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House of Lords Hansard
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Criminal Justice and Immigration Bill
07 May 2008
Volume 701

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My Lords, I beg to move that the Commons amendments be now considered.

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

commons amendments AND REASONS

[The page and line references are to Bill 16 as first printed for the Lords.]

Motion A

9: Leave out Clause 10

The Commons disagree to Lords Amendment 9, but propose the following Amendment to the words restored to the Bill-

9A: Page 8, line 33, at end insert-

“(2) After that section insert-

“189A Power to suspend the operation of section 189(1A) and (1B)“(1) The Secretary of State may by order suspend the operation of subsections (1A) and (1B) of section 189, so that the power to suspend a sentence of imprisonment becomes exercisable again in relation to summary offences committed after the order comes into force.

(2) Where the operation of those subsections has been suspended, the Secretary of State may by order revoke the order under subsection (1) so that those subsections again have effect (in relation to summary offences committed after the order under this subsection comes into force).

(3) The powers conferred by this section may each be exercised once only.”

(3) In section 330(5) of that Act (orders subject to affirmative procedure) insert, at the appropriate place, “section 189A”.”

301: Page 317, line 32, leave out paragraph 8

The Commons disagree to Lords Amendment 301, but propose the following Amendment to the words restored to the Bill-

301A: Page 317, line 43, at end insert-

“(4) The Secretary of State may by order suspend the operation of subsections (1A) and (1B) of section 189 of the Criminal Justice Act 2003 as they apply to a relevant service court (by virtue of this section and section (Effect of amendments to criminal justice provisions applied for purposes of service law) of the Criminal Justice and Immigration Act 2008), so that the power to suspend a sentence of imprisonment becomes exercisable again in relation to offences mentioned in subsection (3)(a) above committed after the order comes into force.

(5) Where the operation of those subsections as they apply to a relevant service court has been suspended, the Secretary of State may by order revoke the order under subsection (4), so that they again have effect (in relation to offences mentioned in subsection (3)(a) committed after the order under this subsection comes into force).

(6) The powers conferred by subsections (4) and (5) may each be exercised once only.”

(2) In section 373(3) (orders etc. subject to affirmative procedure), after paragraph (c) insert-

“(ca) an order under section 196(4) or (5),”.”

327: Page 338, line 11, leave out paragraph 8

The Commons disagree to Lords Amendment 327, but propose the following Amendment to the words restored to the Bill-

327A: Page 338, line 14, after “10” insert “(1)”

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My Lords, I beg to move that the House do not insist on its Amendments Nos. 9, 301 and 327, to which the Commons have disagreed, and do agree to Amendments Nos. 9A, 301A and 327A proposed by the Commons to the words restored to the Bill.

The other place has voted by a majority of 282 to 216 to reject your Lordships’ amendments to remove Clause 10 of the Bill, but in a spirit of compromise the other place has agreed an amendment that would enable the abolition of suspended sentences for summary-only offences itself to be suspended and, if appropriate, reactivated. Such a suspension or reactivation would be given effect by an order subject to the affirmative resolution procedure.

When this House last debated this provision, on Report, noble Lords on the Benches opposite and on the Cross Benches seemed to believe that Clause 10 would have the opposite effect to that anticipated by Her Majesty’s Government. This is not the occasion to set out again our case in full. I say briefly that it is our firm contention that the evidence since the introduction of suspended sentence orders in April 2005 points clearly to their being used in the case of relatively low-level offences not as an alternative to custody but as an alternative to community sentences.

In the other place yesterday, the honourable David Howarth, the Liberal Democrat spokesman, made an interesting and well argued speech on this issue. He pointed out that the increase in the use of suspended sentence orders was even bigger for each-way and indictable offences, both in magistrates’ courts and the Crown Court, than for summary offences. Those indictable, each-way suspended sentence orders were available before 5 April 2005, when Section 189 of the Criminal Justice Act 2003 came into force, but the post-2003 Act suspended sentence order is different from the pre-2003 order. For a start, such an order can be awarded even if no exceptional circumstances exist. Moreover, a supervisory community element can be included in it. It can be for an offence that would not demand up to 12 months’ imprisonment.

The honourable Member of Parliament demonstrated that there is a real problem both for indictable, each-way offences and for summary-only offences. Our Bill deals not with the whole problem—let me be frank about that—but only with the summary offences part of it. The figures show clearly that the prison population is not falling commensurately with the huge increase in suspended sentence orders. The only explanation can be that courts, both Crown and magistrates’, are imposing suspended sentence orders, which must mean that the prison tariff has been reached, whereas previously they would have awarded community sentences and, in some cases, even fines.

Perhaps I may deal with the figures. For summary-only offences, between 2004 and 2006, the number of suspended sentence orders went up from 700 to 12,700 and, between 2005 and 2006, they went up from 4,100 to the same figure of 12,700. In percentage terms, the increase in the immediate custodial rate for summary-only offences was marginally down, from 2.1 per cent to 1.9 per cent between 2004 and 2006 and from 2 per cent to 1.9 per cent between 2005 and 2006. But the rate of suspended sentence orders went up from 0.1 per cent to 1.1 per cent between 2004 and 2006 and from 0.3 per cent to 1.1 per cent between 2005 and 2006. Those figures tell a clear story.

Let us look at two summary offences. With the offence of common assault—the summary offence only—in 2004, 1 per cent of defendants were given a suspended sentence. In 2006, 8 per cent were given such a sentence. Between those years, the numbers of those who got community sentences and those who went to prison remained stable. Fines fell by 5 per cent and conditional discharges fell by 5 per cent.

Let us look at those same years and the offence of drinking and driving. In 2004, less than 1 per cent of defendants got a suspended sentence while, by 2006, 3 per cent had suspended sentences. Numbers serving community service between those two years for that offence had fallen by 4 per cent; custody had also fallen, but by 1 per cent only. Fines and conditional discharges both remained stable. That would suggest that with summary offences there has been an enormous increase in suspended sentences but a very marginal decrease in those sentenced to immediate custody.

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My Lords, is the Minister telling the House that the Government dismissed this explanation for what he describes—namely, that courts, given this additional power, consider that to use it would better meet the justice of each individual case?

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My Lords, I shall come on to the tariff in due course. Mr Howarth, whom I have quoted, also talked in his speech about this point. I fear that what happens is that, because a suspended sentence order is available for those who have committed summary offences, that is seen as being an option to take rather than the imposition of a community sentence on the defendant. The problem that then arises is that there is a breach of a suspended sentence and, almost as night follows day, the defendant is brought back and receives what it was promised that he would receive if he committed another offence—an immediate period of imprisonment. I am sure that all courts are doing absolutely their best in the context, within the rules that are set for them, to pass the appropriate sentence in each case, but I fear that sometimes suspended sentence orders are given when the tariff for imprisonment has not been reached.

I shall just make the point again that it is true that there is increased use of suspended sentence orders by magistrates dealing with triable either-way offences; the same applies to the Crown Court. In all cases, some of them must have been drawn from community orders. As I say, drops in immediate custody are not commensurate. In the Crown Court, with indictable offences between 2005 and 2006, suspended sentence orders have increased by 10 percentage points. Immediate custody has fallen by 3 percentage points.

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My Lords, can the Minister explain why we are dealing with magistrates’ courts alone if there has been such an increase in the Crown Court? One point made by Mr Howarth, to whom the Minister referred, was that there is an imbalance, which should be dealt with comprehensively rather than simply in relation to the magistrates’ courts, as the Government propose in this case.

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My Lords, I shall deal with the imbalance in a moment and suggest that it is not quite as much an imbalance as the honourable Member thought. I have already said that to deal with this whole problem we would have to deal with each-way and indictable offences, too. This Bill deals only with summary offences, which are the real problem—or the greater part of the problem—in this case.

In the Crown Court, with indictable offences between 2005 and 2006, suspended sentence orders have increased by 10 per cent. Immediate custody has fallen by 3 per cent. This compares to what happens with summary offences in the magistrates’ courts. For summary offences in the magistrates’ courts alone, there is a slight drop in the immediate custody rate, from 2.2 per cent to 1.9 per cent. However, the rate, as I have mentioned, shows a much greater increase, from 0.3 per cent to 1.1 per cent. Although the phenomenon of suspended sentence orders being drawn from the former community sentence population is not just confined to summary offences, we believe that the situation relating to summary-only offences is more concerning.

Why do I say that? First, these summary-only offences are the least serious offences in our criminal law. We should be attempting most strongly to mitigate the concern about what is rather unattractively called up-tariffing. Secondly, the ratio of increase is greater with summary-only offences. Immediate custody has dropped by about 0.1 per cent. The rise in suspended sentence orders is around six times greater than that fall in immediate custody. For indictable offences in the Crown Court, the drop in immediate custody is 3 per cent, while the rise in suspended sentence orders is 10 per cent—about four times greater. I have given the figures. Although I am conscious of having poured figures on the House this afternoon, this is an important issue in terms of figures and numbers if we are deciding the right thing to do.

The counter-argument is that strict operation of the sentencing guidelines and the custodial threshold precludes magistrates from operating in this way and that the inevitable effect of this clause will be the precise opposite of what the Government contend; namely, there will be an increase—not a decrease—in custody rates.

I could not fault that logic if the operation of the custody threshold was an exact science. The truth of the matter is, as all noble Lords know, that it is not. There is necessarily an element of judgment. That inevitably leads, as the Lord Chief Justice put it, to a borderline area where the decision might go either way. As we have repeatedly made clear, our contention, based on the available evidence, is that, in the absence of a power to pass a suspended sentence, magistrates would, when dealing with these borderline cases, by and large opt for a community sentence rather than immediate custody. I pray in aid of our case Paul Cavadino, the chief executive of Nacro, who said:

“Restricting suspended sentences to more serious offences should help to avoid the ‘boomerang’ effect of these sentences which is boosting the prison population. This happens when courts pass suspended prison sentences on offenders who would not otherwise have been jailed and then activate them on top of a new penalty if the offender returns to court”.

I have had the benefit of listening to the debates in this House, both in Committee and on Report; I have also had the benefit of reading what was said in another place yesterday. We are ready to concede that we cannot be 100 per cent certain of the impact of Clause 10. We believe that it will increase the prison population, but we may be wrong. The noble Lord, Lord Elystan-Morgan, put it this way on Report:

“The Government might be wrong on this matter”.—[Official Report, 2/4/08; col. 1090.]

As I have said, we stand by the view that the provision will lead to more community sentences being passed and not to an increased use of custody. If we are wrong, the amendment passed by the other place yesterday deals with that possibility. If the clause does not have the effect that we believe it will, the amendment enables us, with the agreement of both Houses, to suspend the operation of the clause. Such a suspension would restore the option of a suspended sentence order for a summary-only offence and allow a breathing space to re-examine the impact of the clause.

The Government are not saying that they are necessarily 100 per cent right here. We think that we are, the figures suggest that we are and our experts tell us that we are right, but we may not be. The compromise that we are offering this afternoon is the possibility to revoke the change in the law by order with no need for primary legislation. I am advised that it should be possible to tell whether any untoward trend is taking place within 18 months of commencement. Given that the elected House has shown its views on this matter on two occasions, I very much hope that this House will agree that the compromise that the Government are putting forward is both sensible and proportionate.

Moved, That the House do not insist on its Amendments Nos. 9, 301 and 327, to which the Commons have disagreed, and do agree to Amendments Nos. 9A, 301A and 327A proposed by the Commons to the words restored to the Bill.—(Lord Bach.)

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rose to move Motion A1, as an amendment to Motion A, to leave out from “House” to end and insert “do insist on its Amendments Nos. 9, 301 and 327.”

The noble Lord said: My Lords, Clause 10 amends Section 189 of the Criminal Justice Act 2003. It removes the recently granted power to magistrates to make suspended sentence orders in summary cases. As many of your Lordships will be aware, this matter was debated at length both in Committee and on Report and I have no intention whatever of rehearsing in any detail the arguments that were advanced. For those of you who were present at those debates it would be an irritant because you are already extremely well versed. Those of you who were not there might be a little better informed at the end of what I would have to say but, to adapt the famous words of Mr F E Smith, I am almost certain that you would be none the wiser. Suffice it to say that at the end of Report the Government were defeated by a majority which I think I can fairly describe as very substantial.

Why do the Government want to do this? This power was introduced in the 2003 Act. Its implementation was delayed to right until the end of 2005. It was allowed then—

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My Lords, I am sorry to interrupt but the date on which this became active was 4 April 2005.

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My Lords, I am most grateful to the Minister for giving me the formal date but I am reliably informed that the practice was not in operation until the end of 2005; otherwise, why would the Minister place such emphasis on the comparative statistics between 2005 and 2006? The comparative statistics that he advanced would be absolutely valueless if the suspended sentence power was fully in operation between April 2005 and December 2005.

