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Criminal Justice and Immigration Bill

Volume 700: debated on Monday 21 April 2008

Further consideration of amendments on Report resumed.

Clause 61 [Compensation for miscarriages of justice]:

86A: Clause 61, page 45, line 3, leave out “2” and insert “6”

The noble Lord said: My Lords, the purpose of my amendments is to highlight the Government’s proposals for limiting compensation to those who have suffered a miscarriage of justice. When the provision in the Bill for Clause 61 was first announced, it was suggested that this would bring it in line with the compensation for the victims of crimes of violence. I declare a remote interest as a former member of the Criminal Injuries Compensation Board under the original scheme. The ethos of the compensation for the victims of criminal injuries is that the person who causes the injuries generally is in no position to pay any damages. If he is in a position to pay, if the perpetrator can compensate the victim in a civil action, there is absolutely no limit to the amount of damages that he can recover, and he would recover damages in the ordinary way, assessed on the basis of the injuries to himself, the loss of earnings, and so on. But a policy decision was made some time ago, with the support of all parties, that since victims of criminal acts cannot recover compensation in the overwhelming generality of cases, the state should step in and provide a scheme to give them compensation.

As originally envisaged, that scheme was based on common law damages and a person who was the subject of an assault or more serious injury was entitled to recover damages assessed in the ordinary way. In 1992, a decision was taken to take that provision away and to have a statutory scheme which had a tariff attached to it: so much for a finger, so much for a leg, so much for this, that or the other. At that point I resigned from the board because I thought that that was an unfair scheme and a derogation of principle to depart from awarding a person ordinary common law damages. Notwithstanding my resignation, that scheme has continued since that time and over the years it has become subject to a limitation, the upper limit being £500,000.

The victims of miscarriages of justice are in a totally different position. The potential defendant in such a case is not a criminal who has caused injury so the state steps in, as a matter of social welfare, to assist the victim and the state has to carry the responsibility for the miscarriage of justice. In my experience, those miscarriages of justice can come from a variety of situations. They can arise because of perjured evidence by witnesses of fact but more often they are discovered as a result of failings in the forensic service or a failure by the prosecution to disclose things. A variety of issues can arise on appeal which results in a person being acquitted and becoming a recognised victim of a miscarriage of justice. The only body that could carry responsibility for that is the body that has imprisoned him, the body that has been responsible for a system of criminal justice which has broken down. Hence, where there is a compensation scheme for a victim of a miscarriage of justice, the victim recovers from the only body that can be held responsible for his imprisonment.

The Government are now introducing a cap on damages—on compensation—originally to make it equivalent to the compensation for victims of crimes of violence. That simply confuses two separate reasons for the state granting compensation. In some ways, the victim of a miscarriage of justice is in a worse position than someone who has received a physical injury, short of death, because when the person who has been locked up is eventually released by the Court of Appeal, what do they go back to? Generally, he or she is homeless and has lost his or her family; generally, the job has gone. In addition to all of that, during that period of imprisonment they may have suffered enormous psychological damage and, in many cases, psychiatric illness arising out of it.

It is not possible that there should be a limit where one could say, “It has to be under £500,000” when, over a period of years, just the provision of a home or a job would bring someone swiftly up to that level of money. Accordingly, our amendments would, first, extend the proposed limitation of two years to six for bringing a claim from the date that the miscarriage of justice is discovered, which brings it in line with most civil claims. Secondly, they would remove the cap on compensation—where, admittedly, as your Lordships can see, the Government are prepared to raise the limit to £1 million by their own amendment. However, often that too can be exceeded.

Our third objective is to remove from the Bill the limitation on loss of earnings. Under the Bill, a person who has been imprisoned for many years is entitled only to one-and-a-half times the average national wage by way of compensation for loss of earnings. It does not matter how high-flying he may have been in his profession or occupation, or what sort of opportunities for promotion he has missed, and so on; the claim is to be limited in that way. We submit that that is grossly unfair. We believe that with the scheme for compensating people, as originally envisaged and administered by the noble Lord, Lord Brennan, who, with all of his skilled expertise in personal injury cases has done a great deal for people who have been the victims of miscarriages of justice, there should be a maintenance of the present position.

Another matter causing concern about compensation is that your Lordships’ House decided that the scheme is such that someone must have the cost of board and lodging over their period of imprisonment deducted from their compensation by the state. It is, I respectfully suggest, an insult to have to pay for the period of imprisonment under what is to be recognised as a miscarriage of justice. That is a mean provision. It cannot come from principle, but only from a desire to save money. It comes directly from the Treasury; we oppose it absolutely wholeheartedly, and I hope that your Lordships will agree with what I have said.

My Lords, before I turn to the government amendments in this group, I hope that it will assist the House if I attempt to respond to Amendment No. 86B, moved with great expertise by the noble Lord, Lord Thomas of Gresford. By that, I mean that he has great expertise in this field, which goes back many years, and I pay tribute to it.

Amendment No. 86B would remove the proposed £500,000 maximum compensation payment. The proposal in the Bill as it stands is to cap compensation at £500,000 following a miscarriage of justice. This would mean that maximum compensation paid by the state was the same as that paid to victims of crime under the criminal injuries compensation scheme. Of course we accept that the circumstances of victims of miscarriages of justice and victims of crime are different. That is also true of one victim of crime from another victim of crime or one victim of a miscarriage of justice from another victim of a miscarriage of justice. They are broadly analogous in that the impact on victims’ lives in terms of the damage and hardship suffered, whether physical, mental or both, can be devastating.

At the moment the difference in the compensation awarded can be stark. A victim of violent crime can receive a maximum of £500,000 from the Government no matter what the extent of the injuries suffered and a victim of a miscarriage of justice can receive unlimited compensation even in circumstances when they have spent little or no time in custody. The average state compensation paid to a victim of crime under what is generally considered one of the most generous victims’ compensation schemes in the world is £5,500. The average paid to a victim of a miscarriage of justice is about £250,000.

My Lords, if the noble Lord is going to use that statistic, does he agree that claims on the compensation board amount to hundreds of thousands a year and that claims of victims who have suffered a miscarriage of justice amount to a handful of people—perhaps 30 a year?

My Lord, there is certainly a difference and of course I accept that. I understand that the average compensation paid goes a little way towards making the point I tried to make, but as it is an average it does not speak about every case.

It has been argued—it was hinted at tonight—that miscarriages of justice are always the fault of the state. It is for the state to compensate but it is not always the fault of the state, although it is at fault on occasion. Sometimes a complainant makes false allegations and is believed by both the prosecution and the jury. We all know of that having happened. Sometimes new techniques—DNA is the best example—are developed that provide better and clearer evidence. There are cases where no blame at all can be attached to the prosecuting authorities for a conviction that is rightly quashed. In reality, in all cases whether or not the state is to blame, it has to pay the compensation. The same reality means that the state is responsible for compensating victims of crime as the people who commit offences are often what used to be described as men of straw in that they have no financial backing.

Such responsibility is right in a civilised country. There is nothing to stop someone seeking redress through the civil courts following a miscarriage of justice for, say, malicious prosecution, in the same way that a victim of crime can bring civil proceedings against the person who harmed him. I recognise that such a course, particularly an accusation of malicious prosecution, has many difficulties if one is to prove it. That is why we attempted to explain in Committee that the requirements for making an application for compensation under the miscarriage scheme operated by my right honourable friend the Lord Chancellor are much less onerous than making a civil claim through the courts, and rightly so.

For those reasons it is appropriate that compensation should be capped, but we acknowledge that some refinement of the £500,000 limit provided for in the Bill would be sensible. Government Amendment No. 86C in this group would increase the maximum payable from the current £500,000 in all circumstances to the same amount where the applicant has spent less than 10 years in relevant detention, and up to £1 million where the applicant has spent 10 years or more in relevant detention. This enables very substantial compensation to be made to applicants, but recognises the principle that compensation should not be unlimited, and that applicants do not have to prove their case in the same way that they would in a civil court.

I accept that the amendment would mean that there is no longer a straight read-across to compensation paid to victims of crime, where the limit is £500,000. It would none the less keep a link for most cases, while recognising that where, as a result of a miscarriage of justice, an applicant has spent as long as 10 years or more in prison, more compensation could be paid. Government Amendment No. 86E would enable both the £500,000 and £1 million limits to be altered by affirmative resolution of both Houses. Government Amendment No. 86F sets out in some detail the types and periods of detention that would be counted when calculating which caps should apply. Government Amendment No. 86G would ensure that the provision inserted by Amendment No. 86F extends to Northern Ireland. Finally, Amendments Nos. 115C, 115D and 115E make similar provision for compensation for miscarriages of justice in the Armed Forces.

I turn to Amendment No. 86D in the name of the noble Lord, Lord Thomas of Gresford. This seeks to remove the cap on how much can be paid for lost earnings in any one year when the assessor is making an assessment. The pecuniary loss element of miscarriages of justice compensation awards is intended to compensate for such things as loss of earnings, loss of future earning capacity, loss of opportunity and loss of pension contributions. Its purpose until now has been, as far as it has been possible, to put the applicant back into the financial position that they would have been in but for the miscarriage of justice. Increasingly, applicants have submitted hugely complex and speculative claims. The assessor is left with the difficult task of determining the financial position an applicant would have been in had the miscarriage of justice not occurred, as against the position they thought, or even hoped they might have been in. Consequently, claims can, not unusually, take years—not months—to sort out. On average, it takes three and a half years and, in several cases, over 10 years. Of course, they also cost a very large amount of money. I have evidence of a forensic accountant’s bill for £400,000. I am not saying that it related to a question of compensation for loss of earnings, but it is an example of how large these bills can be and what a long time they take to work out.

It is in everyone’s interest for these cases to be finalised as quickly as possible. This will be facilitated by a cap on the amount of compensation that can be awarded for any year’s lost earnings because it is likely that less evidence of loss will be required and will be easier to provide. Indeed, swifter resolutions will, perhaps, help some applicants to draw a line under what, in every case, is an unfortunate experience, to put it mildly, if they have been the victims of a miscarriage of justice, and to move on with their lives. The proposed limit is one and a half times the median gross annual earnings as published by the Office for National Statistics. Again, this is in line with what applies under the Criminal Injuries Compensation Scheme and will bring about a better balance with compensation paid to victims under that scheme.

Finally, Amendment No. 86A in this group would extend the proposed time limit for making a claim for compensation in relation to a miscarriage of justice from two to six years. Our proposed limit of two years for making an application is the same as that for making an application for criminal injuries compensation. We do not accept that it should be increased to six years, in line with that for bringing many—but, of course, not all—types of civil action. All that is required to make an application for compensation is the completion of a relatively simple form, giving the factual details of the case or, indeed, simply writing a letter setting out the circumstances. There is no equivalent burden of proof to be met or substantial argument to be presented.

In the vast majority of cases, two years from the date of the quashing of the conviction or the date of the retrial should be sufficient time to make such an application. We have of course made provision for an application made after the two-year period to be accepted in exceptional circumstances. Someone being incapacitated for a large part of the two-year period might well be regarded as an exceptional circumstance.

