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Coroners and Justice Bill

Volume 713: debated on Thursday 29 October 2009

Report (4th Day)

Amendment 96

Moved by

96: After Clause 143, insert the following new Clause—

“Damages-based agreements

(1) The Courts and Legal Services Act 1990 (c. 41) is amended as follows.

(2) After section 58A insert—

“58AA Damages-based agreements

(1) A damages-based agreement which satisfies the conditions in subsection (3) is not unenforceable by reason only of its being a damages-based agreement; but any other damages-based agreement is unenforceable.

(2) For the purposes of this section, a “damages-based agreement” is an agreement between a person providing advocacy services, litigation services or claims management services and the recipient of those services which provides that—

(a) the recipient is to make a payment to the person providing the services if the recipient obtains a specified financial benefit in connection with the matter in relation to which the services are provided, and(b) the amount of that payment is to be determined by reference to the amount of the financial benefit obtained.(3) The agreement—

(a) must relate to proceedings or a claim of a prescribed description;(b) must not relate to proceedings in a relevant court;(c) must not provide for a payment above a prescribed amount or for a payment above an amount calculated in a prescribed manner;(d) must comply with such other requirements as to its terms and conditions as are prescribed;(e) must be made only after the person providing services under the agreement has provided prescribed information; and(f) must be in writing.(4) A description of proceedings prescribed under subsection (3)(a) must not include proceedings that are—

(a) criminal proceedings; or(b) family proceedings (within the meaning given by section 58A(2)).(5) For the purposes of subsection (3)(b) an agreement is not to be treated as relating to proceedings in a relevant court if the services to be provided under the agreement are services that are to be provided only in contemplation of such proceedings before they are commenced.

(6) Regulations under subsection (3) are to be made by the Lord Chancellor and may make different provision in relation to different descriptions of damages-based agreements.

(7) Before making regulations under subsection (3) the Lord Chancellor must consult—

(a) the designated judges,(b) the General Council of the Bar,(c) the Law Society, and(d) such other bodies as the Lord Chancellor considers appropriate.(8) In this section—

“claim” and “claims management services” have the same meaning as in Part 2 of the Compensation Act 2006 (see section 4(2) of that Act);

“payment” includes a transfer of assets and any other transfer of money’s worth (and the reference in subsection (3)(d) to a payment above a prescribed amount, or above an amount calculated in a prescribed manner, is to be construed accordingly);

“proceedings” includes any sort of proceedings for resolving disputes (and not just proceedings in a court), whether commenced or contemplated;

“relevant court” means—

(a) a magistrates’ court;(b) a county court;(c) the High Court;(d) the Court of Appeal;(e) the Supreme Court.(9) In this section references to “advocacy services” or “litigation services” include a reference to services that it would be reasonable to expect a person who is acting (or contemplating acting) for another in relation to proceedings that do not take place in a court, to provide.

(10) Nothing in this section applies to an agreement entered into before the coming into force of the first regulations made under subsection (3).”

(3) In section 120(4) (regulations and orders) after “58(4),” insert “58AA”.”

My Lords, with the leave of the House, I have every intention of withdrawing the amendment at the end of the debate, which I hope may be short or even non-existent. I shall try to explain in a few words why I intend to take this course.

These amendments would establish a statutory framework for regulating damages-based agreements. They are not currently permitted in court proceedings and these amendments do not seek to change this. These agreements are, however, commonly used by solicitors and claims managers in some tribunal proceedings, primarily proceedings before the employment tribunal.

I am particularly grateful to the noble and learned Lord, Lord Woolf, for taking the time yesterday to discuss with my officials his and other noble Lords’ concerns. As a consequence, I shall seek the leave of the House to withdraw the amendment in due course.

The primary intention of the amendments is to ensure consumer protection of claimants. We know from recent research that a significant number of claimants in employment cases who sign up to a damages-based agreement are not given proper information by their representatives. This lack of information covers alternative funding which may be available, such as through a trade union or a legal expenses insurance policy. Claimants are also not fully informed about the costs, such as experts’ and counsels’ fees, which they may nevertheless have to pay—notwithstanding that they have signed a no-win no-fee agreement. It is right to legislate to introduce regulation to protect consumers.

I understand that some noble Lords were concerned at the extent of the amendments as drafted. We are listening to those concerns, and propose to withdraw or not move these amendments at this stage, with a view to bringing back at Third Reading redrafted amendments, which will be narrower in scope and limited to the regulation of damages-based agreements in respect of employment claims which may go to the employment tribunal. I hope in this way that we can meet the concerns that have been raised by noble Lords, while ensuring from the outset the consumer protection of vulnerable claimants in employment cases. I beg to move.

My Lords, I am most grateful to the Minister for the course that he has taken. We have shared the concerns to which he referred and consider that the proposals as currently drafted are wide and could capture areas which the Government would not wish to. The noble and learned Lord, Lord Woolf, has taken a leading part in dealing with this matter and I hope that when we see the redrawn clauses our concerns will be met. I am pleased to note, for example, that the Minister says that damages-based agreements will be restricted to the proceedings in employment tribunals. That is important. I shall also look for whether the concerns have been met of bodies that are not subject to any form of statutory regulation and which deal with third-party claims.

My Lords, I welcome the comments of the Minister. I, too, was concerned and had discussions with the noble and learned Lord, Lord Woolf. I agreed with the points that he made that the amendment would have an effect much wider than the one that the Minister outlined.

We are all aware of a timely review of costs conducted by Lord Justice Jackson, which has been welcomed on all sides of the House. Will the Minister consider not taking this matter further until the report has been received and carefully considered—as his ministerial colleagues have indicated that it will be? In the light of the concerns, and as the review is still under way—I understand that it will be completed shortly—we urge the Government to hold on until the report is published; and, if they are minded to bring the matter back, we will consider it in the light of the review and following wider consultation. These are important areas where we must proceed step by step to ensure the maximum level of consumer protection.

My Lords, I thank both noble Lords who have spoken. I say straight away to the noble Lord, Lord Hunt, that we need to legislate urgently on this and will bring back amendments at Third Reading, which I hope to share with noble Lords in good time. We will see where we go from there. The suitable course now is for me to beg leave to withdraw the amendment.

Amendment 96 withdrawn.

Clause 144 : Exploitation proceeds orders

Amendment 97

Moved by

97: Clause 144, leave out Clause 144

My Lords, together with other noble Lords whose names are appended to several amendments of the same kind, I tabled these amendments to remove Part 7 altogether from the Bill. We were not satisfied with the Government’s response to similar amendments that were tabled in Committee. We continued to be concerned that the Government’s proposals to enable court proceedings to be brought to recover royalties and fees earned by criminals from books, articles, films et cetera were not a proportionate response to a pressing social need.

Soon after we tabled the amendments on Report, the Government tabled amendments to modify their proposals in Part 7. First, they seek to reduce the scope of their proposals by confining them to indictable offences. Secondly, they seek to remove the test of offensiveness to the general public from considerations to be taken into account by the court when an exploitation proceeds order is sought. What remains for consideration by the court, if the Government’s amendments are accepted, is any offensiveness to the victim or the victim’s family from the offender receiving payments from a book, article et cetera.

The amendments proposed by the Government are welcome, particularly because proceedings could not now be based on a media-led populist appeal to public outrage. All along, the Government have said that the new provisions would be exercised only sparingly. In the light of that assertion, and the amendments now proposed by the Government, noble Lords are entitled to ask: why seek the new powers at all? They ignore existing powers to deal with criminal memoirs and necessarily involve limitations on freedom of expression. Therefore, they are doubtfully compliant with the European Convention on Human Rights—a matter on which my colleague, the noble Lord, Lord Lester of Herne Hill, will speak. These proposals introduce a large discretionary power for the Attorney-General and, if a court action is brought, discretion for the judge. This must leave anyone acting as an adviser to a potential author, and indeed the author himself or herself, in a state of considerable uncertainty as to whether the law would apply.

The Government’s answer is that sometimes real pain is caused to the victim or the victim’s family from the offender being able to profit by exploiting his offence for personal gain. But these proposals are bound to have what I call a chilling effect on any attempt by an offender to express himself, including publications or artistic work that may of course be very helpful in assisting his rehabilitation. It is not as though our present law on criminal memoirs is non-existent. There is the Proceeds of Crime Act 2002, the full implications of which have not yet been pursued sufficiently to see its advantage in extreme cases. The prison rules, enabling confiscation of memoirs by anyone serving a prison sentence, were upheld by the Court of Appeal in the case of Dennis Nilsen as being in conformity with the European Convention on Human Rights. Because Dennis Nilsen is serving a life tariff—he has already served 26 years in prison—there will never be a time when the Government’s proposals could apply in his case. He will never be a free man able freely to engage in publishing memoirs. The same point could be made about Ian Brady, the Moors murderer, who is also serving a full life tariff.

Then there are cases at the other end of the spectrum where there are no obvious victims whose outrage could form the basis for an exploitation proceeds order. In the recent case, which your Lordships may have read about during the Summer Recess, John Darwin the canoeist faked his own death so that he and his wife could live in Panama on insurance payouts. He profited from newspaper articles and was given a jail sentence of eight years for fraud. It seems that the proposed legislation can hardly apply to what is sometimes called a victimless crime. When you take all these things into account, surely the Government have a real question to answer. What is the value, use and worth of Part 7 of the Bill, with its 15 pages of proposed legislation? Part 7 can achieve very little for the victims of crime in whose name it is promoted, but it could have a number of damaging consequences, and it is doubtfully compliant with the European Convention on Human Rights. I beg to move.

My Lords, I understand fully where the Government are coming from on this, and I am sympathetic to anything that tries to stop the distress caused by some of these publications to victims of crime and their close friends and families. As the Minister has already discovered, the problem is in the detail of how to do it without slipping into undesirable censorship. I make the point in passing that if we had a similar rule for newspapers publicising these sorts of crimes, most of the articles would not be published. After looking at yesterday’s reporting of the poor 17 year-old girl who was killed as a result of an internet connection, one could well argue, as I suspect some of her friends and family may, that the detail and description given in the articles was undesirable and unacceptable. Of course, newspapers profit from that, so there is a delicate line here.

I leave that to one side because the important question relates to how we draft legislation in such a way that does not stop the release of good books and films. The Minister will know that this goes back to the publication of a book by Gitta Sereny about the Mary Bell case. I think that it was a good and important book because it explained a lot about why children kill. However, the media storm around it developed into a suggestion for legislation of this type. There is a case for it because there are examples of acute distress being caused to victims by people exploiting the horror of what they have done.

