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Criminal Justice and Immigration Bill

Volume 700: debated on Wednesday 23 April 2008

My Lords, I beg to move that the Bill be now further considered on Report.

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

Clause 75 [Reasonable force for purposes of self-defence etc.]

88: Clause 75, page 53, line 39, after “D” insert “reasonably”

The noble Earl said: My Lords, now that the audience has been reduced to about two, I can start this afternoon’s proceedings.

In the defence of someone who reacts with force to an intruder into their house, the Bill proposes that the belief by the man who is reacting that he is under threat can be perceived as completely unreasonable. My amendment makes sure that the genuinely held belief of a threat is a reasonable belief. This matter was brought up in the Joint Committee on Human Rights where the example was given that if there is an intruder in someone’s house and he is, let us say, black, and the householder believes that all blacks are dangerous, that is, by itself, an unreasonable belief. But we felt that, under the Bill as drafted, if the householder genuinely believed that, he would be entitled to shoot the chap dead, cut him up with a Japanese sword, or whatever it is you do to people who come into your houses. This amendment tries to make sure that the belief that the assailant is a threat must be reasonably held. I beg to move.

My Lords, I support the noble Earl. I draw your Lordships’ attention to the well argued view in the report of the Joint Committee on Human Rights, to which he referred. Unlike the Government’s position, which is simply to codify the existing law, this amendment, put forward with the support of the Joint Committee on Human Rights, is an attempt to advance the law significantly. As the noble Earl pointed out, the law as it exists and as the Government propose to codify it makes it irrelevant whether the belief held by the perpetrator of violence—the defendant in the case—is reasonable; it can be completely unreasonable. However, provided that he holds that unreasonable belief, he is to be treated as if that belief was correct. The purpose of the amendments tabled by the noble Earl, including Amendments Nos. 89 and 90, and in particular Amendment No. 91, is to bring the position established in case law much closer to the standards of the European convention. Although the amendments were not brought forward at an earlier stage, they are to be treated extremely seriously. Should the noble Earl put the amendment to a vote, we on these Benches will support him.

My Lords, I question the appropriateness of this clause. A later amendment, to which the noble Lord, Lord Thomas of Gresford, has, among others, put his name, proposes that the clause should simply be taken out. If I may just for a moment forget the noble Earl’s amendment, to which I shall come in a second, my underlying point is that the Government are taking a bit of the common law and trying to put it into statute but without explaining their intention in doing so.

The Explanatory Notes—I raised this point on Second Reading but have not had an answer to it—tell us that this clause, which used to be Clause 128,

“provides a gloss on the common law of self-defence”,

and the statutory defences under the two sections mentioned, in particular Section 3 of the Criminal Law Act 1967. The notes continue:

“It is intended to improve understanding of the practical application of these areas of the law. It uses elements of case law to illustrate how the defence operates. It does not change the current test that allows the use of reasonable force”.

We get a repetition of that sort of education concept if we look at Clause 75(7), which is a very curious provision to find in statute. It says:

“This section is intended to clarify the operation of the existing defences mentioned in subsection (2)”,

which are the common law of self-defence and the statutory provisions that have been mentioned. No change is apparently being made, but now the noble Earl, Lord Onslow, is proposing the introduction of the word “reasonably” in relation to the state of mind of the accused or the person who is running the defence of self-defence when it is said that the amount of force that he used was not reasonable.

If we are to get down to this and examine it properly, it should go to the Law Commission and not just be put into a Bill with no adequate explanation, which opens the way for amendments. The Government are introducing tinkering amendments which add nothing to what is already in the Bill.

In fact, the noble Earl is altering the law and I shall illustrate that. I apologise for taking a minute or two but this is a serious matter: it is playing around with the defence of self-defence in common law. I shall cite the 17th edition of a book on criminal law by Card, Cross and Jones—originally just Cross and Jones. I declare an interest in that Cross was my tutor. A professor of law in Leicester has produced the recent editions of the book and in his preface he disarmingly says:

“There is no other book on the criminal law published in England which deals so comprehensively with the subject of criminal law”.

What modesty! I feel very reassured when I quote from his book—he cannot be beaten. He starts with a proposition in the following terms. I am reading from page 774, paragraph 19.8. I shall keep it as short as I can but I attach importance to this:

“Except that it is based on the facts as the defendant believed them to be, the test of whether reasonable force has been used in the prevention of crime, self-defence etc is an objective one”.

I repeat: “is an objective one”.

“In other words, the question is whether, on the facts as the defendant believed them to be, a reasonable person would regard the force used as reasonable in self-defence etc”.

That is nice and simple. It is a clear proposition. You just put yourself in the position of the man in the street watching the event and you take what the defendant believes the situation to be. He thinks that he is being attacked by three people, although one man is there. You take his belief but then you ask what the reasonable man would think he was reasonably doing.

The nice simplicity of the professor’s proposition is somewhat qualified by what follows when he goes into some of the case law. I quote from page 775:

“In assessing the reasonableness of the force, the jury or magistrates should take a liberal approach; they should ‘not’”,

to use Lord Lane’s language,

“‘use jewellers’ scales to measure reasonable force’. In addition, and this goes even further in tempering with leniency the objectiveness of the test, there must be taken into account the time available to the defendant for reflection”.

Then the words of Lord Morris are quoted in the case of Palmer. Subsection (5) uses this rather curious language, which is an exact reflection of what Lord Morris of Borth-y-Gest, whom I well remember, said in the Palmer case in 1971:

“If there has been an attack so that defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken”.

In other words, you look at what the man thought in the moment of agony or anguish. That case was followed by a judgment in the Court of Criminal Appeal in a case called Shannon in 1980. It is easy to pick up on what was going on:

“In other words, if the jury concluded that the stabbing was the act of a desperate man in extreme difficulties, with his assailant dragging him down by the hair, they should consider very carefully before concluding that the stabbing was an offensive and not a defensive act, albeit it went beyond what an onlooker would regard as reasonably necessary”.

Therefore, the Court of Appeal makes an express decision that in particular circumstances you will not judge the case by what the reasonable onlooker watching the event thought but by knowing the facts as were believed by the man who had put forward the defence of self-defence.

One begins to wonder whether this amendment has something to do with the Martin case. One tries to use one’s imagination in deciding where the Government might be coming from. Everyone remembers the Martin case. He was the lonely, eccentric farmer whose house had been raided about six times. On the particular night, the intruder was a boy—a youngish person—and Martin took his gun and shot the boy in the back as he was leaving. In the end he was convicted and the issue went to the Court of Appeal. The noble and learned Lord, Lord Woolf, was the Chief Justice presiding when the case went to appeal. This passage is of interest and I hope will not upset him.

“In Martin … on the question of what the defendant believed, the Court of Appeal held that psychiatric evidence that the defendant would have perceived the alleged circumstances as being more dangerous than would an ordinary person did not need to be considered by the jury in the particular case because it would not have assisted them, and indeed would have confused them”.

Then, with temerity, Professor Card adds:

“This decision was surprising since a jury which knew of such evidence might view the claim that the defendant had the above perception differently from a jury which simply knew that he was very eccentric”.

Noble Lords will be grateful to hear that I shall conclude my citation at that point. My simple point is that the noble Earl is changing the common law with the adverb that he wants to insert. We should not be conducting this exercise at all. It can all be worked out in future case law. It is not something that should be tampered with by this type of legislation.

My Lords, perhaps I may make one very quick point. When we discussed this matter in the Joint Committee on Human Rights, the Martin case did not influence us. However, the committee was influenced by an excuse for doing something being based on such an unreasonable belief that no one should accept that belief. I am now very much better instructed than I was before the noble Lord, Lord Neill, stood up. I shall almost certainly withdraw the amendment, but for the record the Martin case was not an influence on what we said.

My Lords, I hope my noble friend will be able to look sympathetically at the wisdom and good sense in the amendment. It has clearly been thoroughly thought about within the Joint Committee on Human Rights and we should do the committee the courtesy of demonstrating that we are thinking about it equally seriously. One slight doubt about the circumstances in which the amendment would become relevant is how far, in a real situation of this kind, which can become pretty heated, people will sit around saying, “What is reasonable? Now, wait a minute, I can act only reasonably, so what is reasonable?”, work that out and then take action. I have a slight anxiety about what would really happen in the heat of the moment. However, that makes it all the more important for the law to be very clear that in a highly charged situation people cannot simply take the law into their own hands. “Reasonable” applies in every sense, not least for the person doing what he genuinely believes is reasonable.

This is a highly charged and quite emotional area. There is a lot of media comment, much of which is out to work up emotion on the issue. If the media are very anxious to work up emotion on this and to have a simplistic emotional justification for anything that someone might do, it is all the more important for the law to emphasise that anything that happens must be reasonable and must be believed by the person doing it to be reasonable. The amendment has raised a very important point and I should like to hear some assurance from my noble friend in his response.

My Lords, this is a question not of clarity but of a change in the law. It is a difficult, delicate and extremely sensitive area. The noble Lord, Lord Neill of Bladen, has done the House a great service in telling us what the author of the leading law book on criminal law has said. I agree with the noble Lord that if there is to be a change, it is eminently suitable that it should be looked at by the Law Commission coldly, quietly and over time, and not if I may say so respectfully, by this House at this stage.

My Lords, I add a modicum of support for what the noble Lord, Lord Neill of Bladen, said, in urging that if there is to be a change it should be left to the Law Commission. Fortunately for all concerned, I never had to direct a jury, although I have addressed numerous juries in my time. I cannot think of an occasion when a jury by its verdict demonstrated an absence of common sense, which is the great justification for retaining the jury system. If I had to direct a jury along the lines of the text comprised in these grouped amendments, I would find it difficult to know who would be more deserving of sympathy—myself or the jury. The matter would be far better left to the Law Commission. On the whole it is generally well understood case by case where the law stands and juries produce common-sense results. If the Government are looking for an initiative to be taken, let them refer it to the Law Commission and then break the habit of a lifetime by legislating promptly according to the Law Commission’s recommendations.

My Lords, I respectfully agree with the sentiments of the noble and learned Lord, Lord Mayhew, and other noble Lords. I am naïve enough to believe that the state of the law is thoroughly satisfactory and well understood by juries in the vast majority of cases. There may be a small minority of cases when there are complicating factors, but it is entirely proper for a judge to direct a jury on these lines, and the prosecution has to establish beyond reasonable doubt on both an objective and subjective test that it has expunged totally the consideration of self-defence. It is not a matter for the defendant to establish it or even to raise it, but for the prosecution to expunge it. The two limbs of the “reasonable” test are: members of the jury are asked to place themselves in the position of an invisible bystander; then on the subjective test, they have to place themselves in the mind of the defendant and look at the situation through the defendant’s eyes. They are simple tests that ordinary jurors well understand.

I am sure that the House is deeply indebted to the noble Lord, Lord Neill, for the tour d’horizon that he conducted in relation to this area of law. With the greatest respect, I do not follow—or at any rate invite the House not to follow—the authority that he quoted. I quote from the 11th edition—the 2005 edition—of Smith and Hogan Criminal Law, which makes no such inflated claim as the authority quoted by the noble Lord. Under the heading:

“D’s belief in need for force subjectively assessed”,

the learned editor of that book states:

“The authority for the proposition that the defendant is to be judged on the facts as he believed them to be is Gladstone Williams”—

a matter decided in 1984—

“repeatedly applied in the Court of Appeal and by the Privy Council in Beckford v R. Williams was charged with an assault occasioning actual bodily harm to V. D’s defence was that he was preventing V from committing an assault on X. But V may have been lawfully arresting X. The jury was directed that if V was acting lawfully, D had a defence only if he believed on reasonable grounds that V was acting unlawfully. It was held that that was a misdirection. D had a defence if he honestly held that belief, reasonably or not”.

The House will appreciate that the amendment proposed by Her Majesty's Government does exactly what the learned judge did, which was found to be wrong by the Court of Appeal in that case. If the learned editor of Smith & Hogan is correct, and I believe him to be correct, that is exactly the effect that the government amendment, well meaning though it is, would have. It would not improve the position of the defendant; it would make it much more fraught and would place him in much greater jeopardy. It would not clarify the situation, which demands an appreciation of an objective test and a subjective test. If you mix the two, you create monsters. Interbreed the two, and you have immense difficulty. The amendment tabled by the Government enjoins the jury to decide a subjective matter by an objective test. That is wholly the wrong way to go about it. It is guaranteed to complicate and obfuscate the situation so far as the jury is concerned. On previous occasions—and I do not apologise for this—I have drawn attention to the fact that the tenor of Clause 75, as it is now numbered, is to suggest, mildly at any rate, that this is something for the defendant to raise as a special defence. It is not that; the onus is on the prosecution to expunge that possibility altogether. The best solution would be to omit the clause. I do not believe that it is necessary. The law is well understood and works well.

In relation to the amendment tabled by the noble Lord, Lord Kingsland, and others, I take the point that it may well be, as a matter of administrative policy, proper that some of these complicated and serious cases should be referred to the Attorney-General for her advice about whether the prosecution should proceed. That is the best possible way of dealing with them.

My Lords, although I am always eager to support my noble friend Lord Onslow in the Lobby, on this occasion—I hope he will forgive me for saying so—it would be more prudent for your Lordships' House to adopt the proposal made by the noble Lord, Lord Neill of Bladen. Indeed, I think I heard my noble friend veering towards that position as the noble Lord was speaking.