I am sorry that we disagree with the noble Lord on the principle of capping payments for miscarriages of justice. We think, for the reasons I have attempted to state, that we are right about it. I hope that the concession—if that is the right word—that we have made in raising the amount for those who have suffered the longest miscarriages of justice slightly assuages the noble Lord when he hears our arguments. We have moved some way in his direction, and I hope that he feels able to withdraw his amendment.

My Lords, many of the arguments in the Minister’s response indicate how blinkered the Government are in still equating compensation for criminal injuries with compensation for miscarriages of justice. I will not repeat what I said but, for example, justifying the £500,000 cap proposed in the Bill because that is what victims of criminal injuries get, and the sum that is one and a half times the average wage because that is what they get, indicates how the Government have failed to grasp the essential difference. At some point, this will come back to haunt them. Having been party to a generous scheme of compensation in the sense that people are put back, after they have been released from prison, to the position in which they would otherwise have been, in so far as money can do that, and then abandoned that principle for no other reason than to save money—we have not heard anything on principle from them at all—the Government will be haunted by this for a long time.

At this time of night, I do not propose to push this matter to a vote. However, in subsequent months and years, we will come back to this issue time and again—especially when the press get hold of a particularly vicious miscarriage of justice which illustrates my points. I did not say that the Government or the prosecutor are necessarily to blame; there are cases, which I referred to in my opening remarks, where perjured witnesses have led to a miscarriage of justice. However, the state is responsible for the criminal justice system. When it is in the dock, it should pay. I have exhausted your Lordships’ patience long enough on this topic, and beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendment No. 86B not moved.]

86C: Clause 61, page 46, line 14, leave out “£500,000” and insert—

“(a) £1 million in a case to which section 133B applies, and(b) £500,000 in any other case.”

On Question, amendment agreed to.

[Amendment No. 86D not moved.]

86E: Clause 61, page 46, line 22, leave out first “the” and insert “any”

86F: Clause 61, page 46, line 27, at end insert—

“133B Cases where person has been detained for at least 10 years

(1) For the purposes of section 133A(5) this section applies to any case where the person concerned (“P”) has been in qualifying detention for a period (or total period) of at least 10 years by the time when—

(a) the conviction is reversed, or(b) the pardon is given,as mentioned in section 133(1).(2) P was “in qualifying detention” at any time when P was detained in a prison, a hospital or at any other place, if P was so detained—

(a) by virtue of a sentence passed in respect of the relevant offence,(b) under mental health legislation by reason of P’s conviction of that offence (disregarding any conditions other than the fact of the conviction that had to be fulfilled in order for P to be so detained), or(c) as a result of P’s having been remanded in custody in connection with the relevant offence or with any other offence the charge for which was founded on the same facts or evidence as that for the relevant offence.(3) In calculating the period (or total period) during which P has been in qualifying detention as mentioned in subsection (1), no account is to be taken of any period of time during which P was both—

(a) in qualifying detention, and(b) in excluded concurrent detention.(4) P was “in excluded concurrent detention” at any time when P was detained in a prison, a hospital or at any other place, if P was so detained—

(a) during the term of a sentence passed in respect of an offence other than the relevant offence,(b) under mental health legislation by reason of P’s conviction of any such other offence (disregarding any conditions other than the fact of the conviction that had to be fulfilled in order for P to be so detained), or(c) as a result of P’s having been remanded in custody in connection with an offence for which P was subsequently convicted other than—(i) the relevant offence, or (ii) any other offence the charge for which was founded on the same facts or evidence as that for the relevant offence.(5) But P was not “in excluded concurrent detention” at any time by virtue of subsection (4)(a), (b) or (c) if P’s conviction of the other offence mentioned in that provision was quashed on appeal, or a pardon was given in respect of it.

(6) In this section—

“mental health legislation” means—

(a) Part 3 of the Mental Health Act 1983,(b) Part 3 of the Mental Health (Northern Ireland) Order 1986, or(c) the provisions of any earlier enactment corresponding to Part 3 of that Act or Part 3 of that Order;“the relevant offence” means the offence in respect of which the conviction is quashed or the pardon is given (but see subsection (7));

“remanded in custody” is to be read in accordance with subsections (8) and (9);

“reversed” has the same meaning as in section 133 of this Act.

(7) If, as a result of the miscarriage of justice—

(a) two or more convictions are reversed, or(b) a pardon is given in respect of two or more offences,“the relevant offence” means any of the offences concerned.(8) In relation to England and Wales, “remanded in custody” has the meaning given by section 242(2) of the Criminal Justice Act 2003, but that subsection applies for the purposes of this section as if any reference there to a provision of the Mental Health Act 1983 included a reference to any corresponding provision of any earlier enactment.

(9) In relation to Northern Ireland, “remanded in custody” means—

(a) remanded in or committed to custody by an order of a court, or(b) remanded, admitted or removed to hospital under Article 42, 43, 45 or 54 of the Mental Health (Northern Ireland) Order 1986 or under any corresponding provision of any earlier enactment.””

86G: Clause 61, page 46, line 29, leave out from “Wales)” to end of line 30 and insert “for “section 133” substitute “sections 133 to 133B”.”

On Question, amendments agreed to.

86H: After Clause 62, insert the following new Clause—

“Withdrawal of warrants

After section 11 of the Magistrates’ Courts Act 1980 (c. 43) (non-appearance of accused: general provisions) insert—

“11A Non-appearance of accused: withdrawal of warrants

(1) Where a magistrates’ court has proceeded in the absence of the accused and the court has imposed a fine following conviction, any warrant to enforce the fine or other financial penalty may be suspended or withdrawn and the matter returned to the court which convicted the offender.

(2) The Secretary of State shall make regulations enabling—

(a) a court,(b) Her Majesty’s Court service, or(c) any person employed to enforce a warrant against a convicted person,to suspend or withdraw the warrant and return the matter to the court which convicted the offender.

(3) Regulations made under subsection (2) shall specify the steps to be taken in a case where following conviction it is discovered that the offender is a vulnerable person.

(4) In subsection (3), “vulnerable person” means a person who could not reasonably be expected to act on his own behalf including, but not limited, to—

(a) children under 18 years of age;(b) the elderly;(c) persons with a disability;(d) the seriously ill;(e) the recently bereaved;(f) single parents;(g) pregnant women;(h) unemployed persons;(i) persons who have obvious difficulty in understanding, speaking or reading English.””

The noble Lord said: My Lords, the amendment inserts a new clause which would permit the withdrawal of warrants in a case where a magistrates’ court has proceeded in the absence of the accused and imposed a fine which is then enforced by means of a warrant. The noble Lord, Lord Lucas, has a great interest in this matter. Noble Lords are looking round, but he cannot be here and therefore I am putting forward the amendment with his consent.

Following our discussions in Committee, the noble Lord, Lord Lucas, and the Z2K Trust had meetings with the Minister and they made some progress, but two major points are outstanding: first, while defaulters or their representatives can ask for the cases to be reheard by the magistrates’ court, the Government have said nothing about the fines officer or the bailiff referring back to the courts the case of vulnerable people who have been fined disproportionately in their absence. Noble Lords may remember that in Committee we made the point that if a person does not know that he has been summoned to court and does not know that a fine has been imposed it may be that the first he knows of these proceedings is when the bailiff knocks on the door. The purpose of the provisions in the amendment is that at that point the bailiff should be able to consider the position of the people with whom he is dealing, not simply to exercise his powers but to take a decision as to whether in all fairness and justice this matter will be referred back to the magistrates’ court.

Secondly, many of your Lordships who have experience as magistrates know that in imposing a fine it is necessary to have regards to the means of the offender. The court in the absence of the defendant and without any notification to him may be unaware of the financial circumstances of the person concerned. Fines officers and bailiffs need to be under a positive duty to report back to the magistrates’ court cases of vulnerability or disproportionate fines in relation to means for the magistrates to reconsider. That is not terribly difficult. Generally speaking, bailiffs do not exercise their powers immediately but take time; they warn the person concerned and then go back. In the period before finally enforcing the order the bailiff has ample time to consider the person concerned and whether the case should be reported back.

The noble Lord, Lord Lucas, tells me that he found the expectations far too high in the Ministry of Justice about the capacity and knowledge of the relevant procedures among vulnerable people. For example, as the noble Lord, Lord Lucas, and Mr Paul Nicolson of the trust pointed out to me, 7 million adults in the United Kingdom have a reading age of 11. For such issues there is no legal aid. Many people subject to such procedures are functionally handicapped when it comes to using legal processes. They are incapable of understanding the appeal and complaints system and will be unable to apply for a rehearing or to bring a complaint unless assisted by lawyers or specialist advisers. It is always open to a bailiff to discourage the person to whom he is speaking to take the matter further. Bailiffs are concerned with their commission.

The amendments that we have tabled deal with those problems. I invite your Lordships’ attention to them. I have already referred to subsection (1), where the financial penalty may be suspended or withdrawn.

Subsection (2) provides that the Secretary of State should make regulations that will enable a bailiff to suspend or withdraw the warrant and return the matter to the court. Subsection (3) provides that:

“Regulations … shall specify the steps to be taken in a case where following conviction it is discovered that the offender is a vulnerable person”.

Subsection (4) defines that vulnerable person as,

“children under 18 years of age … the elderly … persons with a disability … the seriously ill … the recently bereaved”,

and so on.

We have to have a system for the enforcement of fines which is humane and just. I beg to move the amendment in that context.

My Lords, of course we accept that vulnerable people may have difficulty in dealing with some issues. However, we cannot accept the new clause—although we are grateful to the noble Lord, Lord Thomas of Gresford, for raising this matter again—because powers are already available to ensure that warrants outstanding against vulnerable people may be referred back to the courts. These powers are already used. That is not to say that we ought to have a system that simply allows a person routinely to stop a process after they have committed an offence, ignored a summons, failed to appear at court, or failed to respond to repeated correspondence from the court; but even at the latest possible stage, when a bailiff is engaged, there is and ought to be a process whereby the matter can be halted in the case of a vulnerable person.

The new clause provides that where an offender has been convicted in absence and fined, a warrant to enforce the fine or other financial penalty may be suspended or withdrawn. Regulations may provide that those who may suspend or withdraw the warrant may include a court, a member of Her Majesty’s Courts Service, or any person employed in enforcing the warrant. The regulations under the new clause would also have to set out the steps to be taken when a person is deemed vulnerable. Finally, the new clause attempts to define a vulnerable person for the purposes of this power.

As the noble Lord, Lord Thomas of Gresford, told the House, following the withdrawal of this amendment in Committee on 3 March my noble friend Lord Hunt and I had a useful meeting with the noble Lord, Lord Lucas. I believed that we reached agreement on the extent of the current powers to deal with the withdrawal of distress warrants. That meeting was also attended by representatives of the Zacchaeus 2000 Trust, which does such valuable work in assisting vulnerable people.

At that meeting, my noble friend gave an undertaking that our officials will develop guidance for the courts which will clarify their powers to withdraw such a warrant. He also agreed that officials will consult the trust as well as other key stakeholders, such as, of course, the Magistrates’ Association and the Justices’ Clerks’ Society. My noble friend followed up that meeting with a letter to the noble Lord, Lord Lucas. The Reverend Paul Nicolson of the trust kindly copied my officials into a response to my noble friend’s letter, indicating that he thought some points had not been answered. These are the ones that the noble Lord has quite properly raised tonight. The first concerns the fines officer.