At this stage, I would ask the Minister to look at the degree of flexibility available. I know why he moved to the indictable offence factor as a way of trying to judge the seriousness of the issue, but I am troubled by the fact that that also catches other people. In other circumstances, I mentioned to him the book by John Healey, a recovered alcoholic. It is the only book I know that was written by someone who was a vagrant alcoholic for some 15 years, who came off the drink and published a book that won an autobiographical prize and became a Channel 4 film that also won awards. Like most vagrant alcoholics, he has many convictions, most of which were petty—being drunk and disorderly and so on—but among them were several indictable offences.

That book would not have been written if ultimately some payment had not been involved because it helped his development and it helped the development of the film that won the award. As I have indicated, it was also an important book in describing the process by which a person becomes a vagrant alcoholic and the processes by which they can abandon that position. It therefore has an important element. We have talked about the well known cases of Mary Bell, Dennis Nilsen and so on. But, thinking about it, the book by Jean Genet, the French author, would probably never have been published.

We therefore have to think carefully about this aspect, and I have a solution for the Minister. I understand the dilemma of getting this right. I wonder whether we could do more on the rights of the victim. The Government have introduced legislation in other areas where the victim has a greater say in what happens in sentencing. Without overriding the court, their views can be heard and considered. I am not sure whether in this case there is not an area where we can say that there must be some identifiable person with a genuine interest—a friend, relative or whoever—who needs to express concern before the process can be triggered. In other words, the process would start only if you had a person saying, “I find this just too painful”.

I repeat for the benefit of the media that they need to think very hard about how they approach these things. If we introduce such a law for the media, most of the stories about violent crimes will not be reported. Although I do not like the way that they report crime, I have to say that that would be a serious mistake. The same applies to books and films. I ask the Minister to look again at the way in which we trigger this process. That is important. If we have a blanket provision of indictable offences, for example, I am almost sure that John Healey’s book, The Grass Arena, and the Channel 4 film based on it, as well as books by people such as Jean Genet would not be published.

My Lords, my name is attached to the amendments, and I have tabled a couple of my own, Amendments 106A and 107A. I shall concentrate on why I consider that the Bill is not fit for purpose because Part 7 does not comply with the European Convention on Human Rights. Before I do that, perhaps I may say how much I agree with what the noble Lord, Lord Soley, has just said. The concerns that he expressed are very important and place this House in something of a dilemma, because we are faced today with the problem that Part 7 was not properly debated in the other place—which is a matter of great regret. We are the scrutineers and the revising Chamber, and that, plainly, Part 7 as it stands is not satisfactory. Somehow we need to try to stimulate the Government to reflect on what the noble Lord, Lord Soley, and others have said.

First, I thank the Minister and his advisers for having met the noble Lord, Lord Borrie, and me to discuss the possibilities of Amendments 106A and 107A, which I tabled in the hope—foolish optimist that I am—that there might be some way of making Part 7 convention-compliant. I am grateful for that.

One of the points that Her Majesty's Official Opposition make in their scepticism about aspects of the Human Rights Act is that it does not allow Parliament to do its job sufficiently and leaves too much to the courts to repair legislation enacted by us. I have some sympathy with that, even though I think that I am one of the architects of the Human Rights Act. It has come to be seen as an easy get-out for Governments, who can simply say, “The courts have an obligation to read and give effect to legislation if they possibly can to make it convention-compliant, so it does not really matter if the legislation enacted does not really get it right on its face”. One of the attractive points made by the Opposition is that it is really important for Parliament to do the best it can to pass legislation that is fit for purpose in being convention-compliant.

Yesterday evening, in a short debate on Section 5 of the Public Order Act, the noble Lord, Lord Bach, perfectly correctly referred to the fact that the European Court of Human Rights has held that Article 10(1) of the convention, the free speech guarantee, applies,

“not only to ideas that are favourably received, or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb”.—[Official Report, 28/10/09; col. 1190.]

That is the starting point for Article 10. There is a right to freedom of expression which can be interfered with only where there is legal certainty and necessity—proportionality. I am sure that that is common ground and that Ministers would not dissent from that basic position. There is also the right to property, the right to the peaceful enjoyment of one’s possessions in Article 1 of protocol 1.

The Explanatory Notes to the Bill, although they do not explain why the Government think that the provisions are convention-compliant, repeat the fact that they think that they are convention-compliant. I do not understand how a Minister could have been advised to come to that view. In the first place, the criteria in the Bill, which the court will be expected to exercise, are not only incommensurable—you cannot weigh one properly against the other for the reasons explained in our previous debate—but they are so vague, even without the “offence to the public” provision, which will now happily be removed if Part 7 stands, as to have the chilling effect to which the noble Lords, Lord Soley and Lord Borrie, have referred. Therefore, the first vice in these provisions is that they are vague and lack legal certainty. That would be quite enough to cause the European Court of Human Rights to say that they are in breach of Article 10.

Secondly, they also sweep too broadly; they are disproportionate. The Minister will no doubt say in his reply that all that may be, but it is for the judge to make sure under the Human Rights Act that the provisions of Part 7 can be read and given effect in a way that cures the vices of legal uncertainty and overbreadth. The courts cannot cure the vice of lack of legal certainty. That vice can be corrected only by Parliament. As the Joint Committee on Human Rights, on which I serve, has repeatedly pointed out, it is quite wrong to use the Human Rights Act, which I strongly favour, as a substitute for proper legislation. The safeguards have to be in the Bill.

In Amendment 106, especially, and Amendment 107A, I have endeavoured, in a rather pathetic way, to find some way of writing something into the Bill, not very satisfactorily, that might deal with this. Obviously, the Minister will wish to explain whether he is willing to accept that or something very similar to it. It is important that we know that. It is also important to know whether there is any Strasbourg case that Ministers can point to in this debate that supports their belief that this satisfies either legal certainty or proportionality in the context we are talking about. I know of no basis in Strasbourg case law that could possibly support a view that these provisions as they stand are convention- compliant. I very much hope that the Minister will be able to enlighten us because the legal advice he will have received about why it is compatible will surely have pointed to whether there are any Strasbourg cases—I bet there are not—and I reserve the right, if I may, having heard that, to reply to him later in the debate. I hope that when the Official Opposition come to decide what to do they will join those of us who want to get legislation passed that is fit for purpose and not leave it to the courts to give a declaration of incompatibility in future or to try to rewrite the statute instead of us having done so.

My Lords, I rise to support these amendments. I believe I am the only professional writer—that is, one who lives solely by her writing—to have spoken during the course of the Bill, and therefore what I have to say may be of some help.

At Second Reading, my noble friend Lord Borrie cited memoirs by Ian Brady, Mary Bell and Dennis Nilsen—he mentioned him again this morning—and went on to speak of the prison diaries of a former Member of Parliament and of a fellow Member of your Lordships' House. The noble Baroness, Lady Stern, spoke of Silver Threads by John Williams and John Hoskison's Inside: One Man's Experience of Prison. Perhaps, though, the most famous and distinguished example of a criminal whose memoirs, novels and plays can be said to stem entirely from his experience of crime and imprisonment is the French author Jean Genet, who has already been mentioned by my noble friend Lord Soley.

Genet, who was born in 1910, was a social outcast who, as a novelist, transformed erotic and even obscene subjects into what has been called a poetic vision of the world. He began his life of crime as a child. His mother abandoned him to the care of the assistance publique. He lived in state institutions and spent five years in the notorious reform school at Mettray. There he lived through the degrading experiences that were later described in his novel, Miracle of the Rose, in which he pondered the meaning of imprisonment.

After deserting from the Foreign Legion, he wandered around Europe, to be charged in various countries with vagrancy, theft, and homosexuality, which was then a crime. Here it may be apposite to say that Genet’s obscene or pornographic work is never gratuitous or designed to excite or titillate. Much of it explores man’s solitude and the meaning of shame and abjection.

More time was spent in prison, but in 1939 he began to write, and the outstanding nature of his work attracted the attention of Sartre, de Beauvoir and Gide. Under French law, automatic life imprisonment ensued after 10 convictions and, when Genet was convicted of burglary for the 10th time, Gide, Sartre and Cocteau, among others, successfully petitioned the President of the Republic for his reprieve and release.

Genet subsequently wrote a poem that praised criminals’ values and in which a prison cell becomes a centre for dreams and meditations. His autobiography, The Thief’s Journal, followed. This, about his youth and what he called a forbidden universe, is a prime example of the kind of memoirs that we are talking about here—a convicted criminal profiting from the publication of a record of his experiences.

My noble friend Lord Borrie pointed out at Second Reading that the publication of a criminal’s memoirs may in some cases have beneficial outcomes in the rehabilitation of the offender. He cites the learning of new technical or language skills or the discovery by an ex-prisoner of artistic talent. This absolutely applied to Genet, who is a fine example of what redemption can achieve if not by imprisonment then by writing about the prison experience.

In 1966, Genet largely gave up writing and spent his time giving lectures and supporting various radical causes. Concern for the victims of criminals is a theme that runs through this Bill, although the victims are not to recover compensation. To return to my own theme, those who suffered from Genet’s crimes were mostly the people from whom he stole. I do not know whether any of them believed that his large output of distinguished literary work compensated them, but I do not see how anyone could be injured by the work itself. I can, however, see the damage that may be caused by censorship.

If kleptomania exists, it looks as though Genet suffered from it—some pathological condition that impelled him to steal. For a story is told that he was so addicted to theft that he stole diamonds from his hostess while at a literary party. Such a condition may well be true of many compulsive thieves whose early lives were as tragic as Genet’s. This is a matter only for speculation, as is the possibility that what Genet wrote may have been restrained if, as the noble Baroness, Lady Stern, has put it, he had come under the dampening effect of measures such as these.

My Lords, I, too, have added my name to the amendment. I should like to say how grateful I am to all those involved in trying to deal with this part of the Bill who have taken it so seriously, and to outside organisations, such as English PEN and the Howard League for Penal Reform, which have worked hard to set out and explain to the wider world why this is such a flawed proposal.

We had a fair amount of time between Committee and Report, so I had a chance to try to get a little nearer to the bottom of how this very large piece of law, which in theory covers hundreds of thousands of people—all those with a conviction for an indictable offence and with a vast range of artistic expression—came into anyone’s mind. Why did the Government want to put this into the Bill? I am aware that there were consultations here and in Scotland, but it is clear that very small numbers responded. Most people who work in offender rehabilitation have never heard of these consultations, although presumably that was their fault because they would have been on a website somewhere.