Having had one year of operation—2006—the Government then introduced their Criminal Justice and Immigration Bill now before your Lordships' House in 2007, revoking the provision in the 2003 Act. We all know that much of the content of the Criminal Justice Act 2003 has either not been implemented or already been revoked; so in a sense what the Government are doing here is very much in the tradition of what they have done with a whole range of provisions under the Criminal Justice Act 2003.

But our main concern about this proposal is that in our view the Government’s position is entirely irrational. A suspended sentence can be used only if the custodial threshold has been reached and the magistrate in question has concluded that imprisonment is the correct sentence. It is only at that point that he is entitled to consider whether, in the particular circumstances of the prisoner concerned, the conditions are present whereby a suspended sentence is appropriate. In other circumstances, a magistrate is prohibited from doing so by the appropriate guidelines.

The Government’s view is that a magistrate has complete discretion to move between a suspended sentence order and a community order without any guideline constraint. That is simply not true. The picture that the noble Lord portrays of a magistrate being able so to act, in my submission, is a false one, however admirable the Minister’s motives might have been in bringing it forward.

The Minister talked about the Government’s amendment—I think he used the word “concession”—in another place. The problem that the Opposition have with that concession is that the Government are judge and jury in their own cause. The appropriate affirmative order would be brought forward by the Government only if, in their opinion, they had been mistaken about the matter before your Lordships’ House today; not in anyone else’s opinion at all. So it is entirely within the Government’s power whether they bring forward this order. In our view—again I am not calling into question the good intentions of the Minister—this is a bankrupt concession.

Let us be absolutely clear that the real motive for the Government bringing this matter before your Lordships’ House this afternoon is that they are desperately seeking ways in which to take pressure off overcrowded prisons. They believe—in my submission wholly wrongly—that one of the ways of doing so is to revoke this provision in the 2003 Act. A great deal has been said in Committee and on Report about how the Government have totally failed to match the vast increase in new offences that have been introduced over the past 10 years with the availability of prison capacity. That is clearly the crucial background to what the Government are trying to do this afternoon. It will not come as any surprise to your Lordships that I will press my Motion. I beg to move.

Moved, Motion A1, as an amendment to Motion A, to leave out from “House” to end and insert “do insist on its Amendments Nos. 9, 301 and 327—(Lord Kingsland.)

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My Lords, these proposals represent incoherence and dither on the part of the Government. In 2003, they brought into place legislation that extended suspended sentences to include the possibility of the provision of conditions similar to a community order. That received considerable support from all parties. That was not brought into being, we are told, until April 2005; although the noble Lord, Lord Kingsland, thinks that it started later, towards the end of 2005. After barely a year in practice, the Government then introduced this Bill to remove from the magistrates the power to suspend sentences. Whoops, they made a mistake; whoops, the number has gone up and as the Bill goes through Parliament—whoops, they might be wrong again, so they are now proposing to have the power to revoke this provision. That is not the way that legislation should be dealt with. So much of the Bill has been concerned with piecemeal alterations to the law without any real coherent approach. That is what we on these Benches have said from the very beginning.

I made the point—my honourable friend Mr David Howarth in the other place made it far better than I could—that it deals only with suspended sentences in magistrates’ courts. We are told that they have gone up 8 per cent in magistrates’ courts and 10 per cent in the Crown Court. Nothing is said about the power of suspension in the Crown Court. In other words, to use phrase of the noble and learned Baroness, Lady Scotland, there is no “holistic” approach to this issue of suspended sentences. That is unacceptable and we support the Motion of the noble Lord, Lord Kingsland.

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My Lords, with respect, I do not regard the Government’s situation in such ungenerous terms as the noble Lords, Lord Thomas of Gresford and Lord Kingsland. It would be churlish of me not to accept that the Government have come quite some distance in their attempt to cure what may well have been an indiscretion on their part in the first instance. I said “indiscretion” because, for all the evidence that exists—empirical and anecdotal—in this context, it is extremely difficult to say exactly what the consequence of a change of policy and rules on suspended sentences would be. Even if the Government are exactly right in their analysis of what has gone wrong, they will never be able to say with any certitude or confidence exactly what the consequences of Clause 10 will be.

There has been a problem for a long time, which is, in many respects, an understandable jurisprudential problem in relation to the suspension of a sentence. In the Criminal Justice Act 1967, which brought in the concept of a suspended sentence, there was no spelling out of exactly how the sentencer—whether a judge, magistrates or a stipendiary magistrate—should approach that problem. The Act did not speak of any threshold of imprisonment or anything like that; the matter was left entirely to the discretion of the court.

By and large, sentences were looked on in this way: “We have sentenced this person to imprisonment because we are satisfied in all the circumstances that that is the proper sentence. Ten seconds later we constitute a parole board and ask, what do we do with this person who is already incarcerated? In his or her circumstances we do not think it is necessary that the sentence should be served”. That was, to an extent, understandable, although it involved an element of mental gymnastics, but there was nothing improper or illogical in that approach. But there was a much more complicated situation when, some time later, in the 1980s, if I remember rightly, a custody threshold was introduced to determine whether the circumstances of the offence, and one other offence taken with it, brought that case across the line. Then, after considering all other circumstances, it was determined whether the sentence should be moved back to the other side of that line. It was no longer a concept of a parole board, but the concept of the court itself having to say, “The threshold has been crossed and, according to all general considerations, this case should remain a custodial matter—but, nevertheless, the person should not go to prison”. That is the difficulty.

I appreciate that the Government have not approached the stool of penitence and said, “We have sinned and we undertake never to do so again”. Governments do not do that and they would not last very long if they did that in any country. But I accept that the Government have thought deeply and sincerely about the problem and I am very grateful to the noble Lord, Lord Bach, for the thoughtful and careful way in which he put his case.

It seems to me that the case against the Government’s line is this: their intentions are good; the intentions of seeking to reduce the prison population are honourable and practical; but there is no way at all of guaranteeing that their proposals will have the desired result. They may easily have the equally opposite result. That is what happened in 1967 when suspended sentences took the place of fines. The evidence seems to be that that is what has happened in the past two or three years. There is now no guarantee at all that magistrates, confronted with this situation, will not act in a way in which the Government would not wish them to act and did not foresee that they would act. In other words, there is no guarantee that they would not say, “Very well. We’ll send the person immediately to prison”. That can easily happen.

Perhaps I may suggest with very great respect—and, I hope, without any impression of impudence—that there is a much better course that the Government can take. The ideal course would have been never to have passed Clause 10 at all, but an equally meritorious course would be to ignore it for a short period. Section 201, which concerns timing, is divided into a number of subsections and brings different parts of the Act into force at different dates and according to different formulae. Subsection (6) deals with all the matters that have not been dealt with in the five previous subsections, and Clause 10 does not fall into any of them. Subsection (6) states that the Secretary of State shall bring into force on any day that he wishes such parts of the Act as are not specified in the other subsections. That being so, this matter could be left for quite a period of time so that the experiment takes place the other way round. I am not saying that there should now be justification for deleting, by order, the operation of Clause 10 but that the onus should be on changing the law as and when there is clear evidence that it should be changed. I urge the Government to consider that, as it seems to be a perfectly practical and honourable way of dealing with this problem.

There may be one crumb of comfort to be derived from the way that the Government have approached this question. They envisaged that the matter should be dealt with by subordinate legislation rather than primary legislation; in other words, perhaps they do not anticipate bringing about yet another criminal justice Bill for the next year or two. I believe we all deserve a respite: judges, counsel and solicitors deserve a respite and—God bless them—even criminals deserve a respite.

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My Lords, the noble Lord, Lord Elystan-Morgan, has produced the most marvellous comment on the Bill. He said that he wishes that Clause 10 had not been put in the Bill. He half agrees with the Government’s amendment but says that Clause 10 should not be brought in anyway because the Secretary of State has the power to do so later. If he does bring it in, he then has the power to take it away again afterwards. With respect, that is a dotty way to produce legislation. It is not dithering; it is ducking, diving, weaving, wobbling all over the place and playing a bending-pole race. That is not how legislation should be handled.

I wish to say one other thing en passant. The Government say that the number of people being given suspended sentences is very much higher than it was before. I understood from the noble Lord, Lord Bach, that the Government’s contention was that magistrates are being a bit iffy over the threshold. Let us assume for the sake of argument that they get 50 per cent of the thresholds right and not, as could be assumed, 100 per cent. That would still produce an enormous increase in the number of people being sent to prison if the ability to give suspended sentences was taken away. We have far too many people in prison. It must be more sensible for there to be a power to give suspended sentences and for the magistrates to do it. It seems to me a very weak excuse to say that magistrates have not taken any notice of the threshold test. I think that we must assume at the very least that they have at least 50 per cent of the thresholds right and, if that is the case, there will be an enormous increase in the number of people going to prison for relatively small offences. That cannot be the right thing to do.

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My Lords, the noble Earl has been somewhat unjust to the noble Lord, Lord Elystan-Morgan. I do not think that his proposal, although extremely complicated, was dotty. Either we should have Clause 10 or we should not; there are arguments in favour of each option. I prefer to keep the existing situation, which is not to have Clause 10, and to give much tougher guidance to the magistrates and see how that works. With respect, I do not believe that the amendment from the other place will be of the slightest use. They are just words that are not intended to be used but are there to placate the House, which they will not do as there are Members of this House who do not like the measure. I do not see how it will work as I cannot understand how the Government of the day will ever think that it is appropriate to bring the Section 189 power to suspend into effect.

The Minister carefully and helpfully explained the purpose of what he wishes us to do today, but I could not entirely follow—I hope it is not my foolishness—how it was expected to work on the ground under Amendment No. 9A. I ask that we do not accept this amendment.

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My Lords, I hope the House will forgive another lawyer from the Cross Benches having his say. I agree very much with what my noble friend Lord Elystan-Morgan said, but I am not sure that I agree with his conclusion, as I am not sure that I understood what it was.

Noble Lords on the Government Front Bench will know that I have supported them in their proper attempts to reduce the pressure on prison places brought about by the Criminal Justice Act 2003. For example, in the case of indeterminate sentences I did not think that the Government went far enough. It would have been better to raise the threshold for indeterminate sentences from two years to three or perhaps four years. I did not persuade the Government of that, and I certainly did not persuade the Conservative Party, which was in favour of quite the opposite course of reducing two years—back to where it is currently.

Clause 10 is another clause that is aimed in the same direction—to reduce the pressure on prison places. Therefore, I strongly support the objective. The noble Lord has produced some figures which, on the face of it, are persuasive, but they do not persuade me sufficiently strongly that we should in the mean time deprive magistrates of a sentence that they obviously find of the greatest utility in dealing with the cases before them. Although the Government may be right on this, based on their figures, I would prefer to back the opposite horse and will vote for the amendment of the noble Lord, Lord Kingsland.

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My Lords, I wish to take a moment to say that I did not find the solution of the noble Lord, Lord Elystan-Morgan, in any way complicated. All he is saying is: if Clause 10 is left in the Bill it need not be activated until some time much later. Therefore, we could have more evidence than has been produced in the short period in which the 2003 Act has been operating. That seems to be perfectly simple and what I understood the noble Lord to say. It is certainly an option.

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My Lords, it is an option, and I am grateful to all noble Lords who have spoken. But if it is an option, Clause 10 must stay in the Bill. I understand that the attempt is to take Clause 10 out.

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My Lords, I apologise for the convoluted way in which I put the argument. The point that I am seeking to make is that different parts of the Bill will come into force on different dates. The Secretary of State can delay certain parts of the Bill that are not specifically referred to in Clause 201(1) to (5) for as long as he or she likes. They could be kept in the fridge for some years. That was the point that I was making.

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My Lords, does the noble Lord agree that that is the problem with the 2003 Act? Great parts of it have not been brought in to effect and many of them have been abolished.

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My Lords, that is a proper political point to make but I do not think that it affects the argument in any way. This part of the Bill need not be brought into active force for many years. During that period, a close study could be made of what other avenues are explored—for example, stern evidence and advice being given to the Magistrates’ Association on the exact way in which magistrates should approach the problem of suspended sentences, if the problem is the same as the Government see it to be.

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My Lords, I am grateful to the noble Lord, but I would like to consider further what he has said. However, if the opposition amendment is successful, Clause 10 will be removed from the Bill; that is it, it is not there. There is no chance of any Secretary of State bringing it in, because it will not exist. That is why I ask the House not to vote for the amendment of the noble Lord, Lord Kingsland, but to vote to keep Clause 10 in the Bill.

I am certainly not going to be long now in addressing the House, which was very patient earlier. We are suggesting, if our amendment is passed, that Clause 10 stays in the Bill and we have the option of revoking it at some stage if both Houses agree. An alternative course would be to do as the noble Lord, Lord Elystan-Morgan, says, which is an attractive proposition but I have not had the opportunity to take advice or consult about it.

The bottom line is that if we agree to the Motion of the noble Lord, Lord Kingsland, Clause 10 is out, and then the type of option proposed by the noble Lord, Lord Elystan-Morgan, is a non-starter. That would be very unfortunate. For that reason, I invite noble Lords not to vote for the Motion of the noble Lord, Lord Kingsland, but to vote for ours instead.