Let me deal with the referral back to court by a fines officer or bailiff. I remind the House that under Schedule 5 to the Courts Act 2003 the fines officer has the power to refer a case back before the magistrates’ court at any time. For example, the fines officer could do this if they did not have at their disposal suitable delegated powers to deal effectively with the offender. In practice, this power enables a fines officer to return a case to court where it is clear to them that the offender is vulnerable and genuinely unable to pay the fine. The magistrates could consider the powers which they have at their disposal, which include the power to remit or reduce the level of the fine as they feel appropriate.

Bailiffs, too, should refer the matter to court if they come across someone who they consider genuinely vulnerable. There is concern that the National Standards for Enforcement Agents—which is only guidance for bailiffs—is being widely ignored in practice. However, the bailiffs have a contract with Her Majesty’s Courts Service and are required by that contract not to take enforcement actions in certain situations. The relevant paragraph is 6.31 of the specification for private enforcement provision. I quote briefly:

“The Contractor shall not take any action to levy distress without prior reference to the court if the Defaulter: is in hospital or nursing home; appears to suffer from severe physical or any mental disability; is an elderly person who has difficulty dealing with his/her affairs; is suffering long-term sickness, serious or acute illness or frailty, which has resulted in a recent period of hospitalisation or defaulter being housebound and can provide evidence of sickness for the period in default”.

Some noble Lords may say, “Yes, but in practice this means nothing to the vulnerable person with the bailiff knocking at the door”. That is not the case, in our view.

If a person has a complaint about a bailiff, the first thing to do is to complain to the company that the bailiff works for. This is important because the Courts Service contract with bailiffs was recently extended for a further year, until the end of March 2009. There have been some attempts to make the complaints process in respect of bailiffs more robust. If this does not work, an individual can go to the magistrates’ court that issued the enforcement order and, as we explained to the noble Lord, Lord Lucas, ask the court to withdraw the distress warrant.

We acknowledge that bailiffs have a difficult job, but we accept that some do not always do that job as we might like. We are fully committed to the regulation of the bailiff industry. I firmly believe that regulation of the industry will drive up standards by improving training and raising professionalism and behavioural standards where necessary. Part of that improvement will come from improving compliance with the national standards where that is needed. Noble Lords will know that primary legislation in 2007 delivered important enforcement law reforms, including provision for an enhanced certification process for bailiffs ahead of full regulation. The House will also remember the Tribunals, Courts and Enforcement Act 2007. The next step is to develop the underpinning rules and regulations that will bring those reforms into force. A scoping exercise to that end has commenced involving a series of meetings with relevant parties. It is anticipated that this scoping activity will be completed by May of this year.

Lastly, what about the argument—perhaps the noble Lord’s most powerful argument—that some of these people are simply too vulnerable to engage in this process? I stress that those who help to support vulnerable people—and thankfully there are many in our society, both volunteers and relatives, who do—must do all they can to ensure that they do not wait until the bailiff is at the door.

The key is to contact the fines officer before matters get to that stage. The fines officer can advise offenders, help them to understand what has been ordered by the court and explain the implications of default. They can advise offenders where they can get help managing their finances, where that is needed. Fines officers can help offenders to understand how they can appeal against the decision of the court, or make a complaint about enforcement action taken either by the court or by bailiffs themselves. It is therefore vital that offenders, especially those who could be considered vulnerable, keep in touch with the court. We cannot emphasise strongly enough the need for offenders to use fines officers as a way of keeping in touch with the court and for help with understanding the enforcement process. If they do so it will reduce the number of occasions when the first face-to-face contact which the offender has with the court is through a bailiff on the doorstep attempting to execute a warrant of distress in lieu of payment of a fine. In the light of what I have said and the work that we are doing on this, I hope the noble Lord will withdraw his amendment.

My Lords, before the Minister sits down, he referred to work in progress and the introduction of a regulatory regime for bailiffs. Can we have some idea of the timetable? When is it likely to be put into effect?

My Lords, the noble Lord presses me, but I can go no further than to confirm that this important scoping activity is due to be completed by May 2008. I cannot say how much longer after that it will take to have a proper regulatory system. I shall take it away and if I can get more information, I shall write to the noble Lord and place a copy in the Library.

My Lords, I am grateful to the Minister for his full response. I have no doubt that I shall discuss it with the noble Lord, Lord Lucas, and the Reverend Paul Nicolson to see where we take the matter. In the light of what the Minister said a moment ago, I reserve my position for Third Reading to see what progress may have been made on elucidating these points. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 63 [Possession of extreme pornographic images]:

86J: Clause 63, page 47, line 7, leave out “both”

The noble Baroness said: My Lords, with this amendment we move to Part 6 and the clause concerning extreme pornography. The Minister said that we had a series of Second Reading speeches in Committee. There was a good reason for that, as noble Lords felt that important principles were being explored and did not feel that the Government had got this part right. That is not to say that there is not an issue to be addressed—I accept that there is—but the Government have not yet got it right. This group of amendments attempts to get us nearer to getting it right.

There was clearly some support in Committee for what the Government are trying to do, but we on these Benches, and many other noble Lords on other Benches, parted company with the Government because we felt there were a number of problems which the Government still needed to address. First, the Government have veered far away from the definition in the Obscene Publications Act. One of our wishes is that this part should bring into line what the OPA does for producers of material with an internet age to address the fact that this material can be produced outside the UK.

The sort of definition we would be looking at would be one that has been tried and tested in the courts under the Obscene Publications Act and that does not confuse the question of whether the material is produced solely or principally for the purpose of sexual arousal with the question of whether it is obscene. As the noble Baroness, Lady Kennedy of The Shaws, reminded us in Committee, juries have great difficulty in dealing with what is likely to deprave and corrupt. Now they will have to contend not only with that question but also with whether the material is produced solely or principally for the purposes of sexual arousal. That has complicated the issue.

In his reply in Committee, the Minister helpfully said that the Government are seeking after consultation with the police and the CPS to make it illegal to possess material that would normally be liable to prosecution under the OPA. We agree that it is important that the OPA is taken as the starting point because there has subsequently been a vast amount of case law which has moved with the times as society’s definition of what is obscene has changed.

The Minister made it clear in his letter of 27 March that what we in the UK have regarded as obscene ever since 1959 is on the whole in advance of what most other countries have regarded as obscene. He sent us a useful round-up of how some of those other countries have legislated. As he says, the UK is a leader. He also says that it would not be the first time the UK has taken a lead in this area. For that reason in particular, it is very important, if these clauses are to be anywhere near to being up that task, that our amendments should be the very least to which the Government aspire. Our amendments reflect the fact that both in Committee and in his letter the Minister accepts that the OPA is good and satisfactory legislation.

The decades of case law that have built up to a consensus on what is a very difficult subject reflect societal changes. We have therefore tabled Amendment No. 86L to clarify further that, in criminalising what an internet porn viewer is looking at, it should be the same sort of thing that it would be illegal to print under the OPA—neither more nor less.

Amendment No. 86K would ensure that the Bill criminalises a possessor of material in which something is taking place that is actually criminal and not merely distasteful, however distasteful that might be. Will the Minister say more about the penalties which this part of the Bill carries and which are now very severe? If someone viewed over the internet a third party having sexual intercourse with a sheep, would that carry a greater penalty than someone actually having sexual intercourse with a sheep? It is important to focus on the effects of what we are talking about here. Should watching something that is clearly illegal, that clearly gives rise to animal welfare issues and that has clearly been legislated for in animal welfare legislation be more criminal and carry greater penalties than the actual act itself?

In Amendment No. 86M, we have sought to give a far clearer definition of what a sexual offence is. Those offences are quite adequately defined in the Sexual Offences Act 2003, and surely the Government do not want to confuse an already fraught area by having two parallel interpretations of what a sexual offence is.

I will come back to some of the more fundamental issues when we debate whether these clauses should stand part of the Bill at all, but at this stage, those are the matters that I wish to talk about. Therefore, I beg to move.

My Lords, I added my name to these amendments and I am glad to support the noble Baroness, Lady Miller. I spent nearly 20 years on one Front Bench or another, and during that time I never quite had the guts to say what I really thought about these issues. I never quite had the guts to quote Kenneth Tynan, who in a review of eastern erotic art said, “All my life I have enjoyed having erections, and I have been grateful to the people and the works of art that made them possible”. Now I have said it, and no one can accuse any political party of having any involvement in that.

Before I went on to any Front Bench, I was involved in the proceedings on the Video Recordings Bill 1983, which became the Video Recordings Act 1984. Three of us—Douglas Houghton, Hugh Jenkins and I—fought against that Bill all by ourselves and to no real effect. The starting point was that what we do in our homes—the possession of books or images—is no business of the Government or the courts. What we have on our bookshelves is still not their business, but something has encouraged Governments of both persuasions to think that what we may have in terms of video recordings or pornographic images on the internet, or whatever they may be, is the concern of government.

Of course, if any of those images involves the commission of a crime in their production, an existing law deals with that, which none of us can contest. This is not an argument for child pornography, for bestiality, for snuff movies or anything like that. No one is defending that and there is a perfectly good law to deal with it. Having said that, what does it matter to the Government whether what we have in our homes for our own purposes is for sexual arousal or not? What is wrong with sexual arousal anyway? That is not a matter for Parliament or government to be concerned about. I am opposed in principle to interference in the private lives of adults as long as what they do does not cause harm to anyone else, or arises from or causes any offence under criminal law.

I have a further objection, which the noble Baroness, Lady Miller, has eloquently brought out. We have had the Obscene Publications Act 1959 for nearly 50 years. In Committee, my noble friend Lady Kennedy said that, yes, there are problems with interpretation, but the courts during that period have successfully dealt with those problems and the wording of the Obscene Publications Act. This part of Part 5 introduces new definitions of obscene or extreme pornography, which cloud the agreement that generally has been reached in this country about what is obscene and what should be allowed. That is extraordinarily unfortunate. It is damaging to the interpretation of the law; to the confidence of people that the law understands the variety of emotions and feelings that there are about sexual matters; and to the reputation of the law itself.

I have no hesitation in supporting the noble Baroness, Lady Miller, in these amendments. I hope that the Government will go a good deal further than they went in Committee in recognising the validity of her arguments.

My Lords, the noble Lord, Lord McIntosh, quoted Kenneth Tynan. I do not know whether he saw the interview with Doris Lessing in one of yesterday’s newspapers when she talked about an evening she spent with Kenneth Tynan, which ended with some remarks she made about whips. The noble Lord and I have both been Whips, but Kenneth Tynan and Doris Lessing were talking about a different sort of whip. If the noble Lord can find the appropriate newspaper, he might find that interview amusing to read.

I should like to add to what the noble Lord said, because I am coming at this from a similar angle, even if I do not necessarily arrive at the same conclusion. In Committee, I quoted the famous remark of Mrs Patrick Campbell more than 100 years ago, which I shall now quote properly in full. She said:

“It doesn’t matter what you do in the bedroom as long as you don’t do it in the street and frighten the horses”.

I think that most, or all, of us would agree with that. Our only problem is the definition of what frightens horses and what goes slightly too far.