My Lords, as well as responding to the amendment moved by the noble Earl, Lord Onslow, I shall also touch on the amendments tabled by my noble friend Lord Hunt of King’s Heath, and I propose to begin with them. The noble Lord, Lord Thomas of Gresford, tabled amendments in Committee. Some of them reflected a concern that what is now Clause 75 could be read as precluding a court paying any regard to the reasonableness of a mistaken belief relied on by a defendant. That was never the Government’s intention. It was always felt that the courts would use common sense when assessing such claims. However, on reflection, we considered that the clause could benefit from further clarification. The resulting government amendments address that concern and clarify that the reasonableness of a professed belief is relevant to judging the genuineness of the belief. It is a crucial element that will inform the jury’s belief in the defendant’s case. However, a defendant is still entitled to have his actions judged on the basis of his view of the facts as he honestly believed them to be, even if that belief was mistaken or unreasonable in hindsight. I thank the noble Lord, Lord Thomas, for his assistance and hope that he and the House welcome these useful amendments. Indeed, I might even dare to hope that the noble Lord will now reconsider his support of the amendment tabled by the noble and learned Lord, Lord Lloyd, to remove the clause altogether, otherwise we will lose his valuable contribution.

I turn to the amendments tabled by the noble Earl, Lord Onslow. They, too, focus on the question of mistaken belief and stem from observations made by the Joint Committee on Human Rights, which is concerned about that aspect of the current law. In general, the committee continues to welcome our efforts to clarify the law on self-defence. I may also observe that it also supports our firm resistance to any attempts at introducing a “grossly disproportionate” test—something to which I shall come later when considering the amendments tabled by the noble Lord, Lord Kingsland.

Amendments Nos. 88 and 90 would mean that a defendant would be judged on the facts as he saw them only if his belief was “reasonable”. Rather surprisingly, such a requirement would run counter to the concern that householders and others should be judged sympathetically on the basis of their mistaken beliefs. Otherwise, it would erect a new and further hurdle to the plea of self-defence. Even had a defendant used more force than was in fact needed because he made an unreasonable mistake in his assessment of the danger faced, it seems unduly harsh to prevent him from relying on self-defence if in fact he had no aggressive intent and was simply reacting to the circumstances as he saw them, or at most an aggressive intent that was justifiable in reaction to and in the light of his mistaken perceptions.

On that general point, it is important to recognise that although the current law allows defendants the benefit of their unreasonable mistaken beliefs, it does not by any means give them carte blanche. The degree of force used must still be objectively reasonable in those circumstances, so that there is not the dramatic immediate response of picking up the gun or the Japanese sword, which the noble Earl possibly saw as the next step. Amendments Nos. 88 and 90 therefore appear undesirable.

The noble Earl’s second set of amendments, Amendments Nos. 89 and 91, draw a similar conclusion to his previous set. However, they apply the restriction only to agents of the state. They are, in effect, an alternative, more restricted approach to addressing the issue of mistaken belief. The Joint Committee on Human Rights has suggested that human rights law necessitates an amendment to make clear that honest but mistaken beliefs must be based on good reasons when force is used by state agents. The Joint Committee argues that the Strasbourg law is “clear”—it uses that term—that allowing a defendant to rely on a mistaken belief that the use of force was necessary is compatible with Article 2 of the European Convention on Human Rights only if the belief was reasonable. The committee also suggests that that conclusion is particularly inescapable in the case of state agents.

We are aware of various indications in the European convention case law that might be read as supporting that view. The letter to the Joint Committee from the Minister of State, the right honourable David Hanson, of 12 March 2008, mentioned those, including, but not limited to, the reference to “good reasons” in the McCann case in its most recent report on the matter.

However, we maintain that the position in human rights law is not in fact clear. We consider that the case law falls well short of a requirement to change our law. The passage in McCann to which the Joint Committee refers says that a defendant can rely on a mistaken belief which he holds “for good reasons”, but it does not say in terms that that is an exhaustive account of the situations in which a defendant may rely on a mistaken belief. What is clear is that the Strasbourg court has never taken the opportunities that it has had to rule that our domestic law is incompatible with the convention, as might perhaps have been expected if in fact there were an obvious incompatibility.

On the substance of the matter, we submit that case law suggests that the current common law position is compatible with the requirements of the European convention in Article 2. It should be borne in mind that states are permitted a certain flexibility in determining how their national law deals with these requirements. We consider that the current position in our domestic common law, as reflected in the Bill, achieves the right balance between the need to protect life and the rights of persons accused of crime.

As previously indicated, in coming to this view we rely on, among other things, the following. First, a person who professes an unreasonable mistaken belief as the basis of his use of force in self-defence is not automatically given the benefit of being judged on that basis. Rather, he is to be judged on the facts as he claims to have seen them only if the court believes that his view was genuinely held. If a defendant’s professed belief is unreasonable, that can be a powerful reason for disbelieving him. Secondly, even in cases where a person’s use of force is to be judged on the circumstances as he mistakenly saw them, the degree of force used must have been objectively reasonable in those circumstances. The Government therefore acknowledge that the position is arguable, and indeed has been argued in legal journals. Details of this were given in the letter from the Minister of State, to which I have already referred.

There is, however, no consensus that the Joint Committee’s view is right. In the same letter, we mentioned that the leading textbook, Smith and Hogan Criminal Law—a source on which the noble Lord, Lord Elystan-Morgan, relies—takes the view that to invalidate a defendant’s right to rely on a mistaken belief unless that belief was reasonable would be,

“an undesirable and unnecessary conclusion and the English courts should not arrive at it unless compelled to do so”.

On the general issue of a different and higher test for state agents, and for the Armed Forces in particular, some might argue that the state should train its agents to act only on the basis of well grounded beliefs. However, after careful consideration the Government feel that this expectation would place a tremendous burden on service personnel who already have to take snap decisions under high pressure when on duty in dangerous parts of the world. We question whether noble Lords would wish to impose such a burden unless we were compelled to do so by law.

Moreover, this question again goes back to the credibility of the mistaken belief. Those considering a case, or a jury taking its decision, may well find an unreasonable mistaken belief on the part of, say, a highly trained member of the Armed Forces less credible than if held by a frightened member of the general public. There is therefore already a self-adjusting mechanism in the law without having to set a different test.

Setting European convention debates to one side, introducing two tests for self-defence—one for the public and one for state officials—risks further confusing the matter. The Government are clear that there should be one test for all. We must be clear and consistent and not unnecessarily burden people, whether civilians, police officers or members of the Armed Forces, with additional pressures in those very difficult situations. I therefore urge the noble Earl to withdraw his amendment. Although I appreciate that the noble Lord, Lord Neill, and others have made an attack on the whole clause—I will return to this in the event that the amendment to strike out the entire clause is advanced—the clause is primarily an attempt to clarify the common law and to keep it as it is rather than to permit innovation.

My Lords, I shall make my position clear. I argued both at Second Reading and in Committee that the clause, as drafted by the Government, was completely unnecessary and should be struck out of the Bill. I shall come to this in due course when we reach the relevant amendment. I suggested to the Government that their attempt to codify the common law was flawed. That is what the Government have responded to in the amendment tabled by the noble Lord. I am grateful to him for taking that on board, but it in no way removes my opposition to the clause being in the Bill at all. Piecemeal reform of the law in this field is not desirable.

My Lords, it is extremely daunting, as someone who, before the Flood, collected five O-levels and never went to university, to get up and be surrounded by hordes of extremely expensive lawyers giving you their advice.

My Lords, they do. I was completely convinced by what the noble Lord, Lord Neill, said. I also thought it was interesting that the noble and learned Lord, Lord Davidson, was almost arguing at the end for taking the whole clause out. He was basically saying, “Is this the law? Is that the law? Is the third thing the law?”, and implying that this was satisfactory. If the law is satisfactory, don’t let’s change it. Because I believe in listening to people’s arguments, unlike some people on the Front Bench whom I may or may not know, I have listened to the argument of the noble Lord, Lord Neill, and have been convinced that the amendment I have moved is unnecessary and nearly wrong. Therefore, with enormous pleasure, I beg leave to withdraw it.

Amendment, by leave, withdrawn.

88A: Clause 75, page 54, line 1, leave out “(4) and (5)” insert “(3A) to (6)”

88B: Clause 75, page 54, line 2, at end insert—

“(3A) If D claims to have held a particular belief as regards the existence of any circumstances—

(a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but(b) if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not—(i) it was mistaken, or(ii) (if it was mistaken) the mistake was a reasonable one to have made.(3B) But subsection (3A)(b) does not enable D to rely on any mistaken belief attributable to intoxication that was voluntarily induced.”

88C: Clause 75, page 54, line 4, leave out first “those circumstances” and insert “the circumstances as D believed them to be”

88D: Clause 75, page 54, line 5, after “question” insert “mentioned in subsection (3)”

On Question, amendments agreed to.

88E: Clause 75, page 54, line 18, leave out subsections (8) and (9)

On Question, amendment agreed to.

[Amendments Nos. 89 to 91 not moved.]

91A: Clause 75, leave out Clause 75 and insert the following new Clause—

“Self-defence etc.

(1) The Criminal Law Act 1967 (c. 58) is amended as follows.

(2) In section 3 (use of force in making arrest, etc.) after subsection (1), insert—

“(1A) Where a person uses force in the prevention of crime, or in the defence of persons or property, on another who is in any building or part of a building having entered as a trespasser or is attemping so to enter, that person shall not be guilty of any offence in respect of the use of that force unless—

(a) the degree of force used was grossly disportionate, and(b) this was, or ought to have been, apparent to the person using such force.(1B) No prosecution shall be brought against a person subject to subsection (1A) without the leave of the Attorney General.

(1C) In this section “building or part of a building” shall have the same meaning as in section 9 of the Theft Act 1968 (c. 60) (burglary).””

The noble Lord said: My Lords, I am not sure to whom my noble friend was referring when he said that there were certain Members of the opposition Front Bench who do not always listen to his wisdom.

My Lords, I was not referring to the opposition Front Bench; we all know that they are fountains of reasonableness and common sense who listen to other people’s points of view. I was looking at certain people opposite who on occasion can be stubborn.

My Lords, I have provoked exactly the response I had hoped for from the noble Earl.

I am aware that time is short today. This is the fourth and last day of Report. Although the reason for those circumstances can be laid largely at the Government’s door, I do not want the Government to think that we will be in any way obstructive, and we shall certainly try to progress matters as rapidly as we can.

The matter of self-defence has already been discussed fairly fully in Committee, so it is not necessary for me to go through the arguments I made in support of my amendment with the same thoroughness today; I think they are well recalled. The origin of self-defence in the Bill lay in the proceedings of the Labour Party conference last autumn and an undertaking given by the right honourable gentleman Mr Straw to bring the matter forward. I intend to make no further comment about the consequences of that in the Bill.

My amendment addresses one particular set of circumstances: those in which an individual is confronted by a trespassing intruder on building premises. The amendment is cast in terms of buildings generally, but we had particularly in mind a situation in which a trespasser entered someone’s home, probably during the hours of darkness. We have taken a different approach from the one normally taken by the common law, which is to substitute the concept of proportionality for the concept of reasonableness. In other respects our approach does not change; in other words, instead of applying a test of what was reasonable in the circumstances in which the defendant saw them subjectively, the test we wish to apply is that of gross disproportionality in the circumstances as the defendant subjectively saw them. We believe that is a clearer test and, in the circumstances of an intruder late at night where someone is perhaps awakened from peaceful slumber, a more appropriate test. Subjectively, the situation is likely to be extremely alarming. That, of course, applies to the subjective circumstances.

We go on to say that unless the person into whose house the trespasser has entered behaves grossly disproportionately, the benefit of the doubt of the law should be on his or her side. That should be distinguished from other circumstances in which the law of self-defence applies. I explained the background to this in Committee. I have simply set out the principles of our amendment and I propose to leave it at that. I beg to move.

My Lords, what the right honourable gentleman Mr Jack Straw did not say to the Labour Party conference last September was that he was going to bring forward in the Bill a clause to codify the law of self-defence. In a pre-election splurge, he implied that the law of self-defence would be altered so as to gain what he thought would be popular support from the red tops for making it easier for a householder to shoot people. We do not believe that there should be a distinction drawn between defendants depending on their particular position. As has already been said by many noble Lords in the previous debate, we think that it is quite open to a jury to take into account the particular frightening circumstances of having a burglar in the house.

As the clause is now, even as improved by the amendment following my previous criticisms, it is useless. It does not do anything except to repeat the common law. As I said earlier, it does so in a piecemeal way. Only this aspect is attacked or dealt with, whereas many other aspects surrounding this area of violence to the person, particularly in relation to the law of murder and manslaughter, are not dealt with by the Government. They are subject to discussions. We are having discussions in a few days’ time on how these matters should be advanced with the Minister from the House of Commons, Maria Eagle, who has been put in charge of it.

If there are to be substantial changes to self-defence in any way, they should run alongside changes to the law of homicide and, possibly, to other crimes of violence. If we are unable to come to any firm conclusion in our discussions with Ministers, it should go to the Law Commission, as the noble Lord suggested in our previous debate, for a proper and thorough discussion and the production of a draft Bill. I am happy to tell your Lordships that the noble and learned Lord, Lord Mayhew, referred to the reports of the Law Commission gathering dust on a shelf somewhere, presumably now shifted to another dusty shelf in the Ministry of Justice. But there are ongoing discussions as to how Law Commission Bills can be brought forward under a simplified procedure, so that it would be possible to put its recommendations into effect in a proper and considered way, and in a short time.