I thank the noble Lord, Lord Bach, for his reply to my Written Question during the recess. He told me that there were 24 responses to the consultation, including two from victims’ organisations, not including Victim Support, and one from a relative of a crime victim. I got a clue about from where this might have come from reading the equivalent Scottish documentation and I thank the Minister for the information about Scotland included in his letter of 14 October to those who had spoken in Committee. The Scottish material talks about preventing “defamation of murder victims”. I began to see that a sensible germ of an idea was at the basis of all this. It is clear that defamation of murder victims by perpetrators would cause enormous distress and may call for a remedy. The noble Lord, Lord Soley, made that point very helpfully. However, it is not at all clear how we got from murder victims to all indictable offences and from books to all forms of artistic expression. When confronted with one or two bad examples of offensive behaviour, the Government have a tendency to look for a new law that aims to prevent it and stretches more widely to encompass a huge range of behaviour. But this measure must be the most dramatic example of that genre—if I can use that word.

In his letter of 14 October, if I understand him correctly, the Minister says, as consolation, that the scheme does not prevent publication of any material. It prevents only the author keeping the money earned by it. The letter suggests that the books I mentioned by ex-prisoners give valuable insights into imprisonment and prison reform and that they could still be published, but that the authors would not be able to keep the money they made. From a Government who are committed to offender rehabilitation, this approach is absurd.

The noble Baroness, Lady Rendell, is one of the most well known writers in the world. She has explained the importance of writing for rehabilitation better than many of us could. Writing, painting and making films are all better activities for society than violence, robbery and theft. We should welcome such rehabilitation and not take away the lawfully earned money of the rehabilitated.

I should declare an interest as president of the Arts Alliance and former chairman of the Koestler Trust. Has the Minister or any Minister from the Ministry of Justice been across the river to the South Bank to see this year’s Koestler exhibition of art by offenders, an exhibition curated by six women offenders on release from Downview prison? It is a quite outstanding display which demonstrates the value of the arts in the rehabilitation of offenders. The arts do not necessarily contribute to the prevention of reoffending as such but, by encouraging and developing the self-esteem of the person engaged in the activity, they encourage them to become involved in the education, training and work education that may lead to their being able to live a law-abiding and useful life. They therefore have a very pertinent part to play in encouraging the development of offenders.

I strongly support these amendments because all the members of the Arts Alliance—which consists of more than 500 voluntary organisations involved in all aspects of the arts and in bringing the arts to offenders, whether in prisons, psychiatric hospitals or probation areas—are extremely alarmed about the implications of this legislation. The impact has not been properly thought through. As the small print of the Bill reveals, it could have an impact on organisations that are involved in the delivery of arts to offenders—which is part of protecting the public. My strong recommendation, therefore, is that this whole part of the Bill should be withdrawn and rethought because it really is a sledgehammer to crack a small nut. I believe that the nut can be cracked in a much more effective way.

I apologise for not having contributed to the debate in Committee and therefore coming to the argument very late. To begin, may I say how strongly I agree with what has just been said by the noble Lord, Lord Ramsbotham, and other speakers thus far, including my noble friend Lord Soley? I do not pretend to have even a fragment of the expertise of the noble Lord, Lord Lester, in the matter of the human rights implications of the proposal, so I neither can nor should address it, but what I would like the Minister to explain is this. In what way will the legislation address the harm that it seeks to redress? Perhaps I have misunderstood it, but the legislation addresses only those circumstances in which prisoners or ex-offenders are paid for the work they produce. It seems possible, at least in principle, that someone could publish work that has the capacity to offend or distress victims or their families and not be paid for it, but the distress and harm would be exactly as if the writer had been paid. I cannot see how the linking of distress and harm to victims and their families—which is something we certainly should be concerned about—with payment in any way seriously allows the mitigation of that harm to be achieved.

This proposed legislation falls at the first hurdle that must be the test of any legislation, which is that it does what it sets out to do. When the Minister comes to reply, could he address that issue?

My Lords, I thank the Minister for his lengthy letter of 14 October, which sets out in greater detail the Government’s thinking on this issue. However, having read it and listened to the powerful comments and questions put by Members of your Lordships’ House today, I think that the Government should take away and rethink the set of clauses dealing with this issue.

The point made by the noble Lord, Lord Soley, is powerful because the question of the trigger is the essential one, but it is far from clear in the Bill. Perhaps I may cite the Minister’s letter where he talks about seeking the consent of the Attorney-General, who will weigh up matters of public interest. Although the Government have now tabled an amendment to address the issue of public distaste, the Attorney-General will nevertheless have to weigh up something when a case is put before her. The Minister then goes on to talk about how the court will have,

“wide discretion as to whether or not to impose an order, taking account of a number of factors”.

Lengthy arguments will arise in court where offenders will no doubt have great difficulty representing themselves—we have not touched on this issue—but what it comes down to is the chilling effect spoken about by many noble Lords.

The Minister’s letter does not give any sound examples of what drove the Government to introduce this provision. The noble Baroness, Lady Stern, asked why that is so, but none of the examples quoted in the four pages of the Minister’s letter really answers the question. The Minister will recall that he quoted the case of Nick Leeson. That, as the noble Lord mentioned, is clearly a victimless crime for the purposes of this Bill. If that case informed some of the thinking behind these clauses, that might explain why these clauses are so inadequate to deal with the problem which the Government are struggling to address.

The noble Baroness, Lady Rendell of Babergh, made a powerful point. There is no doubt that, as I mentioned, there will be a chilling effect, even when this is never going to come to court because the books or works of art will never be produced. That is something that we need to worry about.

This is not adequately drafted. No doubt there are other approaches and solutions that would not have this effect. We are unhappy with the way that these clauses are drafted.

The book Cries Unheard, which was one of the major reasons why the Government moved down this road, was written by someone else. The Government do not address at all the issue of books written by someone else, and although I gather Mary Bell received a payment for it—we have never seen any evidence of that, but she may have received a payment—this would not prevent someone else writing about a crime. This catches only the person who has written themselves about their crime, which leaves a bit of a gap if the Government are trying to prevent the victims from suffering more.

For all the reasons that we have heard today, we shall be supporting these amendments.

My Lords, I hesitate to interpose myself between the Government Front Bench and their Back Benches or, for that matter, noble Lords from the rest of the House, who do not seem to like what the Government are attempting to do.

I shall briefly set out the Opposition’s point. We accept that people who have committed awful crimes should not be allowed to profit from that crime by selling their story, so there is some merit in what the Government propose. We also note, and this is relevant in this House, that it is a matter that was promised in their manifesto at the last election. The Minister nods.

Having said that, it is also important to remember the point made by the noble Lord, Lord Lester, that Part 7 was hardly discussed in another place. It is unfortunate, when a new crime—and this is a new crime—or a new procedure is being added to the statute book, if these matters are not properly discussed in another place as well as in this House. I hope that the Minister can comment on that. It is obviously rather late in the day for that to be rectified, but procedures are such that the Government should ensure that these matters are properly discussed.

In some respects we are slightly more supportive of the Government. We note that nothing in these provisions actually prevents publication. We do not think that there is an infringement of free speech. In fact, free speech is not the issue; we are talking about paid speech. I dare say that the noble Lord, Lord Lester, will correct me if I am wrong on this, but there is no human right to be paid for saying or writing what you wish.

The clauses in the Bill allow an application to be made for profits or benefits to be confiscated. A court may hear an application for an order—

I think the noble Lord was asking me to respond, in a way. The answer is that it is not just the right to communicate with the public; any impediment—for example, a tax on free speech, newsprint or costs—or any other burden upon free speech implicates Article 10. That is accepted in the Explanatory Notes. I think the Government will accept that there is an issue under Article 10 of the convention, as well as on the right to property.

It is my own fault for offering an opening to the noble Lord, and I will try to restrain myself from doing that in future. I think the Minister will accept that it is still possible to publish; there is just the impediment that he referred to that the individual cannot be paid for it. He might remember what Dr Johnson said about people not writing for money, which has some bearing on that. If he does not know the quotation, I think the great doctor said, “No one but a blockhead ever wrote but for money”. I can have that corrected if I have got it slightly wrong.

A court may hear an application for an order only if it has been authorised by the Attorney-General. We have voiced doubts at times about the Government’s proposals, but we accept that checks, balances and safeguards are built into the process. It is not simply a grabbing exercise but what we trust could be a carefully targeted system that would deny offenders convicted of some of the worst crimes the opportunity to profit from their misdeeds.

Having said that, we await assurances from the Government on a number of points. Clearly there are people who have reformed or are reforming and who make a positive virtue out of their past offences. An ex-convict who draws on his experiences to make critiques of penal policy, or who writes about their experiences as a warning to others, should not, under any reading of these clauses, be swooped on by the enforcement authorities. When determining the application, the court will be mindful of such requirements in Clause 151(3). We have asked the Minister to confirm that. We think that these orders should be applicable only in the case of the most serious offences. Again, we would like to have some confirmation to that effect.

The noble Lord, Lord Lester, has proposed Amendments 106A and 107A, which would put in the Bill a direct reference to the convention rights. No doubt the noble Lord might intervene again, but while he has made a good point, in our view it is an unnecessary one; as I understand it, the courts have to make their decisions in the light of the convention in all cases. His amendments are therefore unnecessary.

It is clear to the Government that there is significant opposition to the clauses in the Bill. However, we have endorsed the principle behind them, and we look now for assurances from the Government to the House that they have struck the right balance between protecting the right to free speech and the rights of victims and their families. For that reason, we cannot support the amendments but we will leave it to others in this House to decide what they wish to do with them. We want further assurances from the Government.

My Lords, I thank the noble Lord, Lord Henley, for the only support I got in the whole debate. I thank all noble Lords for this extensive debate on this interesting area.

We have not changed our view that it is wrong for a criminal to cash in by exploiting the story of his or her crime, especially in cases where the offence has already inflicted immense suffering on victims and their families. We felt so strongly on this point of principle that we included a commitment to legislate in this area in the Labour Party’s 2005 election manifesto.