At this point, I have to say that I am very grateful to the Minister, with whom I have had some discussions. He offered me the chance to look at a number of these films and no doubt the noble Lord will tell us more about that in due course. In what was possibly a cowardly manner, I did not take him up on his offer, and so I have left it to him to look at the films. However, I have read the Bill, which defines an extreme pornographic image as an image that is,

“(a) pornographic, and

(b) an extreme image”.

There follows a definition of the word “pornographic” which the noble Lord, Lord McIntosh, described as being something that causes sexual arousal. However, the extreme image is defined in subsection (6) as,

“(a) an act which threatens or appears to threatens a person’s life,

(b) an act which results or appears to result (or be likely to result) in serious injury to a person’s anus, breasts or genitals”,

and so it goes on. At this point it becomes slightly difficult. Having offered what I will call the Mrs Patrick Campbell definition of what we think is the right approach, I then said that I do not know what we define as that which frightens the horses.

I think that we want to hear more from the Government, and particularly about what the Minister and the Government consider to be extreme images, before we make a decision. As I understand it, the noble Baroness, Lady Miller, has put forward two options. The first option set out in the first group of amendments seeks to amend the Bill, and if that does not work, the second group would strike the whole lot out. As we implied in Committee, we want to hear more from the Government before we come to a view. I do not know whether it is appropriate, but the noble Baroness might want to come back at Third Reading, particularly as the noble Lord has now taken a look at some of the extreme pornographic things that he invited me to see. At that stage, and after hearing what the Minister has to say, the noble Baroness may want to consider these matters again.

My Lords, are we not facing the terrible problem of definition? Where you have a definition that says that an extreme pornographic image is an image which is,

“(a) pornographic, and

(b) an extreme image”,

that is like saying a dog is a dog or a horse is a horse; it gets you absolutely nowhere.

There is a wonderful museum in Paris, the Musée d’Orsay, which is full of the most beautiful pictures. One of them was commissioned by the Turkish ambassador in around 1860. It is a close-up painting of a lady’s genitalia, and I believe it is called the Mother of the World—

I thank the noble Lord. My bet is that the Turkish ambassador commissioned that painting for sexual arousal, and yet there it is, displayed in the Musée d’Orsay. Some Greek vases have pictures of Priapus on them. If Priapus was to do the things he is threatening to do, it is fairly likely, because of the size of what he has got, that they would result in serious injury to a person’s bits and pieces.

We are here in the problem of definition. The noble Lord, Lord McIntosh of Haringey, has said that surely it should be left in people’s bedrooms or on the television sets in their bedrooms. Actually, I do not see why someone cannot have a picture of a person having oral sex with a dead animal. It is the most extraordinary thing anyone would want to do, but I cannot see why that should be made criminal. It does not harm the animal because it is dead. The person concerned ought to be carted off in a collar and chain and put in the loony bin, but it does not do anybody any harm. Surely the whole point is that what we are trying to get at is undefinable. You probably know it when you see it, but you cannot define it, and statutes must be defined.

I have a final little story for your Lordships. Years ago I was asked by the noble Lord, Lord Alli, to introduce a programme on pop music. The programme was in six sections, and one of them was on porn rock. I refused to be in any way nice about it. I said that this has been going on for an awfully long time and I quoted Juvenal’s ninth satire, which states,

“an facile et pronum est agere intra uiscera penem legitimum atque illic hesternae occurrere canae?”

I would not have dared to quote that had Lord Hailsham still been on the Woolsack. He would have got very angry because it is incredibly obscene, but it is one of Juvenal’s ninth satires. All I am trying to say is how difficult these definitions are and how impossibly difficult it is to legislate for. I hope that we take out both these clauses.

My Lords, I support the amendment moved by my noble friend Lady Miller. It was supported very robustly and eloquently by the noble Lord, Lord McIntosh of Haringey. There has been concern generally about the existence of these clauses in the Bill. As the noble Earl, Lord Onslow, indicated, there is the problem of definition. It is very unsatisfactory indeed if people are potentially going to be made criminals because they possess certain material. If we are having difficulty over the definition, Heaven help those who might suddenly find themselves at the wrong end of the criminal law because of a lack of understanding as to what the definition is.

It is with these concerns that we have tabled the amendments in the group. If there is going to be a crime established we want to try to get some definition into it. The amendment would make a requirement that the act being recorded, and which is then the subject of the pornographic image, should be one in which one or more of the persons engaged in that act are committing a sexual offence. “Sexual offence” is defined for the purposes of this clause to include offences which could be committed furth of the United Kingdom. One of the concerns mentioned in Committee was that many of these images are imported from outside the United Kingdom.

Clearly, if no sexual offence is being committed, it seems very odd indeed that there should be an offence for having an image of something which was not an offence. I can see nothing within the Bill that would stop a person having a picture of himself or herself engaged in that particular activity, which they would know was entirely consensual. Having engaged in it consensually would not be a crime, but to have a photograph of it in one’s possession would be a crime. That does not seem to me to make sense.

Amendment No. 86L, spoken to by my noble friend Lady Miller, which indicates that the definition should be imported from the Obscene Publications Act, again has considerable good sense attached to it. After all, in Committee, the Minister tried to indicate that it was important that the parallel was made with the Obscene Publications Act. Things were said about the difficulties and the challenges we face today because of the internet and because of electronic communication of images, difficulties which were not faced back in 1959. Notwithstanding that, I cannot see any reason for departing from the definition which, as the noble Lord, Lord McIntosh, said, has stood the test of time of some 50 years, and why we would suddenly have a different set of definitions simply because something might be downloaded from the internet.

Amendment No. 86PA seeks to bring in a defence. The defences in the Bill are very limited indeed. The amendment seeks to create an additional defence whereby a person believes that those involved in the material possessed actually consented to the participation. There may be difficulties in proving that in cases of mass produced pornographic images, but it certainly could be a very useful defence in cases of images of consenting couples or groups which have been made for their own use. It is not open-ended. There is a requirement that the belief must be reasonable. In all these circumstances, the restrictions and the greater definition which the amendments in this group bring forward help to improve the measure. As has been indicated, there is considerable underlying unease about the purpose of the clauses as a whole. I certainly commend the amendments as improving clauses which at the moment do not command sufficient confidence to enable them to become part of our criminal law.

My Lords, I, too, expressed reservations about these clauses in Committee and took very much the same line as the noble Baroness, Lady Miller, did on that occasion. I looked carefully at the amendments that my noble friend brought forward and I said in Committee that I thought that they represented an improvement on what was there before.

I think that I am the only Member of your Lordships’ House who took up the invitation of my noble friend to visit Charing Cross police station to view some of what one might call the exhibits that underlie the Government’s thinking on this matter. A variety of adjectives comes to mind, such as “bizarre”, “unpleasant”, “distasteful”, even “repulsive”, but the images were not in any sense sexually arousing. At the end of the visit, I was left with the question whether their possession is so threatening to society that it is worth turning people into criminals and sending them to jail if they happen to have them on a computer screen at home or have obtained them some other way.

I suspect that, like me, many noble Lords have had a fair number of submissions on this subject from a variety of organisations. Some of them are very articulate and well argued. The main point that comes through was expressed by an organisation called backlash, which said:

“The proposals are still, despite the recent amendments, worded in such a way as to risk inadvertently criminalising hundreds of thousands of British citizens”.

It went on to say:

“Equally importantly, people will be deterred from exploring their sexual preferences for fear that their research may lead them into illegal territory which in turn can cause both distress and mental health issues as well as being a fundamental breach of their human rights”.

The point is also made by a number of these organisations that most of the scenes to which my noble friend introduced me at Charing Cross are not real scenes but are faked for the benefit of their creation or are the product of an entirely consensual activity, as the noble Lord, Lord Wallace, pointed out. I am at one with my noble friend Lord McIntosh and, I suspect, with the Minister in wanting to prosecute illegal activity that has taken place in order to create these images. However, if no illegal activity has taken place and we are concerned about merely the possession of the images, I really cannot imagine that any useful purpose is served by creating criminals out of the people who possess them.

My worry is that the wording of the Bill is still much too vague and could cover all sorts of light, consensual and safe imagery which many people enjoy and practise and which at present is perfectly legal but which as a consequence of these clauses will certainly become illegal. In Committee, I finished by asking my noble friend a question. I did not get an answer on that occasion and I therefore put the same question to him now. As a new offence is being created by these clauses, what will be the position of people who have already downloaded material on to their computers that until now has not been illegal but henceforth will be? Will the possession of that be regarded as a criminal offence and, if it is, what advice are the Government offering to help people to get rid of it? This is an important issue. This House cannot pass legislation that inadvertently turns people into criminals, particularly when the activity in which they are engaging is not doing anybody outside their own homes any harm.

My Lords, I had not originally intended to speak on this group of amendments but, as a libertarian, I feel that I must support them, as I support Amendment No. 87A in the name of the noble Lord, Lord Waddington, and others. A few years ago there was a very famous Italian film. I am afraid that I cannot remember the title. Some of your Lordships may remember it. It won awards all over the world and was highly acclaimed. It was set in Italy in a peasant community about 50 years ago and one of the scenes showed an adolescent farm lad relieving his frustrations with a donkey, standing on a box in the middle of the field in order to do so. I saw this in a large London cinema that was absolutely packed because the film was so highly acclaimed. The audience tittered, as you might expect, but nobody was at all shocked or offended. The Government will argue that the film was not produced solely or principally for the purpose of sexual arousal and, indeed, that is the case. But suppose that somebody was to download that scene from the film on to a DVD and play it over and over again for their rather peculiar sexual tastes. That would be odd, no doubt, but should they really go to prison for such a thing?

My Lords, I totally support the point of view so eloquently expressed by the noble Lord, Lord McIntosh. This House in particular should work hard to preserve the human right to do what one wishes in one’s own home that is not a threat to anyone else in the outside environment. I support this amendment and others coming.

My Lords, I, too, support these amendments. Almost inevitably we are going to have to go through the process of deciding whether what is described—what is attempted to be defined—is in fact effective at all. This is a preliminary attempt to do that. The far more important issue will be what we do about all these clauses. In my view, we need a far harder and deeper look at these issues than we are able to give them in this Bill. That is for the later part of the debate. In the mean time, we shall all be interested to hear what is said. I share everybody’s view that, if what is going on in one’s own bedroom is legal, so long as it is not frightening the horses—or whatever phrase you want to use—it may even be doing some good, but we can discuss that later.

My Lords, I do not like pornography. I was never allowed to read Juvenal’s satires as a child. Child pornography is abhorrent and is rightly censured throughout the world. But I cannot see the point of Clause 63 and subsequent clauses and I do not understand why the House is being troubled with them.

My Lords, judgment tends to go out of the window when we deal with matters in this area. I recall many years ago prosecuting a lady in Caernarfon Crown Court for the murder of her husband. The judge was a recently appointed High Court judge, a commercial lawyer by training, and the lady received probation when she pleaded guilty to manslaughter on the grounds of provocation. The next case involved attempted bestiality, so I know a little bit about it in court. That involved two Welshmen and sheep. However, the Welshmen were drunk at the time and the sheep were not violated. That is why it was charged as attempt. The judge who had given the lady probation for killing her husband proceeded to sentence these two to 12 months’ imprisonment immediately. They went to the Court of Appeal. They were given immediate bail and eventually the case was disposed of by the appeal court on the basis that it was stupid to have brought the case in the first place.