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My Lords, I am grateful to all noble Lords who have spoken in this relatively crisp debate this afternoon. The noble Lord, Lord Elystan-Morgan, made an alternative suggestion to that advanced in the amendment which has arrived from another place—relating to the commencement clause, Clause 201. That clause is not before your Lordships’ House this afternoon; the noble Lord first made his suggestion 10 minutes ago.

I do not understand the Minister’s logic that, if your Lordships voted for the Motion this afternoon, it would kill any opportunity for the Government to look at Clause 201. The effect of your Lordships successfully supporting my Motion would be that that clause would go back to another place, which could then reconsider its position and send it back to your Lordships’ House at a later stage. In any case, it is quite plain that just to advance an amendment on the basis of Clause 201(6), giving the Secretary of State an unfettered discretion to decide when to implement Clause 10, would be wholly unsatisfactory to the Opposition and, I suspect, the Liberal Benches as well.

If such a clause were to be anything like a runner, it would need the most careful consideration, including a number of provisions which ensured that—

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My Lords, as I understand it, Clause 201 is already part of the Bill. There is no proposal to amend it in any way at all. The power to delay or use the deep-freeze policy towards any part of the Bill not dealt with in subsections (1) to (5) of Clause 201 is already there.

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My Lords, that is so; but I did not understand the noble Lord, Lord Elystan-Morgan, to be suggesting that Clause 201(6) without any amendment could conceivably be an answer to the criticisms that have been made from these Benches and by other noble Lords about the Government’s position. Simply to hand over complete discretion to the Secretary of State to decide when to introduce Clause 10 would be totally—if I may respectfully say so—against the grain of almost all speeches I have heard not only this afternoon in your Lordships' House but throughout the consideration of the Bill.

I set out, on behalf of the Opposition, our position at an earlier stage when I moved the amendment. I do not think I need to add anything further. I wish to test the opinion of the House.

Division 1

7 May 2008

Content: 227
Not Content: 151

View Details

Motion B

28: Page 22, leave out lines 13 and 14

The Commons agree to Lords Amendment 28, and propose the following consequential Amendment to the Bill-

28A: Page 22, line 25, leave out subsection (4)

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My Lords, I beg to move that this House do agree with the Commons in their Amendment No. 28A, consequential on Lords Amendment No. 28. At Third Reading, the Government accepted Lords Amendments Nos. 24 and 28, which remove the power to amend the period of time certain offenders will spend in custody under the new recall provisions before being automatically re-released and the number of days an offender spends in custody not serving a fixed-term recall before the Secretary of State must refer his case to the Parole Board. The other place has agreed to a consequential amendment to these amendments. On that basis, I invite the House to agree to the Motion.

Moved, That this House do agree with the Commons in their Amendment No. 28A, consequential on Lords Amendment No. 28.—(Lord Bach.)

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My Lords, this amendment, which the Government have brought back to your Lordships’ House, is a consequence of an undertaking that they gave at Third Reading in your Lordships' House. The Government have met that in full and we are, correspondingly, extremely grateful.

On Question, Motion agreed to.

Motion C

86: Page 71, line 3, at end insert-

"( ) After subsection (1) (designation of non-legal staff) insert-

"(1A) A person designated under subsection (1) shall only be permitted to carry out any legal activity as defined by section 12 of the Legal Services Act 2007 if he has been authorised so to do by a body which is designated as an approved regulator by Part 1 of Schedule 4 to that Act or under Part 2 of that Schedule (or both) and whose regulatory arrangements are approved for the purposes of that Act.""

The Commons disagree to Lords Amendment 86, but propose the following Amendment in lieu-

86A: Page 71, line 29, at end insert-

"( ) After subsection (7) insert-

"(8) As from 1 May 2011 nothing in this section confers on persons designated under this section-

(a) any rights of audience, or(b) any right to conduct litigation,for the purposes of Part 3 of the Legal Services Act 2007 (reserved legal activities).

(9) As from that date the following provisions of that Act accordingly do not apply to persons designated under this section-

(a) paragraph 1(3) of Schedule 3 (exemption for persons with statutory rights of audience), and(b) paragraph 2(3) of that Schedule (exemption for persons with statutory right to conduct litigation).(10) The Attorney General may by order make such modifications in the application of any enactment (including this section) in relation to persons designated under this section as the Attorney General considers appropriate in consequence of, or in connection with, the matters provided for by subsections (8) and (9).

(11) The Attorney General may also by order amend subsection (2)(a)(ii) so as to omit the words "or offences which are punishable with imprisonment in the case of persons aged 21 or over".

(12) The power to make an order under subsection (10) or (11) is exercisable by statutory instrument, but a statutory instrument containing such an order may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.""

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My Lords, I beg to move that this House do not insist on its Amendment No. 86, to which the Commons have disagreed, and do agree with the Commons in their Amendment No. 86A in lieu.

As noble Lords will recall, at Report stage the House made a number of amendments to what was originally Clause 105, which relates to the powers of the Crown Prosecution Service designated case workers. The amendments did essentially three things. First, they provided for designated case workers to be subject to statutory regulation under the Legal Services Act. Secondly, they excluded imprisonable summary offences from the trials remit of designated case workers. Lastly, the amendments limited the type of preventive civil orders in respect of which designated case workers could conduct proceedings.

The Government have reflected carefully on the debates in this House and the arguments that were advanced. The government amendments before the House today accept the spirit of the amendments passed on Report, but acknowledge the practical difficulties of providing for statutory regulation of designated case workers in the short term.

On regulation, the amendment provides for a transitional period of three years during which the Crown Prosecution Service would aim to ensure that all its designated case workers become members of ILEX. Once the relevant provisions of the Legal Services Act 2007 come into force, we expect ILEX to seek registration with the Legal Services Board as an approved regulator. It must be stressed that the present regulatory accreditation of ILEX would not allow them to regulate designated case workers. As a result, from 1 May 2011, all designated case workers will operate within the statutory framework provided by the Legal Services Act 2007. Consequently, the amendments provide that from that date their exemption from regulation under the Act would cease to apply.

The effect of the amendment is that by 1 May 2011 ILEX will need to have had its accreditation extended through what I am told is a lengthy process taking up to three years, which is the basis for the three-year timetable. Designated case workers who are not members of ILEX after 1 May 2011 will not be able to be deployed in a magistrates’ court. It is anticipated that consequential amendments would be required to the Legal Services Act to ensure that designated case workers could properly be catered for within the regulatory framework provided for by the Legal Services Act 2007. Accordingly, we have provided for an order-making power which will enable appropriate modifications to be made to the Legal Services Act and, as necessary, other enactments to this end. I would stress that this power could not be used to alter the 1 May 2011 date.

I turn now to the designated case workers’ trial remit. This House took the view that the exclusion of imprisonable summary offences from trials remit should be set out in primary legislation rather than statutory instructions issued by the Director of Public Prosecutions, and the amendments before us today do just that. However, we believe that it would be sensible to build some flexibility into the legislation, and accordingly the amendments in lieu accept that the restriction on designated case workers conducting trials in respect of imprisonable summary offences should appear on the face of the Bill. The amendments acknowledge, however, that there will come a time when, having gained further experience, it would be right to lift this restriction. As a consequence, the amendment in lieu provides for the restriction to be lifted by means of secondary legislation. Any order removing the restriction on conducting trials with respect to summary offences punishable by imprisonment would be subject to the affirmative resolution procedure and would therefore have to be debated and approved by both Houses. However, I can assure noble Lords that no such order will be brought forward before 1 May 2011; that is, it will not be brought before either House until all designated case workers are operating within the statutory regulatory framework of the 2007 Act.

Of course I note that the noble Lord, Lord Kingsland, has tabled an amendment to remove this particular order-making power. It was anticipated that my honourable friend the Solicitor-General would have been able to give to Members of the other place the assurances that I have given here, but, regrettably, for various reasons, that was not possible. As I indicated, we have taken very seriously the concerns expressed in this House and by the Bar Council in particular. I have had an opportunity to speak to Tim Dutton, chairman of the Bar, and on the basis of the assurances that I have given to this House, I have his agreement, or approval, that these amendments can have the Bar’s support. I understand entirely that it is important for this House to hear those assurances. Having made them, I hope I have given some satisfaction not only to the noble Lord, Lord Kingsland, but to the noble Lord, Lord Thomas of Gresford, who has raised similar concerns in this area.

I believe that this is an equitable compromise which embodies the core features of the amendments passed by this House at Report. On that basis, I invite noble Lords to agree to the government Motions.

Moved, That this House do not insist on its Amendment No. 86, to which the Commons have disagreed, and do agree with the Commons in their Amendment No. 86A in lieu.—(Baroness Scotland of Asthal.)

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rose to move Motion C1, as an amendment to Motion C, at end insert “but do propose Amendments Nos. 86B and 86C to Commons Amendment No. 86A.

The noble Lord said: My Lords, as the noble Baroness has indicated, there are two issues involved in Motion C. The first one concerns the class of case in which unqualified employees of the CPS can engage in magistrates’ courts proceedings, and the second concerns the legal framework within which they operate when they are litigating in magistrates’ courts.

On the first issue, our view has consistently been that it would be inappropriate for what, in the jargon, are termed DCWs to be engaged in contested cases in magistrates’ courts which are capable of terminating in sentences of imprisonment. We wanted that guarantee to be on the face of the Bill so that, if there was any subsequent change, it could be effected only by primary legislation. As the noble and learned Baroness has again informed your Lordships today, the Government felt that our position was too inflexible.

The second issue was what legal disciplinary framework should be appropriate for DCWs. In that regard, we are satisfied with the solution that the Government are proposing today. I entirely understand the difficulties that the CPS would have in producing a cadre of DCWs who would immediately be capable of falling within the framework of the existing Legal Services Act. The noble and learned Baroness is proposing that there should be a delay of three years before the appropriate framework is put into effect, and May 2011 is the suggested date. For our part, we are content with that. Our understanding is that any DCW appearing in a magistrates’ court will, by then, be fully subject to the approved regulator stipulated by the Legal Services Act, just as any other legally qualified person would be when operating either in the context of giving legal advice or appearing in court.

The single issue between us is whether the limitation on engaging only in non-imprisonable offences should be on the face of the Bill, or whether it should be dealt with by a more flexible procedure in the shape of an affirmative order. The noble and learned Baroness has helped us—and, I trust, your Lordships’ House—by giving an undertaking that the affirmative order would be presented to your Lordships’ House only once the framework of the Legal Services Act, as it would apply to the DCWs from May 2011, was fully in place. That undertaking lifts the majority of our concerns about the dangers implied in non-qualified individuals appearing.

I cast no aspersions whatever on the individuals concerned, but the Government were extremely tough in the course of the passage of the Legal Services Act 2007. At the outset of the deliberations on this Bill, we were somewhat astonished to find that DCWs were not to be subject to it. I therefore hope that the noble and learned Baroness understands where the Official Opposition, and indeed the Liberal Democrats, have been coming from in the course of the Committee and Report proceedings.

Nevertheless, the noble and learned Baroness has given a clear and unequivocal statement today that no affirmative order will be brought before your Lordships’ House until this category of DCWs is fully subject to the provisions of the Legal Services Act 2007. In those circumstances, I am content to accept that statement rather than pursuing my Motion—which, nevertheless, at this stage I beg to move.

Moved, as an amendment to Motion C, at end insert “but do propose Amendments Nos. 86B and 86C to Commons Amendment No. 86A”.—(Lord Kingsland.)

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My Lords, the original Question was that Motion C be agreed to, since when Motion C1 has been moved as an amendment thereto. The Question now is that Motion C1, as an amendment to Motion C, be agreed to.

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I have argued throughout Second Reading, Committee and Report that designated caseworkers should be subject to proper regulation by ILEX. I have always been a supporter of ILEX, which has an important role to play within the legal profession. If it is regulating designated caseworkers, I am content. I understand the practical difficulties which the noble and learned Baroness the Attorney-General has identified with bringing a regime into force straight away. Consequently, we accept the need for a three-year delay. We also accept the assurance she has given us today that any order that is sought under the amendment will not be brought before the House until after 1 May 2011.

It illustrates the defects of procedures in another place, which I hope will be addressed by the constitutional review committee, that it did not even debate the Lords amendment on this matter, and that accordingly it was not possible for the honourable and learned lady the Solicitor-General to give the sort of assurances that we have heard today—but that is perhaps a matter for another time. For the moment, we are content with the Government’s position.

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My Lords, I am most grateful to the noble Lord, Lord Thomas of Gresford, for what he said, which seems entirely in accord with our own view. In those circumstances, I beg leave to withdraw the Motion.

Motion, by leave, withdrawn.

On Question, Motion C agreed to.