Earlier this month I wrote to the noble Baroness, Lady Miller, giving details about those offenders who had prompted public debate after receiving payment for material about their crimes. There are several more, including the Ian Huntleys of this world, who have reportedly written material that has not yet been published. I do not intend to go over each case cited in my letter, but one thing is clear: offenders will continue to benefit in the future from publishing material about their crimes if we do not take this opportunity to do something about it.

My noble friend Lord Borrie has argued that the scheme is not worth while because it will rarely be used. It is, of course, hard to predict precisely how many cases there will be each year. We suggested a figure of two a year in the impact assessment published alongside the Bill; this was on the basis of past cases that have caused concern. However, in some years there could be a greater or smaller number. Even if the scheme is rarely used, it does not mean that we should turn a blind eye to this problem. The fact that the scheme may be used in only a small number of cases is no reason for saying that people who cash in on their crimes should be outside the reach of the courts.

My noble friend also cited the existence of the prison rules and existing legislation on confiscation as a reason for not introducing these provisions. I recognise that the prison rules provide some degree of protection, but history shows that they cannot fully address the problem. Crucially, prison rules bite only when an offender is in prison. As to the Proceeds of Crime Act 2002, this was not designed with criminal memoirs in mind and its potential application to such cases is doubtful. Even if the Act could be utilised, confiscation orders are imposed at the time a person is convicted, whereas criminal memoirs are often published months or years after the conviction.

I turn now to some of the other criticisms that have been levelled at our scheme in recent weeks. I know that the noble Baroness, Lady Miller, and some organisations think the scheme will have a “chilling effect” on the right to freedom of speech and might damage an offender’s prospects of rehabilitation. Let me be clear that the scheme does not prevent anyone from writing or publishing anything. If offenders want to write and publish material to develop their skills, they can continue to do so. Indeed, we recognise that the natural outflow of expression in print can greatly aid rehabilitation. All we are saying is that if offenders profit from accounts of heinous crimes, an action which can cause great distress to surviving victims and bereaved families, the courts should have the power to order them to pay back the proceeds.

As I understand the Minister, it is the intention that these provisions should have a chilling effect by deterring the Ian Huntleys, for the reasons that Dr Johnson gave. Are they not to deter people by depriving them of the profits from publishing material considered by the Government to be undesirable and of no value?

There is a sense of chilling in what we are doing, for the most heinous crimes and within the context of the Act, which, as I shall go on to explain, will take account of all proper issues, particularly proportionality and the narrowing of the crime.

While the Minister is still on this part of his speech, could he address the point made by the noble Baroness, Lady McIntosh? As I understand it, the Government are of the view that what the victim of a serious crime minds, if something is written about it, is not that it is written about and that is published and many people read it but that the person gets money for it. I understand that it is the Government’s view that once that money is taken away, the victim no longer suffers from the hurt and distress of having it published. Have I understood that right?

I was going to come to that point—but, to answer it now, we believe that the publication can cause offence to victims and friends, but we think that it would be a step too far—and I am sure that noble Lords would descend on us like a ton of bricks—simply to ban publication. We believe that what is particularly offensive to victims, and to families and friends of those victims, is that the criminal is able to profit from his crime by subsequent publication. We have looked to all sorts of things to make this reasonable and fair, but we see the act of profit as particularly and excessively offensive. We believe that we could not possibly address the simple act of publication, because it would go too far the other way. I am sure that all noble Lords in this House would say that it would, and that it would interfere with freedom of speech.

When an application for an order is made, the court will have a wide discretion in deciding whether to make an order and setting the amount that the offender has to repay. It will consider a number of factors before deciding whether to impose an order and, if so, the amount. These include whether details about the offence are central or integral to the publication as a whole; the social, cultural or educational value of the publication; the extent to which the material is in the public interest; and the degree to which the publication causes offence to victims and their families.

I am sorry to interrupt the Minister again but this is a very important point. What sort of criteria will the judge have to decide on the educational value, for example? We have referred several times during this debate to the book Cries Unheard, which was of immense value in showing what might lead a child to such a crime. It has a readership among social workers and all sorts of people, which has been very valuable. What criteria will the Government suggest form the basis of that judgment?

It will be for the courts to decide how to use these clauses. We believe that the courts are quite capable of doing so. It is for the judgment of the House whether it thinks that courts are that capable, but we think that they are and that not only the criteria in the Bill but also the general duties of courts under the Human Rights Act will lead them to sensible decisions in any case that comes in front of them.

I am aware of Amendments 106A and 107A, tabled by the noble Lord, Lord Lester, which seek to amend the factors that a court has to consider before imposing an order. The amendments have the effect of explicitly requiring the courts to have regard to the right to freedom of expression and peaceful enjoyment of property and the extent to which the imposition of an order is a proportionate interference with those rights. We have considered his proposals carefully, but we do not believe that it is right to amend the scheme in that way. We have already set out clearly in the Explanatory Notes our firm view that the scheme complies with the convention rights.

As noble Lords will know, any interference with the right to freedom of expression is justified under the convention if it is in accordance with law, in pursuance of a legitimate aim—in this case the protection of the rights of others and the protection of morals—and necessary in democratic society—the latter term referring to there being a pressing social need for the interference—and that the means employed are proportionate to the legitimate aims being pursued. Interference with the right to peaceful enjoyment of property is justified under the convention when the interference is in the public interest, subject to conditions provided by law, and is proportionate to the aim pursued.

The detailed reasons why any interference with convention rights that may result from the operation of the scheme is fully justified and therefore compatible with the convention are set out in the Explanatory Notes. Any order made applying the scheme set out in the Bill will accordingly be consistent with the convention. Indeed, the Joint Committee on Human Rights in its report on the Bill did not raise any general concerns regarding the scheme. It simply raised one detailed point about Clause 151(3)(f), which is addressed in Amendment 106A, to which I will turn shortly.

Noble Lords will also recall that under Section 6 of the Human Rights Act the courts are already required to act compatibly with convention rights and will therefore need to do so when applying this new scheme. The courts will not impose an order if to do so would in fact be an unjustifiable interference with the right to freedom of expression or the right to peaceful enjoyment of property. The amendments requiring the courts to consider the convention rights are therefore unnecessary. It is also—

I must remind noble Lords that this applies not only to Report; it applies to interruptions of speeches in any event:

“A member of the House who is speaking may be interrupted with a brief question for clarification”.

That is what the noble Lord is entitled to do, but lengthy or frequent interruptions may not be made, even with the consent of the Member speaking. Of course, the noble Lord should ask his question if it is for clarification, but if it is any more than that, such as a debate, this is not the appropriate time for it.

I am grateful to be reminded of what I know already. I have not yet asked my question, but the Minister was explaining why my amendments are unnecessary and why the convention rights are secure. I rose because I asked before for case law of any kind on which the Government rely to show that these provisions, in this context, are compatible with the legal certainty and proportionality—not general case law, but specific case law. Does the Minister have those, please?

There is no case law. I believe that that is true for much of the Human Rights Act. That does not mean that courts do not take account of that Act all the time. I am proud to represent a Government that brought in the Human Rights Act and that that Act is impacting on the behaviour of courts and how they set about their business.

It is also important to bear in mind that, when deciding whether to impose an order, the courts will naturally balance the various factors that they have to consider in reaching their decision. The need for such a balancing exercise is plain from the clauses, which provide a list of factors to be considered, some of which are likely to tend towards an order being made and others that are not. The court will also be free to take into account any other factors that it considers to be relevant when carrying out that exercise.

I now turn to the government amendments. In Committee, the noble Baroness, Lady Stern, asked me to clarify whether the scheme would truly apply to offenders who exploit information about any offence, regardless of the seriousness of that offence. I can confirm that that is indeed the effect of the current clauses. However, we have been reflecting on this issue over the summer and government Amendments 101, 102, 103 and 112 should help to allay concerns about the breadth of the scheme.

Those amendments will narrow the scope of the scheme so that it applies only to offenders who exploit material about serious offences, namely those offences that can be tried on indictment—that is indictable-only offences and offences that are triable either way. It is, after all, people profiting from accounts about serious offences, not low-level summary offences, who are most likely to be of concern. To provide additional reassurance to the House and after extensive consultations, we intend to bring forward amendments at Third Reading to further limit the ambit of the scheme to indictable-only offences. Limiting the scheme to those who exploit material about offences that are triable only on indictment will be a major move on our part. The original scheme in the Bill would have applied to memoirs about any offence. Offences can that can be tried only on indictment form a small proportion of such cases. It would cover only offences at the most grave end of the spectrum such as murder, manslaughter or rape.

Noble Lords may also recall that the Joint Committee on Human Rights was concerned about the reference to the “general public” in Clause 151(3)(f). It was suggested that it would be difficult for a court to measure the extent to which the general public was offended by a publication when weighing up whether to impose an exploitation proceeds order. I know that that view is shared by other noble Lords, as it was raised during the debate in Committee on 21 July. On reflection, we think that that is a valid point. Government Amendment 107 therefore deletes the reference to the “general public” from Clause 151.

Importantly, however, the reference to the extent to which the victim or family of the victim are offended by a publication will remain. It would be much easier for the court to measure the degree to which victims or family members were affected than it would be to gauge the strength of public feeling.

I hope that I have answered the points made by the noble Lord, Lord Borrie. He brings forward what I called in my previous life the de minimis dilemma. Yes, this provision will relate to only a small number of cases. Nevertheless, our judgment is that those cases are important. The noble Lord, Lord Soley, talked about the case for flexibility. It is quite clear that the court can consider all factors and will reasonably do so. The impact on rehabilitation, the impact on victims and the victim's views are all things that the court should consider, but the key issue about flexibility is addressed by the move that we have made to indictable-only offences. Non-lawyers in the House may not know what that means. Offences that are triable either way include sexual assault, burglary, causing death by careless driving, fraud, membership of a proscribed terrorist organisation and drugs offences. When we bring forward our amendments at Third Reading, none of those offences will be included in the Bill.

The noble Lord, Lord Lester, made his case about the Human Rights Act. I thank him for the time that he spent discussing that with us and I am sorry that we have not come to a common understanding. The noble Baroness, Lady Rendell, made a brilliant speech about a French novelist, whom I have never heard of. I cannot possibly judge whether heinous crimes were committed by that novelist or not, but the contribution that she described would be considered by the courts if a parallel situation were to exist. The noble Baroness, Lady Stern, suggested that hundreds of thousands of people would be impacted. Our view in the impact statement was two per year. I hope that I answered the point made by the noble Baroness, Lady McIntosh.