What is this provision in the Bill about? Is it an attempt to punish people for having extreme pornography in their possession or is it an attempt to discourage the commission of acts that we might disapprove of and are contained within the extreme pornography? If you cannot sell a picture or a film or a video, presumably the thinking is that there is no point in such acts taking place in the first place. One has this dilemma: if those acts are not criminal in themselves—a matter to which my noble friend Lady Miller and other noble Lords referred—punishing a person for having pictures of them seems rather silly.

That is what these amendments are about. That is why we on these Benches seek to put into the clause a condition that the act that is shown is criminal. If it is not criminal—if it is consensual—where is the harm? One has to be clear about what one is seeking to punish. What is the motivation? Is it distaste for people watching pornographic films or is it an attempt to discourage illegal conduct? We would go along with an attempt to discourage illegal conduct but not with an attempt to discourage consensual sex that takes place between two people in whatever form it may be. I share the distaste for pornography expressed by many noble Lords. As a classical scholar, I fully understood the depths of obscenity to which the noble Earl descended. I do not see that that is any reason for maintaining this clause in its current state. I respectfully urge on your Lordships that the amendment be accepted.

My Lords, this has been a very interesting debate. I think that the noble Baroness, Lady Miller, said in her introductory remarks that she accepts some of the spirit behind the Government’s legislative proposals, but clearly there is concern about the way in which they have been drafted. I very much understand the point made by my noble friend Lord McIntosh, to whom it is a great pleasure to respond. He spoke of being aware of legislation that seeks to intrude too much into the individual lives of people where, as he said, harm is not caused to others. I very much understand the concerns expressed by noble Lords. The noble Lord, Lord Henley, said that it is all right unless it frightens the horses. I do not know about the horses, but the material that I saw at Charing Cross police station certainly frightened me.

While I accept all the concerns expressed by noble Lords tonight, I would also put the other point of view, which is that there is large and genuine public concern about extreme pornographic material, particularly since the growth of the internet, which has allowed existing controls on publication distribution under the Obscene Publications Act to be circumvented. There is also concern about the adverse influence that that material might have on those watching it. It is not simply material that potentially causes arousal. The tests that have to be applied are, I suggest, high tests. There are three elements that have to be met for someone to be found guilty of the new offence. First, material has to be pornographic; then, it has to be concerned with extreme acts, which are described as threatening a person’s life or as resulting or being likely to result in,

“serious injury to a person’s anus, breast or genitals”.

It also has to be,

“an act which involves sexual interference with a human corpse”,

or an act concerning,

“a person performing an act of intercourse or oral sex with an animal”.

Those acts must be “explicit and realistic”; persons and animals depicted must be such that “a reasonable person” would think them real. The third element of the test is that it must be,

“offensive, disgusting or otherwise of an obscene character”.

That is why many of the examples raised in our debates about works of art simply would not meet the tests described in the Bill.

My Lords, the Minister said that, when he went down to the Charing Cross station, some of the material that he saw certainly succeeded in frightening him. Would he go beyond that and say that it affected him in a manner where he felt that he might commit violence following on from viewing those acts? If I understand the Government’s rapid evidence assessment—it was, as we know from the Committee stage, a highly contested exercise—there was conflicting and contested evidence as to whether simply viewing some of these acts would lead anyone to go out and violently commit those acts themselves against people.

Secondly, the Minister comes to the tests. He uses the words “graphic” and “realistic”. Does he accept that much of the material is produced by consenting adults—much of it may well have consensual acts in its production—and may comprise a great deal of acting? Would he not agree that in acting one may project an image that is threatening or violent, or whatever, in order to be fantastical, and that that is perfectly fine in areas of art? It is rather odd that he uses such tests in this area and says that these tests therefore have a high threshold. Drama is, indeed, about simulating death and many other things. Might the Minister be able to explain that?

My Lords, I was trying to explain that there are three elements to the offence. In our two debates, noble Lords have quoted or referred to certain works of art and suggested that they would be caught; I suggest that none of the examples quoted would be, because those three elements of the test would not have been met.

The noble Baroness asked whether, having viewed these images at Charing Cross police station a couple of weeks ago, I then felt violent or that I would indulge in some offence. I actually felt very sick, because they were pretty disgusting images, and I frankly find it horrific that they are available and that people can see them. I am sorry, but I do not take this very liberal approach of “If it does no harm to the people taking part, why should we worry about it?” I do worry about it, and about the access that people have to that kind of disgusting material. I am afraid that is my position.

My Lords, were the acts that the Minister saw in those videos in themselves illegal? That question has been asked frequently in this debate. Were the people doing these things—and I concede that they were obviously disgusting—doing disgusting legal things or disgusting illegal things?

My Lords, I think that the answer is that some would be covered by offences in this country and some would not, but they were all disgusting. I suspect that we will, in the end, have to come to a value judgment on this matter. Frankly, I want to discuss why the Government would have difficulty with the amendments, and the House will then no doubt want to take a decision on that view—either today or at another stage.

Clearly, the effect of the amendments that the noble Baroness, Lady Miller, has put forward is to add an additional element to the offence; namely, that the image concerned depicts an actual sexual offence. In order to come within the terms of the offence, an image would have to depict a specified extreme act in an explicit and realistic way. As a consequence, only graphic and convincing scenes would be caught. To go further than that and to require that the image is a record of a sexual offence being carried out would make the clauses more or less inoperable for two reasons. First, the issue with most extreme pornography is not that a sexual or any other offence may or may not have been committed. As I said, much of the material that I saw, which has been found by the Metropolitan Police, might be prosecuted under the Obscene Publications Act, but would not satisfy a test that a sexual offence had been committed. The proposed amendment would render the offence inapplicable in respect of such material. I do not run away from this because the point was made by the noble Lord, Lord Thomas of Gresford, in his intervention. We are targeting that material not on account of offences which may or may not have been committed in the production of the material, but because the material itself, which depicts extreme violence and often appears to be non-consensual, is to be deplored.

Secondly, the other problem is that if there were a suspicion that a sexual offence had taken place, that would be pursued by applying the existing criminal law here. However, it is far more likely to have been produced in other countries and part of the problem that we face is mainly because of the internet. Often it applies to a different jurisdiction. To make a prosecution for possession of the image contingent on the prosecution first, determining from that image whether or not a sexual offence had taken place, and secondly, obtaining the necessary evidence and witnesses to prove the elements of that offence beyond a reasonable doubt, would be to make such a prosecution all but impossible. As I said, most of the extreme pornography is produced outside our own jurisdiction.

The noble Baroness has tabled amendments in the second group that would remove the offence altogether. The advice that I have received is that the amendments in this group would create almost the same impact. Amendment No. 86PA would create a new defence applicable where the defendant reasonably believed that no one portrayed in the image concerned was coerced. I am aware that the noble Lord has concerns about individuals who keep a record of themselves freely and willingly participating in bondage, domination, submission and sado-masochistic practices in which no unlawful harm occurs. I recognise that it would be anomalous for a person to be committing an offence by possessing an image of an act which he undertook perfectly lawfully. We intend to introduce at Third Reading a defence which addresses precisely that situation.

Noble Lords will have to apply a value judgment to this issue. I take them back to the elements of the offence. This is not intended to catch the kind of art to which noble Lords have referred. The three elements of the test ensure that it is only this extremely nasty pornography that in no circumstances could be counted as art, which will be covered. As a society we have a duty to protect people. It is appalling that this material is available and we have to do something about it.

My Lords, I thank those who have spoken, particularly the noble Lord, Lord McIntosh, who set a tone of bravery for this debate, which is to be applauded. I am surprised that the Minister did not make anything of the Government’s attempt, with its rapid evidence assessment, to link this violent pornography, as he did in Committee, with the fact that people were then more likely to commit criminal acts. Pushing this was one of the Government’s weakest suits, so perhaps it is not altogether surprising that he did not refer to it this time. In the debate we have just had, the issue of whether we are talking about violence or sexual arousal is still confused. The right reverend Prelate the Bishop of Chester was useful in Committee when he applauded the Government’s attempt to get to grips with this issue, but shared a feeling with the rest of us that things are not right. I cannot find his exact quote at the moment.

My brief experience in your Lordships’ House tells me that this number of amendments linked together usually means that the legislation is in difficulty. That is still where we are. The Government have two things going on here. One is that they have a rapid evidence assessment that they used originally, in Committee, to back up their argument that people must be prosecuted and receive heavy prison sentences—of five years—for even viewing this sort of material, because by viewing it they were far more likely to commit violent offences. I do not want to stand here as an apologist for people who commit those sorts of offences against women. I feel very strongly that we need to stamp down on that sort of violence, but it is the violence that should be addressed, not the sorts of issues that the Minister has just been talking about. We are talking about somebody viewing something in the privacy of their own bedroom, even if those images are violent. I agree with the Minister that society has a problem, but how often has he watched television after 11 pm? All the free-to-view channels are absolutely stuffed with sex and violence that anybody can watch. While it may not be as extreme—

My Lords, I am grateful to the noble Baroness. That is the point that she was just coming to. We are talking here about extreme pornography. I extend a warm welcome to noble Lords to view this material and see what we are talking about. It is important that we understand that.

My Lords, if we followed the Minister’s invitation we would have to experience every single thing that we legislate about in this House. That is not a principle that we have ever tried to follow, although maybe we should.

My Lords, the noble Baroness says that it is reasonable but the noble Lord, Lord Faulkner, who agreed with my amendments, went to Charing Cross to view it and still comes to the same view. If that is the feeling of the House, perhaps we should all see the material before Third Reading, but I do not think that we will change our view. The Government’s contention is that by viewing it people are more likely to commit violent offences. Therefore, they justify walking into people’s bedrooms and turning them into criminals simply for viewing something.

My Lords, can I finish my point? I am sorry to provoke the Minister so much, but that is dangerous ground, and the Minister is in danger of leading his Government into becoming the thought police.

There is no direct connection with committing a crime. If the Minister was able to concede that we should tie it in to the Sexual Offences Act, which he is resisting, or the Obscene Publications Act, which he is resisting, I would feel far more sympathetic, but he is resisting all those connections. That is a great pity.

I will confine my final comments on the rapid evidence assessment to when we come to the clause stand part debate, and I will want to test the opinion of the House then. The Minister has not really answered any of the issues that have been worrying your Lordships this evening. In light of the fact that the Minister has made absolutely no concessions at all to the next group of amendments, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 86K to 86M not moved.]

86N: Clause 63, leave out Clause 63

The noble Baroness said: My Lords, I shall not at this stage rehearse any of my earlier comments. However, as the Minister has not accepted any of my amendments in the last group, which would have substantially improved the Bill, or even conceded that the Government would come back with anything beyond the one issue he mentioned, I have no option but to move this amendment.

One substantial difficulty that I have had with the rapid evidence assessment that the Minister sent me between Committee and Report is that I discovered in reading it that an awful lot of the assessed evidence was produced before the internet was even widely available. Worse, however, is the fact that one of the assessors was one of those who wrote some of the research paper. That is particularly reprehensible. I have had communications with 40 academics, apart from the interest groups who obviously have an interest, who are deeply worried by the Governments’ position. Therefore, in light of the informed comments of your Lordships on the previous group of amendments and the failure of the Government to move anywhere on this, I beg to move.