Motion D

88: Page 71, leave out lines 5 and 6 and insert-

"(a) in paragraph (a)(ii), after "trials" insert "of offences triable either way or offences which are punishable with imprisonment";(b) after paragraph (a)(ii) insert-"

The Commons agree to Lords Amendment 88 with the following Amendment-

88A: Line 3, at end insert "in the case of persons aged 21 or over"

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My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 88A to Lords Amendment No. 88. I have spoken to this Motion with Motion C.

On Question, Motion agreed to.

Motion E

89: Page 71, line 12, at end insert-

"(c) for paragraph (b) substitute-"(b) any powers of a Crown Prosecutor that do not involve the exercise of such rights of audience as are mentioned in paragraph (a) above but are exercisable in relation to the conduct of-(i) criminal proceedings in magistrates' courts other than trials of offences triable either way or offences which are punishable with imprisonment, or(ii) applications or proceedings falling within paragraph (a)(iii) or (iv).""

The Commons agree to Lords Amendment 89 with the following Amendment-

89A: Line 8, leave out from beginning to "or" in line 10

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My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 89A to Lords Amendment No. 89. I have spoken to this Motion with Motion C.

On Question, Motion agreed to.

Motion F

115: Insert the following new Clause-

"Data protection: additional offences(1) After section 55 of the Data Protection Act 1998 (c. 29) insert-

"55AData 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) Section 63(5) of that Act ceases to have effect in relation to government departments other than the Crown Estate Commissioners."

The Commons disagree to Lords Amendment 115, but propose the following Amendment in lieu-

115A: Page 140, line 33, at end insert the following new Clause:-

"Power to require data controllers to pay monetary penalty(1) After section 55 of the Data Protection Act 1998 insert-

"Monetary penalties 55A Power of Commissioner to impose monetary penalty(1) The Commissioner may serve a data controller with a monetary penalty notice if the Commissioner is satisfied that-

(a) there has been a serious contravention of section 4(4) by the data controller,(b) the contravention was of a kind likely to cause substantial damage or substantial distress, and(c) subsection (2) or (3) applies.(2) This subsection applies if the contravention was deliberate.

(3) This subsection applies if the data controller-

(a) knew or ought to have known -(i) that there was a risk that the contravention would occur, and(ii) that such a contravention would be of a kind likely to cause substantial damage or substantial distress, but(b) failed to take reasonable steps to prevent the contravention.(4) A monetary penalty notice is a notice requiring the data controller to pay to the Commissioner a monetary penalty of an amount determined by the Commissioner and specified in the notice.

(5) The amount determined by the Commissioner must not exceed the prescribed amount.

(6) The monetary penalty must be paid to the Commissioner within the period specified in the notice.

(7) The notice must contain such information as may be prescribed.

(8) Any sum received by the Commissioner by virtue of this section must be paid into the Consolidated Fund.

(9) In this section-

"data controller" does not include the Crown Estate Commissioners or a person who is a data controller by virtue of section 63(3);"prescribed" means prescribed by regulations made by the Secretary of State. 55B Monetary penalty notices: procedural rights(1) Before serving a monetary penalty notice, the Commissioner must serve the data controller with a notice of intent.

(2) A notice of intent is a notice that the Commissioner proposes to serve a monetary penalty notice.

(3) A notice of intent must-

(a) inform the data controller that he may make written representations in relation to the Commissioner's proposal within a period specified in the notice, and(b) contain such other information as may be prescribed.(4) The Commissioner may not serve a monetary penalty notice until the time within which the data controller may make representations has expired.

(5) A person on whom a monetary penalty notice is served may appeal to the Tribunal against-

(a) the issue of the monetary penalty notice;(b) the amount of the penalty specified in the notice.(6) In this section, "prescribed" means prescribed by regulations made by the Secretary of State.

55C Guidance about monetary penalty notices(1) The Commissioner must prepare and issue guidance on how he proposes to exercise his functions under sections 55A and 55B.

(2) The guidance must, in particular, deal with-

(a) the circumstances in which he would consider it appropriate to issue a monetary penalty notice, and(b) how he will determine the amount of the penalty.(3) The Commissioner may alter or replace the guidance.

(4) If the guidance is altered or replaced, the Commissioner must issue the altered or replacement guidance.

(5) The Commissioner may not issue guidance under this section without the approval of the Secretary of State.

(6) The Commissioner must lay any guidance issued under this section before each House of Parliament.

(7) The Commissioner must arrange for the publication of any guidance issued under this section in such form and manner as he considers appropriate.

(8) In subsections (5) to (7), "guidance" includes altered or replacement guidance.

55D Monetary penalty notices: enforcement(1) This section applies in relation to any penalty payable to the Commissioner by virtue of section 55A.

(2) In England and Wales, the penalty is recoverable-

(a) if a county court so orders, as if it were payable under an order of that court;(b) if the High Court so orders, as if it were payable under an order of that court.(3) In Scotland, the penalty may be enforced in the same manner as an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.

(4) In Northern Ireland, the penalty is recoverable-

(a) if a county court so orders, as if it were payable under an order of that court;(b) if the High Court so orders, as if it were payable under an order of that court.55E Notices under sections 55A and 55B: supplemental(1) The Secretary of State may by order make further provision in connection with monetary penalty notices and notices of intent.

(2) An order under this section may in particular-

(a) provide that a monetary penalty notice may not be served on a data controller with respect to the processing of personal data for the special purposes except in circumstances specified in the order; (b) make provision for the cancellation or variation of monetary penalty notices;(c) confer rights of appeal to the Tribunal against decisions of the Commissioner in relation to the cancellation or variation of such notices;(d) make provision for the proceedings of the Tribunal in respect of appeals under section 55B(5) or appeals made by virtue of paragraph (c);(e) make provision for the determination of such appeals;(f) confer rights of appeal against any decision of the Tribunal in relation to monetary penalty notices or their cancellation or variation.(3) An order under this section may apply any provision of this Act with such modifications as may be specified in the order.

(4) An order under this section may amend this Act."

(2) In section 67 (orders, regulations, rules)-

(a) in subsection (4) insert at the appropriate place-"section 55E(1),"; and(b) in subsection (5) after paragraph (c) insert-"(ca) regulations under section 55A(5) or (7) or 55B(3)(b),"."

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My Lords, I beg to move Motion F, that the House do not insist on its Amendment No. 115, to which the Commons have disagreed, and do agree with the Commons in their Amendment No. 115A in lieu.

Noble Lords will recall that on Report in this House an amendment was moved, and accepted, to provide for a new criminal offence for data controllers who intentionally or recklessly disclose personal information, repeatedly and negligently allow information to be disclosed or intentionally or recklessly fail to comply with the data protection principles. The Government have looked carefully at the tenor of the arguments in this House. We accept the principles put forward by the noble Baroness, Lady Miller, and yesterday we brought forward in the Commons an alternative measure that could strengthen the protection of personal data, Amendment No. 115A. In bringing forward this amendment we are specifically taking into account that criminal liability is generally reserved for unlawful behaviour that is sufficiently serious to merit the most stringent liability that the law can impose.

In addition, we have consulted with the Information Commissioner. I am glad to report to the House that he welcomes the flexibility with which Amendment No. 115A provides him in his efforts to enforce the Data Protection Act more rigorously and proportionately. We also believe that the new monetary penalty should apply equally to the public and private sectors. Information gathered by the Information Commissioner’s office shows that data losses occur across both these sectors, and therefore it is only right that the monetary penalty should apply to both as well.

I hope that these amendments find favour with the House in view of our previous debates.

Moved, That the House do not insist on its Amendment No. 115, to which the Commons have disagreed, and do agree with the Commons in their Amendment No. 115A in lieu.—(Lord Hunt of Kings Heath.)

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My Lords, I am glad that the Government have come forward with some sort of answer to the House’s deeply held concern that data controllers are not sufficiently regulated by the Information Commissioner’s power to enforce penalties. I would not resist the Government’s attempt to move away from criminal penalties, which we on these Benches regard very much as a last resort. However, we will keep an eye on how the regime works. I, too, have heard from the Information Commissioner and am glad that he sees that it is sufficient. When will the Secretary of State introduce regulations for deciding the amount of a fine? Given the amount of data lost during the past year, both from government departments and the private sector, I hope that the Secretary of State will choose to bring in those regulations speedily, because this is a matter of deep concern to the public. The amendment is supposed to strengthen the Information Commissioner’s arm and ensure that data controllers comply with all the provisions of the Data Protection Act. However, unless the regulations are introduced, it will not have the desired effect. I hope that the Minister will reassure me on that point.

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My Lords, we, too, will not oppose the Government’s amendment at this stage, though to introduce five new clauses to the Data Protection Act 1998 at such a late stage, even after our various discussions of the noble Baroness’s amendment at an earlier stage, in a Bill that has been before both Houses for some 11 months, is a pretty odd way to legislate. Concern was expressed by my honourable friend Mr Garnier in another place yesterday about taking the civil route to a criminal law end, particularly as the provisions impose what could be severe penalties in the form of fines and as, my honourable friend put it, the commissioner will find himself the policeman, the prosecutor, the jury and the judge. That seems to be a difficult role for him to pursue. My honourable friend in another place hoped for further explanation from the Government if they had time.

However, we appreciate that the Government have tried to move on. We are grateful for a letter from Mr David Hanson on this matter, setting out what the Government were trying to do. Though we voted against it in another place, we shall now accept it with those misgivings and hope that the Government will be able in due course to provide some explanation of how the regime is going to bed down.

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My Lords, I am grateful to the noble Lord and the noble Baroness for their general welcome to the amendment. The Government have taken careful note of the debates in your Lordships' House. I cannot give a definite date to the noble Baroness, but I understand her point about the seriousness of these matters. We are committed to ensuring that data controllers have a clear understanding of the circumstances in which the Information Commissioner will consider it appropriate to issue a monetary penalty notice and of how the amount of the monetary penalty will be determined. That will require careful consideration. The Information Commissioner will be required under Amendment No. 115A to publish with the agreement of the Secretary of State statutory guidance on these matters, which will be laid before Parliament. I hope that it will ensure that proper regard is paid to the circumstances in which the monetary penalty is introduced, the notice that will need to be given to data controllers and the need for sufficient parliamentary scrutiny. I hope that noble Lords will accept the amendment on that basis.

On Question, Motion agreed to.

Motion G

117: Page 106, line 33, after "conditions" insert "as specified in section (Provisions that orders may contain)"

The Commons disagree to Lords Amendments 117 and 127, but propose Amendments 127A to 127E in lieu-

127: Insert the following new Clause-

"Provisions that orders may contain(1) The order may contain prohibitions, restrictions or conditions preventing the offender-

(a) from going to any specified premises or any other specified place (whether at all, or at or between any specified time or times);(b) from attending any specified event;(c) from having any, or any specified description of, contact with any specified individual.(2) Any of the prohibitions, restrictions or conditions imposed by a violent offender order may relate to conduct in Scotland or Northern Ireland (as well as to conduct in England and Wales).

(3) In this section "specified" means specified in the order.

(4) The Secretary of State may amend subsection (1).

(5) Any order made under subsection (4) may not be made unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament."

The Commons disagree to Lords Amendments 117 and 127, but propose Amendments 127A to 127E in lieu-

127A: Page 106, line 33, after "conditions" insert "authorised by section (Provisions that orders may contain)"

127B: Page 109, line 20, at end insert the following new Clause:-

"Provisions that orders may contain(1) A violent offender order may contain prohibitions, restrictions or conditions preventing the offender-

(a) from going to any specified premises or any other specified place (whether at all, or at or between any specified time or times);(b) from attending any specified event;(c) from having any, or any specified description of, contact with any specified individual.(2) Any of the prohibitions, restrictions or conditions contained in a violent offender order may relate to conduct in Scotland or Northern Ireland (as well as to conduct in England or Wales).

(3) The Secretary of State may by order amend subsection (1).

(4) In this section "specified" means specified in the violent offender order concerned."

127C: Page 110, line 8, at end insert-

"(5A) References in subsection (5) to prohibitions, restrictions or conditions are to prohibitions, restrictions or conditions authorised by section (Provisions that orders may contain)."

127D: Page 110, line 32, at end insert-

"(3A) The reference in subsection (3) to prohibitions, restrictions or conditions is to prohibitions, restrictions or conditions authorised by section (Provisions that orders may contain) in the case of a violent offender order."

127E: Page 141, line 23, at end insert-

"( ) an order under section (Provisions that orders may contain),"

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My Lords, I beg to move that the House do not insist on its Amendments Nos. 117 and 127, to which the Commons have disagreed, and do agree with the Commons in their Amendments Nos. 127A to 127E in lieu.

Noble Lords will recall that on Report the House agreed amendments to provide an exhaustive list of the prohibitions, restrictions or conditions that could be imposed as part of a violent offender order. The other place has agreed to the principle of these changes, to an amendment to improve the drafting and to ensure that the amendments are fully workable. On this basis, I invite noble Lords to agree the Motion standing in the name of my noble friend Lord Hunt of Kings Heath.