The noble Baroness, Lady Miller, quoted from the letter that I wrote, particularly the Leeson part. She claimed that his was a victimless crime. That would no longer be included under the Third Reading amendments that we intend to introduce.

The noble Lord, Lord Henley, started to make a speech in support of us and I hope that as an individual he will support us in the Lobbies. We have now limited the provision to the worst crimes. I cannot bring forward the specific reassurances that he asked for, but I hope that I have answered the issues on the Human Rights Act and that the breadth of the Act allows all sensible things to be taken account of.

I hope that we will get support for this provision, the bipartisan nature of which goes back to before the previous election. Michael Howard, the then leader of the Tory party, said:

“We don’t think criminals should benefit from their crimes—society should draw a clear distinction between right and wrong”.

Later in the same discussion, he said:

“What I want to see is a presumption against criminals benefiting from their crimes in this way”.

As I set out in my letter to the noble Baroness, Lady Miller, there was cross-party support in the other place. I am afraid that I cannot be responsible for its conventions. During Committee in the other place in March 2009, Shadow Justice Minister Henry Bellingham stated,

“We have supported the Government’s policy of including part 7 on criminal memoirs in the Bill and have taken the view for some time that people who commit heinous crimes should not benefit financially from them after their release or, as in some cases, while they are in prison”.

Despite some misgivings about the finer detail of the Bill, the Liberal Democrat Home Affairs spokesman, David Howarth, stated:

“Like the hon. Gentleman, I have no objection to the general principle—indeed, I support it—that people should not benefit from their own wrong. Civil remedies in this area are more difficult to obtain”,

and are not as exhaustive,

“as some academic commentators would have us believe”.—[Official Report, Commons, Coroners and Justice Bill Committee, 10/3/09; col. 680.].

I hope that I have touched upon all of the points. Finally, I again remind the House that the provisions in this part of the Bill stem from a commitment in the Labour Party’s 2005 election manifesto. The relevant passage reads,

“we will develop new proposals to ensure that criminals are not able to profit from publishing books about their crimes”.

I hope that in the light of all I have said, the House will accept the need for these provisions, as modified by the Government amendments, and I invite my noble friend Lord Borrie and the noble Lord, Lord Lester, to withdraw their amendments. If they will not, I invite the House to vote against them.

My Lords, first, I thank the Minister for a very comprehensive response to the debate. He will have noticed, as I did, that apart from the fairly modest and partial support of the noble Lord, Lord Henley, every single person who spoke in the debate was critical of and generally against Part 7 of the Bill. In my view, having listened to the debate, Part 7 is an example of gesture politics. It is a gesture in the direction of victims of crime, for whom we must all have sympathy because the state of anguish and offence that they may feel when an offender profits from a book or article written by him is a serious matter.

However, it is no more than a gesture, because under these proposals the victim is not to receive a single penny of any proceeds that the Government will obtain under the new action that will be permitted. The Government admit that the new powers are to be used only rarely. Almost every time that the Minister has referred to these matters in detail, whether privately yesterday or today in this House, he has emphasised how very unusual it would be and in how few cases the proceedings suggested by Part 7 will result in proceeds being recovered.

The proceedings which are described in Part 7 are hedged around with restrictions and qualifications, and to some extent that is welcome because it allows for the literary value of publications, and for the general public interest to be observed. However, as the noble Lord, Lord Lester of Herne Hill, has clearly pointed out—and in this House, he has a particular knowledge of this field—the uncertainty of application of these proceedings is too vague, and not proportionate to the mischief that is said to be involved. That is because of the vagueness that, almost inevitably, has to appear in the legislation.

To say that the Government are attracted to it may be an exaggeration, but they are still resolute in their desire to have Part 7 on the statute book. The Government are not willing to modify it on the lines helpfully proposed by the noble Lord, Lord Lester of Herne Hill, despite their inability, which has been confirmed today, to show that there would be any European case law for the compliance of this part of the Bill, and the things that can take place under it, with the European Convention on Human Rights.

It is impossible to summarise the breadth, width and thoughtfulness that went into so many of the speeches that we have heard today, but in one way and another they all say to the Government, “You haven’t got it right, even if there is some basis for this sort of legislation. You should withdraw it”. They are unwilling to withdraw it, and I feel that I have to divide the House on this matter. It is not my custom to do that while sitting on the Government Benches, which I have been on for at least as long as the noble Lords on the Front Bench. On this occasion, however, I feel that this has hardly anything to do with party politics but is a matter of principle. I feel that I should ask to divide the House unless, perhaps, the Minister does that the other way around.

Clause 145 : Qualifying offenders

Amendment 98 not moved.

Clause 146 : Qualifying offenders: service offences

Amendment 99 not moved.

Clause 147 : Qualifying offenders: supplementary

Amendment 100 not moved.

Clause 148 : Relevant offences

Amendments 101 to 103

Moved by

101: Clause 148, page 95, line 2, leave out subsection (1) and insert—

“(1) In this Part “relevant offence”, in relation to a person (“P”), means—

(a) a serious offence by reason of which P is a qualifying offender,(b) a serious offence which was taken into consideration by a court in determining the sentence imposed on P for an offence by reason of which P is a qualifying offender, or(c) a serious offence committed by another person which is associated with—(i) an offence by reason of which P is a qualifying offender, or(ii) an offence which was taken into consideration by a court in determining the sentence imposed on P for such an offence.(1A) For this purpose an offence is “serious” if—

(a) in the case of an offence under the law of England and Wales, it is an indictable offence,(b) in the case of an offence under the law of Scotland, it is an offence triable on indictment (whether or not it is exclusively so triable),(c) in the case of an offence under the law of Northern Ireland, it is an offence which, if committed by an adult, is punishable on conviction on indictment (whether only on conviction on indictment or either on conviction on indictment or on summary conviction),(d) in the case of a foreign offence, the act constituting the offence—(i) at the time it was done, would have constituted an offence within paragraph (a), (b) or (c) if it had been done in any part of the United Kingdom, and(ii) would also constitute such an offence if it were done in any part of the United Kingdom at the time the application for an exploitation proceeds order is made in respect of it.”

102: Clause 148, page 95, line 33, at end insert—

“(4A) Subsection (1A) does not apply in relation to a UK service offence or a foreign service offence, and for the purposes of subsection (1) such an offence is “serious” if—

(a) in the case of a UK service offence—(i) the act constituting the offence is a serious offence within subsection (1A)(a),(ii) the act constituting the offence, if done in England and Wales, would be a serious offence within subsection (1A)(a), or(iii) the offence is within subsection (4B);(b) in the case of a foreign service offence, the act constituting the offence—(i) at the time it was done, would have constituted a serious offence within subsection (1A) or an offence within subsection (4B) if it had been done in any part of the United Kingdom by a member of Her Majesty’s forces, and(ii) would also constitute such an offence if it were done in any part of the United Kingdom by a member of Her Majesty’s forces at the time the application for an exploitation proceeds order is made in respect of it.(4B) An offence is within this subsection if it is an offence under—

(a) section 24(1) of the AA 1955 or of the AFA 1955, section 2(1) of the NDA 1957 or section 2(1) of the AFA 2006 (misconduct on operations),(b) section 25 of the AA 1955 or of the AFA 1955, section 3 of the NDA 1957 or section 1 of the AFA 2006 (assisting an enemy),(c) section 26(1) of the AA 1955 or of the AFA 1955, section 4(1) of the NDA 1957 or section 3 of the AFA 2006 (obstructing operations),(d) section 30(a) or (b) of the AA 1955 or of the AFA 1955, section 5(a) or (b) of the NDA 1957 or section 4(1) or (2) of the AFA 2006 (looting),(e) section 31 of the AA 1955 or of the AFA 1955, section 9 of the NDA 1957 or section 6 of the AFA 2006 (mutiny), or(f) section 32 of the AA 1955 or of the AFA 1955, section 10 of the NDA 1957 or section 7 of the AFA 2006 (failure to suppress mutiny).”

103: Clause 148, page 95, line 40, leave out subsection (6) and insert—

“( ) In this section—

“AA 1955” means the Army Act 1955 (3 & 4 Eliz. 2 c. 18);

“act” includes a failure to act (and references to the doing of an act are to be read accordingly);

“AFA 1955” means the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19);

“AFA 2006” means the Armed Forces Act 2006 (c. 52);

“foreign offence” has the same meaning as in section 145;

“foreign service offence”, “Her Majesty’s services” and “UK service offence” have the same meaning as in section 146;

“NDA 1957” means the Naval Discipline Act 1957 (c. 53).”

Amendments 101 to 103 agreed.

Amendment 104 not moved.

Clause 149 : Deriving a benefit

Amendment 105 not moved.

Clause 150 : Applications

Amendment 106 not moved.

Clause 151 : Determination of applications

Amendment 106A not moved.

Amendment 107

Moved by

107: Clause 151, page 97, line 22, leave out from “offence” to “is” in line 23 and insert “or the family of the victim”

Amendment 107 agreed.

Amendments 107A and 108 not moved.

Clause 152 : Limits on recoverable amount

Amendment 109 not moved.

Clause 153 : The available amount

Amendment 110 not moved.

Clause 154 : Property

Amendment 111 not moved.

Clause 155 : Effect of conviction being quashed etc

Amendment 112

Moved by

112: Clause 155, page 100, line 12, leave out paragraphs (a) and (b) and insert—

“(a) the relevant offence is within paragraph (a) of section 148(1) and the respondent’s conviction for it is subsequently quashed, or(b) the relevant offence is within paragraph (b) or (c) of that section and the respondent’s conviction for the offence (or, if more than one, all of the offences) by virtue of which the relevant offence is within either of those paragraphs is (or are) subsequently quashed.”

Amendment 112 agreed.

Amendment 113 not moved.

Clause 156 : Powers of court on repeat applications

Amendment 114 not moved.

Clause 157 : Additional proceeds reporting orders

Amendment 115 not moved.

Clause 158 : Exploitation proceeds investigations

Amendment 116 not moved.

Clause 159 : Functions of Serious Organised Crime Agency

Amendment 117 not moved.

Amendment 117A

Moved by

117A: After Clause 164, insert the following new Clause—

“Police retention of photographs

“(1) The Secretary of State must, as soon as possible and not later than three months after Royal Assent, amend Code D made under section 67(3) of the Police and Criminal Evidence Act 1984 (c. 60) (codes of practices—supplementary) as follows.