My Lords, I am not sure whether the House wishes me to go over the ground again, or whether the noble Baroness wishes to test the opinion of the House. All I would say on the REA is that the noble Baroness will know that we think that its conclusion supports the existence of some harmful effects of extreme pornography on some of those who access it.

I think it is plain common sense that when people continuously use some of these revolting images it has an impact on their behaviour. That would not surprise me at all. I know that there has been a debate over the years on the impact of violence on television. I know that some research has shown that it has no impact at all. That is obviously baloney; absolute nonsense. I agree with the noble Baroness when she referred to the post-11 o’clock TV. I am afraid that the workload of your Lordships’ House is so great that I can never stay up that late, but I understand what the noble Baroness says. Do I believe that that has a negative impact on people’s behaviour? Yes, I do, and I wish that we did not have to see it. Of course, there is always a balance to be drawn. I am sure that my noble friend Lord McIntosh utterly disagrees with me.

My Lords, my noble friend does. That is why I suspect that, in the end, it comes down to personal conscience and I welcome the opportunity for the noble Baroness to put this to the test.

My Lords, I was not aware that we were not going to debate this second issue. I was certainly reserving a number of my remarks for the second group of amendments. Does the fact that the Minister has replied mean that there is no opportunity to debate what we have before us rather more fully?

My Lords, I regret that the noble Baroness, Lady Howe, has not been able to play her extremely useful part. I know one of the points that she would have made, so, if I may, I will say it for her. We asked in Committee for a far more measured look at these issues, particularly violence, and their effect, perhaps through a Joint Committee of both Houses. We said that this was not something to be stuffed into a Bill in a small way like this. The Minister and I are clearly never going to agree on the fact. It is a matter not of personal conscience but of evidence. If we do not have any evidence to intrude on people’s lives, I do not make an apology. A liberal point of view is that we should not do so unless there is evidence of harm. Common sense tells us that the Minister is on weak ground because his own assessment has not produced any evidence. I could read the conclusions, but your Lordships can read them: it is the weakest summary of conclusions I have ever read anywhere. It makes no final conclusion at all on a link. I do not believe that we are going to agree tonight, so I beg leave to test the opinion of the House.

Clause 64 [Exclusion of classified films etc.]:

[Amendment No. 86P not moved.]

Clause 65 [Defence]:

[Amendments Nos. 86PA and 86Q not moved.]

Clause 66 [Penalties etc. for possession of extreme pornographic images]:

[Amendment No. 86R not moved.]

Schedule 16 [Hatred on the grounds of sexual orientation]:

87: Schedule 16, page 219, line 20, at end insert—

“( ) After subsection (1) insert—

“(1A) “Threatening” in subsection (1) extends to words, behaviour or written material which asserts or implies an association between sexual orientation and a propensity to commit child sex offences under Part 1 of the Sexual Offences Act 2003.””

The noble Lord said: My Lords, this was an amendment that I moved in Committee. Its purpose is to extend the meaning of “threatening” in subsection (1) to,

“words, behaviour or written material which asserts or implies an association between sexual orientation and a propensity to commit child sex offences under Part 1 of the Sexual Offences Act 2003”.

There is considerable disquiet among the public about child sex offences. It is a disquiet that everybody shares. It can give rise to strong emotions that can, in some situations, turn into violence against an individual. That is the basis upon which I draw your Lordships’ attention to the fact that the general public’s distaste for—indeed, hatred of—child sex offences is sometimes used as a weapon by people who have strong views about homosexuality. It does happen in our society that in order to stir up hatred against someone who is homosexual, an allegation is made that they are nothing more than a paedophile. I have experience of that causing great violence, harm and hurt to individuals who are homosexual.

It could be said that “threatening” already includes an association between sexual orientation and a propensity to commit child sex offences, but we believe that it is necessary to spell this out so that people who seek to attack individuals because of their homosexuality should beware of what they say and what associations they make between the sexual orientation of the person they are talking about and the crime of paedophilia. I beg to move.

My Lords, I thank the noble Lord, Lord Thomas of Gresford, for raising this important point. I have great sympathy with what lies behind it. I agree that allegations that gay people are prone to being paedophiles are particularly damaging and distasteful and that such allegations should be challenged vigorously. I also agree that in many instances those allegations will be threatening and intended to stir up hatred. Where we have a slight disagreement regarding the Bill is our belief that when such allegations are threatening and intended to stir up hatred, they will be covered by the offence. Where they are made in a way which is not threatening, they will not be covered. We think that that is right.

I understand that the noble Lord has moved his amendment in order to send a signal. Allegations of paedophilia will always be damaging and invidious in the context of stirring up hatred; it is a matter which we hear and read about too often. But we see a risk of extending the offence in a way which will stretch the meaning of “threatening”. It could make the offence less clear if we do not stick to the normal meaning.

There are many allegations we may find distasteful, but that does not mean that there are grounds for making all such allegations criminal offences. In the debate on the amendment tabled by the noble Lord, Lord Waddington, we will discuss the question of freedom of speech and the balance to be drawn. Allegations that are threatening or that raise public order concerns can justify some restrictions on free speech, but the same cannot be said of all allegations that are simply distasteful.

We are not persuaded that this amendment will make the offence more effective. We know that there are individuals and organisations that are ready to equate homosexuality with being a paedophile, but if we make such allegations specifically illegal it will be easy for those organisations and individuals to shift their allegations and perhaps take up some other line of attack. For example, as I mentioned in Committee, they may say that all gay people have AIDS. We do not think the proposed amendment provides much additional protection. We think that we should rely on the protection in the Bill as it stands. However, I assure the noble Lord, Lord Thomas, that I am sympathetic with the intention behind his amendment.

My Lords, the Minister says that he is sympathetic, and he rightly says that we are seeking to send out a signal, but what I was waiting to hear from him was what signal the Government would send on this issue. His response at the moment is simply to say that something may be threatening or it may not be, and that if it is threatening it is already covered. He recognises the problem and the danger, but he fails to give any signal that would dissuade people from drawing this parallel in their conduct.

My Lords, the signal that I have given is to echo the noble Lord’s concern about such allegations. However, we do not need to go further than the Bill to deal with the issue. I hope that the signal that I would send would be as powerful as the noble Lord’s.

My Lords, I shall not trouble your Lordships by dividing the House at this stage. I will reflect on what the Minister has said. I am not sure whether I could bring this issue back at Third Reading, but it may be useful to have further discussions on the topic. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

87A: Schedule 16, page 220, line 2, at end insert—

“After section 29J insert—

“29JA Protection of freedom of expression (sexual orientation)

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

The noble Lord said: My Lords, it is highly unsatisfactory to be embarking on the amendment at this hour of the night in breach of the normal rules of the House. I will not, however, waste the time of the House by voicing my indignation, and I will go straight to the meat of the matter.

This morning, I received a very moving letter from the mother of a young man whom she believes was brutally murdered because he was gay. I can well understand such a person being desperately anxious that nothing should be done to weaken the protection which they hope may be afforded to gays by this new hate crime offence. I therefore start by making it plain that I did not in Committee, and do not now, seek to weaken the protection that the Government’s proposal is designed to give gay people. I have never set out to narrow the scope of the provision. My intention has been absolutely clear: to make clear what both the Government and I agree is outside the scope of the provision. By so doing, I hope to prevent any repetition of the scandals of recent years.

In our debate in Committee, a number of noble Lords expressed their general support for a free speech provision, but they also voiced criticisms of the then amendment. With the help of colleagues, to whom I am immensely indebted, we set out to meet all the concerns that were expressed in Committee and to find a form of words that were neutral and that could not by the greatest stretch of imagination be thought to be aimed at gays and calculated to encourage homophobic attitudes and behaviour towards them. I hope noble Lords will agree that, in seeking common ground and consensus, we observed the best traditions of this House. That is what it should be all about.

Some might say that the amendment is now so moderate in its terms that it merely states the obvious and is therefore unnecessary, but those who say that are, I fear, closing their eyes to what has really happened in recent years. The scandals to which we have often referred could not have occurred unless the police and sometimes the prosecution authorities had thought that threatening, abusive and insulting behaviour—the requisites for prosecution under the present Public Order Act—could be inferred from mere comment or criticism. How else can one explain the prosecution to conviction of the Bournemouth preacher, the investigation of the right reverend Prelate the Bishop of Chester, the arrest of Robin Page for a tasteless joke at a country fair, and the arrest and prosecution to conviction of the Oxford student for his jest about a gay horse? How else can one explain the interrogation of Lynette Burrows following comments about gay adoption, and the thoroughly disgraceful interrogation of the Fleetwood couple after they had complained about their council’s gay rights policy? If the police under the old law assumed that words about sexual matters must have been threatening and likely to cause distress without any supporting evidence to that effect, why should it be assumed that they would not infer threats and intention to stir up hatred under the new law?

In Committee, the Minister suggested that all our concerns might be met by guidance. But if guidance can be clear, so can the words of a statute. Surely our words are clear enough. Furthermore, guidance was in existence when all the abuses to which I have referred occurred, and which it entirely failed to prevent. Perhaps that was in part because the guidance was erroneous. When I read Policy for Prosecuting Cases with a Homophobic Element, published by the Crown Prosecution Service, I was astonished to find that it contained a definition of homophobia which does not correspond with that in any of the dictionaries that I have consulted. By my book, homophobia is hatred or fear of homosexuality or homosexuals. But the Crown Prosecution Service has invented its own definition and says that it embraces dislike, not hatred, of a person’s lifestyle.

I must make another point. The noble Lord, Lord Hunt, did not really address the undesirability of there being a free speech clause in the religious hatred offence but no free speech clause here. The noble Lord said that the free speech clause in the religious hatred offence had been added against the wishes of the Government, who had not thought that it was necessary. But the Government have accepted the position and have not chosen, for instance, to remove the provision during the passage of this Bill. I cannot believe that the noble Lord really thinks that it is desirable that there should be a free speech clause in the religious hatred offence but no free speech provision here.

The dangers are obvious of the police being led to believe that preservation of free speech is an important consideration in the one case, but not in the other. It is no good to say that there is no free speech clause in the racial hatred offence and that its absence has not caused trouble. When it comes to language touching on matters of sexual orientation, there has already been a load of trouble with the police misapplying the existing Public Order Act. It is our plain duty to try to prevent this continuing to happen.

Finally, the Minister referred to rap lyrics urging the killing of gay men and the hanging of lesbians. His comments seem somewhat irrelevant, for I doubt whether he thinks that his new offence will do much, if anything, to stop the use of such lyrics. I cannot believe that he thinks that a free speech amendment would license them. Instead of raising such irrelevances, it would be helpful if he would make plain that encouragement of violence against gays, or for that matter anyone else, is now already an offence under the Serious Crime Act 2007, which makes criminal the encouragement of crime—for example, the encouragement of violence against a person or a class of persons.

Plainly, my amendment will not weaken the protection sought to be given to gays. It is a sensible provision to prevent the repetition of abuses which have occurred all too often under the Public Order Act and to secure free speech. I commend it to the House and beg to move.