Moved, That the House do not insist on its Amendments Nos. 117 and 127, to which the Commons have disagreed, and do agree with the Commons in their Amendments Nos. 127A to 127E in lieu.—(Lord West of Spithead.)

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My Lords, in the absence of my noble friend Lord Kingsland, we accept the Government’s concession. We are grateful for the letter from Mr David Hanson setting out what the Government are doing.

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My Lords, we are grateful to the Government for rethinking on this point. We have urged that there be proper restrictions on violent offender orders. I just repeat our total opposition to such orders and the process that brings them about. I do not resile from anything that we have said about the making of civil orders and turning them into criminal offences. Apart from that, we are grateful to the Government for moving on this issue.

On Question, Motion agreed to.

Motion H

173: Insert the following new Clause-

"Police and prison service pay: Secretary of State's power to make regulationsRegulations made by the Secretary of State-

(a) specified in section 62 of the Police Act 1996 (c. 16) (functions of the board with respect to regulations) which do not follow the recommendations of the Police Negotiation Board as established by section 16 of that Act, or(b) under section 128 of the Criminal Justice and Public Order Act 1994 (c. 33) (pay and related conditions) which do not follow the recommendations of the Prison Service Pay Review Board as established by that section,may not be made until laid before, and approved by resolution of, the House of Commons."

The Commons disagree to Lords Amendment 173 for the following Reason-

173A: Because it affects the arrangements relating to the making of payments out of public funds, and the Commons do not offer any further Reason, trusting that this Reason may be deemed sufficient.

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My Lords, I beg to move that the House do not insist on its Amendment No. 173, to which the Commons have disagreed for their Reason 173A.

The other place disagreed with your Lordships’ Amendment No. 173, because it affects the arrangements relating to making payments out of public funds. On that basis, I trust that your Lordships will not pursue the matter further.

Moved, That the House do not insist on its Amendment No. 173, to which the Commons have disagreed for their Reason 173A.—(Lord Hunt of Kings Heath.)

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My Lords, the Minister’s wish is not entirely going to be fulfilled. Lack of time in the House of Commons yesterday meant that no discussion took place on this amendment and that there was only a vote, which the Government, not unexpectedly, won. I say “not unexpectedly”, but I believe that there were people on the Government Benches who understood the positions of both the police and prison officers on this matter, who might have had more courage and given them support.

I make no apology for returning to this issue, although the Government have now made it the subject of the privilege amendment, thus denying us the opportunity of voting on it again this evening. But it is matter of such importance that it will do no harm for me to rehearse our concerns. Pay awards for both services are subject to independent pay review bodies: the Police Negotiating Board and the Prison Service Pay Review Body. These bodies, along with the Armed Forces’ review body, with which we are not allowed to deal under this amendment because it is not appropriate in this Bill, were set up to ensure that these key public sector workers , who do not have the right to strike, were not, as a result, disadvantaged in pay negotiations. They each have a clear remit from the Government as to affordability and their inflation targets, which they must—not unreasonably—take into account. But having done so, they are free to put forward firm recommendations.

Last year, for the first time, the Government went to arbitration on the proposed police settlement of 2.8 per cent, having, as the noble Lord, Lord Dear, told us at the previous stage, already altered in 2006 the basket of occupations, which were the ingredients against which police pay and allowances should be measured on an annual basis. Arbitration produced an agreed, binding settlement of 2.5 per cent, but the Government ended up implementing 1.9 per cent in a staged award. The result of reneging on both a binding agreement and an understanding that the pay review bodies’ recommendations would be implemented was the unedifying sight of the police march, and the Government’s scramble to get this Bill through before tomorrow, to prevent a strike by the Prison Officers’ Association, which, having agreed a voluntary ban on striking, was equally disadvantaged, and is due, following the end of the voluntary ban, to strike later this week—hence the Government’s agitation to get those clauses through.

The amendment does not say that the Government should always implement the pay bodies’ recommendations. It says that if they are not going to do so they must seek the view of Parliament before they renege, explain their reasons, and have those reasons supported by affirmation. For Parliament, we must read the House of Commons. If the Government were trying to limit a pay increase and were over-ridden, that might have an effect on their financial targets and is a matter, apparently, for the House of Commons alone.

I am not at all comfortable with that argument or with the privilege amendment moved against the amendment as it seems to me that the Government are under a moral obligation to accept the recommendations and to have made allowances for them. We believe that they should have the courage of their convictions, stand by binding arbitration, implement for these services what is recommended, and, if they will not do so, explain themselves and seek parliamentary support for their denial of this undertaking.

For now there is little more that I can do to move the Government in the direction in which I believe they should go. Other opportunities will have to be found to give these public servants confidence and security in their pay body findings. The voluntary ban on the prison officers’ strike will now end and become mandatory as a result of the Bill. In not reaching a settlement the Government have let them and the police down.

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My Lords, I am glad that the noble Baroness, Lady Hanham, has spoken as she has. I was interested that she used the word confidence. I would go further and say that a crucial word is needed in the content of the amendment; that is the word trust.

She has mentioned that the Armed Forces, the police, the Prison Service and other public bodies which now have pay review bodies must have trust in those bodies to represent fairly to government the case for whatever rise is recommended. As noble Lords know, there is a certain fragility in the industrial relations scene affecting prison officers. One thing increasing that fragility is that the Prison Officers’ Association has lost trust in both the Government and the Prison Service to deal fairly, as it sees it, with its concerns. One of those concerns is the staging of the pay rise which was recommended last year.

When I was a member of the Armed Forces I remember being equally concerned about proposed staged rises because it involved not just the staging of pay but the staging of pension rises. It meant that those people who retired during the first half of the year did not get the whole of the recommended pension rise included in the recommendation of the body.

I have to say that I am very surprised indeed that the other place did not even discuss this yesterday. They are the custodians of all this negotiation, and they are the people to whom the Prison Officers’ Association and others look to satisfy and look after their own interests. Therefore, I am extremely disappointed at the least to find that this is how this important amendment with its future ramifications for public service is being treated.

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My Lords, I spoke before in your Lordships' House. I speak briefly now. I support entirely what the noble Baroness, Lady Hanham, and the noble Lord, Lord Ramsbotham, have said. My remarks may well be remembered by many who were present when I spoke and who are present today. I identify with two points that have been made. One is the huge breach of trust and the damage which the Government have caused, certainly to the police, and to others by inference. The second is a point that I identified previously—the total disparity in the way in which the Government treat those who can and those who cannot strike. The police, who cannot strike, were pegged down to 1.9 per cent, whereas police civilian support staff—police community support officers and others who patrol the streets with the police—were allowed 2.5 per cent, which they had asked for, because they can strike. That disparity, small though the amounts are—I said previously, and repeat, that the amounts are not the issue, the breach of trust is the issue—goes to the very root of the matter that we are looking at today. I sincerely hope that in the not too distant future we shall find a way to repair that breach of trust and put something in place that does not allow this to happen again.

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My Lords, I support everything that the noble Baroness, Lady Hanham, and other noble Lords have said. I cannot understand how the Government can enter into what is supposed to be a binding arbitration and then ignore the result of it. If that does not destroy trust in the system, I do not know what does.

To use the law to deal with industrial relations has always been difficult. Your Lordships will recall that at the beginning of the previous century a Liberal Government freed up the trade union movement and permitted it to strike. I always thought that the Labour Party supported such movements. Here the Government put restrictions on the police and Prison Service. We do not say that those restrictions are necessarily wrong but there is a price to pay for that. We have talked about the military covenant which the Government do not always uphold. There has to be seen to be a covenant with the police and the Prison Service to act honourably and fairly with them. The Government have lost the trust of police and Prison Service officers and I do not think that they will regain it for a very long time.

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My Lords, once again I have the great pleasure of welcoming the noble Baroness, Lady Hanham, to our debates on the Criminal Justice and Immigration Bill. Noble Lords hope that there will not be another criminal justice Bill in the next Session. I cannot possibly comment on that, but if there were to be, the noble Baroness’s cameo entrances would be most welcome.

The police, prisoner officers and the Armed Forces—although the latter are not covered by the terms of the Motion—are critically important groups of workers to whom the Government pay tribute for the contribution they make. However, the police and prison officers are not alone in having independent pay machinery which makes recommendations to Ministers. As I explained in previous debates, this machinery was developed over 35 years by this Government and the party opposite when it was in government. It has always been clear that pay recommendations cannot be binding on the Government. It has always been the responsibility of the Executive to make decisions on pay. Both Conservative and Labour Governments have overseen such a system.

I do not want to go through the list that I went through as noble Lords do not want me to do so. Nor do they want me to refer to the police arbitration tribunal decision of 1990, certain aspects of which the previous Government did not accept. Previous Governments and this one reserve the right to be flexible when considering the implications of recommendations of these independent pay bodies. That is why we do not think it right that that discretion should be subject to parliamentary approval. Parliament already has overriding oversight of departmental expenditure and we think that is the most appropriate scrutiny.

Of course, I fully accept what the noble Lords, Lord Ramsbotham and Lord Dear, had to say about the importance of trust between government employers and the services. The Government will work very hard to ensure that there is that trust. In relation, for instance, to prison officers—who we have discussed on a number of occasions—our overriding priority has to be the safety of prisoners, which is why we are taking the action that we are taking in relation to industrial action in the Prison Service. Overall, the importance of these staff cannot be underestimated, but there will always have to be discretion in relation to government decisions about the recommendations of those independent bodies. On that basis I hope that the House will accept the Motion.

On Question, Motion agreed to.

Motion J

285: Page 269, line 19, at end insert—

“13A After section 29J insert—

“29JA Protection of freedom of expression (sexual orientation)In this Part, for the avoidance of doubt, the discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices shall not be taken of itself to be threatening or intended to stir up hatred.””

The Commons disagree to Lords Amendment 285 for the following Reason—

285A: Because it makes unnecessary provision.

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My Lords, I beg to move that the House do not insist on its Amendment No. 285, to which the Commons have disagreed for their Reason 285A.

This is our final group. I welcome the opportunity to come back to debate this important question, on which we had an interesting and informed debate rather late at night on the third day of Report. That question has now been debated in the other place, which, having disagreed with your Lordships’ amendment by a large margin, has now sent it back to us for further consideration. It is clearly right that we should take this matter very seriously indeed.

Of course, I have looked carefully at the matter raised by noble Lords in our debates. The question before us is whether we have the balance right between the necessity of protecting targeted groups and the necessity of ensuring freedom of speech. The Government do not believe that any behaviour that is threatening and that is intended to stir up hatred needs special protection because of considerations of free speech. Only behaviour that is threatening and that is intended to stir up hatred is covered by the Bill. If such behaviour is neither threatening nor intended to stir up hatred, it is not covered by the Bill. We think that we have the balance right, as does the Joint Committee on Human Rights. We have had many, many happy days debating the Bill and on many occasions noble Lords have quoted the excellent report by the Joint Committee on Human Rights, so it is right that I pray in aid its judgment on this matter. The Equality and Human Rights Commission, too, believes that we have the balance right, as does the other place.

I am sure that we shall hear again the concerns about the risk of heavy-handed police enforcement. A number of cases have been mentioned where it is alleged that overzealous behaviour has occurred. Concern was expressed when we last debated this about what guidance would be available to the police, the Crown Prosecution Service and the public about this offence. I will take this opportunity to clarify those matters.

My understanding is that the Crown Prosecution Service will issue a policy bulletin and legal guidance on the new offence. The CPS legal guidance provides prosecutors with an online source of information on legislation and policy on a range of legal issues. The CPS legal guidance is accessible to the public on the CPS website. There is existing CPS guidance on the offence of incitement to religious hatred, which came into effect on 1 October last year. There is a policy bulletin and updated internal CPS legal guidance.

In addition, CPS prosecution policy on racist and religious crime, first published in July 2003, is being revised and will soon be reissued. It will address the new offence of incitement to religious hatred. The police will also have advice in a revised manual of hate crime. The current manual covers crimes motivated by hate, but it is being revised and will include crimes of incitement to hatred.

In addition, we of course have been listening carefully to the concerns expressed here and in the other place about what I have described as heavy-handedness. The Government, therefore, in seeking to meet those matters, are bringing forward an amendment to place on a statutory footing a duty on the Secretary of State to issue guidance. That will ensure that appropriate guidance about the offence is available for all interested parties. The guidance that my department will issue will reiterate that the only behaviour covered by the offence is behaviour that is threatening and intended to stir up hatred. It will take account of all the points that have been made in debate here and in the other place.

The measure that we are debating does not seek to make the holding of certain views or opinions illegal; it concentrates on behaviour. Threatening behaviour intended to stir up hatred is a real risk to public order and ought to be challenged. Of course, it will ultimately be for the courts to decide whether the offence is proven in a particular case, but, as I said in my introductory remarks, behaviour that is not threatening and not intended to stir up hatred is plainly not covered by the offence. The guidance will reiterate all this.