There are two reasons why we should get rid of this clause. First, it does not do anything. Secondly, it would inhibit any further discussion that is already ongoing as to this part of a much wider subject. It is premature and unnecessary. On the amendment in my name and that of the noble and learned Lord, Lord Lloyd, I shall be asking the opinion of the House.

My Lords, I shall make two points quite simply on this amendment. First, it treats quite separately the Section 3 defence. We are off into a statutory provision in a 1967 Act which dealt with the use of force in achieving an arrest or preventing crime, and simplifying the language. They were the two main target areas. It has already been held in case law that the accused may take advantage both of Section 3 of the Act and of the common law of self-defence, and therefore it is totally undesirable to hive off Section 3 by altering the language and introducing stuff such as “disproportionate”, which is not being introduced anywhere else in Clause 75. That is not the sort of error that the Law Commission would make. I say that with respect: it is my view that if two defences are running, they ought to use the same language.

Secondly, what is the logic of limiting this to buildings? I go back to Mr Singh’s case, which I mentioned in Committee. Mr Singh came out of his shop, got into his car and put his bag with the day’s takings beside him. A man who turned out to be a criminal with a record as long as your arm, awaiting trial about a fortnight later, came up wielding what must have been quite a big knife, smashed the car window and tried to grab the bag. Mr Singh defended himself. According to the Times on 21 February and a small piece in the Daily Telegraph, Mr Singh could not give a coherent account of what happened, but the assailant ended up in the road with his own dagger through his heart. Why should not that case receive the sympathetic consideration of the noble Lord, Lord Kingsland? It cannot because the incident did not happen on a premises. The noble Lord is making a narrow proposition and the principle is thoroughly undesirable.

My Lords, Amendments Nos. 88 to 91 seek to make changes to this difficult and sensitive area of the law, and they have been tabled by noble Lords across the Chamber. As my noble friend Lord Neill of Bladen said in relation to an earlier amendment, supported by the noble and learned Lord, Lord Mayhew, and me, this needs the attention of the Law Commission. What depresses me is the fact that the noble and learned Lord, Lord Davidson, did not refer in his full response to why this should not go to the commission. If it is thought necessary to change the law, let that particularly sensible body look at it first, before we consider a series of amendments. I would be grateful if the Minister could tell us why he does not think it is even worth referring to the commission.

My Lords, I have no objection to the matter being considered by the Law Commission, although I believe that the substantive law is in a perfectly proper state and that the difficulties are so limited that they can be dealt with by way of reference to the Attorney-General.

My Lords, I sought to make the point that if there is to be a change in the law, it should go to the Law Commission. I should make it clear that I see no need for the existing law to be reinterpreted in statute form. However, changes are being put forward. I do not think that such changes should go through until the Law Commission has had a proper look at the position. That is what it is there for.

My Lords, I respectfully agree. Perhaps I may take up the point made so firmly by the noble Lord, Lord Thomas of Gresford—the distinction made in the amendment with regard to a building and self-defence exercised outside a building. It may well be that there was an intention to provide special protection for a person in his own home, but whereas every home is a building, not every building is a home. One can imagine many circumstances where self-defence is most acutely justified that have nothing to do with being inside a building. A person sitting in his own parked car might have to defend himself in exactly the same way.

In 1922, I believe, there was a decision of the Criminal Division of the Court of Appeal in the case of Hussey. As I recall, the facts of the case were that a person was the tenant of a flat and agents of the landlord unlawfully broke into the flat. The person got up from his chair and shot one of the agents dead. The Criminal Division of the Court of Appeal held that in those special circumstances, there should be no question of a person’s right to exercise greater force than might be justified in other circumstances. For decades there was some doubt so far as the learned editors of Archbold and other publications were concerned as to whether that represented the law, but I think I am right in saying that in the past 20 or 30 years it has been made clear that Hussey is not good law. I respectfully suggest that drawing any distinction, as this amendment seeks to do with the best of intentions, would be entirely improper.

My Lords, Amendments Nos. 91A and 92A take us back down a somewhat familiar path towards the grossly disproportionate tests for self-defence in respect to householders only. I shall be brief in setting out once more why the Government cannot support such a change.

First, these amendments would introduce multiple tests for self-defence. Not only would these tests unfairly favour householders over others using force in self-defence, they would also risk further confusing the issue in the eyes of the public and front-line practitioners. However, the main point of contention on which I would like to focus is the resounding conclusion reached by the Joint Committee on Human Rights in its 15th report. The committee noted therein that,

“any amendment to the Bill to the effect that a person using force against a trespasser would only commit an offence if the degree of force used was ‘grossly disproportionate’ would be objectionable in principle on human rights grounds because it would fail to secure adequate protection of those rights by the criminal law”.

It then goes on to say:

“If the criminal law were amended to permit the use of disproportionate force in self-defence or to prevent crime, the UK would be in breach of its obligation to ensure that its criminal law provides adequate protection for the right to life in Article 2”—

of the European Convention—

“and the right to physical integrity in Article 8”—

of the European Convention.

These amendments would be likely to give rise to serious human rights concerns, create further confusion through multiple tests and provide for unequal protection for citizens depending on their physical location, as the noble Lord, Lord Neill of Bladen, clearly identified. I cannot see how they are preferable to the provision in the Bill which serves to clarify—not codify—the law.

It has been said that, to some extent, the clause fails to follow the current common law, a point made by the noble Lord, Lord Elystan-Morgan. But, with respect, the clause reflects the common law and, to an extent, the Joint Committee on Human Rights concurs in that view. It states in paragraph 1.68 of its 5th report:

“We are satisfied that the new clause clarifies rather than amends the existing law”.

Perhaps that is also an answer as to why one is not minded to send this area to the Law Commission. A report by the Law Commission is, of course, extremely helpful where one is considering innovation or alteration. What is not sought here is either innovation or alteration; what is sought is to make clear what the common law is in a statutory form.

My Lords, when the noble and learned Lord says that it makes it clear, to whom is the law on this issue not clear? Do the judges not understand it? Why does it need to be put down again? It seems to me that all noble and learned Lords have got it in their heads extremely easily and understand it completely, so what is the point of them writing it down again?

My Lords, it may not come as a complete surprise that the audience for questions of self-defence extends beyond this House. The purpose of this is to provide clarification to the public. There have been attempts through the leaflet provided by the Association of Chief Police Officers, which considers that clarification by this provision would be helpful. So it is not simply the Government’s determination in some way to codify this point, as it is described; rather it is to provide a clarification that operates beyond this Chamber for the benefit of the whole public.

My Lords, I hope I may ask the Minister without discourtesy if he could assist me in these two matters. He says that there is no question of changing the common law. Therefore, with the authority of the cases of Gladstone Williams and Beckford, decided in 1984 and 1985 respectively, and the whole chain of cases that followed those decisions, does he accept that that is the current state of the law? Secondly, does he accept that to enjoin a jury to consider whether a person’s sincerely held view is sincerely held as against a template of what is reasonable would, in fact, commit the very error that the learned judge committed in the case of Williams, which was castigated by the Court of Appeal?

My Lords, that indicates that areas of clarification may be required in our law. The clause seeks to reflect the language more in Palmer—the language of Lord Morris of Borth-y-Gest—and it was immediately identified that certain passages from Palmer were reflected in the provision. I hope that is a sufficient answer to the noble and learned Lord, Lord Mayhew, the noble Lord, Lord Neill, and the noble and learned Baroness, Lady Butler-Sloss. It is for that reason that we do not seek to have the issue remitted for consideration by the Law Commission.

Against this background, I believe that we should take this opportunity to address legitimate concerns around this issue and use Clause 75 as a pragmatic and sensitive way forward. Therefore, I ask the noble Lord to withdraw his amendment.

My Lords, I am grateful to the Minister for his response and to all those who have contributed to the debate.

I take up one point that the Minister made about the relationship between disproportionality and the Human Rights Act. The Minister suggests that my amendment would not conform with the Act because of the way in which the European Court of Human Rights has interpreted the concept of proportionality.

I respectfully disagree with him. The test in our law is reasonable in the subjective circumstances in which the defendant saw a matter. It is perfectly possible that behaving reasonably in the subjective circumstances in which a defendant saw a matter could be a disproportionate response that was, nevertheless, within the definition provided by English law. It follows from what the Minister said that, if his proposition is correct, our law itself could be in breach of the convention. That is precisely why we have used the concept of “grossly disproportionate”—to make it absolutely clear that we do not fall foul of this trap, which I hope that I have just elucidated.

I have listened to the wisdom of your Lordships on this matter, and it has given me grounds for reflection before asking your Lordships’ opinion. However, having reflected, I wish to test the opinion of the House.

92: Clause 75, leave out Clause 75

The noble Lord said: My Lords, as I indicated in the debate on the previous amendment, I am in the unusual position of having my criticisms accepted in a government amendment, which vastly improves the clause. Even so, I am seeking to strike it out completely, for all the reasons that I have given. I beg to move.

My Lords, the noble Lord opposite said that the purpose of the clause is to explain common law and send a message. If he seriously thinks that the general public can read, learn and inwardly digest this clause, he is very much mistaken. It is not to be read by those who sit on the Clapham omnibus, or even by those who sit on the back seat of bankers’ chauffeur-driven cars. It is far too obscure. The law is understood by the judges; therefore do not try to double write things just for the sake of sending a message. With respect, it is very sloppy thinking to try to do so.

My Lords, this time I very much support what the noble Lord said. I shall make four points. If the clause is meant to be a clarification and a teaching clause, it does a pretty bad job. I know that people never like to have their drafting criticised—personally, I hate it. Saying that one has no pride of authorship is not an honest statement.

However, why does the clause not say what the defence of common law is in simple terms, as the noble and learned Lord, Lord Woolf, did in the Martin case? He said in one sentence that:

“A defendant is entitled to use reasonable force to protect himself, others for whom he is responsible and his property”.

That is a simple statement. What about property? There is no word in the clause that tells you whether you are allowed to protect property as part of the common law. What about the onus of proof? The man in the street on the Clapham omnibus or whatever vehicle he is in might be interested to know that once any reasonable suggestion is put forward that there may be a case of self-defence, it is then a matter for the prosecution. Again I quote the noble and learned Lord, Lord Woolf, who stated:

“When this defence is raised, the prosecution has the burden of satisfying the jury so that they are sure that the defendant was not acting in self-defence”.

That is an elementary statement about the law of self-defence that is nowhere to be found in this so-called teaching clause.

Subsection (4) is just playing with words. It is the stuff of Roget’s Thesaurus. It says that what is not reasonable is disproportionate. What is the point of making an amendment like that? I have spoken about subsection (5), which just uses Lord Morris of Borth-y-Gest’s rather flavoured special language and puts it into a statute. Then there is the use of self-induced intoxication in a defence. Why are drugs not mentioned? A lot of people are high on drugs all the time. Can one use that in a defence? Why not deal with this matter properly and send it off to the Law Commission?

My Lords, this clause is intended either to alter the law or to be a complete exposition of the law. On the whole, I think that Her Majesty’s judges are in a better position than Parliament to expound the whole law. Another point about the clause is rather dangerous; the common law has flexibility that one cannot have in an Act of Parliament. Is this provision supposed to regulate the common law in this area for the foreseeable future? If so, it deprives judges of a very valuable feature of the common law; namely, that unexpected cases can arise that even Parliament had not anticipated in which to apply the current law in the circumstances.

If clarification is required, I cannot see why the Law Commission is not the authoritative body to provide it. I think that I heard the noble and learned Lord the Advocate-General say that the Association of Chief Police Officers wanted the law to be clarified. If so, there are very good systems for doing that by getting an opinion from someone who understands the present law and states it with the clarity that has apparently, so far, eluded Her Majesty's judges.

The simple result is that confusion is added to the law. I notice that the noble Lord, Lord Thomas of Gresford, mentioned the desirability of having procedures for implementing Law Commission reports. Such a procedure—the Jellicoe procedure—was developed in the 1990s. A considerable number of Law Commission recommendations were put into law and have played an important part in it ever since. I cannot see that it is likely that that procedure will be improved on.

As far as I am concerned, this clause is an extremely damaging incursion into an area that belongs to the courts and the common law.

My Lords, the wording of the amended Clause 75 will give an overbusy Court of Appeal Criminal Division an enormous amount of extra work. Some of this has been mentioned by the noble Lord, Lord Neill of Bladen, but there are other phrases, with which I will not trouble the House, save to say that the Court of Appeal Criminal Division has quite enough to do without having to interpret what the common law has been relatively clear about, which the clause will considerably obscure.

My Lords, we were reminded earlier today that this clause takes its origins from a political posture. As has been shown in devastating terms this afternoon, it is a mess. To carry it forward into legislation would be to take a posture to an extent that would be both disproportionate and unreasonable and we should not do it.

My Lords, I shall add a small peripheral point, picking up on the remarks of my noble friend Lord Neill. Service law comes into the discussion on this Bill on a number of occasions, so I was extremely relieved to hear his definition of self-defence. Defending yourself or property, or other people whom it is your duty to defend, is precisely the definition that is given to soldiers when they are on duty. It is clear and it is based on the common law. I would hate anything to be done to make it less clear.