My Lords, I have added my name to the amendment proposed by the noble Lord, Lord Waddington. I simply wish to say that he has said all that I could want to say. It seems to me that discussion or criticism of a particular sexual orientation can be expressed without giving rise to incitement to hatred. If it can be, it should be allowed to happen in the interests of free speech. I strongly support this amendment.

My Lords, my name is also attached to this amendment, and I am very proud that it is. In supporting the amendment, I cannot add much to what I said on the fifth day in Committee, but since then I have continued to receive letters from people who are worried about this clause. I am now more convinced than ever that the amendment before us is very necessary. If the House agrees with the amendment, it will do much to allay the doubt that troubles many people like me. On 3 March I quoted from one of the letters I had received, and this evening I would like to quote from a letter I have received in the past few days. The noble Lord, Lord Waddington, has already referred to the people who wrote from Fleetwood. Because of the hour, I will not read out the whole of the letter.

The letter is from two people who describe themselves as pensioners and Christians. They heard that the council where they live wanted to display homosexual leaflets around the area. The couple asked a council officer whether they could distribute Christian leaflets. They were told that no, they could not. The reason given by the official was that homosexuals would find it very offensive. They said that they were not aggressive and did not raise their voices. They went home. Two or three days later they found out that the man they spoke to at the council had alerted the police. Two six-foot tall policemen turned up at their door and they were interrogated in their own front room for 80 minutes. They were accused of making homophobic phone calls to the council. I will not go into the detail, but thank God that common sense prevailed. After a year of worry and stress, the police and the council eventually made a full apology which made the national news. Many noble Lords will know about the case.

Let us imagine it: two pensioners sitting in their front room, terrified by the police walking in. These are the things that I have opposed all my adult life, whether in apartheid South Africa, in Iran or in many other parts of the world. I was proud, as a member of the Labour Party and chairman of its international committee, to argue for free speech, and I find it hard to come to this House and have to plead that your Lordships will back a simple amendment that clarifies the issue and makes clear that there will be no infringement of free speech.

On 3 March I said:

“The concept of bringing in laws that forbid the precious right of free speech in our society is in itself a frightening prospect. In a nation such as ours, with proud traditions of freedom, even contemplating the suppression of opinions is frightening to all who genuinely want to be able to speak out against that which they think is wrong, harmful and potentially dangerous—they fear they will be treated as criminals. It is indeed frightening. Is this what our Government want?”.—[Official Report, 3/3/08; col. 927.]

I ask again: is this what the Government I have worked for all my adult life to get elected want? I find it offensive, and many of the people I have worked with over the years share my views.

In previous debates the Government have said that a free speech clause is unnecessary. It is said that the wording of the offence already strikes the right balance between preventing the incitement of hatred and the protection of free speech. If that is so, why not underline the need for balance by including a free speech clause? It is very straightforward. From what I have read, the Government do not object in principle to such a clause.

I was quite surprised when I was given a copy of a letter sent to my noble friend Lord Stoddart of Swindon—he is my noble friend. The letter takes up the issue of the Racial and Religious Hatred Act 2002. I may be a bit touchy, and as I get older I feel things that I should not, but this is a Minister writing to a Member of this House:

“I should also like to take the opportunity to clarify one further point, which you raised in your speech … For the offence of stirring up religious hatred, Parliament added a clause to safeguard free speech. We did not then think it was necessary, and we do not think so now. But Parliament decided”.

Where I come from, that smacks of arrogance: Parliament makes a decision, but they still think they were right, and above the will of Parliament. I find that a little bit odd.

My view is that the criminal law should be clear in explaining what is and what is not an offence. If the Bill is enacted without a clause that protects freedom of expression, religious believers will be uncertain about what they can say as well as uncertain as to what they may discuss or debate on the subject of homosexual practice in their teachings.

I urge the House to give wholehearted support to the amendment and to demonstrate to the Government that we are seeking to protect the very precious principle of free speech. At Second Reading a number of illustrations were given by noble Lords that there is quite a lot of evidence that the public, the police and, on occasions, some courts have failed to take sufficient account of the protection of freedom of expression in cases which involve criticism of the practice of homosexuality. This is not about that issue; it is about the right of people to have a point of view and to express it. I hope that the House will support the amendment.

My Lords, perhaps I may beg the Minister to have in mind that the object of his legislation, as I understand it, is to take out the heat of the encounters between people with different views about sexual orientation. Where there is an entirely disproportionate reaction to criticism by one group of another of the sort we have heard from my noble friend Lord Waddington and from the noble Lord, Lord Clarke of Hampstead, will he pause to think what effect that is going to have on relations between the two groups in question? It must exacerbate them and therefore in order to achieve the policy objectives which the Minister has in bringing this before Parliament, there must surely be a clause such as my noble friend has devised to prevent that happening.

My Lords, I urge my noble friend not to accept this amendment. I spoke against it in Committee and my views have not changed, even though there has been a slight amendment to the original wording. I believe that it is necessary because there has been an increase in homophobic violence, some of it ending in death, as has already been reported. The Government are to be commended on introducing this Bill, which is designed to try to deal with that. It refers to incitement to hatred. It is not about expressions of opinion, it is about incitement to hatred. Clearly, that should be deplored in any event. It leads eventually to the commitment of homophobic actions.

I have had a number of letters about this amendment, some in support and some not. Those in support have often said that they oppose it on grounds of religion because they take the view that this is anti-Christianity. I have to say to my noble friend that I, as I am sure have a number of other noble Lords, have a number of friends who are devout Christians. For example, I was able last year to go to the civil ceremony of a couple of friends of mine, both of whom are devout Christians and both of whom spend a lot of time doing good works which they feel is an expression of their Christianity. Certainly, it is by no means a view held throughout the Christian community that this kind of action should be taken in relation to homosexuals. Not everybody holds the same view about homosexuality as the people who wrote to me in support of the amendment.

The Government have done the right thing in introducing this provision in the Bill. We are not talking about religion as far as the religious incitement is concerned, the different arrangements in relation to religious hatred and so on. Religion is a belief whereas sexual orientation may be a state of being. Therefore different arrangements should apply. It seems to me that the Government have made a genuine attempt to try to deal with an increasing problem of homophobia and violence against gays and lesbians. I think that they should be supported for it and I commend them for doing so.

My Lords, I respectfully point out to the noble Baroness, Lady Turner, that there has not been a slight change in the original wording, there has been an enormous change in the original wording. It is much more moderate and makes no mention whatever of homosexuality.

People should not only have a legal right to urge others to refrain from certain sexual practices, in certain circumstances I submit they have a moral duty to do so. The United Nations Convention on the Rights of the Child, which has been ratified by the United Kingdom, deems a child to be anyone under the age of 18, and as such deserving of protection from physical and mental harm. In consequence of a change in the law about seven and a half years ago, forced through under the Parliament Act against the better judgment of the great majority of your Lordships, 16 and 17 year-olds can now legally be subjected to medically dangerous sexual practices, in addition to relatively safe practices to which there can be much less objection. This is all the more paradoxical in the light of the Government’s determination with all the powers at their command to try to prevent under-18s from smoking, which in statistical terms is decidedly less dangerous than being sodomised.

As I said on the previous occasion, there is very little danger in practice of anyone being sent to prison for seven years, seven months or even seven weeks if this extremely modest and moderate amendment is rejected by the Government for the simple reason that no British jury would convict. However, there will on the other hand be a very great danger of the unfortunate ordinary policeman and policewoman being urged on by politically correct chief constables to step up their harassment of critics of such behaviour just as the right reverend Prelate the Bishop of Chester, Lynette Burrows, Robin Page and many others were inexcusably harassed.

My Lords, I am loath to disagree with my noble friend Lord Clarke who has been a good and valued colleague for many years but I am afraid that I cannot agree with the conclusions of his very moving contribution to this debate. I hold no brief for anyone who causes unnecessary distress to anyone because they have made a joke or an inappropriate remark. However, let us not forget that the background against which the Government have placed this measure in the Bill is that every single day in this civilised country of ours people are abused, attacked, have hatred expressed against them and on some occasions suffer extreme violence simply because of their sexuality. That is the background which has led to the introduction of the measure in the Bill. In my book, incitement to hatred on grounds of sexual orientation is as unforgivable and unacceptable in a civilised society as incitement to hatred on grounds of race or colour. I believe that it may have been when the noble Lord who moved this amendment served in the Home Office that that provision was rightly brought into the law of this land.

It seems to me that this amendment falls foul of two things. First, if it is simply about allowing people to express a view, it is unnecessary because the measure as it stands in the Bill allows the expression of views. It is incitement to hatred that the measure is about. If all that the proposer of this amendment is interested in is ensuring that people should be free to speak their conscience, there is nothing in the Bill as it stands which prevents them doing so.

However, I have a greater fear about this amendment. For all the moderation and the consensual way in which the noble Lord quite rightly moved it, my worry is that it will drive a coach and horses through the intention of the clause and it will allow those who stand up and incite hatred to take refuge in this clause, if it is amended, in justifying their behaviour. That to me would be a step backwards. Let us ensure that the law of the land protects the life and person of people whose only crime happens to be being different in their sexual orientation.

My Lords, the noble Lord, Lord Smith of Finsbury, has made a very impassioned and understandable speech and it has been a moving one but I would ask the Minister to have fairly broad shoulders over these things. As with any argument, there is an argument on one side and there is an argument on the other side. The noble Lord, Lord Smith, said that day after day people were being damaged for being homosexuals. We all agree that that should not happen, so the ball can swing the other way and people can find that the things that they are doing which have been considered perfectly normal and reasonable are now illegal.

One person said very effectively that a Christian who declares to an adulterer the Bible’s teaching that adultery is wrong should not be made a criminal by the state and face a jail sentence of up to seven years. That is so whether he is talking to an adulterer or a homosexual. People ought to be allowed to say what their views—and their religious views—are. We have heard the problems of the right reverend Prelate the Bishop of Chester. The police went over his speech because it was thought that he had said something wrong. I do not believe that that is what the law should encourage people to do.

The amendment of my noble friend Lord Waddington, is, if I might respectfully say so, very carefully drawn so as not to infringe the Government’s desires to protect homosexuals; it merely states:

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

So the Government’s desires to protect those who are homosexually oriented remain but the right to the freedom of speech also remains. I hope the Minister will have a broad mind over this because it is wrong to curtail the freedom of speech and, without this amendment clarifying that, there is a great danger that that would happen.

My Lords, this amendment succeeds one that was debated in Committee. In its original form it would have exempted certain sorts of speech or writing about sexual conduct from prosecution, even if they were threatening or intending to stir up hatred. Had I been able to be present then, I could not have supported it. But this new version is for the avoidance of doubt and so the question really hinges on whether it is necessary.

If we take the view that the definition of the offence is both sufficiently clear and narrow and the word used is threatening—not insulting, not abusive, but threatening—and if the Bill already meets concerns about possible loss of freedom of expression, that makes the amendment unnecessary. If, on the other hand, the argument is that the amendment will not do any harm and it conceivably might do some good in protecting freedom of expression, it can be entertained for two reasons. The first is that it would give some protection from petty harassment by overzealous police officers investigating vexatious complaints, as indeed has happened. Secondly, it can be argued that the amendment would be helpful in meeting concerns about the so-called chilling effect of the Bill on free speech and expressions of opinion. We need to listen carefully to what the noble Lord, Lord Smith, said. On balance, my view still is that what the amendment says would be much better in guidance to the police and to the prosecuting authorities on the interpretation of the Bill than it would be in the Bill.