I and the Government have listened carefully to the speeches of the noble Lord, Lord Waddington, and other noble Lords. We think that we can take care of those matters by the way in which the offence has been constructed and the issue of guidance. On that basis, I invite the House to support my Motion.

Moved, That the House do not insist on its Amendment No. 285, to which the Commons have disagreed for their Reason 285A.—(Lord Hunt of Kings Heath.)

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rose to move Motion J1, as an amendment to Motion J, to leave out from “House” to end and insert “do insist on its Amendment No. 285”.

The noble Lord said: My Lords, I feared for a few moments that the noble Lord might spoil the pleasure of this occasion for me by going on at length about the vote in the House of Commons that negatived my amendment. But I have to say that I took time off yesterday afternoon from listening to the discussions on the Lisbon treaty—a course that I heartily recommend to every Member of this House, and I refer not to the Lisbon treaty but to listening to the debate. I went into my office and turned on the television. I could not at that time see a single member of the Labour Party on the Back Benches of the other place. Yet, when the Division Bells rang, 338 of the sheep trooped through the Lobby—300 or more never having listened to a single word of the debate.

At the outset, I should point out that on this side of the House there is a free vote. We are on no three-line Whip. We are going to act according to our consciences. That is the way in which a matter such as this should be treated.

Quite obviously—and this does not need to be dwelt on, because it is so obvious—my amendment would not have the effect of weakening the offence. It is, however, a useful reminder not to infer intent from mere words, but to look for proof—for instance, from the surrounding circumstances. It is said that the amendment is not necessary, but such a plea always sounds pretty feeble. If it does no harm, why all the fuss?

I do not like mentioning the case of the right reverend Prelate the Bishop of Chester because I know that he finds it extremely embarrassing, but it is necessary to mention the matter because of what the police said in a formal statement at the end of the obviously lengthy police inquiry. The statement issued by the Cheshire constabulary was truly astonishing. First, it said:

“The Crown Prosecution Service has been consulted with at length”.

I remind the House that it was consulted because the right reverend Prelate had had the effrontery to make some comments to his local paper about American research tending to show that some gays could be reoriented. The statement went on to say that,

“the Cheshire Police are satisfied that no criminal offences have been committed, as”—

mark these words, my Lords—

“current public order legislation does not provide specific offences based on sexuality”.

The police were not saying for one moment that there was never anything in the complaint made against the right reverend Prelate. They were saying—were they not?—that, if at that time this new offence had been on the statute book, the right reverend Prelate might well have been for the high jump.

There may be some—although I have never met them—who think that it would be no bad thing if people such as the right reverend Prelate the Bishop of Chester were discouraged from expressing their opinions on sexual matters, but that is not supposed to be the view of this Government. My understanding is that the Government do not wish to see discussion stifled and people harassed, bullied, interrogated and sometimes arrested for expressing their views. However, if that is so, it really is time that they did something about it.

I now turn to the Government’s undertaking to issue guidance. Let us be plain: the Government can issue guidance at any time they want and they do not have to get permission from Parliament to do so, but they cannot say that guidance will avoid a repetition of the scandals that we have often referred to, such as the Lytham couple being interrogated and bullied for daring to question the council’s gay rights policy.

When we last debated this matter, I pointed out that for years guidance has been available to help the police. It was there to help them to apply the present Public Order Act, which, I remind the House, already contains provisions not altogether dissimilar from the provisions in this Bill. For some time, it has been unlawful to use threatening, abusive and insulting words or behaviour, particularly when there is hostility on grounds of sexual orientation. That is the present law. Therefore, for a long time there has been guidance to help the police in circumstances not at all dissimilar from those envisaged by the present offence. There was already a pretty high threshold for the offence—and a lot of good that guidance has done! Does anyone in his right mind think that the right reverend Prelate the Bishop of Chester, when commenting to his local paper on the matters that I have referred to, was using,

“threatening, abusive or insulting words”?

I am quoting from the Public Order Act. Yet off rushed the police, in spite of guidance, to consult the CPS, which, disturbingly, did not have the sense to send them packing. I do not understand how the Minister can keep on talking about the efficacy of guidance when the present guidance issued by the CPS is seriously defective, as I pointed out in our previous debate, when the Government have not done us the courtesy of showing us a draft of the guidance that they have in mind and when they have not told us how, if at all, it would differ from, on the one hand, existing guidance or, on the other, my amendment. Why, if the guidance would not differ significantly from my amendment, is it better to have it outside the Bill rather than in it?

There is another important matter. How can the Minister overlook the obvious danger of having a free speech clause in relation to the religious hatred offence but not here? It is not playing straight with the House to say that the inconsistency can be overlooked because the Government never wanted a free speech clause in relation to the religious hatred offence in the first place. The other day they were saying, “Well, you mustn’t think anything about that because it was forced on us against our wishes”. If that is right, surely their duty must be either to accept our amendment or to set out to repeal the religious hatred free speech clause. Instead, they are content to be responsible for a glaring and dangerous inconsistency.

I ought to finish with the argument advanced last time by the noble Lord, Lord Thomas of Gresford, which is that it is clear what the prosecution has to prove and that a properly directed jury would have no difficulty applying the clause correctly. That is right but it misses the point entirely. When people are harassed, interrogated and arrested as a result of wrongful action by the police as they follow up what is often a malevolent complaint—such as the one against Mr Hurst, who was handing out leaflets inviting people to his church’s Easter service—it is little comfort to know that it is very unlikely that a conviction would have followed.

We on this side of the House are aware of the evils of homophobia and understand why the Government wish to put this new offence on the statute book. Let it go on the statute book but let us also be sure that, as a society that values free speech, we are not unwittingly licensing those who wish to suppress it. I beg to move.

Moved, as an amendment to Motion J, to leave out from “House” to end and insert “do insist on its Amendment No. 285”.—(Lord Waddington.)

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My Lords, I have a particular interest in this subject not only as a member of the Joint Committee on Human Rights but because I suppose I was the architect of the amendments that the House made when considering religious hate speech. I drew the teeth of the Bill; we defeated the Government and the other place by one vote, as we all remember, and upheld the draft for which I was responsible, and which is now the law of the land.

I have spent most of my life dealing with two main issues: free speech and equal protection of the law—equality. When I was a special adviser to Roy Jenkins we extended the race hate speech provisions very broadly indeed—perhaps too broadly. The Race Relations Act 1976 made it a crime to stir up racial hatred not only where there was a deliberate intent to do so but objectively where it was likely in all the circumstances that race hate would be stirred up. That was a serious encroachment on free speech, which we did for reasons that no longer need to be thought about in this debate.

The view taken by this House and by one vote in the other place on religious hate was that the Government had gone too far in mimicking the race hate speech crime that we had devised in 1976 and applying it to the stirring up of religious hatred. We took that view because it was felt that religious hatred is different in kind from racial hatred. If you stir up hatred against someone because of their ethnicity, you do so for something that they were born with, their birthright, that they could not change. You are attacking their common humanity. However, if you stirred up hatred against someone because of their religious belief, or lack of belief, you were immediately involved in the battle of ideas, beliefs and practices.

It seemed to me—and, luckily for me, to the great majority in this House and a narrow majority in the other House—that it was right to narrow this speech crime dealing with religion so that there was a need to prove specific intent and a freedom to insult or abuse, but not to use threatening language. That is why, if one compares the crimes of religious hate and racial hate, one finds two safeguards built into the religious hate crime: first, the need for specific intent; and secondly, the freedom, although it is not an obligation, to insult—but not to threaten, because threatening speech obviously seriously affects public order.

The Government faced a difficult policy choice on what do to on homophobic speech. Is it more like race and ethnicity, or more like religion? Does the stirring up of hatred against someone because of their sexuality attack their common humanity—what they are born with, or are as a human being—or is it an attack on ideas and beliefs akin to religion? The Government could have chosen the unwise course of doing what they first tried to do with religious hate speech; that is to say, they could have devised a broad offence that applied not only to threatening speech but to abusive and insulting speech, and they could have used the same objective test of intent as they attempted for religious hate speech.

I had nothing to do with it but—in my view wisely—the Government chose instead a much larger measure of freedom of expression. As has been said by the Minister and others, they chose to criminalise only that which is deliberately stirring up and using threatening language, leaving a person free, however unpleasant and evil it may be, to insult somebody because they disapprove of homosexuality. They were right to do that, and this House should support the narrow homophobic hate speech offence.

I devised what came to be called the “English pen” clause—the free speech clause when dealing with religion—which the Government did not wish to have; I was quite surprised it got through both Houses. I invented it because I felt that religion, and controversy about it, is all about expression and it was therefore vital for writers, novelists, playwrights and broadcasters to know that, in the turmoil that religious controversy always creates, there should be the widest possible free speech. It is not necessary to do that for homophobic hate speech. That is why I support the position of the other place and the Government.

If a prosecution were launched that seriously threatened free speech in a way that violated the Human Rights Act and Article 10 of the European Convention on Human Rights, that would be a most serious matter that would have to be dealt with by the courts and, if necessary, by the European court. I do not imagine for a moment that that is likely to happen. For all those reasons—I apologise for taking so long to explain them—I hope that this House will speak with the same voice as the other place on this important matter.

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My Lords, having listened with great interest to the noble Lord, Lord Lester, I do not think we can distinguish as clearly as he has sought to do between that which is religious and that which is not. We are talking about homophobia, which I, like, I assume, everyone in this House, abhor, but there are religious groups, not only Christians, not only bishops, but many Jews and Muslims, which share strong views that they gain from the Bible, the Old Testament in particular, or the Koran. Those people are potentially at risk. It is very unlikely that they are at risk of prosecution, but in the speech that the noble Lord, Lord Waddington, made today and on a previous occasion, he set out that his area of concern is the people who say what is understood incorrectly to be within this proposed clause. It is those people who will potentially be intimidated; they will certainly be bothered and may go through an extremely unfortunate experience before calmer heads point out that under the new clause, as under older clauses, they have not committed any offence. It is those people whom the noble Lord, Lord Waddington, has spoken about who, despite everybody’s objection to homophobia, none the less need some help. I do not believe that guidance, even better guidance than is provided at the moment—the case of the right reverend Prelate the Bishop of Chester is a pretty good indication that the police guidance cannot be much good—will do what is needed to look after people who genuinely have ideas that are unacceptable to many of us, but who hold them for strong religious views from various religions. That is why this amendment tabled by the noble Lord, Lord Waddington, is not, as the other place said, unnecessary.

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My Lords, I listened with great care to the debate on the noble Lord's amendment on Report. I listened to the speeches of the noble Lord, Lord Waddington, and those who supported him. My objective was to understand what mischief his amendment was trying to resolve. The noble Lord's argument seems to hinge on the proposition that this provision, left unamended, would stop good, decent law-abiding citizens expressing the deeply held views, as the noble and learned Baroness has just said, that homosexuality is wrong and sinful. It would also have stopped those, particularly in the faith communities, who want to express their deep and heartfelt concerns that homosexuality, no matter how much they respect an individual, is wrong and is a sin.

I do not fear legitimate argument, and I do not support any provision that would outlaw a person's right to have and to hold these beliefs and to express them freely. I do not fear people who think homosexuality is a sin. I do not fear an open and frank discussion of homosexuality. It is that right which this House tries to uphold. I, along with a whole host of noble Lords, have argued not for special treatment for gay men and lesbians under the law, but for equal treatment. I have argued our case with, I believe, love, compassion and, most of all, equality. I have no quarrel with those who have a different view from mine; a view that I do not share.

If I believed that this provision would prevent good men and women up and down this country discussing their views openly, I would join the plea of the noble Lord, Lord Waddington, but it is not about curbing freedom of expression—it is about extending the existing offence of incitement to hatred on the grounds of race and religion equally to sexual orientation. That means, in relation to prosecutions, that the CPS will require two significant tests to be met: first, that the words were threatening; and, secondly, that those words were intended to stir up hatred.

I can put it no better than the noble Lord, Lord Thomas of Gresford, did at Report. He said:

“The prosecution has to prove, first, that certain words or behaviour used by the defendant were threatening. I suppose that that could be seen as an objective test. Would the jury or the magistrates consider it to be threatening if those words were used about them? The second ingredient of intent to ‘stir up ... hatred’ requires the jury or magistrates to be satisfied about the state of mind of the defendant and that he intended to stir up hatred. Those are strong words. It throws a considerable burden on the prosecution to satisfy the jury that there was an intent to stir up hatred”.—[Official Report, 21/4/08; col.1372.]

I cannot see how that burden of proof could possibly apply to the types of examples that the noble Lord, Lord Waddington, cited in his speech on 21 April. Incidentally, because of a number of those cases, we know that the Crown Prosecution Service changed its advice in November 2007. Since then, not a single case has been taken up unjustly.