My Lords, I have no doubt at all that the clause as amended by the Government would give wholly the wrong impression with regard to the onus of proof. The government amendment states:

“If D claims to have held a particular belief as regards the existence of any circumstances”.

That wording certainly suggests that that is a defence for him to raise rather than a matter for the prosecution to expunge. The fundamental weakness in the original clause is compounded by the amendment. It will do the system and principles of justice no benefit whatever. It is bound to obfuscate the view of a jury on the whole issue of self-defence. On that basis alone, I believe that there is every justification for not proceeding with the clause.

I abjure the temptation to consider the origins of the clause; the heady hustingness of October last year may have had more to do with it than anything else. Be that as it may, I am genuinely concerned that the clause makes the situation less clear. As to not changing the law, I have already addressed the point relating to Gladstone Williams and Beckford. I believe that this does change the law, although that may not have been Her Majesty’s Government’s intention.

My Lords, the amendment is straightforward in that it would simply strike out the clause. However, the Government suggest that, if that were done, it would risk undoing much of the good work that has been done in this House to deal with this area thus far. During the passage of the Bill, there has been considerable interest in the debate surrounding self-defence, which demonstrates that there are serious concerns about whether the current position is appropriate or sustainable. That is possibly an answer to the noble Earl, Lord Onslow, when he ventures the notion that no one, outside lawyers, will be particularly interested in this provision. The debate has spread beyond this House.

One has heard fairly extreme legislative proposals, such as the amendments that we have been dealing with on gross disproportionality. Other proposals have sought to refine the government clause in the interests of more accurately reflecting the common law position, which we feel we have now done. However, very few have argued that no legislative action is necessary at all—until, I am bound to say, this afternoon. Indeed, the very fact that the matter keeps coming back—

My Lords, with the greatest respect, if the noble and learned Lord would like to read my Second Reading speech, that is precisely what I said. This is no surprise.

My Lords, I immediately accept that the noble Lord said that. I was trying to suggest that perhaps there has been a rather more forceful approach in following the noble Lord’s argument this afternoon—no more than that. The very fact that the matter keeps coming back before Parliament may suggest that there is room for clarification and reaffirmation, and that is certainly the Government’s intention in proposing this provision.

It is clear that noble Lords have a number of questions in relation to this area. The noble Lord, Lord Neill of Bladen, raises four points setting out how he considers that there is scope, at least, for alteration and improvement. In answer, I would say that one is not seeking to provide an entire code for every area of the common law of self-defence but, rather, to put in place the principal message on how self-defence should be treated. Again, this may be an answer to the noble and learned Lord, Lord Mackay of Clashfern, who said correctly that this is not a complete exposition of the law. It is not intended to be that; it is intended to provide clarification in certain areas. I do not in any way suggest that this is some kind of clarity that has eluded Her Majesty’s judges; rather, it seeks to reflect the clarity that those judges have brought to the law.

It has been suggested before that this may be an area for the Law Commission, and I reiterate the argument that I made then: the Law Commission may be useful for innovation but this is not supposed to be an innovation.

The noble Lord, Lord Elystan-Morgan, suggests that we may be creating the wrong impression of the common law. I repeat the observations that I made earlier in relation to that point.

I submit that it would be at least disappointing were Clause 75 to be lost, given that it has been amended to reflect the learned contributions made during the passage of the Bill. It may be considered that this is the time to address the public’s confusion and that that would reassure front-line practitioners and possibly encourage responsible citizenship.

Judicial discretion has generally led to sensitive and appropriate rulings when cases are brought to court but the law has a broader role. It needs to be understood and to be more widely accessible than to lawyers alone. This is an area of the law over which sections of the public have strong and continuing concerns that are echoed by some sections of the media. The Government believe that there is genuine confusion about how and when force may be used in self-defence. One should note that senior police representatives accept that this is an issue. In the light of that, the Government believe that this is an opportunity that might be taken to address legitimate concern. Accordingly, I invite the noble Lord to withdraw his amendment.

My Lords, before the noble Lord sits down, perhaps he will respond to this problem. I think he stated that this provision does not deal with the whole law of self-defence but just clarifies a part of it. That sounds a little like the curate’s egg: there is a bad bit, which you try to purify. It is not possible just to pick part of a wide doctrine by way of clarification.

My Lords, I immediately agree that one should not pick and choose, but one seeks to avoid the curate’s egg problem in setting out the fundamental aspects of the common law of self-defence. I say that because one can easily see why statute might not be the area in which to carry out an exposition of the full extent of the common law.

My Lords, that is the most extraordinary statement I can ever remember hearing. Here is an attempt to codify the common law and we have an admission by the Minister that he is not going to do it in its entirety. He will codify only a major part of the law of self defence, but will leave other aspects, such as the defence of property, the defence of others and the position of the military, and simply rely on the main thrust. If, before the legislation is passed, the public are confused about the law of defence, how much more confused will they be when it has been passed? As the noble and learned Baroness, Lady Butler-Sloss, said, how will the judges cope with this? This matter will exercise the Court of Appeal for a very long time.

There is only one thing to do with this clause: throw it out now. I urge your Lordships to do that. I seek to test the opinion of the House.

[Amendment No. 92A not moved.]

92B: Before Clause 76, insert the following new Clause—

“Unlawfully obtaining etc. personal data: defence

(1) Section 55 of the Data Protection Act 1998 (c. 29) (unlawfully obtaining etc. of personal data) is amended as follows.

(2) In subsection (2)(d), after “circumstances” insert “he reasonably believed that”.”

The noble Baroness said: My Lords, we on these Benches are very glad that the Government did not carry out their threat to remove Clause 76 because of all the pressures they were under. We are relieved to see that it is still in the Bill, and that they have tabled Amendment No. 94C, which answers some of the worries about journalism. That improves the measure substantially as there were some genuine worries about increasing a penalty from a fine, which a newspaper as a corporation can pay, to a threat of imprisonment, which would inevitably land on an individual journalist. That takes the question of the freedom of the press into a different place. The Government have correctly recognised that and have tabled their amendment.

I am not quite so keen on government Amendment No. 94B, which is the secondary legislation to introduce the power to alter the penalty. Although that secondary legislation will come before Parliament to be debated, we will not be able to amend it. I appreciate that the Government were between a rock and hard place, the rock being the Information Commissioner—who has done a tremendous job; Clause 76 reflects a lot of his work suggesting that there should be higher penalties in cases where people commit data protection offences—and the hard place being the Murdoch press, which wants to defend the right of some of its establishment to commit undesirable practices. When I asked the ministerial team where the pressure to exclude this clause was coming from, it was quite forthcoming that it was from Paul Dacre and Rebekah Wade. The broadsheets have taken an interesting line on this and have expanded the issue fully. We are the better for the debate about where journalists stand on this. I shall be interested to hear what the Minister has to say. I beg to move.

My Lords, as the noble Baroness, Lady Miller, reminded the House, the Government, in the form of the noble Lord, Lord Hunt, threatened to remove this clause entirely because they were so worried about time—this was the Bill that they introduced in June or July last year. If I remember correctly, when this was discussed in Committee, the noble Lord said that the Government would remove the clause if we could not reach agreement about some satisfactory compromise.

I am not sure that we have necessarily reached that compromise, but the Government have at least brought forward an amendment that does something—even if, as the noble Baroness puts it, they are between the proverbial rock and hard place. I do not think that we would want to oppose the Government provision, even if it is not utterly satisfactory, but at this stage we want to hear from the Minister exactly what the provision does and how it does it. In the light of that, I intend to sit down and listen to what he has to say.

My Lords, yesterday, I was at Infosec on a panel with the Information Commissioner on this very subject. It is a huge problem. As the Information Commissioner says, some sections of the press have been concerned that the provision could have a chilling effect, but the interesting thing is that no new criminal offence is being created and there is already a defence for journalists whose activities can be justified as being in the public interest. So why are they so worried? The answer is that the previous penalties did not deter them. Reading the commissioner’s excellent report, What Price Privacy Now?, we find that the Daily Mail tops the poll with 952 transactions positively identified, with 58 journalists buying information from databases. That is sensitive information about people that could be used. If the journalists were not actually working for the newspaper or moved, they could be misusing information. We have to tighten up on this. Therefore, although we would have preferred the tighter clause, we welcome what the Government are trying to do here.

My Lords, in my usual place, between a rock and a hard place, I respond positively to both the noble Baroness, Lady Miller, and the noble Lord, Lord Henley, for what I think is a general welcome for the work that has been undertaken since our previous helpful debate in Committee. I will come to the point raised by the noble Earl in a moment, because it is very important and goes back to the reason why the Government brought forward the provisions in the first place.

As noble Lords will know, Section 60 of the Data Protection Act 1998 currently specifies the penalties for offences committed under Section 55 of that Act—the unlawful obtaining, disclosing, procuring or selling of personal data. It provides for a maximum penalty of £5,000 on summary conviction and an unlimited fine for conviction on indictment. Given the very experience that the noble Earl raised today, Clause 76 sought to increase the maximum penalty for this offence to a custodial sentence of two years following conviction on indictment, in addition to the existing provision for fines, to make the offence really bite in view of the problems that have been brought to light, especially by the Information Commissioner.

On the other hand—this is where we came to the difficulty—as the noble Baroness, Lady Miller, suggested, there are concerns about the chilling effect of this increase in penalty on investigative journalism. Let me make clear, as I did in Committee, that the Government have no wish to curtail legitimate and responsible journalism. That was the basis on which I said that I intended to remove the clause unless we could find a satisfactory solution balancing the need to strengthen the protection of individuals’ rights and respect for their privacy on the one hand, and freedom of expression of the press on the other.

There has been a flurry of debate both within the media and in our discussions. I am glad to say that a satisfactory solution has been found, so we will not now simply remove Clause 76, but replace it by my Amendments Nos. 94B and 94C. The new clauses, and the associated consequential amendments, reflect the result of that extensive discussion. We think that that strikes the right balance. Here we have a strong signal that the lucrative and illegal trade in personal data will not be tolerated and that a stronger deterrent is available if that activity continues. If it did continue, the Government would bring an order before your Lordships’ House and in the other place.

Amendment No. 94B confers on the Secretary of State a power to make an order altering the maximum penalty for an offence under Section 55 of the Data Protection Act. The maximum penalty that could be specified in such an order is two years’ imprisonment. Under this new clause, the Secretary of State is required to consult interested parties, including the Information Commissioner and media organisations, before making such an order. Conferring a power to make an order in this way enables the Government to keep under review progress in combating the market in illegally acquired personal data before deciding in consultation with interested parties whether an increase in the maximum penalty for this offence would be appropriate.

In addition, the Government will work with the Information Commissioner, the media and other interested parties on raising awareness of how to avoid committing an offence. This will include training, an education and information campaign and other suitable activities. As part of its current review, the Sentencing Guidelines Council will produce guidelines on this offence in due course, which all courts will need to take into account.

Amendment No. 94C provides for an additional defence for Section 55 offences where the offender acted with a view to publishing for journalistic, literary or artistic purposes and in the reasonable belief that their actions were justified in the public interest. The noble Baroness, Lady Miller of Chilthorne Domer, has sought in some of her amendments to deal with this matter. I hope she will accept that my amendment does that.

I take this opportunity to thank all parties who have worked together to reach a solution, and I put on record the Government’s thanks for the tireless and highly respected work of the Information Commissioner, Richard Thomas, and his office, who have made such a compelling case for a serious sanction against people who deliberately or recklessly misuse personal data.

An order made under an order-making power is not subject to amendment, but I must say to the noble Baroness, Lady Miller, that it is subject to the affirmative procedure. Moreover, the Secretary of State must consult the Information Commissioner, and media organisations and other interested parties where he considers this appropriate, which means that there will be considerable discussion before an order is brought before your Lordships’ House. I hope that it will not be necessary to do so, because I hope that the very act of making these amendments will send the right signal. The Information Commissioner has made some very important and persuasive points in the past few weeks which, combined with the education programme that I also described, will I hope ensure that this is taken seriously and that we will not have to bring an order. If this does not work and it is clear that invasions of privacy continue, we will not hesitate to take action.

My Lords, I thank the Minister for the strength of his reply, which sends an important message to unprincipled newspapers that use this sort of information and encourage their journalists to do this sort of thing, thereby threatening the freedom of the press.

I do not envy the Government if their threat does not succeed and they have to have these discussions with the parties involved and bring in an order, because they will probably be in the same place that they were in between Committee and Report. The discussions will be very difficult. Nevertheless, this is an important line to have drawn, and the Government have certainly done a good job in doing so. I join the Minister in paying tribute to the Information Commissioner, who continues to highlight the issues of importance to the public incredibly effectively. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 76 [Imprisonment for unlawfully obtaining etc. personal data]:

[Amendments Nos. 93 to 94A not moved.]