(2) After article 3.3 insert—

“3.4(a) Where an officer takes a photograph or photographs of an individual who has not been arrested, those photographs must be destroyed as soon as possible, but at the latest within 14 days of the day on which the photograph was taken.

3.4(b) Where an officer takes a photograph or photographs of an individual who has been arrested but not charged with any criminal activity, those photographs must be destroyed as soon as possible after the decision has been taken not to charge the individual, but at the latest within 14 days of the day on which that decision was taken.

3.4(c) This subsection applies to, but is not limited to, evidence gathered by Forward Intelligence Teams and other evidence gathering operations.””

My Lords, Amendment 117A moves us on to the issue of police retention of photographs, a matter on which I tabled an amendment in Committee. We had a lively debate in Committee. I was encouraged to return to the issue by the noble Lords, Lord Monson and Lord Henley, who reminded us that this is only part of the wider issue of the retention of DNA, and the regime that we need so that innocent individuals do not have all sorts of information, including photographs, retained inappropriately.

Since Committee stage in July, the Guardian has this week carried out quite a lot of investigation into the scale of the retention of photographs. We were very surprised. We knew that there was a problem, but we had not realised that the sheer scale was as great as that uncovered by the Guardian. In Committee the Minister gave his main reason for rejecting the amendment. He said:

“We are not convinced that the codes of practice are the appropriate vehicle for governing retention of all photographs taken by the police”.—[Official Report, 21/7/09; col. 1574.]

I must ask him again: what is the appropriate vehicle? The PACE codes govern the retention of all evidence collected, of which photographs are one example, so there could be no more appropriate place than the PACE codes.

Secondly, there is still the problem that there seems to be no statutory accountability of the three national police units that are responsible for the policing of domestic extremism, as they call it. We would call it the right to protest and demonstrate. The very unfortunate terminology of “domestic extremism” being applied to innocent people who do nothing more than go on a protest is a move that must be strongly resisted. It is only on the basis that they attend protests that such people are photographed. There is a very serious issue here, which is why we have returned to it on Report.

I know that the Minister will say that we should wait for Denis O’Connor, the Chief Inspector of Constabulary, to release his national review of the policing of protests. The Minister would be wrong. We do not need a review to know that the photographs of innocent people—people who are not being charged with any offence—should not be retained. For the Minister to quote the review of the policing tactics at protests is simply a red herring. Nor do we need a review to know that the present situation has got so out of control. Anton Setchell, who is in command of ACPO’s domestic extremism unit, apparently said that people who find themselves on the databases,

“should not worry at all”.

However, people are worried. We have had a number of people listed on the so-called “sus” cards who were very worried about being on the cards, and who were very worried that their children had been photographed. There can be no excuse for the retention of these photographs past the point where police know whether they are going to charge anyone or not or whether any crimes have been committed, other than for the purpose of building up a database of innocent people, which begins to smack of a police surveillance state, of which we are all very wary.

I hope that the Minister will have found it in his heart to agree that this amendment has merit. I beg to move.

My Lords, the noble Baroness, Lady Miller, quite rightly said that I voiced some sympathy for her amendments when she moved them in July. I suggested that she should come back to them. However, I note that the amendment that she has moved today is significantly different from the earlier version. In July she was asking for photographs to be destroyed after a year if they are not being used, while that has now been reduced rather drastically to two weeks. It is possible that the noble Baroness has diluted the strength of her argument by producing quite such a tight timeframe. Nevertheless, the Minister, back in July, made a suggestion that a better method than amending PACE codes, which was one option, might be to work with ACPO to ensure that all forces are aware of the implications of the judgment in Wood, which found that the taking of photographs at public order events is not unlawful, but that the continuing retention of photographs will generally have to be justified by the existence of clear grounds for suspecting that the individual photographed may have committed an offence at the event in question.

We would be interested to hear more details from the Minister about what steps the Government have taken in the months since then to engage with ACPO in this way. For the moment, I think we prefer that approach, and would prefer to hear whether the Government have done anything in that direction, rather than endorsing the noble Baroness’s rather overrestrictive amendment.

My Lords, I am grateful to the noble Baroness, Lady Miller, for raising this important issue again. However, it is an entirely different amendment to the one that she moved in July, and I will come to that in a moment. We share her desire to see these matters addressed, but are clear that the route to ensuring the proper use and retention of photographs is not more legislation, but compliance with the statutory framework that already exists. Without going into the details of the Data Protection Act, or the management of police information guidelines, surely the key principles are that the police, or any public authority, need to be very clear about the purposes and reasons for which they are taking, retaining and storing images of any individual—protester or otherwise—and that they need to justify those reasons.

Proposed new article 3.4(a), contained in proposed new subsection (2) of the amendment states:

“Where an officer takes a photograph or photographs of an individual who has not been arrested, those photographs must be destroyed as soon as possible, but at the latest within 14 days of the day on which the photograph was taken”.

Is it seriously being suggested that the law should be changed so that whatever the circumstances, a photograph of someone who has not been arrested within 14 days after the photograph was taken should be destroyed? If so, that would be a fantastic advantage to those who have committed criminal offences—they would be mad not to hide themselves away for 14, or 15, days, because, if they had not been arrested by that stage, the photographs that might well be valuable identification evidence against them would have to be destroyed. It is completely irresponsible to suggest that this amendment be implemented and become the law of the land. Although there is every justification in broad terms for bringing this subject back, this part of the amendment would lead to absolute chaos. Anyone who was guilty of an offence, where the evidence of identification was the photograph, could simply escape justice by avoiding being arrested for 15 days. That would be an absurd piece of law, which would mean that many criminals would escape justice for no good reason at all.

The police may need to retain images for longer than 14 days for a variety of reasons: for evidential purposes, of course; the photographs may be of assistance in responding to complaints that are made against them or others; for legal challenges, or to tackle criminal activity. The retention of photographs is important for the complaints system. If we consider the G20 protests, the Independent Police Complaints Commission will have examined images taken by the Metropolitan Police when investigating complaints. Surely the noble Baroness and others would support retention of those images by the police, to ensure that any complaints were properly dealt with, but if the person involved had not been arrested within 14 days, those photographs would have to be destroyed forthwith. That on its own would be a reason for opposing this amendment. While the current legislative framework acknowledges the need for retention, it does not allow police to retain information without valid reason.

It comes down to proper guidance and training, to ensuring that officers understand the guidance, and leadership to ensure that officers have this training. ACPO is already committed to ensuring that these issues are addressed in revised guidance that also picks up wider lessons from the reviews into the policing of the G20 protests and the Kingsnorth climate camp, and that training for public order commanders flags the importance of this issue.

The HMIC review on policing protest is due to be published later this year and there will no doubt be important learning for police forces to pick up from that thorough review. The Home Office will also be setting out in its policing White Paper, due out later this year, the key principles for the policing of protest and how they need to be embedded in policing operations. Part of that will touch on the use and retention of photographs. The retention of photographs has to be assessed on a case-by-case basis. Police will have to weigh up the human rights implications of retaining images versus the public-protection consequences of disposing of them.

The noble Baroness still thinks that PACE code D is the appropriate place to change the law. She knows that we disagree. She will be aware that the Police and Criminal Evidence Act governs the taking, retention and use of photographs of persons detained at a police station, as well as photographs taken on the street of people who have been arrested or detained by a police community support officer or given a fixed penalty notice. PACE code D also sets out the procedures for conducting identification parades to enable witnesses and victims to identify suspects. These powers are focused on evidence of either the identity of the person suspected of the offence or evidence of the offence in question. The amendment would extend the scope of the PACE code D provisions to all images taken by the police, including intelligence information. We are not convinced that the codes of practice are the appropriate vehicle for governing retention of all photographs taken by the police. Article 3.4 of PACE code D relates to the procedures governing the conduct of identification procedures when the identity of a suspect is known, not the retention of images. If this change to PACE code D were to take place, the effect would be confusing.

I have outlined why the Government are opposed to this amendment and, if introduced, it would bring in bad law.

My Lords, the debate was helpful and has narrowed down the issues. I can appreciate the comments of the noble Lord, Lord Henley, that while in principle the retention for a long time of innocent people’s photographs is unacceptable, he finds 14 days too short a period. I accept the arguments that he and the Minister made whereby there may be a difficultly with 14 days, but the Minister is missing the point. It is one thing when the police are normally taking photographs of a suspect because they have actually committed an offence, but I was talking about all the photographs taken of people who have committed no offence, other than to exercise their right as citizens to take part in a peaceful demonstration. The Minister will no doubt say that some of them may have committed an offence and that the police may need to keep those photographs to identify them, but that is a hypothetical situation.

Photographs are taken of vast numbers of innocent people as they enter and leave openly advertised public meetings or demonstrations. These images of people, who it is accepted are innocent, are put on force-wide databases—and that is about chronicling campaigners’ political activities. It is that which is unacceptable.

I understand why a period of 14 days has not found favour on the Conservative Front Bench, but an important issue remains. It is so serious that I shall take it away and consider it further. Although I shall not press it today, I do not intend to leave the matter to rest, because the principle here is as important as that regarding the retention of innocent people’s DNA. For that reason, I hope to return to the issue at some point. In the mean time, I beg leave to withdraw the amendment.

Amendment 117A withdrawn.

Schedule 19 : Amendments of the Data Protection Act 1998 (c. 29)

Amendment 118

Moved by

118: Schedule 19, page 185, line 19, at end insert—

“ In section 20 of that Act (duty to notify changes), in subsection (2)—

(a) omit “that at any time”,(b) at the beginning of paragraph (a) insert “that at any time”,(c) before “and” at the end of that paragraph insert—“(aa) that the correct fee is paid under section 19(4),”, and(d) at the beginning of paragraph (b) insert “that at any time”.”

These amendments fill a small gap in the Bill as currently drafted. Noble Lords may be aware that the Government have introduced a new two-tiered structure for the fee which data controllers pay to the Information Commissioner to be registered as a data controller. This replaces the existing flat-fee structure. The notification fee for tier 1 data controllers will remain at £35 while the fee for tier 2 data controllers will be £500. The higher tier will encompass all data controllers with 250 or more members of staff and a turnover of £25.9 million or more, as well as all public authorities with 250 or more members of staff. We estimate that that represents around 5 per cent of all data controllers.

The new fee structure will ensure that the Information Commissioner’s Office has the necessary income to fulfil its current and future data protection responsibilities, such as those being brought forward in this Bill. Schedule 19 as drafted contains provisions that allow the Secretary of State to make regulations to require data controllers to provide information to the Information Commissioner for the purpose of verifying that the correct annual notification fee is paid.