I also agree with what was said by my noble friend Lord Smith of Finsbury. He said:

“For all the moderation and the consensual way in which”—

the noble Lord, Lord Waddington,

“quite rightly introduced it, my worry is that it”—

the amendment,

“will drive a coach and horses through the intention of the clause and it will allow those who stand up and incite hatred to take refuge in this clause, if it is amended”.—[Official Report, 21/4/08; col. 1371.]

It was amended. That amendment undermines the very heart of the clause. It provides a safe hiding place for those who want to stoke up hatred. It provides a fig leaf for the bigots and homophobes who would use violence and intimidation as their stock in trade. It is an amendment that uses freedom of expression as a disguise to reopen a debate.

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My Lords, I thank the noble Lord for giving way. He will know a thing or two about the question that I shall pose to him; he will know that I am a Muslim and I know that he is familiar with the faith. From what he just said, does he suggest that a Muslim imam who is being true to his literalist interpretation—we may both disparage a literalist interpretation—and urging people to move away from homosexual behaviour is a bigot? Is that what he would decide?

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No, my Lords. I am arguing that the offence does not capture the theological argument about homosexuality in Islam, nor would it affect the way that it is literally interpreted by the imams. It would prevent an imam using homosexuality and theology to incite and stir up hatred. That is the issue. It is not the theological discussion with which we are engaged. That is not made illegal under this offence.

The noble Lord, Lord Waddington, said in his opening speech at Report that the amendment,

“could not by the greatest stretch of imagination be thought to be aimed at gays”.—[Official Report, 21/4/08; col. 1366.]

Gays are all that it is aimed at. Let us see this amendment for what it really is.

The Government have given us the opportunity to restore this provision to its unamended state so that it may help communities that are vulnerable. In the process, the guidance that they will publish will help to clarify any misunderstandings. I support the Government and reject the noble Lord’s Motion.

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My Lords, I strongly support the Motion of the noble Lord, Lord Waddington. In doing so, perhaps I can be brave enough to remind the House that I have absolutely consistently been a supporter of every piece of legislation in favour of gay rights that has come before the House while I have been here. There is, however, a single legal, but none the less important, point to make. There is serious misapprehension about the Government’s approach to the problem. On Report, the Minister said that although Parliament put into the Racial and Religious Hatred Bill an exemption clause that is very similar to the one that we are considering here,

“the Government did not think that it was necessary and we do not think that it is necessary in relation to this Bill”.—[Official Report, 21/4/08; col. 1375.]

There are two points to make. First, the Government may well have been right at that stage. Secondly, however—the Minister may not like this—we are concerned with what Parliament did in that Bill and not what the Government would have liked it to have done. What is on the record and what is fact is what was enacted. What the Minister said on Report was the point at which I am afraid he strayed into error; it comes from a totally false premise. The very similar race relations Bill has an express exclusion for freedom of speech that is not in precisely the same words as those of the noble Lord’s Motion but is to much the same effect. What the Government’s argument and, with respect the point taken by the other place, fails to take into account is the absolute principle of law that: first, Parliament is deemed to know what it said last time; secondly, it is deemed to have drafted provisions in a subsequent Bill in the light of what was said before; and, thirdly, if it says something different, it means something different.

Lord Maxwell, on statutory construction, says:

“From the general presumption that the same expression is presumed to be used in the same sense throughout an Act or a series of cognate Acts”,

such as these,

“there follows the further presumption that a change of wording denotes a change in meaning”.

He then cites Lord Tenterden:

“Where the Legislature in the same sentence uses different words, we must presume that they were used in order to express different ideas”.

If this Bill is enacted with no exclusion of any kind similar to the one in the Racial and Religious Hatred Bill, the courts will be bound to presume that Parliament intended a different result. Therefore, in this second Bill—

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My Lords, I hope that I did not—I did not mean to—interrupt the noble Viscount in a discourteous way. But, first, is he aware that the Human Rights Act requires all existing and future legislation to be read in accordance with human rights, including free speech. That is now a fundamental principle of interpretation. Secondly, as the architect of the free speech clause, which he now seeks to invoke for homophobic hate speech, is the noble Viscount aware that in the entire range of public order offences, the only one in which the free speech clause is included is for religious hate speech, not for race hate speech and not for any stirring-up use of language? Therefore, when he quotes Maxwell and Lord Tenterden, with respect, it is beside the point. He should be focusing on whether the unique need for a free speech guarantee, which was written into the religious hate speech, really applies to homophobic and, therefore, to race hate speech as well.

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My Lords, I am most grateful to the noble Lord. I was aware of most of his points. However, the last Act dealing with stirring up hatred on the grounds of ideas, expressions and things that have been said is the religious hatred Act. Presumably, one must assume that that was the model on which this Bill was based. The Minister did not suggest anything different. He suggested that because the Government did not think it was necessary to have it in the religious hatred Bill, they therefore did not think it was necessary here.

The trouble is that on the first occasion Parliament was of a different view. It may be that in the House of Lords the noble Lord, Lord Lester, might convince the court of his very subtle distinction and, therefore, get it not to make the presumption. I do not question that. But the fact remains that on the face of these recent Acts on a similar topic one does not want to have this vast distinction. I would say to the noble Lord, Lord Alli, who appears to think that there is real mischief in this that the Government do not say that. All that Parliament says is that it is unnecessary. It does not say that it is undesirable or causes trouble. It says that it is unnecessary because it is clear on the words themselves, which it might be if you did not have the contrasting Act.

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My Lords, it is very important that all of us keep our eye on the main point of this amendment. I feel very strongly that the noble Lords, Lord Alli and Lord Lester, have made far too much play of the undoubted truth that should a case of this kind come before the courts, it would not succeed. The amendment of my noble friend Lord Waddington seeks to address the situation where anyone from anywhere for any reason can make an allegation against someone that they have made a statement. Although that allegation might not stand up in the courts, if the police have an allegation or an accusation of that kind to deal with, they may go for it tooth and nail, as rightly they should. The people would be out of their houses, and they would be interviewed and thoroughly questioned. For the many people whose crime did not exist, but who, as I pointed out the other day, had tried only to get people to go to a church service, it was wrong that they should have been interviewed by the police and made to feel like criminals.

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My Lords, I, like many colleagues, was written to about that incident in Manchester. Through intermediaries, I undertook to find out the truth of that matter. I am given to understand that it was nothing to do with homophobia or any accusation, but that the people who set up the trestle table to give out the information about church services were blocking the way for disabled people to enter a local bank. It was that which was taken up by the police.

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My Lords, the case that I had referred to me was an allegation of having made a homophobic remark. It sounds to me as if it was not the same case as that referred to by the noble Lord. My simple point is that we truly must understand in this House that we have to be very careful if we lay a duty on the police to harry, question and keep on at someone who has done no wrong. That is the point we should be addressing today.

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My Lords, when I came into the House today, I did not originally intend to speak, but I have been listening very carefully to the discussion and I want to make two brief points. First, I can absolutely understand the wish on the part of the noble Lord, Lord Waddington, and his supporters to prevent a situation where people are unnecessarily interrogated, arrested, or questioned by the police or other authorities. I can absolutely understand the wish to ensure that that does not happen. My very strong belief is that the Government’s legislation does not lead to that mischief. However, I would simply ask the House to understand that for many people who happen to be gay or lesbian in this country, it is not just a case of being interrogated, questioned or harassed; it is a question of being kicked, bruised, injured and, in some cases, killed because of their sexual orientation. I simply ask the House: which is the greater evil?

Secondly, the House really should be careful about being seen by the world outside as if it were speaking in code. There is a danger that if we pass this amendment, it will be taken as a signal by those who wish for their own purposes—something that I know the noble Lord would not wish to endorse—to stir up hatred against people because of their sexual orientation. It will be taken as a signal that it is all right to do so, which, in my book, is something this House should be very careful about doing.

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My Lords, I have spoken a number of times on the terms of this amendment. I shall make one comment on the Minister’s reference to the “alleged” evidence of heavy-handed police. There is no allegation about the couple in Fleetwood. It was a fact that these two lovely old people, who described themselves as Christian pensioners, suffered 80 minutes of interrogation by two six-foot policemen. That was not an allegation, it is a fact, because within 12 months—only 12 months—they got the apology that they deserved. They had committed no crime. There was no reason for what went on. But someone did not understand.

That is my worry about guidelines. If we mean that we are to maintain the principle of free speech, we should make sure that it is in this Bill and not leave it to the interpretation of guidelines, which would become another lawyers’ paradise. I say that with great respect to the noble and learned Lords in this House. I cannot speak as a lawyer, but I get very concerned when I hear all these angels on top of a pin being counted. The right of free speech is at stake here.

My mind goes back to the years I have spent in my party. I have sat here thinking about what we would be doing in the Hampstead Labour Party if a Conservative Government were publicly denying a clause allowing free speech. Every constituency in the country that I have had any experience with would come to the same conclusion. If we believe in free speech, we do not need guidelines, we need to write it in—as has been said about other Acts of Parliament.

I said that I would be brief. I have said that this is not necessary and that it is over-provided for. I support the noble Lord, Lord Waddington, in his desire to pass a necessary amendment and I shall follow him and others through the Lobbies to support this amendment, even if we are here until tomorrow morning.

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My Lords, unlike those who were in the other place yesterday, and who were pretty few in number as I understand it, I have sat through most of our deliberations on this criminal justice legislation. We have heard today some extremely forceful and deeply felt arguments on both sides, and the one thing that unites us all is that none of us is in favour of homophobia. When I listened to the previous debates, I have to say that I was impressed by the comments of the right reverend Prelate the Bishop of Newcastle. He spelt out a number of the issues that we have already gone through in some detail today, and his conclusion, with which at the time I was in agreement, was that what the amendment proposes is a useful addition but would be better in guidance rather than in the Bill.

Today I have had the advantage of listening to another of those whom I would call my gurus, the noble Lord, Lord Lester. On many occasions on equal rights issues we have had the benefit of his hugely valuable advice. The history that he has given us of the background to this Bill and what is being proposed, as well as to the Racial and Religious Hatred Bill, is also extremely useful. For me, as it is spelt out, the behaviour has got to be threatening in nature and intended to stir up hatred.

Clearly, the two sides of this matter are going to bounce between the Houses, but as of this moment I wish to support the Government’s side of the argument. Equally, I do not believe that any of the speeches, and particularly the amendment being proposed, are in any way meant to be anti-gay. I should make that perfectly clear because one or two comments have perhaps implied the contrary.

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My Lords, I should like briefly to say why I support the Motion proposed by the noble Lord, Lord Waddington. It was argued at an earlier stage that the amendment is unnecessary because the Bill defines the offence with sufficient clarity and there is therefore no doubt to be avoided. That is the reason given for the disagreement in another place. Looking at it from a purely legal point of view, I understand the argument. The definitions of the offence of incitement to hatred and of “threatening” are clear enough.

Some have argued that this amendment would water down the offence. It would do nothing of the kind. The definition of the offence is unchanged and unimpaired. But that does not mean that the amendment is unnecessary. We should be looking at this matter not just from a legal point of view, but from a human point of view as well. That there is need for the avoidance of doubt is evident from the letters that I, like many other noble Lords, I am sure, have received. There are many people who have no intention or desire to threaten or to incite to hatred, but who think that they should be able to feel free to enter into discussion of and express views about these matters without rancour or incitement to hatred and without fear of over-zealous pursuit by the police. This is a freedom which in our society they should be able to enjoy without doubt or fear. The amendment would reassure such people and would discourage over-zealous pursuit by the police without in any sense diminishing, affecting or watering down the offence as defined in the Bill.

In fact, a number of people who are strong supporters of the main proposal have expressed concerns about the “free speech” aspects of the provision in the Bill, and have even said that they would like to see the protection of free speech go further than this amendment. At this stage, I am not looking to propose an amendment in different terms which would go further than the amendment before us, though I stand almost aghast at my own moderation in failing to do so. But I would argue that this amendment is not unnecessary. There is a need for it, and for the assurance that it provides of the preservation of the right of people to enjoy freedom of speech when it can be enjoyed without rancour and without incitement to hatred.

So, if the noble Lord, Lord Waddington, decides to seek the opinion of the House, I urge your Lordships to support his Motion, and if the Motion is passed, I urge the Government to accept it and not seek to overturn it again in another place. There can be no loss of face in that course and no damage to the purpose or effectiveness of the Bill; indeed, it would be recognised as a counsel of moderation and good sense.

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My Lords, I would not normally have spoken to this particular part of the criminal justice Bill, having spoken to just about every other part, but there are several points to be made. My noble friend Lord Lester has drawn, I believe, too clear a distinction between race and religion on the one hand and sexuality on the other. The problem with the area of sexual orientation is that it enters into faith and belief. Many noble Lords, including the noble Lord, Lord Alli, have spoken eloquently about the very high threshold. I probably accept that point, and that the threshold here is significantly higher than that being used by the police under public order legislation. But we know that religious beliefs are deeply held and that ultimately they are predicated on faith. We know also that faith is just that: it is faith. My concern has to do with the chilling effect of leaving the clause as it stands.