94B: Clause 76, leave out Clause 76 and insert the following new Clause—

“Power to alter penalty for unlawfully obtaining etc. personal data

(1) The Secretary of State may by order provide for a person who is guilty of an offence under section 55 of the Data Protection Act 1998 (c. 29) (unlawful obtaining etc. of personal data) to be liable—

(a) on summary conviction, to imprisonment for a term not exceeding the specified period or to a fine not exceeding the statutory maximum or to both,(b) on conviction on indictment, to imprisonment for a term not exceeding the specified period or to a fine or to both.(2) In subsection (1)(a) and (b) “specified period” means a period provided for by the order but the period must not exceed—

(a) in the case of summary conviction, 12 months (or, in Northern Ireland, 6 months), and(b) in the case of conviction on indictment, two years.(3) The Secretary of State must ensure that any specified period for England and Wales which, in the case of summary conviction, exceeds 6 months is to be read as a reference to 6 months so far as it relates to an offence committed before the commencement of section 282(1) of the Criminal Justice Act 2003 (increase in sentencing powers of magistrates’ courts from 6 to 12 months for certain offences triable either way).

(4) Before making an order under this section, the Secretary of State must consult—

(a) the Information Commissioner,(b) such media organisations as the Secretary of State considers appropriate, and(c) such other persons as the Secretary of State considers appropriate.(5) An order under this section may, in particular, amend the Data Protection Act 1998 (c. 29).”

94C: After Clause 76, insert the following new Clause—

“New defence for purposes of journalism and other special purposes

In section 55(2) of the Data Protection Act 1998 (c. 29) (defences against offence of unlawfully obtaining etc. personal data) after “it,” at the end of paragraph (c) insert—

“(ca) that he acted—(i) for the special purposes,(ii) with a view to the publication by any person of any journalistic, literary or artistic material, and(iii) in the reasonable belief that in the particular circumstances the obtaining, disclosing or procuring was justified as being in the public interest,””

On Question, amendments agreed to.

95: After Clause 76, insert the following new Clause—

“Data protection: additional offences

(1) After section 55 of the Data Protection Act 1998 (c. 29) insert—

“55A Data protection: additional offences

(1) A data controller must not—

(a) intentionally or recklessly disclose information contained in personal data to another person,(b) repeatedly and negligently allow information to be contained in personal data to be disclosed, or(c) intentionally or recklessly fail to comply with duties under section 4(4).(2) Subsection (1)(a) does not apply if the data controller can show that the disclosure—

(a) was necessary for the purpose of preventing or detecting crime,(b) was required or authorised by or under any enactment, by any rule of law, or by the order of a court, or(c) was justified in the particular circumstances as being in the public interest.(3) This section shall apply whether or not the data controller is—

(a) a relevant authority under section 29, or(b) exercising a relevant function under section 31.(4) A data controller who contravenes subsection (1) is guilty of an offence.”

(2) In section 63 of the Data Protection Act 1998, omit subsection (5).”

The noble Baroness said: My Lords, this amendment concerns the additional offences under the Data Protection Act that we believe should be brought in. Data controllers currently do not face anything like adequate sanctions if they intentionally or recklessly disclose information, or indeed are repeatedly negligent. We did not spend very much time on this issue in Committee because we were so taken with the fact that the Government might withdraw the entire clause, so we had a fairly limited debate. However, I went back and read what the Minister said:

“We are committed in principle to the introduction of new sanctions under the Data Protection Act for the most serious breaches of principles. The proposals that we will bring forward will be part of a consultation paper that is being written at the moment. I am sympathetic to the intent of the amendments proposing new sanctions under the Data Protection Act, but we should await the result of the consultation before considering what legislation should be taken forward”.—[Official Report, 5/3/08; col. 1116.]

On the face of it that is entirely reasonable, but we know the pressure of legislative time. The amendment is very simple in what it seeks to do and has the benefit of covering data breaches by government officials.

Goodness knows, this is not exactly a new issue. The Government have had time to address it. In 2002 in another place my honourable friend Paul Burstow revealed that a total of 1,354 government-owned computers had gone missing over the previous five years, while much more recently, as noble Lords will be aware, vast amounts of data, whether from Her Majesty’s Revenue and Customs or the health sector, have been lost. The issue has been around for a long time, and not only in government sectors. The private sector, as we know, can be negligent, and it can do all sorts of things with data that it should not do. Both the public and private sectors need to be covered by further sanctions, which is the reason for our amendment.

The Conservatives have also tabled an amendment in this group, to which I am sure they will speak. It has as many merits as our own when it comes to the public sector, but they have chosen to leave the private sector entirely out of it. The difficulty with that is that if you are a member of the public, it does not matter if it is the public sector or the private sector that has lost your data; the fact is, your data have been lost. The public need to depend on data controllers to be absolutely reliable and to do their utmost to safeguard people’s personal information. For that reason, we should aim to cover both public sector and private sector data controllers. With the increased blurring of the lines between the public and private sectors—I appreciate that this is often covered by contracts; indeed, I think the wording in the Conservative amendment mentions government contracts—it will not always be simple. Surely the public have an absolute right to expect data controllers in charge of any private information to be given immense incentives to be as careful as possible with it.

I quote the Prime Minister’s own words after Her Majesty’s Revenue and Customs lost its data:

“When mistakes happen in enforcing procedures, we have a duty to do everything that we can to protect the public”.—[Official Report, Commons, 21/11/07; col. 1179.]

One thing the Government could do is to accept our amendment, which would greatly strengthen the provisions of the Bill. I beg to move.

My Lords, as the noble Baroness, Lady Miller of Chilthorne Domer, has pointed out, we have Amendment No. 95ZA in this group, which is slightly more limited than the noble Baroness’s amendment. As she put it in shorthand, her amendment covers the public and private sectors, whereas ours covers only the public sector and, under subsection (2)(b) of our amendment,

“a person acting in pursuance of a government contract”.

So it would cover some others. I can presume from that that the noble Baroness certainly would support our amendment. We have some doubts about whether we would go as far as her slightly wider amendment. I shall have to give this some thought, particularly after I have heard the Minister’s response.

The noble Baroness was also right to say that we probably did not have a long enough debate on this matter in Committee and, bearing in mind we want to finish this Bill this evening, we are probably rather short of time for debate on Report. Perhaps the noble Baroness remembers that we felt slightly constrained for time on the previous occasion. We suddenly noticed the House filling up as noble Lords waited to debate the whole question of blasphemy, which, for some reason—I look to the right reverend Prelates—seemed to interest the House far more than the very important issue of data protection.

I want to make clear to the Minister that I shall press my amendment if the noble Baroness does not press hers. Probably, we both want to hear from the Minister before we make the final decision on whether it will be the noble Baroness’s amendment that goes ahead, which we might support, or my amendment that goes ahead, which she might support. We will listen to the noble Lord with interest.

My Lords, I should like to make a few comments on this issue because I am very much involved in the information systems security world. I prefer the amendment proposed by the noble Baroness, Lady Miller of Chilthorne Domer, because it is hard to decide what is government and what is not, and there is the status in between. Telephone records can be extremely sensitive. For instance, BT is private: it is not government. Many bits of information put together could be extremely damaging to the citizens of this country if they are revealed.

We are very weak on this. Given that, quite rightly, we are putting in the new clause exemptions for journalistic purposes, it would be good to strengthen the awareness of the people who will potentially sell this information that they could get into a lot of hot water if they do so. I would therefore draw it wider. Restricting it purely to government systems is unwise and far too limiting. Therefore, the noble Baroness’s amendment would be very useful to send a message and to make people think twice.

I do not disagree with the noble Baroness, Lady Miller, the noble Lord, Lord Henley, or the noble Earl, Lord Erroll, on the importance of this matter and of the need to improve trust and confidence among the public about the arrangements in place to protect personal data. There is no doubt whatever that there are concerns. There have been examples where data have not been appropriately protected. Clearly, we need to learn those lessons and to make sure that it is put right as much as is possible.

My problem with the amendments is the same as I mentioned in Committee. The Government are involved in a number of reviews on these matters in the light of some of the well publicised incidents that have taken place. Just as noble Lords usually say that the legislation I bring forward is premature and has not had enough consideration, I have to say that that is our position at the moment. The Cabinet Office is due to publish the findings of its review into data handling procedures in government which will describe how the Government have put in place a core set of minimum mandatory measures to protect information that applies across central government. These measures are intended to supplement the material provided to departments in other ways, including the Manual of Protective Security, and compliance will be assessed on an annual basis. It will underpin the summary material in the Statement on Internal Control and be subject to peer review.

We are committed in principle to the introduction of new sanctions under the Data Protection Act 1998 for the most serious breaches of its principles. Such proposals will take account of the need not only to provide high levels of data security, but also to ensure that sensible data sharing practices can be conducted in an environment of legal certainty. We will also have to take a considered view on what measures are necessary to strengthen the protection of personal data in the light of the recommendations made in the various reports and reviews we are embarked on at the moment. I mention, for example, recent Select Committee reports and the Thomas Walport review which was announced by my right honourable friend the Prime Minister in October. It is due to report shortly. The principal mandate of that review is to examine the scope of the sharing of personal information protections that apply when personal information is shared in the public and private sectors. It is also considering the operation of the Data Protection Act and options for implementing possible changes, and will include recommendations on the powers and sanctions available to the regulator and the courts in the legislation governing data sharing and data protection. Further, following the HMRC data loss issue, the Thomas Walport review is considering the case for extending the audit and inspection powers of the Information Commissioner to conduct compliance checks on the private and wider public sectors. In addition, we have the PricewaterhouseCoopers review on HMRC procedures. An interim report has already been published, and the full report is due this spring.

The Government recognise the genuine and legitimate concerns expressed by noble Lords both in this debate and in Committee, but a number of imminent reviews and reports will inform both the actions that the Government have to take as a Government and whether legislative changes should be made. That is why we think it would be premature to legislate at this point. The noble Baroness, Lady Miller, referred to the pressure of legislative time. Equally, this is an important matter. I cannot stand at the Dispatch Box and declare that on such and such a date we will bring forward legislation, but what I can say is that this is an important matter that we take very seriously. I hope, in that spirit, that noble Lords will not press their amendments because it would be premature to do so.

My Lords, the Minister said that the review would be conducted across central government. Perhaps I may suggest that in view of the Varney report and the transformational government agenda, it should cover local government and outsourcers to the Government.

My Lords, I take the point and of course it would be one of the factors in terms of data sharing more generally. Indeed, it concerns the very nature of the involvement of Government with contracts for public sector services to be undertaken by private sector contractors. The point is well made.

My Lords, I thank the noble Earl, Lord Erroll, for his comments. He made a valuable point about companies such as BT. He could also have used as an example the utilities companies. In thinking about whether to support our amendment—should we test the opinion of the House on it—I hope the noble Lord, Lord Henley, will feel that those are valid points. As I said, citizens do not mind who lost the data; it is irrelevant to them. What is important is that it is their data that have been sold, lost or left on rubbish heaps and it is they who are affected by it.

I hear what the Minister says about the consultations and reviews that are taking place and I have received the helpful House of Commons Library note dated 14 March which listed all of the work that is underway. It is quite right that the Government should look at all of their procedures and decide which ones they should have in place and how they should be followed, and which departments are behind and which ones are ahead. But when all the reviews have taken place, I cannot believe that the Government will say about data controllers who have intentionally or recklessly disclosed information, or who have repeatedly and negligently allowed people’s personal data to be disclosed, “Well that is fine. We would not want that to be an offence”. That is what the amendment is asking for; it seeks that in such cases there should be an offence. There are perfectly adequate defences in subsection (2) but if the Government feel they ought to be strengthened, that can be done before Third Reading.

This is an important point of principle. I respect what the Minister has said about the consultations and so on, but we know that those will take time and that then there will have to be a response to them. Some of these were started last year and still have not reported. Basically the public will have to continue with this lack of protection for at least another year or two, during which time, at the rate of the past 12 months, millions more pieces of data will have gone missing.

I believe that the amendment is essential. The Minister claimed that the previous clause is essential to sharpen up people’s acts. That should apply also to the Government. For that reason, our amendment is equally important to the Bill and therefore I wish to test the opinion of the House.

[Amendment No. 95ZA not moved.]

95A: After Clause 77, insert the following new Clause—

“Abolition of religious offence

Section 2 of the Ecclesiastical Courts Jurisdiction Act 1860 (c. 32) is hereby repealed.”

The noble Lord said: My Lords, we are moving to a different topic in this strange Bill. This amendment is put forward by my noble friend Lord Avebury to introduce a new clause to abolish Section 2 of the Ecclesiastical Courts Jurisdiction Act 1860. In case your Lordships are not wholly aware of the Act, I should say that it is used very rarely. The statistics produced indicate two convictions in 2005, four in 2004, one in 2003, one in 2002, nothing in 2001, and so on. Your Lordships can see that, even if these statistics are correct—and it seems unlikely that they are completely correct—this provision is very rarely used. In any event, Section 4A of the Public Order Act 1986 covers all the circumstances in which this offence could be brought.

Section 2 of the 1860 Act, which we seek to abolish, deals with,

“riotous, violent or indecent behaviour in any Cathedral Church, Parish or District Church or Chapel of the Church of England … or in any Chapel of any Religious Denomination or … in any Place of Religious Worship duly certified under the Registered Places of Worship Act 1855”.

Individuals are enjoined not to,

“molest, let, disturb, vex, or trouble, or by any other unlawful means disquiet or misuse any Preacher duly authorised to preach therein”.

This section was last used following the interruption of the most reverend Primate the Archbishop of Canterbury’s sermon during the Easter Sunday service a couple of years ago, as your Lordships may recall. Two protestors, Mr Cordle and Mr Spotswood from Sheffield, unfurled a banner while interrupting the church service. They invited the most reverend Primate to join a public debate on Sharia law. As has happened with almost every other case that has been brought in modern times under the Act, the charges were dropped when the men appeared in front of magistrates who bound them over under a power of magistrates—it is centuries old—to bind people over to keep the peace. They were bound over for 12 months in the sum of £100. The defendants said that they were protesting against the millions of Christians persecuted under Sharia law in places such as Nigeria and Pakistan. It was not as if they were supporting Sharia law; they were speaking against it.