My Lords, the interpretation of the Bill is not difficult because the offence, as defined, is using threatening words and behaviour with the intent of stirring up,

“hatred on the grounds of sexual orientation”.

What are the ingredients that the prosecution has to prove beyond reasonable doubt to the satisfaction of a jury or magistrates? The prosecution has to prove, first, that certain words or behaviour used by the defendant were threatening. I suppose that that could be seen as an objective test. Would the jury or the magistrates consider it to be threatening if those words were used about them? The second ingredient of intent to “stir up … hatred” requires the jury or magistrates to be satisfied about the state of mind of the defendant and that he intended to stir up hatred. Those are strong words. It throws a considerable burden on the prosecution to satisfy the jury that there was an intent to stir up hatred. An intent to stir up hatred surely cannot be derived simply from discussion or criticism of sexual conduct or practices or from urging persons to refrain from or to modify such conduct or practices. That is not enough to satisfy the ingredients of this serious offence that the Government now propose to put on the statute book.

Freedom of speech is not derived from clauses inserted into every statute for the avoidance of doubt. Freedom of speech is derived from our common law heritage and, if necessary, we can go to the European convention to see it all set out. Every time there is an issue, it is not necessary to put it into an Act of Parliament. There is no question of any doubt arising here about the interpretation of the statute—absolutely none. It is clear what the prosecution has to prove. I concur with the right reverend Prelate that if, in the future, there is a suggestion that police officers are acting outside their proper ambit, firm and direct guidance should be given to them by the Attorney-General and by the Director of Public Prosecutions. That is how we can cope with this. The noble Lord, Lord Waddington, has done his best to modify the language of the previous amendment, but the result would be a clause that says nothing. It would not add in any way to the freedoms of expression that we enjoy. I regret to say that we on these Benches will not be able to support the amendment.

My Lords, the noble Lord examined carefully and forensically the various ingredients of a possible offence. It may be that there would be very few, if any, prosecutions, but surely that is not the point. I guess that many of us have been impressed by letters from individuals around the country who have been met with overzealous police officers who have caused great anxiety until eventually the individuals have been told that no prosecutions will follow. Surely, the aim of this quite modest amendment would be to deter such overzealous police officers from causing such anxiety. I believe that this amendment is indeed modest, and I will have no hesitation in supporting it.

My Lords, I support very much what has just been said, and I want to point out to the noble Lord, Lord Thomas, that we are not talking only about those cases that get to court. One man wrote to me when all he had tried to do was to distribute perfectly innocuous letters asking whether people would come to the Easter service. He got a call from two policemen, and was followed up again because there had been complaints from a homosexual supporter that there was something wrong in that way about the leaflet. There was not, but much upset was caused to that man’s family—and to his neighbours, who thought that he had created some terrible fault and done something wrong. It is not just when we get to court. Can we not protect people who simply want to get their friends and neighbours to come to a church service?

My Lords, I said in Committee that the Opposition would be having a free vote on this matter. Personally, I shall be supporting the amendment from my noble friend.

First, My Lords, the noble Lord, Lord Waddington, has had a long wait before we came to this amendment, and I am sorry that it is so late in the evening. None the less, I think that the noble Lord would agree that he has had a good debate, and that the matters discussed have been raised very clearly indeed.

I want to say at once that I understand the issues that the noble Lord and others have raised. It is described as a chilling effect, this concern that the legislation would unnecessarily inhibit the absolute right of freedom of speech. I certainly understand those concerns, but none the less the Government continue to believe strongly that the kind of clarification in the noble Lord’s amendment, which differs from his in Committee, is not necessary. I am very happy to place on the record that it is indeed possible to discuss these topics or to criticise conduct in ways that are neither threatening nor intentionally “stir up hatred”. In such cases, it would be plain from the meaning of the statute that no offence has been committed. The noble Lord, Lord Thomas of Gresford, made a most important point when he described the process by which a jury would have to come to a decision. The key phrase here involves threatening or intentionally stirring up hatred.

I understand that this amendment differs from those that we have seen previously. It seeks to ensure that discussions or criticisms of sexual practices are not in themselves taken as threatening, or are,

“intended to stir up hatred”,

all of which is,

“for the avoidance of doubt”.

Yet I do not see how any doubt can arise from the offence, as my noble friend Lord Smith and the noble Lord, Lord Turner, have said. Only words or behaviour that are threatening and,

“intended to stir up hatred”,

are covered. That is abundantly clear; it will of course, be for the courts to decide whether, in all the circumstances, the words or behaviour were threatening—and the police and the Crown Prosecution Service will need to make a judgment about the circumstances and on whether a prosecution would be likely to succeed. There should be no need to add anything to an offence for the avoidance of doubt if it is well drafted and leaves no room for doubt. I do not believe that the offence, as drafted, leaves any room for doubt whatever.

The noble Lord’s intention is to protect free speech, which is an entirely desirable intent. But the proposed new law covers only conduct that is both threatening and intends to stir up hatred on the basis of sexual orientation. We then come to the question raised by the right reverend Prelate, who answered it very effectively. As my noble friend Lord Smith said, any move that was thought to water down what is contained in the Bill as it is might be taken as giving a green light to the sort of conduct that we do not wish to happen. If, as in this case, we seek to clarify rather than change the law, why would that be necessary?

I know that, as there is a specific saving for freedom of expression in the religious hatred legislation, the absence of such a provision in the homophobic legislation might suggest to the police and others that they need not worry about freedom of expression in this context. I greatly admire my noble friend and must say to him that, if in my letter I am guilty of arrogance, I apologise. There was no intent on my part. All that I was seeking to suggest is that, although Parliament put that provision into that Bill, the Government did not think that it was necessary and we do not think that it is necessary in this Bill. I hope that that is not arrogance; I am simply expressing the Government’s view. My noble friend knows me. I would hate to be thought of as arrogant and I hope that noble Lords do not think that I am.

Noble Lords have raised examples where the police and public authorities have intervened in relation to other such legislation. The noble Baroness, Lady Knight, raised that point, as did others. I cannot comment on individual cases but I can say that it is very important that there should be appropriate guidance to the police on the new legislation. I am confident that perfectly sensible guidance can be produced.

My Lords, I cannot say that I have studied the existing guidance with extensive care. I am happy to do so and am happy to respond to the noble Lord. I have no reason to think that guidance issued by the Crown Prosecution Service is not adequate.

My Lords, if the Minister has no reason to think that the guidance is not adequate, how have the incidents that have been spoken about this evening occurred? What guarantee or prospect is there for us that future guidance will avoid those sorts of incidents?

My Lords, I am trying to be helpful. My noble friend might perhaps wish to observe to the noble Lord that the provision that he is concerned about is not yet on the statute book.

My Lords, that, as ever, is a helpful comment. I say to the noble Lord that he would not expect me to comment on the individual cases that have been raised. I am confident that there is no reason to suppose that the Crown Prosecution Service cannot produce perfectly adequate guidance, or that that guidance will not be followed. If that guidance is not followed, there are perfectly appropriate mechanisms for making complaints.

My Lords, I thank the Minister, but I still do not think that he has understood quite what I said to him. Under the existing law—I am aware that this Bill has not yet been enacted—there is guidance. I make no reference to individual cases; I merely ask if the noble Lord is satisfied that the existing guidance is proper, adequate and effective. He must be able to say yes or no to that question.

My Lords, I have no reason to believe that the current guidance is inadequate. That is what I have said. I have no reason to believe that guidance, if this Bill is enacted, as I hope it will be, will not be adequate. Such guidance having been produced, remedies are available if the authorities act outwith that guidance. I understand why the noble Lord, Lord Waddington, wishes to bring this to the attention of the House, and his concerns regarding freedom of speech, but his amendment will not help the case. In many ways it will confuse. At the end of the day, the issue stands or falls on the offence itself and the fact that the law covers conduct that is threatening and intends to stir up hatred on the basis of sexual orientation.

My Lords, surely the noble Lord must agree that whether the offence is threatening or not will be in the eye of the receiver, and not necessarily in the reality of the act.

My Lords, it will be in the eye of the court which, eventually, might come to make a judgment. I am afraid that the amendment will not help the court in any way at all. It is perfectly clear what the legislation means. It is perfectly plain from the meaning of the statute whether a matter is threatening or intentionally stirring up hatred. I do not believe that the noble Lord’s amendment will help the cause at all. It will not clarify; it will confuse. I invite the noble Lord to withdraw his amendment.

My Lords, I am extremely grateful to all those who have spoken tonight, particularly those who have spoken in support of the amendment. I am particularly grateful to so many noble Lords who have taken the trouble to stay so late to listen to this debate and, in some cases, to take part. I am bound to say that I was slightly wounded by the contribution made by the noble Baroness, Lady Turner of Camden. After the Committee debate I went through every contribution, taking heed of the criticisms made, and I take account of those criticisms in the new amendment. I remember clearly that the noble Baroness was concerned that the original wording might be taken to license homophobic behaviour. I do not think that anybody could say that that was a justifiable criticism of the new amendment.

The noble Lord, Lord Smith, defended the clause, as did the noble Baroness. I am not attacking the clause; we are talking about the amendment. Surely, the noble Lord was not saying that, by the greatest stretch of the imagination, the amendment could be said to license the incitement of hatred. I do not think that he really believes that every criticism of sexual conduct implies hatred towards the person concerned. Plainly, my amendment licenses comment, but it certainly does not license the stirring-up of hatred.

I am grateful to the right reverend Prelate for his observations. He seemed to be saying that, certainly, my amendment would do no harm but he favoured guidance. I do want to repeat what I said earlier, but guidance did a fat lot of good over the past few years, when it was apparently referred to now and again before the police took completely wrong action under the Public Order Act.

I listened carefully to what was said by the noble Lord, Lord Thomas of Gresford. He is a very distinguished lawyer, and, of course, he was entirely right in saying that it would not be difficult to direct a jury correctly on how to approach the wording of the clause. However, that is not the point. As my noble friend Lady Knight of Collingtree said, we are not talking about what happens before a jury; we are talking about how the police react in these circumstances. We know perfectly well that they have reacted in the wrong way when they have come to consider the Public Order Act.

The noble Lord, Lord Thomas of Gresford, said that it was easy to understand the concept of intent to stir up hatred. He said that they were strong words. Goodness me, there are strong words in the Public Order Act: the words “threatening”, “abusive” and “insulting”. Those strong words did not stop the police investigating the behaviour of the right reverend Prelate the Bishop of Chester, who could not possibly have been guilty of threatening, abusive or insulting behaviour when he commented in an article on the possibility of some people being reorientated sexually.

We are not dealing with juries; we are dealing with bizarre action taken by the police under the existing law. We have a duty to see that it does not happen under the new law. That is the purpose of the amendment, and I commend it heartily to the House.

My Lords, I beg to move that further consideration on Report be now adjourned.

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

House adjourned at 11.49 pm.