I absolutely support this clause but I subscribe to the view just outlined by the noble Lord, Lord Armstrong, that no one is talking about touching the clause itself, but about building in an additional protection. In the other place yesterday the Minister repeated over and over again that the additional protection was unnecessary and that it was otiose. It may well be unnecessary in terms of the threshold needed to bring a prosecution. That is accepted, but the point is that in terms of freedom of expression, the lack of this additional protection may well have a chilling effect.

Those noble Lords who know me know also that I am not religious. I am a Muslim, but on the whole I describe myself as a secular Muslim. My Muslim co-religionists often tell me that that is a contradiction in terms, and it may well be, but I think that what I am trying to say is that it must be accepted by those of us who do not have deeply held religious convictions that other people perhaps do have them. It may be that other people, following their religious convictions, may speak of things that we may not share but which are deeply held by them. However, they have the right to hold those religious convictions, and it is that right which I seek to uphold.

I do not say that I support absolutely the amendment proposed by the noble Lord, Lord Waddington. In fact I do not think I could ever support some of the policy directions emanating from where the noble Lord comes, but at this stage I am minded to abstain rather than vote for either case.

We have to be very mindful of this chilling effect.

The noble Lord, Lord Smith of Finsbury, again mentioned the violence used against gay people. We all understand where he is coming from; he is absolutely right to draw our attention to those concerns. But we cannot make good law on the basis of individual cases. We on these Benches have argued that point in relation to extreme pornography. We know that our clauses, which would have provided a defence in freedom of expression cases, were lost because of individual cases. That is the wrong way to make law. I hear the concerns of the noble Lord, Lord Smith, but I think that all sides would concede that the clause as it stands will provide protection in those regards. If the clause is not amended, those with concerns about it as it stands would say that there will be a loss of free expression.

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My Lords, it is important to have in mind that the noble Lord, Lord Waddington, and I have no intention whatever of altering the clause that the Government have provided in the Bill. That should answer the difficulties raised by the noble Lord, Lord Smith, because the matters to which he referred—and we all deplore such things—are dealt with adequately in the clause proposed by the Government, to which no one has objected.

The amendment seeks to clarify the position with regard to discussion or criticism of sexual conduct or practices. The noble Lord, Lord Lester of Herne Hill, gave his account of the history of the Bill, but he also told us at an earlier sitting in connection with the Northern Irish provisions that sexual orientation could well require action to be taken to deal with conduct. The amendment deals only with discussion or criticism of sexual conduct or practices. The Government and the House of Commons have said so far that the amendment is unnecessary. Does that mean that there is no doubt that the discussion or criticism of sexual conduct or practices, or the urging of persons to refrain from or modify such conduct or practices, is not of itself to be taken as threatening or intended to stir up hatred?

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My Lords, it is a terrifying thing to interrupt a former Lord Chancellor and a noble and learned Lord, but surely the answer to the question he has just posed is obvious. Provided that there is no deliberate intention to stir up hatred on grounds of sexuality, no crime can possibly be committed. I cannot imagine that there is any ambiguity. I am sure that if the noble and learned Lord was sitting as a judge or I as an advocate, neither of us would have the slightest difficulty.

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My Lords, if the noble Lord, Lord Lester, was sitting as a judge, he might not have difficulty, but this law is administered at a stage where the people involved do not have the benefit of his long experience of this kind of discussion. I have a little experience of it. Even though I am older than the noble Lord, Lord Lester, I have nothing like his experience of it, but I have dealt with other things as well. This is an area where the relationship between sexual orientation and conduct involves a difficult distinction for many people to take. It is easy for a lawyer of long experience in this area to make the distinction, but many people, including well-intentioned people in the police force and elsewhere, would find it difficult. The amendment is necessary. The government position, apparently, is that it does no harm. I hope that your Lordships will adhere to it.

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My Lords, it is with some trepidation that a simple old village schoolmaster rises in the midst of such noble and learned Lords as we have heard today. I have one point that I want to put directly to the Secretary of State. As I support the amendment of the noble Lord, Lord Waddington, I wonder how the Government can put the argument that guidance by the Secretary of State will be more learned, more perceptive and more reflective of what the public require than decisions made in this House. To substitute guidance for firm law strikes me as peculiar.

I hope the Secretary of State will see fit to tell us the extent to which his department will be able to interfere daily with the interpretation that the police put on the law as he would wish to see it. In pursuance of his guidance, will his department be able to interfere with police operations? If we know the safeguards for free speech that we want to achieve, as the noble Lord, Lord Waddington, has illustrated in his amendment, then there should be no requirement to leave the matter in limbo at the discretion of this Secretary of State or succeeding Secretaries of State.

The amendment has clarity and contains nothing that in any way supports those who are homophobic. I would not add my vote to that of the noble Lord, Lord Waddington, and others if I thought it would. However, there is a need to protect those who have principles that they want to express, regardless of whether those principles concern capitalism, homosexual activity or whatever. We have the right of freedom of speech and it should not be left to the will and pleasure of this Secretary of State, his department or any succeeding Secretaries of State.

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My Lords, I think there is a sense that I should respond at this stage. There has been general agreement with the principle behind the Bill and that is to be welcomed. I believe in free speech. If I thought that the clauses which the Government are presenting today would in any way undermine free speech, I would not be standing at the Dispatch Box now. I say that in particular to my noble friend Lord Clarke. Nor do I think they will have a chilling effect on debate.

The answer to the question on the necessity of the amendment of the noble Lord, Lord Waddington, is that the Government believe it is unnecessary. One of the themes throughout the debate on the Bill has been the need to avoid unnecessary legislation. On a literal reading, it is true that the amendment is otiose; it has effect only for the avoidance of doubt and because it says only that discussion is not of itself enough to constitute an offence. That is right. I say to the noble and learned Lord that it is not the opinion that counts. The parameters of the offence remain: it is the use of threatening words or behaviour with the intention of stirring up homophobic hatred that is the test.

Some noble Lords have expressed reservations about the use of guidance, but I would argue that where the law is clear—and the way it is drafted makes it absolutely clear—guidance has its appropriate place. I know that noble Lords have expressed concerns about the existing guidance, and guidance is always there to be improved and reviewed in the light of experience. I am not going to comment on the individual cases that noble Lords have raised. The fact is that it is difficult to make hard judgments, and I agree with the noble Baroness that it is hard to legislate on the basis of individual cases as recounted to your Lordships.

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My Lords, does the Minister not accept that the number of individual cases quoted shows that the law is extremely difficult for the police to understand? Does he recognise that since 1984, when I took the PACE Act through this House, at least 50 and probably 54 criminal justice Bills have come through, almost every one of which has implications for police training and many of which are legislation by reference? Is it not time that we took the opportunity to clarify this small point? Will the Government take away an urgent message to stop new legislation on criminal justice and consolidate what they have?

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My Lords, I wish the noble Lord had taken part in our earlier debate. We have discussed the number of criminal justice Bills taken through by my Government and his. My reckoning is that his Government took more through than we have, but I accept the substantive point that we need to be sparing with legislation in the future. I accept that one of our considerations must be that people in the field, whether in the courts, in the Probation Service or among the police, are able to understand as clearly as possible what is meant by new legal provisions.

Where I would disagree with the noble Lord is that I believe the provisions we have put forward are absolutely clear—but that must be followed up with guidance, hence my amendment which instructs the Secretary of State to produce appropriate guidance, and which I have already said will take account of a number of the matters that noble Lords have raised in our debate.

While I am not going to comment on the specific cases that noble Lords have raised, I reiterate what my noble friends Lord Alli and Lord Smith said: the CPS policy of prosecuting cases of homophobic and transphobic hate crime was revised in November last year. I believe that the cases which noble Lords have raised all predate that guidance. Guidance has much to offer.

The noble Lord, Lord Maginnis, made a fair point about the nature of guidance. Neither the Government nor the Attorney-General would give operational guidance to the police. That would be quite inappropriate for us to do. He took me to task for not producing the draft guidance. Although the proceedings on the Bill seem to have taken a long time, they have moved very swiftly, and any such guidance would need to reflect the debates that have taken place in both Houses. It will need to be carefully considered, but it will cover the purpose and the need for the offence.

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My Lords, the amendment that the Minister is backing and asking this House to adopt says that the Secretary of State must issue guidance explaining the operation of the offences. That immediately tells us that there is something defective or inadequate about the section as it now stands. How can he simultaneously say that it is unnecessary to have what the noble Lord, Lord Waddington, has drafted in his amendment?

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My Lords, if I had produced an amendment that said the Secretary of State “may” produce guidance, noble Lords would have taken me to task. The fact that it is drafted as “must” reflects the fact that the Government have listened carefully to the debates in both Houses and are happy for Parliament to give a clear instruction to my right honourable friend the Lord Chancellor. It is not at all an admission that we think the legislation in itself is defective. I reiterate: the guidance that we will produce will cover the need to ensure the balance between the convention rights on free speech and protecting groups from hatred, and we expect such guidance to coincide with the coming into force of the new offence.

I say again, particularly to the noble Lord, Lord Waddington, that the offence is not about making the holding of certain views or opinions illegal. It concentrates on behaviour. Threatening behaviour that is intended to stir up hatred is a real risk to public order and should be challenged. I do not believe that that offence is in any way a fundamental attack on free speech or undermines it in the way that has been suggested.

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My Lords, at the beginning of his remarks when we commenced our debate, the Minister posed this question: is the balance right? It is clearly not right; how can it be, when there is a free speech clause in the religious hatred offence but no such clause here? Many spokesmen have mentioned that that is just asking for trouble. We talk about guidance for the police and prosecuting authorities, but what sort of guidance is it when they are encouraged to pay great regard to free speech in the case of religious hatred but to ignore the right to free speech when examining this offence? It is complete and utter nonsense to say that the balance is right.

The noble Lord, Lord Lester of Herne Hill, reminded us that he moved the amendment to the Racial and Religious Hatred Bill. It might be worth reminding ourselves of what that amendment said, because it is of a completely different quality and nature from the amendment that I have moved. His amendment said:

“Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system”.

That is a blockbuster for you, isn’t it? By Jove, that is a measure to try to safeguard free speech. How dare he say that there is no need for a free speech clause in this amendment when ours is so moderate in terms?

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My Lords—

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No, my Lords, I will not give way, not at this late stage. Let’s get on with the Division. How dare he say that there is no need for a free speech clause when he was responsible for putting on the statute book a blockbuster of a free speech clause like that?

The noble Lord, Lord Alli, mentioned that I had said that my proposed new clause could not by the greatest stretch of imagination be read as aimed at gays—and, by Jove, I am right. My carefully worded amendment states merely that,

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

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My Lords—

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I am not going to give way at this stage of the debate, my Lords; the noble Lord, Lord Alli, has had his say. If we are to give way at this stage, the debate will never end. I am answering the noble Lord’s point.

My amendment could not be more moderate in words, because it is different from that which was moved initially. It was deliberately changed to meet every objection made in Committee. Now it contains no reference whatever to homophobia; it contains no reference at all which anybody could say is aimed at gays. It states that for discussion of sexual practices, whether homosexual or heterosexual, there should be the same protection. The noble Lord, Lord Alli, asked what mischief the amendment would avoid. There is a very simple answer to that: it would avoid the inferring of intent from mere words, in the way that the police inferred that the right reverend Prelate’s words were threatening, abusive and insulting. That was something to infer, was it not? We must make absolutely sure that the police and prosecution authorities do not in future infer intent, threats, abuse and insults from mere words, but have to look at the context and the way in which they are spoken. That is plain common sense.

And then there was all the business referred to, quite inaccurately, by the Minister in his closing words. The CPS did not change its advice in any meaningful fashion. I have read its new advice, which contains the same glaring error as was contained in the original advice; namely, a completely false definition of homophobia which cannot be found in a single dictionary that I have consulted. It is not true that no cases have occurred since the new advice was issued. One of the worst occurred after the new advice was issued and concerned the questioning for more than an hour of a street preacher. He was taken into a police van and was apparently questioned for more than an hour for preaching religion before being eventually released. As my noble friend Lady Knight said, it is no consolation to tell people after the event, “Of course the police behaved really rather stupidly and reacted too quickly to a complaint, and of course you’d never have been convicted if you’d eventually been put before a jury”. That is really not the point.

I do not want to go on any longer, save to pay tribute to all those who have taken part in this debate and raised some interesting points. The noble Lord, Lord Smith of Finsbury, referred quite rightly to the appalling crimes which from time to time have been committed against gays. I repeat what I said at Second Reading and in Committee: a specific offence of inciting the commission of an offence, particularly violence, is on the statute book. To talk about the violence done to gays in the context of this amendment is to diminish the importance of that violence, because it can be dealt with by a very much more serious offence; namely, incitement to the commission of an offence of violence under the 2006 Act.

I thank all who have taken part in this debate. We really must press this amendment and see that free speech in this country is safeguarded.

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