The question is whether we should still have a law like this dating back to 1860 on the statute book. It mainly reflects Christian places of worship but, unfortunately, synagogues, gurdwaras and mosques are often desecrated. However, unless they have, most unusually, been registered under the Act to which I referred earlier, no offence is committed under Section 2—the section we seek to abolish.

The whole issue was considered by the Select Committee on Religious Offences, which reported recently. It was its combined view that the offence should be repealed without replacement. The committee drew to the attention of the House the fact that, despite considerable effort, it unearthed details of only three convictions in relation to Christian churches, and in two of them the defendants were finally convicted of a different offence. The other person who was convicted was Mr Peter Tatchell and there is no doubt that he could have been convicted under other offences. The amendment would introduce a new clause to abolish what we say is an out-of-date and unnecessary Act and an offence that is limited in scope, both legally and practically. I beg to move.

My Lords, I do not want to think of this latest attempt to abolish Section 2 of the Ecclesiastical Courts Jurisdiction Act 1860 as something of an old chestnut, but it is hard to escape that conclusion. As the noble Lord, Lord Thomas of Gresford, said, the Act prohibits,

“riotous, violent or indecent behaviour”,

in churches and chapels. “Indecent” here is not used in the sense of intending to corrupt or deprave but means improper or irreverent actions. It also prohibits disruptive behaviour towards those preaching or ministering in them.

The 2003 Lords Select Committee on Religious Offences devoted a whole chapter of its report to this subject. The main issue is whether protection for churches and other places of worship should be achieved through the ordinary law, as the noble Lord, Lord Thomas, said, or by additional and specific protection for the ceremonies, sacred places and artefacts of religion. Without going into the substantive arguments, it is not clear to me that specific protection is not required. Indeed, it is possible to think of incidents that are not covered by any other offences, some of which are listed in the Select Committee report.

If protection is to be offered in today’s society, it would have to be worked out on a multi-faith basis, as was agreed by the Church of England as far back as 1989. The Select Committee reviewed all the arguments and found that there had been 60 prosecutions under Section 2 between 1997 and 2002. I do not have more up-to-date figures than that. However, the relatively small number of prosecutions might be due, at least in part, to the lack of awareness that the Act can be invoked by all faiths.

Therefore, the Select Committee concluded that the law ought to be redrafted to reflect modern conditions, citing the view of the Director of Public Prosecutions that it would be a valuable, if infrequently used, offence. There is therefore, it seems to me, a strong argument against proceeding by abolition without replacement, as this amendment does. That is my reservation in saying no to the amendment. It is unarguable that Section 2 needs updating. Therefore, the question is, have we the will to do it and who will work on producing such a replacement? I believe that is an important task given the current state of our society because the replacement of the ECJA in modern form would demonstrate that Parliament recognises the importance of religious beliefs in our society, that worshippers open their doors to all comers and that religious ceremonies are hallowed, are the source of spiritual sustenance and embody community coherence.

Given all that has happened in the five years since the Select Committee reported and the increasingly significant impact that religion is having on all our lives, my view is that we should not abolish Section 2 without having a ready-made, modern replacement. If we do that, we shall demonstrate Parliament’s recognition of, and support for, the sincere and profound religious convictions of the many people of many faiths who live together in this country.

My Lords, I read recently that there had been a case in a church somewhere in London where an attack was made by young local Muslims on members of the congregation and above all the clergyman officiating, outside the church, on the grounds that it ought to be a mosque. I raise that only because I entirely support the right reverend Prelate in feeling that we should not get rid of this provision without substituting something positive in its place, because there must be other incidents like that one, and no religion should be deprived of the possibility of conducting its affairs peacefully and without danger.

My Lords, I am delighted that the noble Lord, Lord Avebury, who has been such a champion of the amendment, has managed to get here in time for our debate today. His amendment was very well moved by the noble Lord, Lord Thomas of Gresford. We had a rather truncated debate on this amendment when it was debated at the end of a very long debate on blasphemy in Committee, and I certainly will not reiterate what I said then. Clause 77 provides the backdrop to the amendment. I am very grateful for the contribution made by the right reverend Prelate the Bishop of Newcastle and for the way in which he presented the argument, which is by and large the argument of the Government.

I indicated in Committee that some religious offences might appear anachronistic and unnecessary, but there is evidence that at least some continue to be of useful application in modern society, and that is particularly the case in respect of the statute that the noble Lord proposes to repeal. The noble Lord, Lord Thomas of Gresford, was right when he listed the occasions on which prosecutions have been brought. It is correct that they are infrequent, but nevertheless this Easter the police made use of Section 2 of the ECJ Act 1860 to charge two individuals who interrupted an address by the most reverend Primate the Archbishop of Canterbury in Canterbury Cathedral. I am aware that the charges were subsequently dropped, but on that evidence it can scarcely be held to be an obsolete provision.

There is some uncertainty about the scope of the legislation in some respects. I agree with the right reverend Prelate that it is worth noting that the 1860 Act does not expressly exclude the protection of non-Christian places of worship, and it is useful in that respect. It is something that we should certainly bear in mind. Although caveats were expressed by the Select Committee in 2003, it also addressed a larger truth—one which we very much agree with in principle—that those of religious faith deserve special protection and the best protection that the law will allow, for the reason that the right reverend Prelate mentioned. Those places are hallowed; they are places of worship and they are special places where we conduct our rites of religious observation. In this connection, the statute that the noble Lord seeks to remove affords a particular remedy for a particular kind of mischief, and it continues to be of practical value to the police and prosecuting authorities.

This is not intended as any means of comfort, but to understand from where the 1860 Act derived its legitimacy, I went back to find that the Act that it replaced was the Brawling Act 1551. The 1860 Act offers a much more liberal interpretation than the Act it replaced. I thought that the House might like to know how the law is by nature progressive. The Brawling Act 1551 provided that anyone drawing a weapon or striking someone with a weapon in a church or churchyard should have one of his ears cut off. If he was a habitual offender, with no ears left, he was to be branded on the cheek with a hot iron in the shape of the letter F for fray-maker and fighter. Naturally, he was also excommunicated, which went with the territory. The law has made some progress in this respect.

I say to the right reverend Prelate in particular that the Government will certainly keep the law in this area under review. For the time being, we believe that the legislation should remain on the statute book. I hope that on that basis the noble Lord, Lord Thomas of Gresford, will be able to withdraw his amendment.

My Lords, one only has to think of the history of Henry VIII to wish that there had been at that time someone of the stature and position of the noble Lord, Lord Ramsbotham, to ensure that nothing untoward occurred to those who were in prison.

I very much welcome the speech made by the right reverend Prelate the Bishop of Newcastle. One thing he said that struck a chord with me was that churches open their doors to all comers. That was the case in my youth, but sadly in modern times very many churches remain locked unless some member of the congregation is prepared to be there to receive visitors. It is a reflection of our times that that occurs. I want the right reverend Prelate and other noble Lords to appreciate that I do not come to this with any desire to lessen the protection that there should be to religious property and to religious artefacts. I simply reiterate that current legislation that is much more readily used is available. It is the sort of thing that police officers carrying out their duties would understand very much more than going back to the Ecclesiastical Courts Jurisdiction Act 1860, which I doubt features very highly in their training schedules when they become police constables.

This is really about a desire to ensure that the law is evenly enforced against people and not to diminish the protection to those concerned. I was pleased to hear the right reverend Prelate say that the Church of England has accepted that this should apply to multi-faith congregations and ministers. No doubt, if we keep on raising this issue, we will encourage the Government or a Government to bring forward legislation that will carry out some sensible and rational amendment of the law along the lines that the Select Committee on Religious Offences thought correct in its report.

This is not a matter that I propose to press further at this stage. This is another step on the way, in airing the subject and in receiving a response from the church and from the Government, towards some sensible amendment of the law at a future date. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 96 [Violent offender orders]:

95B: Clause 96, page 72, line 12, after “conditions” insert “as specified in section (Provisions that orders may contain)”

The noble Lord said: My Lords, we now come to a new topic in the Bill. Much has been said both on Second Reading and in Committee about the unsatisfactory legal status of VOOs and, in particular, about the confusion between the civil and criminal principles that they engender. I do not propose to reignite that debate at this late stage in the proceedings, so I shall address the reasons for our amendments as briefly as I can.

On the amendment that I am moving, the Government have conceded that there should be some indication in the Bill of what a VOO might comprise. We welcome that concession but think that it does not go far enough. We believe that there should be a clear and detailed, if not wholly exhaustive, list of what receiving a VOO implies, amendable by an affirmative order. A good example of our thinking is given in Section 1(4) of the Prevention of Terrorism Act 2005, where there is a list that, if not exhaustive, nevertheless contains specific provisions. That is the kind of thing that we have in mind for the VOO section in the Bill.

On a separate matter, the Government have their Amendment No. 101A and we are particularly concerned about subsection (2)(d) of the proposed new clause—the limitation on,

“associating with any specified group or organisation”.

We disagree with the power to impose a VOO to prevent a person from associating with a specified group or organisation. The freedom to associate is a fundamental right, as the Government know well from their political history. If the Government consider that some groups pose a risk of serious violent harm to public safety, they should take appropriate steps.

Much has been said in your Lordships’ House on whether VOOs exceed the limit of civil preventive orders and are punishments. Without a clear indication of what a VOO is or is not, the danger of straying into the area of punishment becomes that much more likely. I beg to move.

My Lords, I acknowledge the fact that the Government have come forward with their own amendment that seeks to put some meat on to the bones of what the restrictions, conditions or prohibitions might be, which are referred to in the originating clause which creates the VOO. I also welcome the fact that the noble Lord, Lord Kingsland, has moved his amendment. In many respects there is a difficult choice, because there certainly is merit in having a list, because circumstances are being addressed to protect the public in the United Kingdom from the risk of serious violent harm. A wide measure of protection is being sought and, in doing that, magistrates to whom an application is made might also be tempted in response to impose restrictions, prohibitions or conditions that could be far-reaching in their application. Indeed, as the noble Lord said in moving his amendment, that could cross the fine line between what constitutes a preventive measure or an additional punishment.

At times there is a temptation to say that we should not be too definitive because circumstances may well arise where, if you have a definitive list of conditions that could be attached, something more obvious and appropriate could not be done. But in establishing this type of order, there is merit in making clear and precise what the magistrates may attach as a condition—particularly given that the amendment of the noble Lord, Lord Kingsland, allows for the list to be amended by order. Therefore, that problem could be addressed if a glaring omission emerged.

I am concerned also that the government amendment, as the noble Lord, Lord Kingsland, indicated, refers to a prohibition about associating with any specified group or organisation. That could go too far and there may be legitimate reasons for a person to wish to associate—perhaps to go to a trade union meeting and find that for some reason, because of the information presented to a magistrate, he or she was not allowed to. Addressing a specific problem should not be brought in under the guise of a VOO.

While we have talked about the generality of restrictive conditions—“You can’t go there”, or “You can’t associate with X”, or “You’ve got to be at home by a particular time”—my understanding of the clause is that the word “condition” could impose a positive obligation. For example, there may be an obligation to undergo a particular course of treatment or inform the police if you were taking up a personal relationship with a particular person. That goes too far by imposing that kind of obligation through a civil procedure. Therefore, we should hem in and make clearer and more precise what magistrates might attach as conditions when we are taking a significant step by establishing these orders in the first place, and we should progress with a degree of caution. My noble friends will be minded to support the amendment of the noble Lord, Lord Kingsland, if he should test the opinion of the House.

My Lords, I support my noble friend Lord Kingsland. He may consider that to be either a relief or a surprise, judging by some of the things that I said earlier. These violent offender orders are viewed with considerable distaste by the Joint Committee on Human Rights. However, small the VOOs are, they remain a punishment; because if you say to someone that you may not do something, that is a punishment. We also thought that the standard of proof required was not high enough. We will come to that later.

I accept what other noble Lords have said—that the Government have gone a little down the way to help, for which I thank them—but they need encouragement to go a little further. In other words, my noble friend Lord Kingsland’s version is considerably clearer and better. The whole concept is more closely defined in his amendment than in the Government’s, which seems to have leaks at the edges. I shall certainly support my noble friend.

My Lords, I, too, support the amendment, although all of us on the Joint Committee on Human Rights would rather that none of this was in the Bill and that violent offender orders were taken away to be rethought. The Joint Committee noted with some satisfaction that the Government have tabled an amendment that provides an indicative list of provisions, but the committee stated that an exhaustive list would be much better from a human rights perspective, because that would ensure certainty. An indicative list means that anything else can be added. Therefore, as these orders go forward, those who are likely to be subject to them will have no certainty.

The Joint Committee feels also that the examples in the Government’s amendment are very wide and have a potential to interfere substantially with an individual’s private, family or home life—referred to in Article 8 of the convention on human rights. The committee is clear that an exhaustive list would be preferable and wonders how the conditions in the Government’s amendment are compatible with that article. No doubt, the Minister will tell us why, but, certainly from the perspective of the Joint Committee on Human Rights, the amendment of the noble Lord, Lord Kingsland, is a step forward.

