very rare cases. There seem to be three sets of circumstances in which a violent offender order might be relevant: where someone is identified by the process of analysing risk as capable of a violent offence but who has not received a public protection sentence; or someone who was not regarded as sufficiently dangerous at the time of conviction; or because the offence was committed before the introduction of the new offences that I have just outlined in April 2005. I would be most interested to know from the Minister, in general terms, how many people he thinks these orders might affect.
As the noble Lord, Lord Thomas of Gresford, has said, these orders are classifiable as preventive civil measures; they are there to protect the public from the risk of future serious crime. They are civil orders, but their breach would be a criminal offence. As the noble Lord, Lord Thomas of Gresford, rightly says, they are in the tradition of ASBOs, non-molestation orders, control orders and serious crime prevention orders.
The biggest single problem with the orders is that they are simply, under the terms of Clause 148, not properly targeted. They are not targeted at a particular category of person, as the noble Lord, Lord Thomas, has said, nor is there any indication in the Bill of the types of prohibitions, restrictions or conditions that would apply to someone under an order. That is in stark contrast to the control order system, for example, where the kinds of restrictions that are capable of being placed on an individual are set out in considerable detail in the Bill.
I note with interest that point seven in the Minister’s letter says:
“We will set out on the face of the Bill an indicative list of conditions which could be imposed as part of an Order or an interim Order”.
I take that to mean that it is the Government’s intention to bring forward an amendment on Report that seeks to meet at least some of the criticisms I have just made. That is crucial to us. I would find it difficult to see how the Opposition could contemplate supporting measures of this sort unless it was clear in the Bill what types of restraint a particular individual would face.
There is a second issue: the question of criminal due process. I believe that the Government set great store by a case called McCann concerning ASBOs, in which the Appellate Committee of your Lordships’ House decided that ASBOs did not attract the full protection of Article 6 of the European Convention on Human Rights, in the sense that they did not give rise to the protections normally afforded to a defendant in a criminal court. However, they concluded that the normal civil protections are available.
I suggest to the Minister that it would be hazardous for the Government to place too much weight on that case with regard to violent offender orders. In my view, these orders raise very different considerations from ASBOs. In particular, to obtain a violent offender order there already has to have been criminal conduct. That is not the case for ASBOs. Accordingly, there must be a good chance that violent offender orders will attract all the fair-trial guarantees. I would like to see that reflected in the Bill. In any event, whether violent offender orders attract the civil protections or the criminal protections, the Appellate Committee concluded that the appropriate test, the burden of proof, should be “beyond reasonable doubt”. Again, although that is already the law, I would be much happier if that were reflected in the Bill.
The way in which the hearings on violent offender orders are conducted also gives rise—on my part, at any rate—to some concern. I understand that the proceedings will be on the basis of what I still call affidavit evidence, although I think it has a more modern description now. Where you are restricting the freedom of the individual, evidence should be capable of being tested by cross-examination. I urge the Minister to think hard about that when he brings forward his amendments on Report. It may not be appropriate to put that in an amendment, but I would welcome an undertaking from him that the rules of procedure in the courts will be adapted to ensure that that happens.
One of the things we have learnt from ASBOs—and of course a high percentage of them are breached—is that the broader the order, the more likely the breach. I therefore urge the Minister, if we end up with these orders in the Bill when it finally becomes law, to cast the legislation in such a way that the orders are well targeted, not only because I think that is right in terms of the liberty of the individual but because they will be much more successful in achieving their objective.
I was speaking to the first three amendments; the noble Lord, Lord Kingsland, has gone rather wider than that. Indeed, one wonders whether we should have gone on to Clause 168 stand part. I show my lack of knowledge of procedure. Should I answer on those amendments first, or go more broadly?
I apologise for embarrassing the Minister. I was trying to save the Committee time, because I am essentially covering the same themes as the noble Lord, Lord Thomas. The Minister should proceed in the way that is most comfortable for him. He can move from the particular to the general or vice versa; we will be equally delighted.
I thank the noble Lord for his International Code Flag “Uniform”, which means “You are running into danger”. I might start with the general, which I hope will facilitate the discussion, and then go into the particular.
Serious violence is one of the greatest challenges that we face in contemporary society; it blights lives like no other crime. I know that we are all aware of that. It causes terrible suffering not just to victims but to their families and contributes to higher levels of fear within the community. The Government, working with the police and others, have brought about significant reductions in violent crime during the past 10 years. I know that people dispute figures, but I asked for some examples. In 1997, there were 2,184,000 incidents of violence with injury, which is a pretty horrifying total. Last year, there were 1,207,000, which is still an awfully high number, but a huge reduction. Similarly, I can quote other figures. Woundings are down from 804,000 to 578,000. Those are big reductions, but we are not complacent and we know that there is much to do.