However, this information has to be provided only upon initial registration. There is currently no mechanism to require data controllers to notify the Information Commissioner’s Office of changes in circumstance that would place them in another tier. Section 20 of the Data Protection Act 1998 requires data controllers to notify the Information Commissioner’s Office of certain relevant changes in circumstance. Amendments 118 and 132 amend Section 20 to enable regulations to be made requiring data controllers to notify the ICO of any changes to their registrable particulars for the purpose of ensuring that the correct annual notification fee is paid.

We have drafted the amendment whereby organisations will not need to provide the Information Commissioner’s Office with this information year after year whenever they pay their notification fee. Instead, they will need to provide this information only upon a change of circumstance. This will help to ensure that the bureaucratic burden on data controllers is minimised. I hope that noble Lords will agree to these amendments. I beg to move.

I welcome the amendment, because I am involved in the data world. I note that the noble Lord said that the change should provide sufficient funds for all the things that the office is meant to do. I am not sure that it will, because we are putting more and more duties on to the Information Commissioner to protect us. He is a bastion of protection for the citizen. I suspect that these fees may need to be looked at again, but this is certainly a move in the right direction.

Amendment 118 agreed.

Schedule 20 : Minor and consequential amendments

Amendments 119 to 119L

Moved by

119: Schedule 20, page 208, line 37, at end insert—

“Part 3AAbolition of common law libel offences etcCriminal Libel Act 1819 (60 Geo. 3 & 1 Geo. 4 c. 8)62A (1) In section 1 of the Criminal Libel Act 1819 (power of court to make order for seizure of copies of libel)—

(a) after “In every case” insert “in Northern Ireland”;(b) omit from “, or any seditious libel” to “means”.(2) This paragraph does not extend to Scotland.

Libel Act 1843 (c. 96)62B In section 7 of the Libel Act 1843 (evidence to rebut prima facie case of publication by agent)—

(a) after “Whensoever” insert “in Northern Ireland”;(b) before “libel” insert “blasphemous”.Newspaper Libel and Registration Act 1881 (c. 60)62C In section 4 of the Newspaper Libel and Registration Act 1881 (inquiry by court of summary jurisdiction as to libel being for public benefit etc)—

(a) after “jurisdiction” insert “in Northern Ireland”;(b) before “libel” (in first place it occurs) insert “blasphemous”;(c) omit from “as to the publication” to “malice, and”.Law of Libel Amendment Act 1888 (c. 64)62D In section 8 of the Law of Libel Amendment Act 1888 (order of Judge required for prosecution of newspaper proprietor etc)—

(a) after “commenced” insert “in Northern Ireland”;(b) before “libel” insert “blasphemous”.”

119A: Schedule 20, page 212, line 42, leave out sub-paragraph (2) and insert—

“(2) In section 34 (disqualification for certain offences), after subsection (4A) insert—

“(4AA) For the purposes of subsection (4)(b), a disqualification is to be disregarded if the period of disqualification would have been less than 56 days but for an extension period added pursuant to—

(a) section 35A or 35B,(b) section 248D of the Criminal Procedure (Scotland) Act 1995, or(c) section 147A of the Powers of Criminal Courts (Sentencing) Act 2000.””

119B: Schedule 20, page 214, line 14, leave out sub-paragraph (6) and insert—

“(6) In section 35 (disqualification for repeated offences)—

(a) in subsection (2), in the words following paragraph (b), after “offender is” insert “, subject to subsection (2A),”, and(b) after subsection (2) insert—“(2A) A previous disqualification imposed on an offender for a fixed period is not to be taken into account for the purposes of subsection (2) if that period would have been less than 56 days but for an extension period added pursuant to—(a) section 35A or 35B,(b) section 248D of the Criminal Procedure (Scotland) Act 1995, or(c) section 147A of the Powers of Criminal Courts (Sentencing) Act 2000.””

119C: Schedule 20, page 214, line 16, leave out sub-paragraph (7) and insert—

“(7) In section 37 (effect of order of disqualification)—

(a) in subsection (1A)(a), after “56 days” insert “(disregarding any extension period)”,(b) in subsection (1A), after “period of disqualification” insert “(including any extension period)”, and(c) after subsection (1A) insert—“(1B) In subsection (1A) “extension period” means an extension period added pursuant to—(a) section 35A or 35B,(b) section 248D of the Criminal Procedure (Scotland) Act 1995, or(c) section 147A of the Powers of Criminal Courts (Sentencing) Act 2000.””

119D: Schedule 20, page 214, line 21, leave out sub-paragraph (8) and insert—

“(8) In section 42 (removal of disqualification)—

(a) in subsection (3)—(i) for “the date of the order by which the disqualification was imposed” substitute “the relevant date”,(ii) in paragraph (a), after “four years” insert “(disregarding any extension period)”, and(iii) in paragraph (b), for “period of disqualification, if it is” substitute “period of disqualification (disregarding any extension period), if the disqualification is (disregarding any extension period)”,(b) after subsection (3) insert—“(3A) In subsection (3) “the relevant date” means—(a) the date of the order imposing the disqualification in question, or(b) if the period of the disqualification is extended by an extension period, the date in paragraph (a) postponed by a period equal to that extension period.”, and(c) after subsection (3A) (as inserted by paragraph (b)), insert—“(3B) “Extension period” means an extension period added pursuant to—(a) section 35A or 35B,(b) section 248D of the Criminal Procedure (Scotland) Act 1995, or(c) section 147A of the Powers of Criminal Courts (Sentencing) Act 2000.””

119E: Schedule 20, page 214, line 39, leave out sub-paragraph (9) and insert—

“(9) In section 47 (supplementary provisions as to disqualification and endorsements)—

(a) in subsection (2) (as substituted by paragraph 44(2) of Schedule 3 to the Road Safety Act 2006 (c. 49)), after “or more” insert “(disregarding any extension period)”, and(b) after subsection (2), insert—“(2ZA) In subsection (2) “extension period” means an extension period added pursuant to—(a) section 35A or 35B,(b) section 248D of the Criminal Procedure (Scotland) Act 1995, or(c) section 147A of the Powers of Criminal Courts (Sentencing) Act 2000.””

119F: Schedule 20, page 215, line 6, after “40A” insert “or Article 91A of the Criminal Justice (Northern Ireland) Order 2008”

119G: Schedule 20, page 216, line 27, after “40A” insert “or Article 91A of the Criminal Justice (Northern Ireland) Order 2008”

119H: Schedule 20, page 216, line 28, leave out sub-paragraph (7) and insert—

“(7) In Article 42 (effect of order of disqualification)—

(a) in paragraph (2)(a), after “56 days” insert “(disregarding any extension period)”,(b) in paragraph (2), after “period of disqualification” insert “(including any extension period)”, and(c) after paragraph (2) insert—“(2A) In paragraph (2) “extension period” means an extension period added pursuant to—(a) Article 40A,(b) Article 8A of the Criminal Justice (Northern Ireland) Order 1980 (S.I. 1980/704 (N.I. 6)), or(c) Article 91A of the Criminal Justice (Northern Ireland) Order 2008 (S.I. 2008/1216 (N.I. 1)).””

119J: Schedule 20, page 216, line 33, leave out sub-paragraph (8) and insert—

“(8) In Article 47 (removal of disqualification)—

(a) in paragraph (3)—(i) for “the date of the order by which the disqualification was imposed” substitute “the relevant date”,(ii) in sub-paragraph (a), after “4 years” insert “(disregarding any extension period)”, and(iii) in sub-paragraph (b), for “period of disqualification, if it is” substitute “period of disqualification (disregarding any extension period), if the disqualification is (disregarding any extension period)”,(b) after paragraph (3) insert—“(3A) In paragraph (3) “the relevant date” means—(a) the date of the order imposing the disqualification in question, or(b) if the period of the disqualification is extended by an extension period, the date in sub-paragraph (a) postponed by a period equal to that extension period.”, and(c) after paragraph (3A) (as inserted by paragraph (b)), insert—“(3B) “Extension period” means an extension period added pursuant to—(a) Article 40A,(b) Article 8A of the Criminal Justice (Northern Ireland) Order 1980 (S.I. 1980/704 (N.I. 6)), or(c) Article 91A of the Criminal Justice (Northern Ireland) Order 2008 (S.I. 2008/1216 (N.I. 1)).””

119K: Schedule 20, page 217, line 2, at end insert—

“(9) In Article 52 (supplementary provisions as to disqualification and endorsements)—

(a) in paragraph (2), after “or more” insert “(disregarding any extension period)”, and(b) after paragraph (2), insert—“(2ZA) In paragraph (2) “extension period” means an extension period added pursuant to—(a) Article 40A,(b) Article 8A of the Criminal Justice (Northern Ireland) Order 1980 (S.I. 1980/704 (N.I. 6)), or(c) Article 91A of the Criminal Justice (Northern Ireland) Order 2008 (S.I. 2008/1216 (N.I. 1)).””

119L: Schedule 20, page 217, line 9, at end insert—

“( ) Article 8A of the Criminal Justice (Northern Ireland) Order 1980;”

Amendments 119 to 119L agreed.

Amendment 120 not moved.

Amendment 121

Moved by

121: Schedule 20, page 218, line 18, at end insert—

“( ) In Schedule 1, in paragraph 30 (date of taking effect of youth rehabilitation orders etc)—

(a) in sub-paragraph (1)—(i) for “sub-paragraph (2)” substitute “sub-paragraphs (1A) and (2)”, and(ii) omit “the day after”,(b) after that sub-paragraph insert—“(1A) A court making a youth rehabilitation order may order that it is to take effect instead on a later date.”, and(c) in sub-paragraph (2), for “If” substitute “In particular, if”.”

My Lords, these are minor amendments to the Criminal Justice and Immigration Act 2008 that change the date that a youth rehabilitation order comes into effect to the day that it is made. The current legislation delays the date that the order comes into effect until the day after it is made. A delay in the start of the sentence would result in a gap of at least 24 hours between sentence and supervision or monitoring of an offender. During this period, any further offending would not technically constitute a breach. This would mean that a high-risk young offender might be at large overnight or over a weekend, and free to commit further offences with no immediate redress.

The amendments in this group address the defect by providing for a youth rehabilitation order to come into force on the day that it is made, or on such later date as the court may specify. I am sure that your Lordships will agree that the amendment is entirely sensible. I beg to move.