My Lords, I support the amendment in the name of the noble Lord, Lord Kingsland, in preference to that tabled by the Government, mainly because of the inclusion in the government amendment of paragraph (d), which provides for restrictions,

“from associating with any specified group or organisation”.

I find that much too wide and rather objectionable. My only objection to the amendment in the name of the noble Lord, Lord Kingsland, is the reference to the ability of the Secretary of State to amend the subsection. However, balancing the two, I still prefer his amendment to the Government’s.

My Lords, as has been noted, Amendments Nos. 95B and 101AA provide an exhaustive list of the prohibitions, restrictions or conditions that could be imposed as part of a violent offender order. The amendments would mean that the court and the magistrates could not impose a condition that was not included within this list. Therefore, the very people who know the local conditions and all the circumstances would not have any flexibility and might not be able to target the risk management—and this is to do with risk management—effectively to the needs of the individual or for the protection of the public.

As has been said, government Amendments Nos. 101A and 105A provide an indicative list of the prohibitions, restrictions or conditions—not punishments—that could be imposed as part of a violent offender order. The amendments will mean that the court has an indication of the types of conditions that could be imposed as part of an order, but the list is not exhaustive and so leaves it with that degree of flexibility.

Violent offender orders are intended to protect the public from individuals who are considered to pose a risk of serious violent harm. We have on previous occasions in this House considered this concept of risk and therefore understand it to be highly dynamic and complex, presenting itself in various different ways in different places and at different times. Because of this, we know that there is no one-size-fits-all approach to risk management. Instead, management and supervision must always be targeted to the specific risk and the specific case—the risky individual, the context in which they are operating and the risk that they present.

I am grateful to the noble Lord, Lord Kingsland, for what I consider to be a constructive amendment. It made us think about the issue, which is why we came up with our amendment. However, because of the simple fact that there is no single solution to risk management, I do not think that it would be appropriate to introduce an exhaustive list of conditions that could be imposed as part of a violent offender order. Violent offender orders as currently provided for allow the court—I have a lot of respect for our courts and their ability to make these judgments—to exercise their discretion and to impose only those conditions that would directly address the specific risk of serious violent harm that an individual is considered to pose. I am sure that noble Lords will agree that we must not encourage a situation in which a court feels that it has to impose blanket conditions on an individual that do not actually address the problems with that individual or manage the risk that they pose. I do not believe that this would help the individual in respect of whom the order is being made or help the public. The magistrates and the court would have the necessary flexibility to tailor this exactly for the protection of the public and, in a sense, to help the person involved and prevent him from getting into further difficulty; the conditions should be tailored.

I am content to provide an indicative list of conditions that I believe will guide and support the courts to apply fair and appropriate conditions as part of violent offender orders. I found over the years when I was dispensing summary punishment that it was much more useful within a ship or an establishment to have guidance rather than to have specific things laid down; one achieved a better result in the end. Therefore, I am unwilling to introduce an exhaustive list and I beg the noble Lord to acknowledge the reasoning for that.

I will need to think about the question of association. I read the provision to mean that, if Fred Bloggs hates trade unionists and keeps going to trade union meetings and punching people, we could say that we did not want him to go to trade union meetings at such-and-such a town hall on such-and-such an occasion. However, I accept and understand the wider concern, which I will take away and think about.

My Lords, surely if somebody goes to a trades union meeting and goes around punching people, he gets convicted of a crime. Is that not better than giving him a civil order? Many of us prefer criminals to be tried and sentenced for what they have done wrong rather than to have prevention orders or VOOs applied against them.

My Lords, perhaps I could explain this a bit better. It is always dangerous to give examples, but I see this as applying to someone who has a history of going around punching trade unionists because he hates them. He has been punished for that but has now come out of prison and started being abusive, going to meetings and causing trouble, although not to the extent that the police would be able to take action. We know from his past history that he can be extremely violent; indeed, he was in prison because he did something very violent and damaged someone. The aim of this is to prevent him from being in a position where he will damage and injure someone. There is always a danger in giving examples, but that is how I see this.

If someone has done something and one can get all the evidence against him, clearly one takes him to court and punishes him properly. However, this is about risk management; it is about trying to prevent something before it happens. This has occurred in a number of areas. For example, the sexual offences prevention orders have been found to be extremely valuable in preventing offences happening. How much better to do that—it protects the public and in a way looks after the man involved—than to wait for an offence and then to have to punish the man and send him to prison.

My Lords, does the noble Lord accept that this Government have moved the goalposts? Magistrates’ courts are no longer concerned with crime and punishment; they are concerned with managing risk. What training do they have to manage risk? He is suggesting an unknown list of conditions that they might impose—a shopping list, which may include polishing the decks for all we know. I respectfully suggest that this is not an appropriate way for courts of law to have to act. Managing risk is not what they are for. The Government do not seem to understand that.

My Lords, I am afraid I have to disagree with the noble Lord. I think that this is an extremely good thing for them to be able to do. How much better it would be if we could stop offences happening because of the skill and expertise of the courts rather than having to put people in prison. I believe that we have too many people in prison and I would rather not send them there. I would rather stop things before they happen, and this is an example of where that can be done. Therefore, I am afraid that I disagree with the noble Lord. I believe that, because of courts’ experience in other areas, they are well able to exercise this judgment and I think that they would do it extremely well, as they have in relation to the sexual offences prevention orders. We have had football barring orders for a number of years and those have been extremely valuable. They have stopped people committing crimes and protected members of the public, which surely is what we are trying to do. On that basis, I urge the noble Lord to acknowledge the reasoning behind the government amendments and to withdraw his own amendment.

My Lords, the Minister has replied in his characteristically open-handed and conciliatory manner, and of course I am very grateful to him for that. However, he has not gone as far as I would have wished him to go in relation to this amendment. People who receive a violent offender order have not committed a crime. They are entitled to know exactly what they face if their freedom is to be restricted; otherwise, too much discretion will be furnished to the authorities. The authorities can simply say that they are in a unique position to make a judgment about risk which cannot be questioned in the court.

I recall the Minister saying that he is concerned about inhibiting the risk management discretion of the court; but that means that the authorities can call on the magistrates to do anything they want to someone who has not committed a crime. That is simply not consonant with the traditions of justice in this country, whether defined by the civil or the criminal rules. In those circumstances, I should like to test the opinion of the House.

96: Clause 96, page 72, line 13, leave out “the public” and insert “a person or specified persons”

The noble Lord said: My Lords, in some respects, this amendment follows on from those that we have just discussed. In the debate on the amendment of the noble Lord, Lord Kingsland, I indicated that one problem that we have with the concept of the violent offender order—quite apart from just being sceptical about the whole nature of it—is its broad reach. The risk of serious violent harm which is intended to be addressed by the order could affect,

“the public in the United Kingdom, or … any particular members of the public in the United Kingdom”.

Just stating those words shows how broad the scope is of the offender order created by Clause 96.

One of my concerns was that if you had a broad area of protection, the nature of the order that a magistrates’ court might impose could in itself be excessively broad to deal with that. In many respects that has been addressed by the amendment just passed by the House and, therefore, that kind of concern no longer exists, given the definitive restrictions and prohibitions which can now be attached to a violent offender order. I believe that it is important to narrow it down further because it is still very wide in its application, and if we are to create an order of this nature, it is important that we identify more specifically and more directly to whom the risk of violence is directed. We acknowledge that there may well be cases where a single person or a group of identifiable individuals could be considered to be at risk of serious harm from the person against whom this order would be directed. In those circumstances, it might be reasonable to provide them with additional legal protection.

As I understand the situation, the non-molestation order is limited in scope and reliant on the person, himself or herself, going to court to seek the protection of such an order, whereas the structure of the violent offender order is that the police would take the initiative if there had been a pattern of behaviour which had triggered that particular concern. Therefore, I commend the amendment to your Lordships' House. I believe that it further defines the nature of the violent offender order in general. I beg to move.

My Lords, we are sympathetic with the desire to identify precisely what risk an individual poses; but we do not consider that a true risk must always have an identifiable potential victim. For example, a person could have a history of starting fights with strangers in parks when drunk or of attacking a certain ethnic group. It would be impossible to specify exactly who that person might attack even though the potential perpetrator was clearly posing a risk. While sympathising with the principle, we have some difficulties with the way in which the principle has worked its way through into the detail of the noble Lord’s draft.

My Lords, Amendments Nos. 96 and 97 to 99 seek to narrow the scope of violent offender orders by requiring that they can be used only for the purpose of protecting a specific named person or persons from the risk of serious violent harm caused by an individual. The effect of this amendment would be that violent offender orders could not be used to protect the wider public from the risk of serious violent harm. As the House knows, the purpose of those orders is to provide a means of protecting the public at large from the risk of serious violent harm by a dangerous individual.

The noble Lord, Lord Wallace, is correct that this risk will sometimes be targeted at a specific individual or individuals within the public and therefore that the person in need of protection will be easily identifiable. However, as I have made clear before, there will be times when this is not the case. As the noble Lord mentioned, we have powers available to protect named individuals from harm in terms of non-molestation orders. He is correct to say that those have to be asked for by the person involved, or by members of his family, to put them into force.

Statistics show that in 2005-06, 46 per cent of victims of violence—about half—did not actually know their attacker. To my mind, this statistic is evidence enough that it will not always be possible to identify a specific individual who is at risk of serious violent harm, a point well made by the noble Lord, Lord Kingsland. Instead, there will be times when this risk is targeted at a wider group of individuals; for example, in a pub or in the case of hate-related crime, and times when it is simply not possible to predict any individual target. We must not close our eyes to the cruel reality of violence that exists on our streets and in our communities. Just because a risk does not exist against one specific named individual, it does not mean that such a risk does not exist at all.

I am certain that everyone in the Chamber will be able to think back to at least one violent unpremeditated attack on an innocent member of the public within the past year. There have sadly been a number of such attacks reported by the media. Worse still, following such attacks, the media have often reported—and it is subsequently found to be true—that the attackers were known to pose a risk of serious violence but that nothing could be done or was done to manage that risk. That understandably causes huge public concern. In many cases, the victims of the attacks were not targeted in advance by their attackers and it would therefore have been impossible to predict their specific risk of victimisation.

If my earlier statistic were not evidence enough, we must learn from these tragedies and finally accept that we must put measures in place to protect the wider public from the risk of serious violent harm. I believe that the public expect that of us as a Government. I agree that we must be able to protect specific individuals from serious violent harm when we know that such a risk exists. However, we must also be able to protect the wider public. Violent offender orders, as currently provided for, enable us to do this. We have a duty to protect the public and it would be highly damaging to narrow the scope of the violent offender orders. I therefore ask the noble Lord to withdraw his amendment.

My Lords, I am grateful to the Minister for his reply and for the offer, which I took up earlier this week, to meet him and his Bill team to discuss these issues more thoroughly. I hear what he says. I may wish to return, under a later amendment, to issues that he raised on the wider matter of assessing risk and protecting the public. As I indicated in my opening remarks, the amendment which has just been passed by your Lordships’ House reduces some of the concerns which motivated the terms of this amendment. It now will not be possible to have very wide-ranging conditions attached which could offend Article 7 of the European Convention on Human Rights. Therefore, with those considerations, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

96A: Clause 96, page 72, line 15, leave out “a period of at least 2 years” and insert “such period of not less than 2, nor more than 5, years as is”

The noble Lord said: My Lords, this large group of government amendments fulfils a commitment that I gave in Committee to bring forward a number of changes to what is now Part 7 of the Bill to address the concerns raised by noble Lords and by the Joint Committee on Human Rights. There are also further government amendments in subsequent groups which address particular points raised by the noble Earl, Lord Onslow.

I turn to the detail of Amendments Nos. 96A, 101B, 101C and 105B. Noble Lords will see that I no longer call them “Bravos” and “Charlies”—I have learnt my lesson. The amendments introduce a maximum length of time for which a violent offender order can be imposed without renewal. The specified maximum duration is now five years, the effect of the amendments being that violent offender orders cannot be applied indefinitely.

Government Amendments Nos. 99D, 99E, 106A, 106D to 106F, 106L and 115K amend Part 7 to include a requirement that any person subject to a violent offender order must be 18 years or above, so an order could not be made in respect of a child or young person under 18. Other government amendments in this group are minor and technical. In particular, they amend the list of qualifying offences in Clause 96 to include corresponding service offences.

I have gone on at length and the House will by now be well aware that violent offender orders are intended to protect the public from the most dangerous violent offenders who present a risk of serious violent harm, which is not currently being managed. They closely mirror other civil preventive orders, particularly sexual offences prevention orders, which have been so successful, and which are a highly valued tool for tackling sexual violence and managing the risks posed by sex offenders. They have been welcomed by both public protection agencies and local communities.

We wish to apply this successful model to other forms of violence. The significance of violent offender orders must not be underestimated. They form an integral part of the package of measures that the Government have developed to protect the public from violence and reduce fear in our communities. There is real fear in some of our communities. The House is properly exercising its role as a revising Chamber by highlighting its concerns in relation to violent offender orders so that we can together develop the most robust system for tackling violence and protecting our public.