There is no doubt that public perceptions are very different from that, and just because they are perceptions does not mean that they are not important. Such perceptions, partly fuelled by media reporting, have an impact on the quality of life of law-abiding citizens. There is no doubt that they inspire fear. In areas where I have lived in London I have seen that that fear exists. The fear is very real and needs to be addressed.
It is precisely for that reason that on 18 February we published an action plan setting out how we intended to achieve further reductions in serious violence in the future. Our vision is simple. We feel that we have to save lives, and we think that this plan will save lives, reduce harm and protect the public. One can have long discussions and arguments about how people have got into a position where they are committing these criminal acts. We show great sympathy for them and look after them as we should, because they may have suffered in how they have been brought up; but these are often issues within their family life and are not necessarily a matter for government, whereas protecting law-abiding citizens is. Violent offender orders are a key commitment within this plan, and I shall set out why.
As has been said, the violent offender orders are civil preventive orders. Their principal aim is to protect the public from the most dangerous violent offenders who still present a risk of causing serious violent harm and who are not being managed. Although there are a number of ways in which we manage them, these orders are yet another arrow in our quiver. The orders are not punitive and not intended as an additional punishment. We can debate that, but that is how we perceive them. Instead, they acknowledge the importance of risk management.
How can the Minister say that they are not punitive if they subject people to curfew? I am not arguing that people should not be punished, and of course I am not arguing that the public should not be protected from violence, but to say that locking somebody up for 12 hours a day is not punitive stretches the bounds of imagination beyond the imagination of Walt Disney.
The Minister, if I understood him correctly, said that the conditions would not be punitive or an additional punishment. Is he saying that because he knows that if they were an additional punishment, they would be in breach of Article 7 of the European Convention on Human Rights, which provides:
“Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed”?
To add at the end of a period of imprisonment and licence thereafter a series of restrictions and conditions which could be described as punitive would be adding to the punishment and in breach of Article 7. Is the Minister saying that the orders will not be punitive just to get round that provision?
I am not saying it just to get round that provision; I am saying that they are not necessarily punitive. I can think of a case in an area where I lived in north London where it would have been very handy for a chap who was causing immense trouble and difficulty in the road concerned not to have been allowed to go into it. That would not have been punitive, but it would have made people in that road considerably safer.
The point is that the chap to whom the noble Lord referred is committing a crime; so charge him with that crime and punish him by due process of law. That is what those of us who are ad idem on this issue believe. People should be punished for breach of the law and we should not just add on and tack on.
The perennial problem with this type of order is that you create a personal criminal code for an individual. You say, “You can't go into this street. You can't go into that park. You can't meet with X” based on hearsay evidence and civil procedure. If he does go into the road or the pub or meet with someone else, then under these provisions it is a crime, just as it would be if he breached a condition of an ASBO. You are acting punitively. You are imposing criminal sanctions on a person for a breach of something that is not a crime for anyone else in the population. That is the problem. There is a real flaw in these orders.
I hope the Minister does not mind having to remember so many interventions at once. I got the impression from what he was saying that he is not yet clear about what the restrictions will be. In this very helpful letter—everyone remembers the moment they received their copy; I got mine at 2.47 pm today—it is suggested that an amendment to the Bill at Report will include a list of restrictions that could be imposed on those subject to these orders. The Joint Committee on Human Rights feels very strongly that the restrictions must be in the Bill and must be debated so that those who are subject to them can have some sort of certainty. When are we likely to see these restrictions—so that the Joint Committee on Human Rights can look at them and see how far they satisfy the need for people to know what might happen to them, and so that we can be satisfied they are proportionate?
A number of points have been raised. I still do not believe that the orders are punitive. It is not a criminal sanction. In reply to the noble Earl, Lord Onslow, it is not always possible to prosecute people when they are causing real concern, fear and almost terror in an area. I know that from an area in north London where I lived and saw for myself what one individual could do in one street. It was all right for a big chap like me because I could confront him, but some of the other people could not. It was very difficult to pin something on him that the police could charge him with. That is what these orders will do. There is no doubt that large numbers of people in this country feel very threatened and worried because of this sort of behaviour. That is what this provision is aiming at.
In reply to the noble Baroness, we aim to produce an indicative list of the sorts of sanctions at Report. I hope that I will answer some of the other questions as I move through the brief.
The provision is based on the risk that these people present to the public. It is not a simple concept—it is difficult, complex and dynamic. It is extremely difficult to predict and manage, but that is not an excuse to do nothing. We cannot wait until that risk presents itself in the form of serious violence. We can stop violent attacks occurring and recurring by doing this.
With the greatest respect, I must say that the letter I have in my hand, which I received at 12.45, says:
“We will set out on the face of the Bill that a Violent Offender Order should only be made to protect the public from any current risk of serious physical or psychological harm”—
—not a risk that may emerge in the future, but a current risk.