Amendment 121 agreed.

Schedule 21 : Transitional, transitory and saving provisions

Amendment 122

Moved by

122: Schedule 21, page 220, line 18, at end insert—

“3A Section (Amendment to the Regulation of Investigatory Powers Act 2000) has effect in relation to investigations that have begun, but have not been concluded, before the day on which that section comes into force (as well as to inquests beginning on or after that day).”

Amendment 122 agreed.

Amendments 123 to 125B

Moved by

123: Schedule 21, page 223, line 8, leave out from second “to” to end of line 12 and insert—

“(a) an offence under Part 2 of the Army Act 1955 (3 & 4 Eliz. 2 c. 18), Part 2 of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or Part 1 of the Naval Discipline Act 1957 (c. 53),(b) an offence under paragraph 4(6) of Schedule 5A to the Army Act 1955 (3 & 4 Eliz. 2 c. 18) or the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or of Schedule 4A to the Naval Discipline Act 1957 (c. 53),(c) an offence under section 47K of the Naval Discipline Act 1957 (c. 53),(d) an offence under section 18 or 20 of the Armed Forces Act 1991 (c. 62) committed before the commencement of section 50 of the Armed Forces Act 2006 (c. 52) (“the 2006 Act”),(e) an offence under any of sections 95 to 97 of the Reserve Forces Act 1996 (c. 14) committed before the commencement of section 50 of the 2006 Act, and(f) an offence under paragraph 5(1) of Schedule 1 to the Reserve Forces Act 1996 (c. 14) committed before the commencement of section 50 of the 2006 Act which the Court Martial established by the 2006 Act has jurisdiction to try.(2) Notwithstanding subsection (4)(b) of section 74, the references in that section to a charge are to be treated as including a reference to a charge that is not brought under Part 5 of the Armed Forces Act 2006 (c. 52) but is to be regarded for the purposes of Part 5 as allocated for Court Martial trial, summary hearing or (as the case may be) Service Civilian Court trial.”

124: Schedule 21, page 224, line 26, at end insert—

“17A (1) Section 82 has effect with the modifications made by this paragraph for the purposes of discharging or varying a witness anonymity order made under the Criminal Evidence (Witness Anonymity) Act 2008 (c. 15) by—

(a) a Summary Appeal Court established by the Army Act 1955 (3 & 4 Eliz. 2 c. 18), the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or the Naval Discipline Act 1957 (c. 53), or(b) a Standing Civilian Court established under the Armed Forces Act 1976 (c. 52).(2) The references in section 82(2) to (5) to the court that made the order are to be treated—

(a) where the order was made by a Summary Appeal Court, as references to the Summary Appeal Court established by the Armed Forces Act 2006 (c. 52), and(b) where the order was made by a Standing Civilian Court, as references to the Service Civilian Court established by the Armed Forces Act 2006 (c. 52).”

125: Schedule 21, page 225, line 10, leave out from second “to” to end of line 14 and insert—

“(a) an offence under Part 2 of the Army Act 1955 (3 & 4 Eliz. 2 c. 18), Part 2 of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or Part 1 of the Naval Discipline Act 1957 (c. 53),(b) an offence under paragraph 4(6) of Schedule 5A to the Army Act 1955 (3 & 4 Eliz. 2 c. 18) or the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or of Schedule 4A to the Naval Discipline Act 1957 (c. 53), (c) an offence under section 47K of the Naval Discipline Act 1957 (c. 53),(d) an offence under section 18 or 20 of the Armed Forces Act 1991 (c. 62) committed before the commencement of section 50 of the Armed Forces Act 2006 (c. 52) (“the 2006 Act”),(e) an offence under any of sections 95 to 97 of the Reserve Forces Act 1996 (c. 14) committed before the commencement of section 50 of the 2006 Act, and(f) an offence under paragraph 5(1) of Schedule 1 to the Reserve Forces Act 1996 (c. 14) committed before the commencement of section 50 of the 2006 Act which the Court Martial established by the 2006 Act has jurisdiction to try.”

125A: Schedule 21, page 226, line 39, after “to” insert “, or has effect by reference to,”

125B: Schedule 21, page 228, line 5, leave out “added pursuant to section 35A or 35B”

Amendments 123 to 125B agreed.

Schedule 22 : Repeals

Amendment 126

Moved by

126: Schedule 22, page 232, line 20, at end insert—

“Libel Act 1792 (c. 60)

The whole Act.

Criminal Libel Act 1819 (60 Geo. 3 & 1 Geo. 4 c. 8)

In section 1, from “, or any seditious libel” to “means”.

Libel Act 1843 (c. 96)

Sections 4 to 6.

Newspaper Libel and Registration Act 1881 (c. 60)

In section 4, from “as to the publication” to “malice, and”.

Law of Libel Amendment Act 1888 (c. 64)

Sections 3 and 4.

Defamation Act 1952 (c. 66)

Section 17(2).”

Amendment 126 agreed.

Amendment 126A not moved.

Amendment 127

Moved by

127: Schedule 22, page 232, line 29, at end insert—

“Theatres Act 1968 (c. 54)

In section 4(1), from “(including” to “matter)”.

In section 7(2), from “or an offence” to “course of a performance of a play”.

In section 8, from “or an offence” to “play”.”

Amendment 127 agreed.

Amendment 128

Moved by

128: Schedule 22, page 232, leave out line 30

My Lords, I speak on behalf, and at the request, of my noble friend Lord Waddington. I shall speak also to Amendments 130, 136 and 139. The amendments are consequential to the amendment that my noble friend successfully persuaded the Committee to accept on 9 July of this year. I beg to move.

My Lords, we were disappointed that the Committee voted to retain the freedom of expression section in relation to the offence of inciting hatred on grounds of sexual orientation. However, it is important, when the Bill returns to the other place for consideration of the amendments made by this House, that it is properly drafted in all respects. We therefore support the amendments in this group, which are consequential on the removal of the former Clause 61. I make it clear that this does not change our position on the need for the freedom of expression section, and I would not be surprised if the House comes to debate this substantive issue again before long.

My Lords, I am grateful to the noble Lord for what I might call his “without prejudice” acceptance of the amendments.

Amendment 128 agreed.

Amendment 129

Moved by

129: Schedule 22, page 232, line 30, at end insert—

“Broadcasting Act 1990 (c. 42)

In section 166, from “(including” to “matter)”.

Criminal Procedure and Investigations Act 1996 (c. 25)

Section 61(4) and (5).

Defamation Act 1996 (c. 31)

Section 20(2).

Legal Deposit Libraries Act 2003 (c. 28)

In section 10—

(a) in subsection (1), “, or subject to any criminal liability,”,

(b) in subsection (2)(a), “in the case of liability in damages”,

(c) in subsection (3), “, or subject to any criminal liability,”,

(d) in subsection (4)(a), “in the case of liability in damages”,

(e) in subsection 6(a), “, or subject to any criminal liability,”, and

(f) in subsection (8), “and criminal liability”.”

Amendment 129 agreed.

Amendment 130

Moved by

130: Schedule 22, page 232, leave out lines 33 and 34

Amendment 130 agreed.

Amendments 131 to 133

Moved by

131: Schedule 22, page 232, line 34, at end insert—

“Notes1 The repeal of the Libel Act 1792 (c. 60), the repeal in section 1 of the Criminal Libel Act 1819 (60 Geo. 3 & 1 Geo. 4 c. 8), the repeal of section 17(2) of the Defamation Act 1952 (c. 66), the repeal of section 20(2) of the Defamation Act 1996 (c. 31) and the repeals in section 10 of the Legal Deposit Libraries Act 2003 (c. 28) do not extend to Scotland.

2 The repeal of section 4 of the Law of Libel Amendment Act 1888 (c. 64) and the repeal of section 20(2) of the Defamation Act 1996 (c. 31) do not extend to Northern Ireland.”

132: Schedule 22, page 236, line 10, at end insert—

“In section 20(2) “that at any time”.”

133: Schedule 22, page 236, line 18, at end insert—

“Criminal Justice and Immigration Act 2008 (c. 4)

In Schedule 1, in paragraph 30(1), “the day after”.”

Amendments 131 to 133 agreed.

Clause 170 : Extent

Amendment 133A not moved.

Amendments 134 to 135A

Moved by

134: Clause 170, page 114, line 36, at end insert—

“( ) paragraph 3A of Schedule 1;”

135: Clause 170, page 115, line 3, at end insert—

“( ) section (abolition of common law libel offences etc);”

135A: Clause 170, page 115, line 25, at end insert—

“( ) In section 79(3) of the International Criminal Court Act 2001 (c. 17) (power to extend provisions of that Act to Channel Islands, Isle of Man etc) the reference to that Act includes a reference to that Act as amended by section (Genocide, crimes against humanity and war crimes).”

Amendments 134 to 135A agreed.

Clause 171 : Commencement

Amendment 136

Moved by

136: Clause 171, page 115, line 34, leave out paragraph (b)

Amendment 136 agreed.

Amendments 137 and 138 not moved.

Amendment 139

Moved by

139: Clause 171, page 116, line 1, leave out sub-paragraphs (i) and (ii)

Amendment 139 agreed.

Amendments 140 to 143

Moved by

140: Clause 171, page 116, line 17, at end insert—

“( ) section (abolition of common law libel offences etc);”

141: Clause 171, page 116, line 18, at end insert—

“( ) Part 3A of Schedule 20 (and section 166 so far as relating to that Part);”

142: Clause 171, page 116, line 20, at end insert—

“( ) in Part 2 of Schedule 22, the repeals relating to the following Acts—(i) Libel Act 1792 (c. 60);(ii) Criminal Libel Act 1819 (60 Geo. 3 & 1 Geo. 4 c. 8);(iii) Libel Act 1843 (c. 96);(iv) Newspaper Libel and Registration Act 1881 (c. 60);(v) Law of Libel Amendment Act 1888 (c. 64);(vi) Defamation Act 1952 (c. 66);(vii) Theatres Act 1968 (c. 54);(viii) Broadcasting Act 1990 (c. 42);(ix) Criminal Procedure and Investigations Act 1996 (c. 25);(x) Defamation Act 1996 (c. 31);(xi) Legal Deposit Libraries Act 2003 (c. 28);and section 167 so far as relating to those repeals.”

143: Clause 171, page 116, line 32, after “18,” insert “(National Medical Examiner),”

Amendments 140 to 143 agreed.

Amendment 144 not moved.