I hope that the House will agree that we have listened carefully to the points raised in Committee here and in the other place, and by experts in the field, including the Joint Committee on Human Rights. As a result, we have made considerable changes to the provisions in this part which will I trust meet with the approval of the House. I hope that as a result of these changes and the others that we shall come to shortly, the House will be ready to acknowledge the value of violent offender orders as a whole. We cannot leave the public exposed to any known risk of serious violent harm, and we must do everything in our power to protect our people and reduce serious violence. I beg to move.

My Lords, I am grateful that the Government have listened to what I said. Whether they have listened enough is an arrogance that I shall assume anyway, as there are still provisions that should be improved further. The concept of a violent offender order should be tightened up even further than the Government have proposed.. However, there is something about sinners that repenteth, and a little goes a long way. I thank the Government for the concessions.

My Lords, my noble friend Lord Thomas of Gresford, and I tabled amendments in Committee relating to the fact that a violent offender order should not be made in respect of someone under the age of 18. We proposed that such an order should only be in place for a maximum of 10 years unless renewed. I particularly welcome the fact that the Government have gone five years better and that renewal will be required after five years. I acknowledge the amendments that will ensure that a violent offender order cannot now be made in respect of someone under the age of 18. That is a particularly welcome move.

On Question, amendment agreed to.

[Amendments Nos. 97 to 99 not moved.]

99A: Clause 96, page 72, line 21, leave out “the” and insert “a current“

99B: Clause 96, page 72, line 29, leave out “or”

99C: Clause 96, page 72, line 30, at end insert “; or

(f) a relevant service offence.(4) The following are relevant service offences—

(a) any offence under—(i) section 70 of the Army Act 1955 (3 & 4 Eliz. 2 c. 18),(ii) section 70 of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19), or(iii) section 42 of the Naval Discipline Act 1957 (c. 53),of which the corresponding civil offence (within the meaning of the section in question) is an offence within any of paragraphs (a) to (e) of subsection (3) above; and(b) any offence under section 42 of the Armed Forces Act 2006 (c. 52) as respects which the corresponding offence under the law of England and Wales (within the meaning of that section) is an offence within any of those paragraphs.(5) Section 48 of the Armed Forces Act 2006 (c. 52) (attempts, conspiracy etc.) applies for the purposes of subsection (4)(b) as if the reference in subsection (3)(b) of that section to any of the following provisions of that Act were a reference to subsection (4)(b).”

On Question, amendments agreed to.

Clause 97 [Qualifying offenders]:

99D: Clause 97, page 72, line 32, after “person” insert “aged 18 or over who is”

On Question, amendment agreed to.

99DA: Clause 97, page 72, line 33, at beginning insert “Subject to subsection (4A) below,”

The noble Lord said: My Lords, the purpose of this amendment is to provide that after a period of 10 years after a sentence is served or the order, established under the clauses referring to a violent offender order, is rescinded or comes to an end, a person who has either served a sentence or been the subject of an order should no longer qualify to have a violent offender order imposed. I emphasise that I am proposing 10 years from the expiry of a sentence, not 10 years from conviction. The purpose is to establish a significant period in which the person has had an opportunity to re-establish good character and has not fallen foul of the criminal law. In other words, they should be treated like other citizens.

The fact that the Government have introduced the concept of an immediate and current risk helps matters. It cannot be done purely on a whim. Notwithstanding the fact that we are talking about current risk, I still believe that there is legitimate room for concern about people who, as I said, have established in the intervening years a lifestyle and pattern of behaviour which has not given rise to any further involvement in crime, or convictions for crime.

In his letter to my noble friend Lord Thomas of Gresford, the Minister gave an example of circumstances when, even after a period of time, the order might be legitimately sought. He cited someone who had committed a crime of attempted murder in 1993 following a two-day drinking binge. The sentence was given before the introduction of the public protection sentences—there was no statutory management for ongoing supervision after the completion of a sentence. The letter continued:

“In early 2008, the police were receiving various complaints about the individual’s behaviour from his neighbours who had reported that he was often very drunk and had been acting in an extremely threatening way to them. In particular, one neighbour reported to the police that he often banged on people’s doors in the neighbourhood in the middle of the night and shouted threats of violence. The police had also received complaints from the owner of the local pub who said that the individual’s behaviour had dramatically worsened over recent months and he was often ejected from the pub for provoking fights with other drinkers … Over the last few months, the man’s behaviour had concerned public authorities enough to conclude that he now posed a risk of serious violent harm. We would want a Violent Offender Order to be an available tool to protect the public from the risk of serious violence”.

I acknowledge that it is always difficult when giving examples, but that was given in a letter to justify the circumstances of someone who had had a conviction in the past but had not had one in the intervening 15 years. Prima facie, there appear to be a number of specific crimes in that example, such as acting in a threatening way towards neighbours, banging on people’s doors in the middle of the night, shouting threats of violence and being ejected from a pub for provoking fights with others. That leads to a profound concern. In an earlier debate when the Minister gave an example of someone being punched at a trade union meeting, the noble Earl, Lord Onslow, said that if it is a crime, it is a crime. It should be treated as such and we should not use the back door of civil procedure to try in some way to get round the provisions of the criminal law.

Why would the authorities use the violent offender order rather than go down the route of criminal procedure? They may be concerned that they would not have sufficient evidence. I read the exchanges in Committee on 5 March, when the most reverend Primate the Archbishop of York said:

“Either a crime has been committed or it has not. If it has not been committed, for heaven’s sake what are these orders for?”.—[Official Report, 5/3/08; col. 1173.]

He was saying the criminal law was the place to deal with this.

In response, the Minister said:

“We are talking about going into a pub and people saying that a crime has been committed and being prepared to talk about it. However, I am afraid that there are areas in our country where people will not do that. People will not come forward, as they are scared”.—[Official Report, 5/3/08; col. 1173.]

I recognise that that is a legitimate concern, but he is basically saying that there might not be any evidence to prosecute a crime, so the civil procedure will be used which does not necessarily have the requirements of the criminal law to establish that a person should be convicted. Perhaps a later amendment might address that.

The other possibility is that an argument might be made that drunkenness in the middle of the night might not attract the kind of penalty or sentence that could possibly be applied by a restriction attached to a violent offender order. I find that disturbing as well because it would mean that rather than having the appropriate punishment that would follow from conviction for a specific crime, a more restrictive order on behaviour could be imposed. We are going dangerously close to a breach of Article 7 of the European Convention on Human Rights because we are talking about people who have been convicted in the past having an additional punishment added at a later date.

The other fundamental reason why I am concerned about circumstances where someone has led a life that has not attracted a conviction for a lengthy period of time and where no crime has been committed is that it opens the door to broadening this beyond people who have been convicted in the past. In response to the previous debate, the noble Lord, Lord West, referred to the importance of not exposing the public to the risk of violent harm. He did not qualify his response, but a risk under these orders is a risk of violent harm from someone who has already been convicted of a serious criminal offence as set out in the Bill. If a pattern of behaviour by A, who had a conviction 20 years ago, justifies a violent offender order, how long will it be before a Government come back to Parliament and say, “We’ve already got it for someone who committed an offence and was convicted 20 years ago—for the sake of argument—why shouldn’t it also apply to people who have never committed an offence?”? If in two identical patterns of behaviour one can attract a violent offender order and the other cannot, I can imagine a Minister standing up in future to say that that is illogical and therefore violent offender orders should be extended to people who have never had a criminal conviction. At that stage, we would be imposing restrictions on people who have not committed an offence in the past and who have not committed one then. Giving any Government or public authority the power to impose restrictions on people when no offence has been committed is a very worrying development. I do not think it is beyond imagination that at some stage in future someone could make that argument. We should not be putting in place building blocks for a further encroachment on civil liberties in future. On those grounds, I beg to move.

My Lords, we support the amendment tabled by the noble Lord, Lord Wallace, for one simple reason. There must be some limit to the time following the serving of a sentence when a VOO can be imposed. If there is no limit, for the rest of someone’s life—it could be 20 or 30 years—there is always the possibility that a penalty might be imposed; not for committing another offence but simply because of an assertion that there is a real risk that he might commit some other offence. That is fundamentally wrong.

We can have an argument about what the limitation period should be. We believe that 10 years is an adequate time. For that reason we are strongly with the noble Lord, Lord Wallace.

My Lords, it is a dangerous start to think that one can just apply these orders, which, whatever the Government say, are a punishment because any restriction on someone’s liberty is a punishment, basically on suspicion for as long as one likes. That cannot be right. It goes against every single tradition of the liberty of the subject, which for time immemorial we and our ancestors have fought for. It is so precious that we should resist any encroachments on it with all the power that we have. I support what the noble Lord, Lord Wallace, said.

My Lords, it is time we got round to some clarity of thinking. We are not going to have magistrates’ courts any more; we are going to have magistrates’ and risk managers’ courts. When you go to the Crown Court, you turn right if it is suggested that you have committed an offence or left to the risk manager. There will be a judge in the court and a risk manager who specialises in this sort of thing. The risk manager will not be concerned with whether you have committed an offence but with whether you might possibly, at some time in future, commit an offence.

The point my noble friend was making was that using this type of civil procedure, which is extraneous to the criminal justice system of this country, means that a policeman can go into the witness box and say, “Three or four people came up to me in this pub and said that X was threatening. They are not prepared to come along and tell you themselves. They are not prepared to face cross-examination, but I am giving you hearsay evidence, which under the civil procedure I am entitled to do, that this person is a risk to society”. That is removing from the picture the complainant who refuses to be identified and replacing him. I suppose we will soon have risk manager’s officers, like coroner’s officers, who will go around the country picking up rumours from here and there and bringing people before the risk managers for them to be subject to this sort of regime.

It is not a light regime: the order can last from two years to five years. Fortunately, as a result of the amendment we have just passed, the restrictions have some limitation placed on them, but not necessarily a great deal. Let us think where we are taking the criminal justice system. My noble friend’s amendment at least removes from that risk people who committed offences 10 years ago, who would be regarded as rehabilitated in every other aspect of the criminal justice system. We are here week after week talking about rehabilitation. That is what we want prisons to do and we hope that they will have some effect. However, under this legislation because of risk management a person’s past can be brought up and orders made when he has not committed an offence. I wholly support my noble friend’s amendment.

My Lords, Amendments Nos. 99DA, 99DB and 99DC amend the definition of a qualifying offender for a violent offender order to include only those individuals who completed their custodial sentence or their hospital or supervision order within 10 years of the application date. Noble Lords have described the effect of the amendment, which will be that violent offender orders could not be imposed in respect of any individual who completed a sentence for a specified offence or whose hospital or supervision order came to an end more than 10 years before the application date even if he posed a risk of serious violent harm.

Violent offender orders are intended—

My Lords, the noble Lord looked pained then. He is here to answer questions from Members of the House, not to look pained. He talked about “the man who is a risk”. What is being alleged is that we will include the man who is, on hearsay evidence, thought to be a risk. There is a very major difference between the two.

My Lords, I understand the point about hearsay evidence, but a current risk assessment must be undertaken. That is part of the process.

Violent offender orders are intended to protect the public from individuals who are considered to pose a risk of serious violent harm. We know that risk is a highly dynamic and complex concept, presenting itself in different ways, depending on the risky individual and the context in which he or she may be operating. For example, we have already discussed today how the risk of serious violent harm may be targeted at a specific individual or at the wider public. We also know that in some circumstances an individual may commit a violent crime once and never present a risk of serious violent harm again. In other cases, an individual’s risk level may fluctuate over time depending on a variety of influences.

What does all that tell us? Simply that our approach to risk management must be sufficiently flexible to allow for those nuances and complexities. Violent offender orders, as currently provided for, give us exactly that flexibility. They allow the court to target management and supervision to the specific risk of the individual and to the quite proper needs of the public. Let us be very clear that violent offender orders will only ever be made on the basis of an up-to-date risk assessment and only when the risk of an individual in the present day is considered to be sufficiently high to warrant further management or supervision. Whether an individual completed their sentence two years ago or 20 years ago is therefore, arguably, irrelevant. All that matters in this consideration is current risk.

Government Amendment No. 99A, which we discussed earlier, makes that as clear as possible in the Bill. We need to be able to manage any current risk of serious violent harm, regardless of how it presents itself. That is why we remain unwilling to restrict the definition of a qualifying offender to those who have completed their sentence within the past 10 years, as to do that would mean that we would be unable to manage and supervise individuals whom we know are capable of committing a serious violent offence and who continue to or again present such a risk. It would be highly inappropriate knowingly to leave the public exposed to the risk of serious violent harm. It is for those reasons that we continue to resist the amendments. I urge the noble Lord to withdraw his amendment.

My Lords, I am grateful to the Minister for his reply. I am not persuaded by the points that he advanced. As has been said by other contributors to this debate, there is a period beyond which—the very word rehabilitation was used—it might be reasonable to ask that rehabilitation be allowed to take place.

In his reply, the Minister bore out the concern that I expressed towards the end of my remarks. He said that it does not matter whether the conviction was two years ago, 10 years ago or 20 years ago. It is not much of a step from that to say that there never was a conviction but that there is a pattern of behaviour that is giving risk. We are going down a very slippery road and I do not believe that this House should be providing a building block for a future Administration to take us to the foot of the slippery slope. I therefore wish to test the opinion of the House on this matter.

[Amendments Nos. 99DB and 99DC not moved.]

Clause 98 [Applications for violent offender orders]:

99E: Clause 98, page 74, line 6, leave out subsection (4)

On Question, amendment agreed to.

My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, I suggest that the Report stage begin again not before 8.35 pm.

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